#### A. Mendal Shafer, plaintiff and respondent, *vs.*James W. Guest, defendant and appellant.

1. The statute providing for the protection of boarding-house keepers, *{Laws of*1860, *p.*771,) gives a lien upon the effects of boarders for the amount *which may be dm for board,*and it cannot be extended to any other indebtedness, nor to any demand not due at the time of the detention. It does not include board to become due under an agreement to board in future.

2. Where no request is made, at the trial, to submit a particular question of fact to the jury, it is too late to raise the objection on appeal. The same rule extends to an omission to'object to the sufficiency of proof of a demand of personal property.

(Before Robertson, Ch. J., and Monell and Garvin, JJ.)

Heard November 18, 1867;

decided April —, 1868.

Appeal by the defendant from a judgment entered upon the verdict of a jury.

The action was brought to recover the possession of certain articles of household furniture, alleged to be wrongfully detained by the defendant.

The defendant, by .his answer, denied each and every allegation in the complaint; and for a second and further defense, alleged that at and before the commencement of this action, the property described in the complaint was the property of Henrietta F. Merry, otherwise called Henrietta F. Osborne. That at and before the time aforesaid the defendant was the keeper of a boarding house, at the city of Hew York. That said Henrietta F. Merry boarded with the defendant, and occupied rooms in his house, to wit, the second floor; which rooms were furnished with the articles of furniture described in the complaint; that at and before the time when this action was commenced, the said Henrietta F. Merry was indebted to the defendant for the board of herself and her sister, and for the use of said rooms; that at the time when the action was commenced the defendant had not parted with the possession of said furniture, nor had he relinquished his ' lien thereon for the amount due to .him as aforesaid, nor had said lien been extinguished *265by payment or otherwise; on the contrary, said sum or amount was and still is due and unpaid, and this defendant had, and still has a lien on said furniture for the amount so due and unpaid.

i For a further and third defense, the defendant alleged that on and before the first day of May, 1866, the property described in the complaint was placed in the possession of the defendant by one George Wood, under an agreement between him and the defendant, by the terms of which, the defendant was to furnish board and rooms for one Henrietta F. Merry, otherwise called Henrietta F. Osborne, and her sister, by which they were to board with the defendant for one year from the first of May, 1866; and the defendant, by the terms of said agreement, was to have the entire and exclusive use, enjoyment, custody and control of said property until the first day of May, 1867, as part compensation for the board, &c. so to be furnished by him. That said Henrietta F. Merry and her sister commenced boarding with the defendant under said agreement which had been made for her benefit, and with her consent, and the defendant had fully kept and performed all the stipulations of said agreement on his part to be kept and performed, nor had-he ever consented to rescind said agreement, or done any act by which he had relinquished his right to use, occupy and enjoy said property until the first day of May, 1867.

The plaintiff, Shafer, claimed title to the furniture, under purchase from Miss Henrietta F. Merry, or Henrietta F. Osborne. Miss Merry and her sister boarded with the defendant Guest from the middle of May, 1866, down to the 16th of August, 1866. On the 16th of August Miss Merry left the house of the defendant, (without notice to him that she intended to change her boarding place,) having locked the doors of the rooms she had occupied, and taking the keys of the rooms with her. On the 18th of August, two days after she left, she made a sale to the plaintiff of the furniture in question, and delivered to him the keys of the rooms where it then was. A day or two after the sale to *266the plaintiff, he went to the house and demanded the furniture of Mrs. Guest, the wife of the defendant. She-declined to deliver it; and when she was asked if she had any claim upon it, she said “ she did not know how that was, but it had to go through the law.” On the 21st or 22d of August this action was commenced. The sheriff then took and kept possession of the rooms for five or six days, and the defendant did not regain possession until the latter part- of August, 1867. The court instructed the jury to find a verdict in favor of the plaintiff for the possession and return of the property, assessing its value at $271, with six cents damages for detention. To all of which the defendant’s counsel excepted. The jury returned a verdict in accordance with -the instructions of the court, and the court directed judgment to be suspended, and exceptions to be heard in the first instance at general term.

*Geo. W. Lord,*for the appellant, defendant.

I. The justice who tried this cause, erred in directing the jury to find a verdict for the plaintiff; and he should .have directed a verdict for the defendant. Boarding house keepers have now by law the same lien as innkeepers or hotel proprietors. *(Jones*v. *Morrill,*42 *Barb.*623.) So long as Miss -Merry permitted the furniture to' remain in the rooms of the defendant, and kept possession of the rooms by retaining the keys, so long the lien continued; and as the plaintiff did not ■ tender the amount necessary to discharge the lien, or any amount, at the time he demanded possession, the lien continued. *(Id.)*

*■*II. The lien of a boarding house keeper is not confined to *transient*guests. *(Stewart*v. *McCready,*24 *How.*62.) Eor is he obliged to *assert his lien*when the property is demanded. *(Everett*v. *Coffin,*6 *Wend.*603.) In this case ■Mrs. Guest did, in substance, claim a lien when the demand was made.

HI. As Mr. Guest came lawfully into the possession of the furniture, no action would lie *without a demand;*and a *267demand made upon the wife is not sufficient, without showing that the husband could not be found. As to the second defense set up in the answer, we "claim that the facts were as follows: The defendant received the possession of the furniture from Mr. George Wood, in April, 1867, two weeks before Miss Merry came to board with him. By the terms of the agreement (which were fully communicated to Miss Merry) he was to have the possession of. it for one year. Miss Merry knew that arrangements were being made by Mr. Wood for her board. She was present a portion of the time when it was being talked over. She gave Mr. Wood full power to act for her. And the arrangement, as finally made, was fully communicated to her. Besides all this, she found the furniture in Mr. Guest’s house when she went there; it had been repaired, cleaned, varnished and put in good order by the defendant, and she must have known that this was done under an agreement with Mr. Wood as her agent. There was also the additional fact, that Miss Merry *only paid*$16 *a week for the hoard of herself and sister,*they having the entire second floor of the house. We submit that on this evidence the jury might have found that the defendant was entitled to the possession of the furniture for one year; and if the jury might have found that fact, then the court erred in directing a verdict for the plaintiff. It is, therefore, submitted, that both of the defenses set up in the answer were fully established by the evidence, and, as there was no conflict of evidence, the court below should have directed a verdict for the defendant.

*A. H. Reavy,*for the respondent, plaintiff1.

I. The answer alleged ownership of the property in Miss Oshorne; and the appellant’s wife gave testimony that the property was not Miss Osborne’s, but was Mr. Wood’s. The defendant was bound by this answer, and could not adduce proof in contradiction without amendment of answer.

II. The board was paid in full; there was nothing due; consequently, the defendant could acquire’ no lien. There *268cannot be a lien *in presentí*for board that might be owing *in futuro.*The *answer*does not allege there was the extent of one cent owing for board, nor is there *any*testimony in the case showing *any thing*due.

IH. The defendant was not, and did not claim to be, a *boarding house*keeper, and was not entitled to a *lien*under the statute, even though there was an amount due for board. There can be *no*lien for *use*or *occupation*of the premises.

IV. There being nothing due for *board,*and there not being any conflict of evidence, the plaintiff was entitled to a verdict.

V. The property was demanded before the suit was brought.

By the Court, Monell, J.

The defendant, upon his examination as a witness, testified that Miss Osborne was owing him *“*some ” for washing, but not for board. Indeed the evidence is uncontradicted that, at the time Miss Osborne 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 Osborne should board with the defendant for a year, and that he, Wood, would pay the rent, could have been enforced after Miss Osborne left, it would not have created a lien upon the property. The act which provides for the protection of boarding house keepers, *(Laws of 1860, p.*771,) gives the lien upon the effects of the boarders for the amount *which may be due for board,*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 *269the 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 Osborne 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*v. Hicks, 18 *N. Y. Rep.*558; *Clark*v. *The Mayor, &c.*24 *How. Pr.*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 objections which might have been obviated by-proof; and the attention of the plaintiff should have been called to the defect in his evidence, that he might, with the permission of the court, have supplied it. ( *Wheeler*v. *Ryerss,*4 *Sill,*466. *New York and Erie Railroad Co.*v. *Cook, 2 Sandf.*732.)

I think the exception should be overruled, and judgment ordered for the plaintiff on the verdict.

Robertson, Ch. J.

I cannot find enough evidence in this case to have gone to the jury upon the question of any agreement by the former owner of the furniture in question (Miss Osborne) 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 board of herself or sister, and his receipt was produced for board to the time of her leaving. There was, therefore, *270nothing 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*v. *Pirsson, 1 Hilt.*292.) If the defendant had been an inkeeper, 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 iy him,*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. As the case stands, I concur in affirming the judgment and order appealed from.