The amount for which the lien was claimed included an under a-written lease, and the first criticism to be made of the defendant’s position is that, having asserted a lien for a greater amount than she was entitled to receive and having demanded that sum as a condition of returning the piano to its true owner, her lien, being thus vitiated in part, became vitiated in whole.
If we pass this over and take the view that she had a claim as an innkeeper for the board of Mrs. Carlisle for part of the and that this was not waived by demanding more, the question still remains whether she is entitled to retain the piano by virtue of her supposed lien. ■ It is conceded that Mrs. Carlisle did not own the piano and could make no transfer of it, nor give away rights under it or liens upon it so as to affect the plaintiff’s title. The defendant, therefore, must support her claim under section 71 of the Lien Law (as amd. by Laws of 1899, chap. 380). That section provides as follows: “ A keeper of a hotel, inn, boarding house or lodging house, except an emigrant lodging house, has alien upon, while in possession, and may detain the baggage and other property brought upon their* premises by a guest, boarder or lodger, for the proper charges due from him, on account of his accommodation, board and lodging, and such extras as are at his request. If the keeper of such hotel, inn, boarding or lodging house knew that the property so brought upon his premises was not, when brought, legally in possession of such guest, boarder or lodger, or had notice that such property was not then the of such guest, boarder or lodger, a lien thereon does not exist.”
A boarding house is not, in common parlance or in legal meaning, every private house where one or more boarders are kept only and upon special considerations. But it is a quasi public house, where boarders are generally and habitually kept, and which is held out and known as a place of entertainment of that kind, (Cady v. McDowell, 1 Lans. 486.) A boarding house is not an inn, the distinction being that a boarder is received into a house by a contract, whereas an innkeeper, in the absence of any or lawful excuse, is bound to receive a guest when he presents *436himself. The distinction between a boarding house and an inn is that in a-boarding house the boarder is under an express contract, at a certain rate, for a certain period of time ; while in an inn there is no express agreement; the guest being on his way is entertained from day to day, according to his business, upon an implied contract. (Willard v. Reinhardt, 2 E. D. Smith, 148.) If a guest and. the innkeeper enter into a special agreement for any fixed period, at a stipulated price, he ceases to be a guest and becomes a boarder. (Stewart v. McCready, 24 How. Pr. 62.)
Apart from the question as to whether the'Gerard was. an inn or boarding-house, entitled to the benefit of section 71 of the Lien Law, I think that if that law is to be construed so as to deprive the plaintiff,, who is the true owner, of its property, to that extent it is unconstitutional. The question as to whether or not a boarding house keeper has a lien upon or right to detain property, no title to which is in the’ boarder, was directly presented in the case of Barnett v. Walker (39 Misc. Rep. 323). That was an action to recover possession óf a ■sewing machine detained by defendant, a boarding house keeper, under a claim of lien thereon for the amount of an unpaid board bill incurred by one Barnes. The machine was leased to Barnes under an agreement or contract of conditional sale that title should remain in- one Fiske until full payment of the purchase price. Barnes defaulted, and Fiske became; entitled to the possession of the machine Under' the agreement. After such default, Barnes moved the machine to the premises of the defendant and became a boarder and, as such, incurred a liability to the defendant for board, and' the question for decision in the casé was whether the defendant had a lien- on the machine as against the true owner. It was held that the Lien Law (Laws of 1897, chap.-418, §.- 71, as amd..-by Laws of 1899, chap. 380) gives a boarding house keeper no lion upon property brought upon his premises by a boarder nor any right to detain it for board, where the legal rights to both the title and possession of the property were then in another; and this because the true owner cannot, under the Constitution, be divested of his property except by due process of law.' (See Const, art. 1, § 6.) The reasoning of this opinion seems to me to be sound, and the application of the principles there announced to the facts in this case leads logically to the view which I entertain, that a construction of section *43771 of the Lien Law which would deprive the plaintiff of its right and title to the piano in dispute would be unconstitutional.
I think, therefore, that the judgment should be for the plaintiff.
Patterson, J., concurred.
Judgment ordered for the defendant, with costs.
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