
    J. John Hassett, Respondent, v. John Sanborn, Appellant.
    
      Lien for the keep of a horse—a bailee of the horse cannot create a lien as against the owner.
    
    Where the owner of a horse permits another person to use the horse for its keep until the owner can dispose of it, and the bailee, without the knowledge or consent of the owner, makes an arrangement with a livery stable keeper for the keeping of the horse and agrees, that the livery stable keeper may hold the horse in question as security for the amount due him for such care and keep, the livery stable keeper has no right, as against the. owner of the horse, to retain possession of the horse under such arrangement.
    In an action by the owner against the livery stable keeper to recover possession, of the horse, a judgment for the defendant cannot be sustained on the ground that a lien exists outside of the agreement where no such claim is set up in the answer nor made upon the trial.
    
      Semble, that the defendant had no lien under the statute for the reason that the board of the horse was not furnished “ under an agreement with the owner.” (Laws of 1897, chap. 418, § 74.)
    Appeal by the defendant, John Sanborn, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 4th day of January, 1901, upon the decision of the court reversing upon appeal a judgment of the City Court of Elmira ill favor of the defendant entered upon the verdict of a jury.
    This action was brought to recover the possession of a horse.
    The complaint alleged that the plaintiff was the owner of a certain horse which the defendant, who kept a livery stable, refused to deliver to the plaintiff.
    The answer denied the plaintiff’s ownership and claimed the right to the possession of the horse under an agreement made with one Emory G. Drake, from whom the defendant received it, that defendant should hold it as security for board and care furnished by him for this and another horse.
    The action was tried in the City Court of Elmira before the city judge and a jury, who awarded possession of the horse to the defendant.
    The judgment entered on the verdict was, on an appeal therefrom, reversed by the County Court of Chemung county, and from such judgment of reversal this appeal is taken.
    
      Francis F. Disney, for the appellant.
    
      Frederic H. Farr, for the respondent.
   Edwards, J.:

The undisputed evidence clearly established the fact that at the sale under the foreclosure of the chattel mortgage made by Drake, the plaintiff became the owner of the horse in question. He thereafter permitted Drake to use' the horse for its keeping until the plaintiff could dispose of it. Instead of keeping the horse in his own barn, Drake, without the authority or knowledge of the plain- ■ tiff, made an arrangement with the defendant, who was a livery stable keeper, for the keeping of this' and another horse, and there-' after agreed that the defendant might hold this horse as. security for the amount due him for the care and keeping of both. On learning that the defendant had the custody of the horse the plaintiff demanded possession, which was refused.

The agreement between Drake and the defendant was not binding on the plaintiff. As against him the defendant had no right'to hold the horse by virtue of the pledge of the same to him by Drake. That the naked possession of a chattel confers no authority upon the bailee to dispose of the same by sale or pledge, without the consent of the owner, needs no citation of authorities.

Mor could the judgment for the defendant be sustained on the ground of a lien outside of the agreement, for the reason that no such claim was set up in the answer or made on the trial. Had it been set up it would have been of no avail as a defense. At com-' mon law the defendant had no lien on the horse. for its beeping. (Fox v. McGregor, 11 Barb. 41.) Mor had he a lien under the statute, for the reason that the board was not furnished “ under an agreement with the owner.”. (Laws of 1897, chap. 418, § 74.)

The judgment of the County Court should be affirmed, with costs.

All concurred; Kellogg and Chase, JJ., in result.

Judgment of County "Court affirmed, with costs. .  