
    GERTRUDE E. ARMITAGE, Respondent, v. DANIEL MACE, Appellant.
    
      Gift—what necessary to constitute—when question for the jury.— Value of chattel—what evidence of.—IAvery-statile-lceeper's lien.
    
    Before Sedgwick and Freedman, JJ.
    
      Decided April 5, 1880.
    This action was for the recovery of the possession of a mare claimed by the plaintiff to be her property. Her title was disputed by defendant. On the trial, the court directed a verdict for plaintiff. The defendant had received from the husband of plaintiff the possession of the horse. In this and all other dealings with defendant, the husband acted as if on his own behalf, and not as if her agent. The question on the trial was, whether the husband had ever made a gift to her of the horse. Several witnesses said that the plaintiff owned the mare, or that the husband had presented it or given it to the plaintiff. Plaintiff testified that her husband said to her : “ I will give you the horse and that she should be mine.” This was said at a place where there could be no actual delivery, and there was no testimony as to a symbolical delivery. Beyond this, the evidence did not make it certain that there had ever been any change of possession of the horse. °
    The court, at General Term, after holding that if the U'sriinony did not fail to show title by gift, it should ii.ivv been submitted to the jury, with instructions as to the legal requirements of a gift,—and further, that the testimony of plaintiff’s witnesses as to the gift to her was not conclusive, involving a construction of what constituted a gift, or an inference from facts in evidence—proceeded :
    “The jury would have been at liberty to find that the horse had always remained in the husband’s possession, and that he without interruption exercised acts of dominion, in his own right, over it. If the words that have been taken from the testimony of the plaintiff implied that there was a present intention to give rather than a promise to give, and which the jury should have determined, it was necessary also to show that there had been a contemporaneous delivery and acceptance.
    “It is proper further to say that no evidence was given of the market value of the horse, and that the price for which the plaintiff sold it was not evidence against the defendant of the real value (Roe v. Hanson, 5 Lans. 305).
    ‘‘ I think there can be no doubt that if the defendant took possession of the mare, under the agreement set out in the reply, he could have no lien for care and board, under chapter 98 of Laws of 1872, until some new agreement for care, board, &c., should be made. If it is supposed that there might be a lien, for the keeping of the horse, after a date, when, it is assumed, the first agreement came to an end, it is sufficient for the purpose of this case to say, that the notice of lien failed really to make the lien under the statute, because it was for the keep, before as well as after October 20. So long as the defendant kept the horse under the provisions of the agreement set out in the reply, the husband of plaintiff or the plaintiff was not liable for the keeping, &c. There was a joint adventure (i. e., for “entry into races, and for sale”), and the defendant agreed to “furnish and provide livery, keep, board, shoeing, training and transportation for said ” mare.
    
      
      Peter Mitchell, for appellant.
    
      Edwin Kempton, for respondent.
   Opinion by Sedgwick, J.; Freedman, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  