
    Lyungstranda, Resp’t, v. William Haaker Company, App’lt.
    
      (Supreme Court, Appellate Term, First Department,
    
    
      Filed March 23, 1896.)
    
    1. Bailment—Lien.
    A mere volunteer, who accepts tfye temporary custody of goods, without, any agreement on the subject, has no lien for compensation.
    2. Counterclaim—Replevin.
    Such volunteer cannot, ip- replevin, plead storage or money advanced to-en ablé plaintiff to buy the goods or due for labor thereon as counterclaims.
    8. Trial—Waiver.
    Where evidence is admissible to sustain defendant’s claim of lien, an objection to it as supporting the counterclaim, is not waived by a failure to-object. ,
    4. Appeal—First instance. ""
    Where, pleadings are oral and the defendant goes to trial without compelling plaintiff to make an election of- the form of action, he cannot urge-objection for the first time on appeal. . .....
    Appeal from. a. judgment in favor plaintiff
    A. 0. Shens,toq,e, for app’lt; Gr. B. Dupn, for resp’t'
   McADAM, J.

Upon joining issue,, the plaintiff stated-, as bis-, complaint,, copversion of hip property, valued at, $100. The defendant in,terpo.sed. a general- denial, apff counterclaimed, $75 for moneys advanced to. enable the plaintiff to purchase the property, $3.09 for labor thereon, $1.55 for empty bárrele, thirty cents for rock salt, and $9.75 f°r storage., Th.e. plaip.tiff testified that the-$75 said to have been advanced was paid, to him in anticipation of- services, to be rendered by him, and, tfipt all the items of the-alleged, counterclaims, except that for storage, were charged to* hjm by-the defendant op an. account he had with it as- his employer.

The justice,eyidjently-pdfopted thjs yipw,.bpcause; he fpund for the plaintiff, holdipg that the defendant had- no lien on the. prop-, erty, No agreemept to pay. storage was. proved-, and, as the. defendant did not keep a. storage warehouse,, nope cap be implied.. Alt v. Weidenberg, 6 Bosw. 176. As, wag spi-d in Rivara v. Ghio, 3 E. D. Smith, at page 267:

“ When, the law renders it the duty of one to.receive-and keep,., it gives him a lien upon the goods for the compensation. But aj mere volunteer, under no.-such obligation, accepting the- tempo-} i-ary custody of the goods, without any agreement op: the subject; has pp such lien, He. may or may not, apcording to- circumstances, be entitled to compensation as for work and labor, etc., asupop.a quantum.meruit, but hp bag no lien,”

See, also, Alt v. Weidenberg, supra; Grinnell v. Cook, 3 Hill, at page 491.

The adjudication did not impair the defendant’s counterclaims; at independent causes of action against the plaintiff, for the decision of the justice, in effect, was that, although they might exist in that form, they were not, under the circumstances, available to the defendant in this action, because they did not arise out of the transaction set forth in the complaint, nor were they connected with the subject of the action. Code, § 501. It is claimed, however, that the counterclaim should have been allowed, because facts in support of it were proven without objection. As such proof was, however, admissible to sustain the defendant’s claim of lien, no waiver of the objection to it as supporting the counterclaim can be urged by failure to object.

The form of the judgment has been criticised by the appellant, in that the complaint was for conversion of property, and the judgment in form for replevin for its possession, or its value in case possession cannot be had. The pleadings were oral, and the complaint fails to disclose whether the action is in replevin or trover; but, as conversion would authorize an action in either form, it cannot be said that the judgment is unwarranted. Morris, Repl. 63. The distinction between replevin and trover applies to the-effect of the remedy, not to the principles which govern in determining the question of right. Wells, Repl. § 47. If the plaintiff' had declared in trover, the form of the action would have been apparent; but he did not. He declared for the wrong done; and as the defendant appeared in the action, the plaintiff was entitled, under his form of complaint, to such relief as the facts warranted. The defendant might have compelled the plaintiff to elect as to the form in which he would proceed, or to make his complaint, more definite in that regard; but it did not adopt either course, and went to trial on the pleadings as they were. It cannot find fault with them for-the first time on appeal

The action must now be regarded as in replevin for the possession of the articles claimed. The justice evidently so considered it. The claims set up by the defendant must have been addressed to the right of possession, with a view of defeating the-action; for, as claims against the plaintiff upon independent contracts, they were not pleadable to such an action. People v. Willis, 5 Abb. Prac. 205; Rochester Distilling Co. v. O’Brien, 72 Hun, 462; 55 St. Rep. 149; Walker v. Am. C. Insurance Co., 143 N. Y. 167; 62 St. Rep. 191. The answer, so far as if attempted to set up a lien to the extent of the claims, was good as a defense, but not as a counterclaim. Id. The justice held there was no lien, and therefore no defense was established, and found for the plaintiff.

The judgment must be affirmed, with costs. All concur.  