There was conflict between the plaintiff and the defendant, as to whether the defendant refused to give the plaintiff the horse, when he called for it, on September 12th, 1878, unless he gave some money, as there was then, according to the defendant’s account $150 due for the keeping of the horse; and conflict also as to the amount that was due; but the justice did not pass upon these questions of fact. He decided the case in favor of the plaintiff, upon the ground simply that the defendant had refused to. give the horse when the plaintiff called for it; the defendant, at that time, not having acquired a lien in the manner provided by statute. He held that this refusal was wrongful ; and that the service of the bill of the charges and a notice of lien in the "manner provided by statute, on the same day, some four or Ave hours afterwards, did not give the defendant any right to retain the horse thereafter, by virtue of the
The construction which the justice put on the statute was a very narrow and technical one in its application to the facts of this case; and the justice himself felt it to be so, for he says, at the close of his opinion, “ I should be glad, if I could come to a different conclusion. The money is due for the keeping of the horse, and there ought to be a lien in the case; but there is not, in my judgment.”
The statute is a remedial one: it gives a new remedy, and a very just one, for the protection of persons keeping horses at livery or pasture. It is declared to be “ an act for the protection of livery stable keepers, and other persons keeping horses at livery or pasture; ” and all such statutes are to be liberally construed so as to give full effect to the remedy, in view of the beneficial purpose contemplated by them (Hudler v. Golden, 36 N. Y. 447 ; Weed v. Tucker, 19 Id. 433).
In this case, the plaintiff, who was a butcher, had kept his horse in the defendant’s stable, from the 10th of January, 1878, to the day of the demand—the 12th of September, following ; during which time he made partial payments, and furnished the defendant with meat; but the charges for keeping the horse generally exceeded the meat supplied; the payments made were small, and it appeared from the defendant’s account, which was regularly kept in his books, from day to day, that on the morning of the 12th of September, there was a large balance due the defendant, amounting to $150.94. A day or two before that, the plaintiff sold a wagon, from the proceeds of which, the defendant expected that he would pay something to reduce this amount, which he “did not; and it was for that reason, that the defendant, as he testified, refused to allow him to take the horse out when he came for it that day as usual. The plaintiff testified that, when he called, between 7 and 8 o’clock in the morning, to get his horse and cart, the defendant simply refused to give it to him, without offering any
This, in my judgment, was sufficient to obtain a lien, under the statute, for the amount that was due. The statute requires, to obtain the lien, that not only a notice in writing must be given, of the intention to retain the horse or horses until the charges are paid; but that such a notice must embrace the amount of such charges; and where, as in this case, the party came to take the horse out in the morning, and the objection to his doing so was, that he must pay something to reduce the amount which had then accrued for the keeping of the horse, which he did not do, some time must necessarily be allowed for the livery stable keeper, under such circumstances, to make out the account of what is due, and prepare the formal notice by' which the lien is acquired; or otherwise, it would be in the
In my judgment, the construction given by the justice to the statute would tend more to defeat than to make the remedy effectual—to take away the protection which the statute, from its language, meant to give; and in my opinion, the judgment should be reversed.
J. F. Daly and Vast Hoesen, JJ., concurred.
Judgment reversed.