Statement of case.

the stable over night all right, and found him in that condition in the morning; that finding the horse worthless, plaintiff abandoned him on the 1st June, 1867; that this suit was commenced 22d May, 1867; on the 20th June, 1867, defendant had commenced an action against Collins, for the board of the horse before a justice; Collins sought to interpose the pendency of this action in bar to that action; also, that Bennett, by reason of the violation of his compact, could not recover; these portions of the answers were demurred to, etc; the demurrer was sustained; the defence was excluded, and judgment was rendered by the justice against the plaintiff here, for the board of the horse to the 14th of June, 1867, at the contract price. The court charged herein, that the burden of proof was upon defendant, if the horse was sound when received by him, to show that he took reasonable and ordinary care, to which defendant's counsel excepted.

The court also charged, that the defence of a former adjudication was not made out, to which defendant's counsel also excepted.

The jury rendered a verdict in favor of plaintiff for $200.

J. H. Bergen, for appellant. The court erred in charging, that burden was upon defendant to show due care. (Watson v. Bauer, 4 Abb., U. S., 273; Curran v. W. C. & M. Co.; Transcript Appeals, Jan., 1867, p. 59.) The former adjudication a complete defence. (Aurora City v. West, 7 Wall., 82, 96, 97, 100; 2 Taylor's Evidence, § 1513; Henderson v. Henderson, 3 Hare, 115; 9 Wendell, 287; 1 Wait., Law. & Pr.; 1 Phil. Ev., 223; Royce v. Burt, 42 Barb., 655; 6 Abb. Dig., 276, § 12, p. 278; § 21; Coburn v. Woodworth, 31 Barb., 381; Davis v. Talcott, 12 N. Y., 184; Booth v. Burt, 17 Abb., 349; S. C., 43 Bar., 384.)

E. A. Doolittle, for respondent. The judgment of the justice no bar. (9 Abbott P. R., 164; 14 Abbott P. R., 206; Halsey v. Carter, 1 Duer, 667; see Code, page 225, note b; Gillespe v. Torance, 25 N. Y.,

Opinion of the Court, per PECKHAM, J.

306; Booth v. Burt, 17 Abb., 349; Bellinger v. Ford, 14 Barb., 250; Rockwell v. Perrin, 5 Barb., 573; Yager v. Hamilton, 6 Hill, 631; 5 Denio, 436; Code, page 225, note c; 21 How., 130; 22 Barb., 146; Foster v. Milner, 50 Barb., 385; Louw v. Davis, 13 John., 227; 12 Wend., 504; Doty v. Brown, 4 Com., 11; Burrell v. Knight, 51 Bar., 267; Many v. Havens, 2 Johns., 24; 1 Espinas, 43; 3 Wills, 308; 2 Hill, 481; 6 Term R., 607; 2 Johns., 227; 16 Johns., 136; Davis v. Talcott, 14 Barb., 611; 2 Hill, 478; Greenleaf v. Butt, 9 Peters, 292; Parks v. Ross, 11 How., U. S. R., 362; Dean v. Howitt, 3 Wend., 257; The People v. Cox, 4 Seld., 67, 78; Burdeck v. Post et al., 12 Barb., 168; Davis et al. v. Talcott et al., 14 Barb., 611; Burrell v. Knight, 51 Barb., 267; Smith v. Weeks, 26 Barb., 463; Sweet v. Tuttle, 4 Kern., 465; Mallett v. Foxcraft, 1 Story, 6 Ct., 474; Hopkins v. Lee, 6 Wheat., 109; 2 Abbott Nat. Digest, p. 546, §§ 8, 9, 10.) It was incumbent upon defendant to show due care. (Arent v. Squire, 1 Daly, 347; Smith v. N. Y. C. R. R., 43 Bar., 225; 12 Abb., 227.) Defendant should have requested the questions of fact to be submitted to the jury. (Barnes v. Perrin, 2 Kern., 18; Bidwell v. Lamont, 17 How., 357.)

PECKHAM, J. Two questions are urged in this case: First. Was the burden upon the defendant, of proving that he took reasonable and proper care of the horse in keeping him, provided the jury was satisfied that he was sound when he was received by the defendant? Second. Was the recovery for his keeping a bar to this action?

Under the proof, there was no error committed by the court as to the first point. There was sufficient and uncontradicted proof of conversion. The defendant took the horse to board on the 14th of December, 1866, at twenty dollars a month, and kept him, as he alleged, and boarded him, until the 14th of June, 1867. He took him, as the uncontradicted evidence shows, with express directions from the plaintiff, the owner, "not to use him or harness him in any way." Yet the defendant both rode and drove the horse, and there is

Opinion of the Court, per PECKHAM, J.

strong ground to believe, that he foundered him in such use. Whether he did or not is of no moment to inquire. He converted the horse to his own use, when he drove him and rode him, and was liable to an action for such conversion. The plaintiff abandoned the horse to the defendant in May, 1867, and then prosecuted him for his conversion. There was no dispute in regard to this evidence, and a conversion was thereby clearly proved, and no question could therefore arise as to the burden of proof. (Fish v. Ferris, 5 Duer, 49, and cases cited.) But assume that the injury to the horse is the basis of the action, and I think the rule as to the burden of proof is the same.

The charge is, that if the jury find, that the horse was sound when delivered to defendant, the onus is on him of showing that he took proper care of him, and was not guilty of negligence that caused the injury.

Here it will be observed, this horse was in the exclusive possession of the defendant. He had charge and care of him for hire. During that charge he is injured in a way that ordinarily does not occur without negligence; usually not without the horse has been used and then been neglected. This may be safely said on the evidence and upon human experience. In such case the burden rests with the custodian, to show how the injury occurred, and that he was not guilty of the negligence that caused it. (Story on Bail., §§ 406, 411; citing Sir Wm. James & Pothier, 3 Keb., 135; McDaniels v. Robertson, 26 Verm., 340; Curtis v. Railroad, 18 N. Y., 544, per GROVER, J.; Ang. on Com. Car., § 266; Roberts v. Riley, 15 Louis. An. R., 103.)

This rests upon the defendant for two reasons. First. Because the facts are within the defendant's peculiar knowledge, and he should, therefore, prove them. Second. Such an injury does not usually occur, without negligence on the part of the custodian of the animal.

Was the trial and recovery in the justices' court a bar to this action? That suit was commenced on the 20th of June, 1867, and was instituted to recover for boarding the horse for

Opinion of the Court, per PECKHAM, J.

six months, terminating on the 14th of June, 1867, at twenty dollars per month, and for shoes five dollars. A credit of twenty-five dollars, for so much paid, was given, and a recovery was had for the claim as made. This plaintiff contested that suit, and sought to set up this conversion in bar; it was pleaded, demurred to, and the justice held it was no defence and overruled the defence.

Was that judgment a bar? It will be observed, that the recovery embraced the board of the horse, for about a month after the owner had abandoned him to this defendant, and after this suit was pending to recover for his value.

That judgment judicially established as between these parties, that this defendant still boarded the horse for this plaintiff after this suit was instituted, and that he had ful filled the contract between the parties for boarding the horse; that he had boarded him with all proper care, and had not converted him to his own use.

If the defendant had converted him to his own use, or had abused the horse and seriously injured him, so that the plaintiff had notified him, that he abandoned the horse to the defendant, then clearly he would not be liable for board to the defendant thereafter, nor in fact at all. The recovery, therefore, necessarily adjudges that proper care was used, that the horse was not converted to defendant's use, and properly abandoned to him.

This defence of conversion was set up and substantially proved, but its effect was erroneously overruled by the justice. See cases below.

This case forms no exception to the rule that the judgment was a bar. If the defence that should legally have been allowed be improperly rejected, the relief is not by a new suit, but by a correction of that error in the same suit. (Mor gan v. Plumb, 9 Wend., 287; Sheldon v. Carpenter, 4 N. Y., 579.)

I do not see but that a recovery by defendant would have had the same effect. (Gates v. Preston, 41 N. Y., 113; and see Bouchaud v. Dias, 3 Den., 238.) In that case the

Statement of case.

recovery proved the exercise of proper care and skill upon Here it proved the exercise of proper care upon

the man.
the horse.

From the testimony I fear that this decision may work injustice in this case, but that cannot change the law.

The judgment is reversed and new trial ordered, costs to

abide the event.

ALLEN, GROVER and FOLGER, JJ., concur. RAPALLO, J., concurs in result. CHURCH, Ch. J., not voting. Judgment reversed.

LEWIS O. HILL, Appellant, v. LYDIA C. GRANT et al.,

Respondents.

The findings of a referee are to receive the most favorable construction, of
which they are capable, for the purpose of upholding the judgment.
H. had negotiated with S. for the purchase of certain real estate; not being
able to complete the purchase, he induced the defendant G. to become the
purchaser. At the time of the purchase defendant G. stated, that if H.
would make certain payments, at a specified time, she would convey
the property to him.

Held, that the transaction was an absolute purchase by defendant G., and a
parol conditional agreement of sale, and not a mortgage; and that H.
was not entitled to redeem.

(Argued November 16th, 1871; decided November 20th, 1871.)

APPEAL from judgment of the General Term of the Supreme Court of the eighth judicial district, affirming a judgment entered on the report of a referee in favor of defendants.

The action is to obtain a judgment declaring a deed executed by Elbridge G. Spaulding to the defendant, Lydia C. Grant, to be a mortgage.

The plaintiff resides in the county of Onondaga, and the defendants reside in the city of Buffalo. The interest conveyed by the deed in question is a leasehold interest. The premises described in the deed are situated in the city of