
    (86 Hun, 541.)
    SMITH v. KINIRY.
    (Supreme Court, General Term, Third Department.
    May 14, 1895.)
    Livery Stable Keeper—Liability eor Keep of Horse.
    In an action to recover for the keep of a horse, it appeared that defendant purchased the horse at an auction sale held at plaintiff’s stable; that afterwards, claiming a breach of warranty on the part of the seller, and that under the terms of the sale he had a right to return the horse, he took it to plaintiff’s stable, and left it with the hostler. He did not notify plaintiff that he did not expect to be liable for the keep of the horse, or that he was returning it to the seller. Plaintiff was not present at the sale, and it was not shown that he knew the terms thereof. Held, that defendant was liable.
    Appeal from Montgomery county court.
    Action by Charles N. Smith against John Kiniry. From a judgment entered on a verdict in favor of defendant, plaintiff appeals.
    Reversed.
    Argued before PUTNAM, HERRICK, and STOVER, JJ.
    G-. E. Phillips (H. V. Borst, of counsel), for appellant.
    Weller & Moore (L. M. Weller, of counsel), for respondent.
   PUTNAM, J.

The action was brought to recover for the care and keeping of a horse at plaintiff’s stable. There was no conflicting evidence in regard to the facts establishing defendant’s liability for the claim on which the action was brought. The latter purchased the horse in question at an auction sale had by one Snell at the plaintiff’s stable on January 6, 1894. A few days afterwards, claiming a breach of warranty on the part of Snell, and a right to return the horse under the terms of sale announced by him at the auction, defendant took the horse to plaintiff’s stable, and left it with the hostler. He did not notify plaintiff when he left the horse at the stable that he (defendant) did not expect to be liable for its board and keep, or that he was returning the horse to Snell at the stable in pursuance of the terms of sale as announced at the auction. Plaintiff was not present at the auction sale, nor was it shown that he knew of the terms of sale, or that he had agreed, or was obligated, to receive any horses at his stable after the purchase by defendant for Snell. All that appeared material to the issues in this case from the evidence was that defendant took and left the horse at plaintiff’s stable, and plaintiff furnished board and attendance and medical care for it. We think the evidence clearly sustains the judgment rendered in the justice court. The justice properly excluded evidence offered to show the terms of sale at the auction, it appearing that plaintiff was not present; also evidence tending to show a breach of warranty by Snell, and that Snell had in case of such breach agreed to take back the horse. Plaintiff was not responsible for Snell’s warranties or contracts. There was no evidence given to show that plaintiff was legally bound to receive the horse at his stable for Snell, or that he was in any way a party to Snell’s contracts to take back the horse, if any such contract was made. The judgment of the county court should be reversed, with costs in this court, and in the county court, and the judgment of the justice’s court affirmed. All concur.  