#### William Lessels *et al.,*Appellants, *against*George A. Farnsworth, Respondent.

(Decided April 5th, 1886).

Under the statute giving livery stable keepers the right to detain horses until all charges for their' keep or board are paid (L. 1872 c. 498, as amended by L. 1880 c. 145), where horses in the stable of a livery stable keeper are sold, he is entitled to a reasonable time, after demand by the purchasers and notice of the purchase to perfect his lien by serving the *474notice in writing required by the statute, and he is not estopped from asserting such lien against the purchasers, where the purchase price was paid before notice to him of the sale.

Appeal by plaintiffs from an order of the General Term of the City Court of New York, reversing a judgment of that court entered upon the verdict of a jury rendered by direction of the court.

The action was brought for the conversion of three horses. The defendant, a livery stable keeper, claimed a lien upon the horses for their keep from February to June, 1884, inclusive, under a contract with the owner, D. M'. Walduek, from whom plaintiffs purchased said horses on June lltli, 1884.

It appeared from the evidence that the defendant was notified of the sale to the plaintiffs on June 15th, 1884, and that he did not give the notice of lien required by the statute until July 2nd, 1884.

At the trial the court directed the jury to find a verdict for plaintiffs, and judgment for plaintiffs was entered upon the verdict. From the judgment defendant appealed to the General Term of the City Court, which reversed the judgment and ordered a new trial; and from the judgment en-' tered upon this decision plaintiffs appealed to this court.

*Arthur J. Delaney,*for appellants.

*Jacobs*Brothers, for respondent.

J. F. Daly, J.

[After stating the facts as above].— According to the provisions of the statute which gives to livery stable keepers the right to detain horses until all charges for their keep or board are paid, no lien is acquired and no right of detention accrues until' notice in writing of the amount of such charges and of the intention to detain the animals is first given to the owner (L. 1872 c. 498, as amended by L. 1880 c. 145).

The question arising in this case is, whether the right to *475such lien is cut off by a sale of the animals before the statutory notice is given. If the answer to the question be in the affirmative, then the statutes giving the right to the lien are of little practical benefit to the persons for whose protection they were enacted. It is true that the livery stable keeper might serve upon the owner daily notices of lien, and in that way only could possible loss be avoided ; but a reasonable construction of the law does not require such an extraordinary proceeding to obtain the advantages promised by the statute *(Eckhard*v. Donohue, 9 Daly 214),

In the case cited, where the owner brought an action of replevin against the livery stable keeper for wrongful detention of a horse, it appeared that the notice of lien was not served until after demand of the animal and refusal to deliver. It was held that the livery stable keeper had a reasonable time after the demand'to make up the account of his charges and serve it with the statutory notice. If this decision be correct, it ought to cover the case now under consideration, for it holds in effect that the service of the statutory notice of lien relates back so as to make lawful a refusal to deliver, which refusal, without a lien to sustain it, would certainly be unlawful against the owner as well as against a purchaser.

The reason given by the court was that, the statute being remedial, a construction must be given it which would aid its enforcement; ■ that as its provisions require not only notice, but an account of the charges, where the account ran over a period of several months, and the livery stable keeper might not be prepared on the instant of demand to hand the debtor the bill of charges and notice, it would be in the power of the latter, if unscrupulous, to cut off the lien altogether by a sudden demand. In like manner it would be in the power of an unscrupulous debtor, by a sale of the animals, to cut off. the lien, unless after demand by the purchaser the keeper had a reasonable time to serve his notice and "bill of charges, and I think we are bound to construe the statute so as to secure in every case, and under all circumstances, where innocent third parties will not *476suffer, the benefit of the law to persons it was intended to protect.

See cases under the act giving a lien to boarding house keepers in *Misch*v. *O’Hara*(9 Daly 361).

The purchasers will not suffer by holding in this case that after their demand and notice of purchase the stable keeper had a reasonable time in which to perfect his lien. The horses were in his stable, and that is all the notice of lien which in any case a third party can have. No record is made of the lien, as is suggested by Chief Justice McAdam, in *Ogle*v. *King*(City Court, July, 1884), and the possession of the animals by the stable keeper is constructive notice of the right to the lien.

The decision of the Supreme Court, in *Jackson*v. *Kasseall*(30 Hun 230), does not conflict with this view. It was held there that the rights of a mortgagee having a chattel mortgage on the horses were superior to the lien of a livery stable keeper, but the facts of the case show th^t the charges for keep which were the subject of the lien were not incurred until after the mortgage was given, that in fact the stable keeper boarded a horse which was already subject to a mortgage lien.

There was no estoppel in this case because the plaintiffs had paid for the horses before they notified the defendant of the sale. The failure of defendant then to assert his lien did not injure nor affect the plaintiffs *(Graham*v. *Fitzgerald,*4 Daly 178).

The order should be affirmed and judgment in favor of defendant entered upon the stipulation, with costs.

Larremore, Ch. J., and Vast Hoesen, J., concurred.

Order affirmed, with costs.