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 *590statute, 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. .