
    Joseph Cook, Adm’r, Resp’t, v. Elmer S. Shattuck, Applt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Replevin—Lien.
    Plaintiff sold to defendant a mare which was with fSal, under an agreement that he was to have the colt when four months olid. At that time defendant refused to deliver the colt unless plaintiff would pay $85 for the use of the mare, which he testified plaintiff had agreed to pay, and for which he claimed a lien on the colt. Held, that such an agreement to pay, in the absence of a special agreement, would not give defendant a lien on the colt, and that he should have delivered it on demand.
    Appeal from judgment in favor of plaintiff, entered upon a verdict directed by the court, adjudging the possession of a colt and six cents damages.
    
      Robert Dornburgh for app’lt; Hand, Kellogg & Hale, (Richard L. Hand, of counsel,) for resp’t.
   Herrick, J.

This is an action in replevin brought by the plaintiff to recover from the defendant possession of a colt.

The only facts material to be considered in the case are these.

The plaintiff sold to the defendant a mare; the plaintiff was to have the colt of which the mare should be delivered the following season; he was to have it when it was of the age of four months; the defendant took possession of the mare; subsequently it was delivered of a colt; when the colt was of about the age of four months, the plaintiff sent his agent to the defendant to obtain the colt; the defendant refused to deliver the colt unless the plaintiff paid thirty-five dollars for the use of the mare; subsequently the plaintiff, by his attorney, made a written demand for the delivery of the colt; the defendant, through his attorney, stated that the defendant claimed a lien upon the colt for the sum of thirty-five dollars for the use of the mare and the care and keeping of the colt; these facts are undisputed. The defendant testified that the plaintiff agreed at the time of the sale of the mare that he would pay him thirty-five dollars for the use of the mare; the plaintiff expressly denies it.

In his answer, the defendant claims a lien upon the colt for the use of the mare and the care and keeping of the colt, and if it is not allowed *as a lien, and a delivery be adjudged to the plaintiff, that then he be permitted to recover the same as a counterclaim.

I do not think the defendant’s claim constitutes any defense to the action, and that the court properly directed a verdict for the plaintiff.

Upon the facts as claimed and stated by the defendant he had no lien upon the colt. Grinnell v. Cook, 3 Hill, 485 ; Bissell v. Pearce, 28 N. Y., 252 ; Ingallsbee v. Wood, 33 id., 577.

There is no claim of any agreement with the plaintiff by which the plaintiff agreed to pay him anything for the care or keep of the colt; hence he has no lien under the statute. Chapter 145, Laws 1880.

If, as defendant claims, the plaintiff agreed to pay him thirty-five dollars for the use of the mare, that in the absence of any special agreement would not give him a lien upon the colt, and, he should have delivered the colt to the plaintiff upon demand, and sought his remedy upon the contract. Crammelin v. N. Y. & H. R. R. Co., 4 Keyes, 90, and cases cited.

Of course the charge for the pasturage and care of the colt-after defendant refused to deliver it to the plaintiff constitutes no claim against the plaintiff if the defendant was in error in his refusal $p deliver the colt to the plaintiff.

Judgment should b@ affirmed, with cosfs.

Mayham, P. J., and Putnam, J., concur.  