Martin agt. Rector.

Draper agt. Stouvenel, 35 id., 507; Rowe agt. Smith, 45 id., 230; Bodine agt. Killeen, 53 id., 93; Wood agt. Wood, 83 id., 575). Whether she was doing so in this case, or whether she had given to the defendant, her husband, the possession of the premises, was the real subject of contention, and to be determined as a question of fact (Alexander agt. Hard, 64 N. Y., 228).

That the title was in her was unquestioned, and, without her consent, he could have no legal possession; and, therefore, could not have even that rightful temporary use of the soil, without which one could not be, in the language of the statute, an "actual occupant." In behalf of the plaintiff he at one time testified, on examination before trial, but after suit commenced, that he "was in possession at the time of the commencement of the action, and with that general testimony the plaintiff rested. But afterwards the facts constituting the possession and occupancy of the premises were disclosed, and, it appearing that the land was given to Mrs. Rector by her father, the defendant testified: "My wife went upon those premises in pursuance of that; I went there with my wife; the property was given to her, and, of course, I went there and lived with her; that was the only reason I went there; I occupied the premises in no other way than that." "She continued," he says, "to live upon and occupy these premises" for many years, and until a short time before the trial, and whatever he did was by her directions, or, as he says, he was the acting man under his wife. She testifies that she went into possession at the time the farm was given to her, long before the commencement of the action, and continued in possession from that time, personally residing upon and occupying it; that she never gave the possession of the premises in any way to her husband. Upon this testimony the jury might well find that the defendant was not the "actual occupant." He was there as husband, servant, agent—not as one having, in relation to the land, any right or interest or power of control. In neither capacity did he occupy within the meaning of the statute. Nor were they in posses

Lessells et al. agt. Farnsworth.

sion jointly. The possession was always her possession. If ousted by her husband or other person, she could bring an action to recover possession. Before the acts (supra) the husband, jure mariti, had a right to the possession of his wife's land, and as her head he might be presumed to be in occupation. It is now different. The wife, as well as the husband, may own lands free from the other's control, and there can be no such presumption. He may still be the head of the family, without being in any legal sense the possessor or actual occupant of the house or land in or upon which the family reside. But upon the whole evidence it was properly left for the jury to say whether the defendant was the actual occupant; and their verdict, rendered, as we think it was, under proper instructions, is conclusive.

We, therefore, agree with the general term, and think the judgment appealed from should be affirmed.

ANDREWS, MILLER and FINCH, JJ., concur; RAPALLO and EARL, JJ., dissent; RUGER, Ch. J., not voting.

NEW YORK COMMON PLEAS.

WILLIAM LESSELLS et al. agt. GEORGE A. FARNSWORTH.

Lien · Of livery stable keeper - Extent of — Right to, not cut off by sale of the animals― Laws of 1812, chapter 498, as amended by chapter 145, Laws of 1880.

Under chapter 498, Laws of 1872, as amended by chapter 145, Laws of 1880, a livery stable keeper has the right to detain horses until all charges for their board and keep are paid, provided he serves a notice, in writing, containing the amount of the charges and of his intention to detain the animals therefor.

The livery stable keeper has a reasonable time after the board becomes due in which to prepare his bill of charges and serve the notice of lien, and the right to such lien is not cut off by a sale of the animals by the owner before the statutory notice is given.

Lessells et al. agt. Farnsworth.

The statute is a remedial one and should be liberally construed.

The possession of the animals by the stable keeper is constructive notice to a purchaser of the right to the lien. (Affirming S. C., ante, 773

General Term, April, 1886.

Before LARREMORE, C. J., DALY and VAN HOESEN, JJ.

APPEAL by plaintiffs from an order of the general term of the city court reversing a judgment in favor of the plaintiffs, entered upon a verdict directed by the court at trial term.

The action was 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. Walduck, from whom plaintiffs purchased said horses on June 11, 1884.

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

A. J. Delaney, for appellants.

Jacobs Brothers, for respondent

J. F. DALY, J.—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 (chap. 498, Laws of 1872, amended by chap. 145 of the Laws of 1880).

The question arising in this case is, whether the right to such 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

Lessells et al. agt. Farnsworth.

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 agt Donohue, 9 Daly, 214).

In the case cited, where the owner brought an action of re plevin 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. suffer, 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 agt. 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

Satterly agt. Winne.

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 agt. 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 agt. 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 that 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 agt. Fitzgerald, 4 Daly, 178).

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

LARREMORE, C. J., and VAN HOESEN, J., concur.

COURT OF APPEALS.

SATTERLY agt. WINNE

Highways- Private road-Description in order laying out — What is substantially a compliance with the statute-When order defective — Discretion of Commissioners.

The statute governing the laying of a private road is substantially complied with where in the application the general course is given as easterly or westerly, &c., and the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to