
    Paul Chapman, Respondent, v. Coleman Dreakford et al., Appellants.
    Supreme Court,' Appellate Term, Second Department,
    December 30, 1948.
    
      
      William A. Kirk and John Nicol for appellants.
    
      Julius J. D’Amato for respondent.
   Per Curiam.

There was no proof of an express promise to pay plaintiff for the breeding services of his stallion, and none may be implied from the circumstances of this case. Additionally, since it clearly appears that the stallion was not enrolled and certified for public service, as required by section 105 of the Agriculture and Markets Law, no fee is collectible for the services alleged in the first cause of action. Since this issue was erroneously submitted to the jury, and there was a general verdict, the judgment must be reversed as we have no way of determining the extent of the recovery on the remaining cause of action. Furthermore, insofar as the verdict may be based on the second cause of action, it is against the weight of the credible evidence.

The judgment should be unanimously reversed upon the law and facts, first cause of action dismissed, without costs, and new trial granted as to the second cause of action, with costs to defendants Dreakford and Wuischpard to abide the event.

Steinbrink and Golden, JJ., concur. MaoCrate, J., taking no part.

Judgment reversed, etc.  