
    Seymour vs. Cook.
    The plaintiff stopped at the defendant’s tavern with his two horses, which he had put in the barn and fed, and took dinner himself. Having paid his bill, he requested the defendant to get his horses. The latter told him to go on and be hitching up, and he (the defendant) would be ■ out in a few minutes. The plaintiff went to the barn, put the head-stalls on the horses, and while getting the team out, the defendant arrived. Previously two men arrived at the inn, and placed their horse (a stallion) in a stall between those occupied by the plaintiff’s horses and the outer door. The plaintiff led one of his horses out of the door, and the other followed on, as it was accustomed to do, and when passing the stall where the stallion stood, received a kick from him which broke its leg, resulting in its death. Held that the defendant’s liability as an innkeeper was not at an end, • when the injury occurred, the horses being still on his premises, and in his barn; that the plaintiff was only doing for the defendant, and with his assent, what it was his duty to do himself; and that unless there was some improper conduct on the part of the plaintiff, which caused the injury, the defendant was liable to the same extent as .though he, instead of the plaintiff, had been handling the horses at the time.
    THIS action was brought against the defendant, as an innkeeper, to recover the value of a horse which was injured while in his stable. The jury found a verdict for the plaintiff for the value of the horse, $140; and from the judgment rendered thereon the defendant appealed.
    
      
      John Molloy, for the appellant.
    
      Fuller & Bartlett, for the respondent.
   By the Court, Foster, J.

It appeared from the evidence that the horse in question was owned by the plaintiff. That on the 31st of October, 1866, the brother of the plaintiff, and who was in his employ, drove his team, of which this animal was one, to the village of Geddes, and stopped at the tavern kept by the defendant. He had his horses put into the stable and fed, and had his own dinner ; for all which he paid the defendant. When he was ready to leave, he asked the defendant to get the horses, who told him to go on and be hitching up, and that he would be out in a few minutes. He went to the barn, put the head-stalls on the horses, and was getting them out, and while doing so the defendant arrived there. Before the defendant reached the barn, two men, named McGee and McKay, rode up in a buggy, and unbridled their horse, which was a stallion, and placed him in a stall between those occupied by the plaintiff’s horses and the outer door. The driver of the plaintiff’s team led one of his horses out of the door, for the purpose of hitching on the wagon; and the other, being the one in question, followed on, as it was accustomed to do, and, when passing the stall where the stallion stood, received a kick from him, which broke its leg, and rendered it entirely worthless, so that it became necessary to kill it.

The defendant did not deny that he received the horses into his stable, in the character of an innkeeper; but it is insisted, in his behalf, that before the injury happened the servant of the plaintiff had taken the horses into his own possession and charge', and that the relation of landlord and guest had terminated. Upon this question there is no evidence to contradict what is herein before stated, though the testimony of the defendant, to some extent, differs from that of the driver; but his own statement is that he started twice to go with the driver to get the horses, but was interrupted; that the driver then said: “I can get my own horses, as you are busy;” to which the defendant replied: “ I will be there as soon as I can get there;” and that he did arrive before the injury happened.

There is nothing in this to- show that the liability of, the defendant as an innkeeper was at an end. The horses were still on his premises and in his barn. The driver was, only doing for the landlord, and with his assent, what it was his duty to have done, and unless there was some improper conduct on the part of the driver, which caused injury, the defendant is liable, to the same extent as though he, instead of the driver, had been handling them at the time.

It is also claimed that the injury was caused by the negligence of the driver, in not bringing the horse away from the stall in which the stallion was placed; and the evidence of one of the witnesses, who came there with him and placed him in the stall, was that the driver was notified that it was a stallion, and that he should be careful. It is not necessary to detail the evidence on this point. It is enough to say that to some extent there was a conflict in the testimony; and in my opinion the jury were warranted in finding as they did. The negligence consisted in putting a stallion into an open stall, in a tavern barn, near the outer door, so that those repassing in or out were obliged to pass near him.

The charge of -the judge, to which there was no exception, fairly and properly presented all the questions in the case to the jury.

Exception was taken on the trial to the refusal of the judge to- charge upon two propositions submitted by the defendant’s counsel; but no point has been made upon them, before me; and besides, they were embraced in the charge which had been made, and the refusal to charge as requested was placed upon that ground.

[Onondaga General Term,

January 7, 1868.

There was no error, in my opinion, either in the charge of the court or in the verdict of the jury.

The judgment should be affirmed. .

Morgan, Bacon and Foster, Justices.]  