Smith v. Keyes

Boaedmah, J. The evidence tends quite strongly to show the relations between defendant and Cady to be that of innkeeper and guest. In that case, and even if the evidence were conflicting and [652] doubtful, the finding of the referee would be justified and the defense sustained. If, however, their relation was that of boardinghouse keeper and boarder, the result, for two reasons, would not be changed or the judgment reversed. The essential fact is the lien. Whether it be of the one kind or another is quite immaterial, and the variance should be disregarded. Cady v. Allen, 22 Barb. 388. Perhaps it is a better reason that the plaintiff, upon the trial, did not object to the form, or sufficiency of the answer, to the materiality or pertinency of the evidence under the pleadings, to the right to recover under the pleadings and proofs, or to the sufficiency of the evidence to sustain the defense. Indeed, there is not an exception in the case, except to the findings, and refusals to find, of the referee. Under such circumstances the referee was at liberty to give to the defendant such relief as the whole case should entitle, him to. Had an objection been taken in the court below, an amendment, if necessary to confirm the pleadings to the proof, would have been granted of course. This court, on appeal, may now do the same. Cady v. Allen, 22 Barb. 388; Bate v. Graham, 11 N. Y. 237; 7 Robert, 17; Code, § 173. The rights of the defendant are bold and apparent. It would not be creditable to our laws if such rights were lost through a technicality in no wise affecting the merits. It is the first duty of courts to protect and enforce rights. . The forms and modes of procedure are only auxiliary thereto. They are the remedies, and should be made subservient to rights whenever it may be done without danger to the rights of others. For these reasons no valid objection is seen why such judgment may not be given by this court as the conceded facts in the case demand. The court below, however, erred in holding that defendant, upon the facts proved, was entitled to recover the full value of the property in case a return was not had. The defendant was not the-general owner, but had only a special property which was limited by the amount of his lien. For this amount only was he entitled to recover in money. Rhoads v. Woods, 41 Barb. 471; Seaman v. Luce, 23 id. 240; Fitzhugh v. Wiman, 9 N. Y. 559; Dows v. Greene, 24 id. 638. That amount on the 28th day of May, 1872, was $93.98. The horse was kept by defendant from. May 28,1872, to June 18, 1872, three weeks, at $5 per week, making in all, June 19, 1872, when this action was commenced, and plaintiff took the property, [653] $108.98. Interest on that amount, by way of damages to defendant, should be allowed from June 19, 1872, to the date of judgment, February 10,1873, which is $5.02, making the total value of defendant’s special interest in the property at the last date $114. Judgment should therefore be reversed and a new trial granted, costs to abide the event, unless the defendant shall stipulate to reduce the amount to be recovered in case a return of the property is not had from $350 to $114, and to amend the judgment accordingly, and if such stipulation be made and served within thirty days after notice of this decision, this judgment, as so amended, shall be affirmed without costs to either party of this appeal. Judgment accordingly.