
    Michael Kline, Resp’t, v. Charles Green, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    Livery stable keepers—Lieu.
    A livery stable keeper cannot, without first serving the notice required by chap. 91 of 1893, recover from the owner a horse, on which he has a lien for its keeping, though the latter has wrongfully obtained its possession.
    Appeal from a judgment of the county court affirming a judgment in favor of plaintiff rendered in the justice’s court.
    
      Alonzo Wheeler, for app’lt; George A. Wyre, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county court affirming a j udgment in favor of the plaintiff recovered in the court of a justice of the peace. The action is replevin to recover a horse. The plaintiff, a livery stable keeper, kept and boarded the horse, and for such keep the defendant was indebted to him in the sum of about $100. The horse was taken away by the defendant from the plaintiff’s stable. There was evidence tending to show that the defendant obtained possession of the horse by fraud. The plaintiff, three days after the horse was taken away, demanded from defendant the payment of his claim, or the return of the horse. On the failure of the defendant to comply with the demand, this action was brought. That the fraud of defendant could not destroy the lien of the plaintiff is clear. But the plaintiff failed to give the owner any written notice of the amount of his charges, and his intention to detain the horse. By chapter 91, Laws 1892, a livery stable keeper is given a lien on animals boarded, provided that such notice in writing be giving to the owner. It has been held that under this statute the staple keeper has a reasonable time after demand made upon him for the animal by the owner "to make out and deliver the written notice, and that for that purpose he may detain the animal during such period. When the notice is so given, it relates back to the time of the demand made by the owner. Eckhard v. Donohue, 9 Daly, 216; Ogle v. King, 2 City Ct. R. 85. In these cases it is said that the lien is inchoate from the entry of the horse in the stable, and ripens into a lien the moment the statutory notice is given. These decisions, and the reasoning upon which they proceed, are doubtless correct. But the difficulty in this case is that the plaintiff has done nothing to consummate his lien. Though the horse had been taken from his possession,—wrongfully, it may be assumed,—there was no obstacle in the way of his serving the statutory notice upon the owner. Possession of the horse was not necessary for this purpose. The plaintiff did not have a complete lien atthe time the horse was taken from him. He had but the option of a lien,—an option to be determined by his subsequent act in giving the statutory notice within a reasonable time, or by his failure so to do. At the time this action was brought, though three days had elapsed, he had not exercised this option so as to «reate a lien. As it was necessary for the stable keeper to obtain the right to detain an animal, that he should give the owner written notice of his claim, we think it was equally necessary to give ■such notice before he could seek to rotate the animal.

The judgment of the county court and justice should be reversed, with costs.

All concur.  