
    John Lees, Resp’t, v. James W. Pitney, App’lt.
    
      (New York Common Pleas, General Term,,
    
    
      Filed March 6, 1894.)
    
    Appeal—Reversal.
    Where the return shows, first, a judgment in favor of defendant and ultimately one in favor of plaintiff, the judgment will he reversed.
   The Court.

This is an appeal by defendant from a judgment court an of replevin to recover a horse and cart which was held by the defendant, a stable keeper, under a claim of lien. The question litigated upon the trial was whether defendant-had a lien. The justice found that he had to the amount of $25 after setting off against his charges various charges for cigars he had bought; and on January 19, 1893, signed and filed a “ memorandum ” as follows:

‘‘The cigars of August 4th allowed at $70, and thesixhundred cigars admitted at $30 dollars, making $100. The keep of the horse from August 1st to December 31st, at $25 dollars a month, $125 ; therefore, judgment for defendant that he retain possession of one roan horse to satisfy a lien of $25. Dated N. Y„ Jan. 19, 1893.”

But the return upon appeal certifies that on the 19th day of January, 1898, he rendered a judgment “in favor of the plaintiff • against the defendant as set forth in the judgment annexed to it.” No judgment is annexed except the memorandum above referred to. The return therefore shows first, a judgment in favor of defendant and ultimately one in favor of plaintiff, and will have to be reversed. There being a finding of a lien in favor of defendant he should have had judgment.

Judgment reversed and new trial ordered with costs to appellant to abide event.  