At the end of August last, the plaintiff, for the keep of his horse, harness and trap, owed for the month thirty-two dollars and fifty cents to the defendant, who refused to let the chattels go out of his stable, and who on September second gave the plaintiff a bill for August for that amount. Then the plaintiff tendered the thirty-two dollars and fifty cents, but the defendant refused the money and also said he would not deliver the chattels unless paid an additional sixty-three dollars, the sum of two bills assigned him by another liveryman (fifty-four dollars and fifty cents) and by a veterinary (eight dollars and fifty cents).
■ This action to recover the chattels was begun and the chattels were taken by the marshal the next day. The defendant interposed a “ counterclaim ” for the items mentioned above and three dollars and twenty-five cents besides, for board from August thirty-first to the date of the replevin. On the trial, September nineteenth, all this was conceded by stipulation and the case thereon submitted, with “ no dispute as to - the amount in question, with the exception of three dollars and twenty-five cents;” which item, however, proved itself from the plaintiff’s papers as part of the sum, *95thirty-five dollars and seventy-five cents, due for keep and for which the defendant had a lien under the statute.
Although, in this action for the recovery of the chattels, the defendant might properly set up in defense his justifiable claim for the sum due him as liveryman bailee, he might not interpose as a counterclaim another cause of action on contract. Still, there would have been little chance for cavil, had, a judgment been rendered for the defendant for the sum of ninety-eight dollars and seventy-five cents, the amount of the counterclaim factitiously interposed, and possession of the chattels been awarded to the plaintiff, conditioned upon satisfaction of the lien, and, otherwise, recovery to the defendant of their possession and right of detention until the collection or payment, otherwise, of the sum awarded to him for his special property in the chattels. Instead, the judgment was wholly against the defendant. Possession of the chattels was awarded the plaintiff absolutely and costs besides. This was erroneous. The chattels could not be lifted without lifting the lien. In fact, the marshal might have refused to take the chattels, had the plaintiff’s affidavit candidly set forth the liveryman’s lien. Crocker Sheriffs, 467. Under the present law, passed since the cases upon which the plaintiff relies, a person keeping a livery-stable has a lien dependent upon possession of each animal boarded and vehicle kept for the sum due him for care and keep, and may detain the animal, vehicle and harness, accordingly, until such sum is paid. Lien Law, § 74. Demanding more than the amount of his lien did not vitiate the lien, although it might affect the necessity of a tender. The judgment should be reversed, with costs to the appellant.
Between the taking and the trial, namely, on the eleventh of September, the plaintiff deposited in court thirty-two dollars and fifty cents, the amount of the August bill, “ subject to the acceptance of the same by this defendant in full satisfaction of the lien claimed on the chattels.” That deposit was insufficient to satisfy the defendant’s enforceable lien for thirty-five dollars and seventy-five cents. Coupled as it was with a condition that it was subject to acceptance in *96full satisfaction of the lien, “ the tender was defective. It was clearly a tender to be accepted as the whole balance due, which is holden bad by all the books. * ■* * It is not of the nature of a tender to make conditions, terms or qualifications; but simply to pay the sum tendered as for an admitted debt. Interlarding any other object will always defeat the effect of the act as a tender.” Wood v. Hitchcock, 20 Wend. 47.
Subsequently to his recovery of judgment and thus getting the chattels, the plaintiff moved for a return to him of the thirty-two dollars and fifty cents which he called “ tendered in court.” Of that deposit, not being a proper tender and not accepted by the defendant, the clerk was merely a stakeholder, and not within the purview of the justice’s jurisdiction in this action. The Municipal Court Act makes no provision for appealing from such an order. Therefore the appeal here therefrom should be dismissed.
Judgment awarding possession of the chattels is reversed, with costs to the defendant, and the complaint dismissed.
Appeal from the order denying the motion that the clerk return the deposit is dismissed.
Gildersleeve, J., concurs; Seabury, J., concurs in result.
Judgment reversed, with costs, and complaint dismissed. Appeal dismissed.