This is an action in replevin brought by the plaintiff to recover from the defendant possession of a colt.
The only facts material to be considered in the case are these.
The plaintiff sold to the defendant a mare; the plaintiff was to have the colt of which the mare should be delivered the following season; he was to have it when it was of the age of four months; the defendant took possession of the mare; subsequently it was delivered of a colt; when the colt was of about the age of four months, the plaintiff sent his agent to the defendant to obtain the colt; the defendant refused to deliver the colt unless the plaintiff paid thirty-five dollars for the use of the mare; subsequently the plaintiff, by his attorney, made a written demand for the delivery of the colt; the defendant, through his attorney, stated that the defendant claimed a lien upon the colt for the sum of thirty-five dollars for the use of the mare and the care and keeping of the colt; these facts are undisputed. The defendant testified that the plaintiff agreed at the time of the sale of the mare that he would pay him thirty-five dollars for the use of the mare; the plaintiff expressly denies it.
In his answer, the defendant claims a lien upon the colt for the use of the mare and the care and keeping of the colt, and if it is not allowed *as a lien, and a delivery be adjudged to the plaintiff, that then he be permitted to recover the same as a counterclaim.
I do not think the defendant’s claim constitutes any defense to the action, and that the court properly directed a verdict for the plaintiff.
Upon the facts as claimed and stated by the defendant he had no lien upon the colt. Grinnell v. Cook, 3 Hill, 485 ; Bissell v. Pearce, 28 N. Y., 252 ; Ingallsbee v. Wood, 33 id., 577.
There is no claim of any agreement with the plaintiff by *801which the plaintiff agreed to pay him anything for the care or keep of the colt; hence he has no lien under the statute. Chapter 145, Laws 1880.
If, as defendant claims, the plaintiff agreed to pay him thirty-five dollars for the use of the mare, that in the absence of any special agreement would not give him a lien upon the colt, and, he should have delivered the colt to the plaintiff upon demand, and sought his remedy upon the contract. Crammelin v. N. Y. & H. R. R. Co., 4 Keyes, 90, and cases cited.
Of course the charge for the pasturage and care of the colt-after defendant refused to deliver it to the plaintiff constitutes no claim against the plaintiff if the defendant was in error in his refusal $p deliver the colt to the plaintiff.
Judgment should b@ affirmed, with cosfs.
Mayham, P. J., and Putnam, J., concur.