
    William G. Robinson, Respondent, v. Joseph Kaplan, Appellant.
    (Supreme Court, Appellate Term,
    November, 1897.)
    1. "A "stableman’s'lien attaches only’ to the animal and does not cover ' a wagon and harness — Lien of warehouseman.' ' ■
    
    - ' The'lien, given'-to a stableman by statute (Laws 1880,-chap. 145; Laws' 1892, chap. 91), justifies him' in 'detaining the animal only and'does not extend to a harness and wagon which came into his care at the same time with the-animal; nor can he successfully resist a lawful demand, made for the possession of the wagon and harness, by invoking the provisions of chapter 526 of the Laws Of 1885, declaring a lien to exist in favor of a warehouseman, as. the provisions of that statute apply only to a person who is exclusively engaged in the business of storage.
    B. Conversion — Demand by assignee, when excused.
    Where the owner of personal property has duly demanded it and . possession has been refused, it is not necessary, to the prosecution of an action brought by an assignee of the claim, that he should make a further demand. ¡
    3. Failure to file a chattel mortgage' not available to a general creditor of. the mortgagor. I
    The provisions of the statute (Laws of 1895, chap. 354), declaring that a failure properly to refile a chattel mortgage, shall render it void as against the creditors of the mortgagor, cannot be invoked by a mere general creditor of the mortgagor whose claim has not been reduced to the form of a judgment, or which is not evidenced by some legal process, nor by one who does not hold the property by virtue of a lien under which he has a right to .sell it.
    Appeal from judgment rendered by the justice of the Eleventh Judicial District Court in favor of the plaintiff.
    Moses Esberg, for appellant.
    Franklin Pierce, for respondent.
   Bischoff, J.

This action was brought for the conversion of chattels to the possession of which the plaintiff’s assignor became eütitled, prima facie, by virtue of two certain mortgages, the conditions of which were unfulfilled, and. the defendant’s refusal to deliver such chattels upon, demand was sought to be justified through his claim of a lien for services rendered upon them at the request of the mortgagor.

The property consisted of one horse, one wagon and two sets of harness and was in the possession of the defendant, a stable keeper, under an agreement entered into with the mortgagor for' the keeping of the horse and the cleaning of the wagon and harness. - Separate demands were made upon the defendant, one for the horse and one for the remaining chattels, ■ and in response he served a notice of his claim to a lien upon all, using for the purpose a printed form adapted to liens of stablemen' as existing by virtue of the statute (chap. 498, Laws of 1872), which, as subsequently re-enacted with amendments, not affecting the substance of thé lien (chap. 145, Laws of 1880; chap. 91, Laws of 1892), extends to the stableman a right of detention of the animal itself only. Jackson v. Kasseall, 30 Hun, 231.

At common law the stableman had no lien for. charges accruing on account of the care of the horse (Grinnell v. Cook, 3 Hill, 485), and the statute, being in derogation of the common law, cannot be extended in operation to a case not within its terms.

It provides for a lien solely upon the animal or animals cared for, and may not be construed as' extending such' lien to the wagons and harness belonging to the bailor. Jackson v. Kasseall, supra.

The justice sustained the defendant’s right to the detention of the horse, but found in favor of the plaintiff for the value of the wagon and harness, and the defendant contends upon this appeal that the judgment was erroneous, because proceeding in disregard of some lien possessed by him, either as warehouseman or as a party by whom labor has been performed upon a chattel for the enhancement of its value, whereunder his refusal to . deliver the wagon and harness to the plaintiff was justified.

So far as the defendant had undertaken to keep these, chattels-on storage, his right to -a lien would depend upon the provisions of chapter 526 of the Laws of 1885, whereby a lien upon goods stored is declared to exist in favor of one engaged exclusively in the business of storing (Merritt v. Pierano, 10 App. Div. 563), and in this aspect, his claim as founded upon a private contract necessarily failed.

Nor could he be said to possess a lien on account of labor expended by him in cleaning the wagon and harness, since the nature of his services was not such as to bring him within the protection of the artisan’s lien ” at common law.

That lien attaches only to chattels which have been improved or the value of which has been enhanced by the labor employed, and, for the reasons which'have caused its denial, where the party has fed and cared for an animal in his charge, it cannot apparently be extended to the case of work provided for the mere preservation of chattels by keeping them, in a cleanly condition. The element of enhancement of value is no more to be found in the latter case, certainly, than in the former, and it was for the lack of this ele*ment that a common-law lien was denied the bailee of animals. Jackson v. Cummins, 5 Mees. & W. 342; Grinnell v. Cook, supra.

The appellant appears to rely upon the General Lien Law of 1897 (chap. 418, Laws of 1897), in support of his claim to a lien, either as an artisan or a warehouseman, and, while the provisions of that act (§ 70) as to artisan’s liens, seem to be but declaratory of the common law, it may be that a change has been effected with regard to the rights of parties privately contracting for the storage of goods (§ 75).

By the section last noted, a lien is accorded to any person engaged in the business of storing goods for hire, omitting the provision contained in the act of 1885, that he shall be engaged exclusively ” in that business, and the earlier act is repealed (§ 120).

However this may be, the defendant’s right to possession of the chattels, at the time when the demand was made by the mortgagee, was to be measured by the law as it existed at the date of that demand, June 9, 1897, and the question was not affected by the provisions of the Lien Law, which took effect September 1, 1897. Chap. 415, Laws 1887, § 121.

The appellant further contends that the action was improperly maintained upon a demand made of the defendant by the plaintiff’s assignor, prior to the assignment, and not thereafter repeated by the plaintiff, but no demand by the plaintiff was essential to his prosecution of the assigned cause of action for conversion, which became complete upon the refusal of the assignor’s demand, and which, as thus existing, was properly the subject of an assignment. Baumann v. Jefferson, 4 Misc. Rep. 147; 53 N. Y. St. Repr. 116.

It is also claimed that the failure of the plaintiff’s assignor to refile the chattel mortgage, covering the wagon-and harness, within thirty days next preceding the expiration of one year from the original filing (Laws 1895, chap. 354), operated to render it void as against the defendant, a creditor of the mortgagor for charges on account of the care of the chattels.

Being but a general creditor, at most, whose claim had not been; reduced to judgment, the defendant was not within the protection of the statute (Button v. Rathbone, Sard & Co., 43 Hun, 147), which may be invoked only by a creditor armed with some legal process, such as an attachment or execution (S. C., 126 N. Y. 187), or by one who holds the property by virtue of a lien under which he has a right to sell for the satisfaction of his claim. State Trust Co. v. Casino Co., 5 App. Div. 381.

So far as the defendant had a hen, the justice below recognized Ms rights by rendering judgment in favor of the plaintiff for the value of the wagon and harness alone, and to tMs judgment the plaintiff was entitled as.against any ground of defense brought to our attention or presented at the trial. ;

Hone of the exceptions taken to rulings upon evidence presents error wMch could possibly have worked prejudice to the appellant, and no substantial reason is found for disturbing the result.

Judgment affirmed-, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  