
    NEW YORK COMMON PLEAS.
    William Lessells et al. agt. George A. Farnsworth.
    Lien— Of livery stable keeper — Mxtent of — Bight to, not cut off by sale of the animals — Laws of 1872, chapter 498, as cumsnded by chapter 145, Laws of 1880.
    Under chapter 498, Laws of 1872, as amended by chapter 145, Laws of 1880, a livery stable keeper has the right to detain horses until all charges for their board and keep are paid, provided he serves a notice, in writing, containing the amount of the charges and of his intention to detain the animals therefor.
    Tlie livery stable keeper has a reasonable time after the board becomes due in which to prepare his bill of charges and serve the notice of lien, and the right to such lien is not cut ofE by a sale of the animals by the owner before the statutory notice is given. The statute is a remedial one and should be liberally construed.
    The possession of the animals by the stable keeper is constructive notice to a purchaser of the right to the lien. (Affirming 8. 0., ante,
    
    
      General Term,
    April, 1886.
    
      Before Lárremore, O. J., Daly and Yan Hoesen, JJ.
    
    Appeal by plaintiffs from an order of tbe general term of tbe city court reversing a judgment in favor of the plaintiffs, ■entered upon a verdict directed by tbe court at trial term.
    Tbe action was for tbe conversion of three borses. Tbe ■defendant, a livery stable keeper, claimed a lien upon tbe borses for their keep from February to June, 1884, inclusive, under a •contract with tbe owner, D. M. "VYalduck, from whom plaintiffs purchased said borses on June 11, 1884.
    It appeared from tbe evidence that tbe defendant was notified of tbe sale to tbe plaintiffs on June 15, 1884, and that be did not give tbe notice of' lien required by tbe statute until July 2, 1884.
    
      A. J. Delaney, for appellants.
    
      Jacobs Brothers, for respondent.
   J. F. Daly, J.

According to tbe provisions of tbe'Statute which gives to bvery stable keepers tbe right to detain borses until all charges for their keep or board are paid, no ben is acquired and no right of detention accrues until notice in writing of tbe amount of such charges and of tbe intention to detain tbe animals is first given to tbe owner (chap. 498, Laws of 1872, amended by chap. 145 of the Laws of 1880).

Tbe question arising in this case is, whether tbe right to-such ben is cut off by a sale of tbe animals before tbe statutory notice is given. If tbe answer to tbe question be in tbe affirmative, then tbe statutes giving tbe right to tbe lien are of little practical benefit to tbe persons for whose protection they were .enacted. It is true that tbe bvery stable keeper might serve upon the owner daily notices of lien,-and. in that way only could possible loss be avoided; but a reasonable construction of the law does not require such an extraordinary proceeding to-obtain the advantages promised by the statute (Eckhard agt. Donohue, 9 Daly, 214).

In the case cited, where the owner brought an action of replevin against the livery stable keeper for wrongful detention of a horse, it appeared that the notice of lien was not served until after demand of the animal and refusal to deliver. It was held that the livery stable keeper had a reasonable time, after the demand, to make up the account of his charges and serve it with the statutory notice. If this decision be correct, it ought to cover the case now under consideration, for it holds, in effect, that the service of the statutory notice of lien relates back so as to make lawful a refusal to deliver, which refusal, without a lien to sustain it, would certainly be unlawful against the owner as well as against a purchaser.

The reason given by the court was, that, the statute being remedial, a construction must be given it which would aid its enforcement; that as its provisions require not only notice, but an account of the charges where the account ran over a period of several months, and the livery stable keeper might not be prepared on the instant of demand to hand the debtor the bill of charges and notice, it would be in the power of the latter, if' unscrupulous, to cut off the lien altogether by a sudden demand. In like manner it would be in the power of an unscrupulous debtor, by a sale of the animals, to cut off the. lien, unless, after demand by the purchaser, the keeper had a reasonable time to serve his notice and bill of charges, and I think we-are bound to construe the statute so as to secure in every case, and under all circumstances, where innocent third parties will not suffer, the benefit of the law to persons it was intended to protect. See cases under the act giving a lien to boarding-house keepers, in Misch agt. O'Hara (9 Daly, 361).

The purchasers will not suffer by holding, in this case, that after their demand and notice of purchase, the stable keeper had a reasonable time in which to perfect his lien. The horses were in his stable, and that is all the notice of lien which, in any case, a third party can have. No record is made of the lien, as is suggested by chief justice McAdam, in Ogle agt. King (City Court, July, 1884), and the possession of the animals by the stable keeper is constructive notice of the right to the lien.

The decision of the supreme court, in Jackson agt. Kasseall (30 Hun, 230), does not conflict with this view. It was held there that the rights of a mortgagee having a chattel mortgage on the horses were superior to the lien of a livery stable keeper,, but the facts of the case show that the charges for keep, which were the subject of the lien’, were not incurred until after the mortgage was given; that, in fact, the stable keeper boarded a horse which was already subject to a mortgage hen.

There was no estoppel in this case, because the plaintiffs had paid for the horses before they notified the defendant. of the-sale. The failure of defendant then to assert his lien, did not injure nor affect the plaintiffs (Graham agt. Fitzgerald, 4 Daly, 178).

The order should be affirmed, and judgment in favor of defendant entered upon the stipulation, with costs.

Larremore, C. J., and Van Hoesen, J., concur.  