I cannot find enough evidence in this case to have gone to the jury, upon the question of any *188agreement by the former owner of the furniture in question (Miss Osborn) to allow the defendant the use of it for a year, which formed the last defense set up in the answer. It is very plain that such furniture was only to be employed in furnishing the rooms occupied by such owner, and therefore to remain constantly in her possession. The defendant expressly testified that he was to give such owner and her sister the second floor of his house, and that her agent (Wood) was to furnish it, which he did by means of such furniture. The submission of any such question to the jury would therefore have been improper.
The former owner of such furniture testified that, when she left the defendant’s house, she owed him nothing for bo ru'd of herself or sister, and his receipt- was produced for board to the time of her leaving. There was, therefore, nothing due for which the defendant had any lien. Any liability under the agreement with the defendant, for damages, in not boarding, pursuant to it, would not be the subject of a lien, even if the special agreement did not altogether defeat one. (Trust agt. Pirsson, 1 Hilt. 292.)
If the defendant had been an innkeeper, he clearly could not have detained the furniture in question for mere non-performance of an agreement to board in future with him; and the statute of April, 1860 (N. Y. Sess. Laws 1860, ch. 446, p. 771), only gives the keeper of a boarding house a lien upon and right to detain the baggage and effects of a boarder for the amount which may be due by Mm, to the same extent and in the same manner as innkeepers have them. Thus limiting the lien to that for board actually due, and not including board to become due under an agreement to board in future.
There was, therefore, no question left for the jury to pass upon, and the instruction to find a verdict for the plaintiff was correct.
I am not prepared to say .what would have been the rule, if the evidence had clearly established an agreement or a lien.
*189As the case stands, I concur in affirming the judgment and order appealed from.
Monell, J.The defendant, upon his examination as a witness, testified that Miss Osborn was owing him u some ” for washing, but not for board. Indeed, the evidence is uncontradicted that, at thé time Miss Osborn left the defendant’s house, she paid all that was due for board and use of rooms. There was not, therefore, a present indebtedness, which was essential to give a boarding house keeper’s lien upon the property of his. guest. Even if the arrangement made with Wood, that Miss Osborn should board with the defendant for a year, and that he, Wood, would pay the rent, could have been enforced after Miss Osborn left, it would not have created a lien upon the property. The act which provides for the protection of boarding house keepers (Latos of I860, p. 771) gives the lien upon the effects of the boarders for the amount which may he due for hoard, and it cannot be extended to any other indebtedness, nor to any demand not due at the time of the detention. (Cross on Liens, 43.)
I do not deem it necessary to look into that part of the case which relates to the second defense, namely, that the defendant claimed to hold the furniture under the agreement made with Wood.
The evidence on that branch of the case was such as in my judgment should have gone to the jury, especially as the uncontradicted testimony of the defendant established that the agreement was communicated and assented to by Miss Osborn, before she became a boarder in the defendant’s house. But as no request was made at the trial to submit that or any other question of fact to the jury, it is too late to raise the objection now. (Winchell agt. Hicks, 18 N. Y. R. 558; Clark agt. Mayor, &c., 24 How. Pr. R. 333.)
The proof of a demand before suit was, it seems to me, clearly insufficient. But as the objection was not taken at the trial, it cannot be raised now. It was one of those *190objections which might have been obviated by proof; and the attention of the plaintiff should have been called to the defect in Ms evidence, that he might, with the permission of the court, have supplied it. (Ryerss agt. Wheeler, 4 Hill, 466; N. Y. & E. R. R. Co. agt. Cook, 2 Sandf. 732.)
I think the exception should be overruled, and judgment ordered for the plaintiff on the verdict.