This matter is before the court on the return date of an order to show cause on plaintiff's application, requiring defendant to show cause why an order should not be entered permitting plaintiff to proceed with the sale of defendant's horses pursuant to N.J.S.A. 2A:44-51 and 52, the Livery Stables, And Boarding And Exchange Stable Keepers Act (the Stableman's Lien Act, referred to hereafter as the Act). The constitutionality of the public sale provision of the Act is at issue.
Plaintiff's verified complaint was filed May 6, 1987. Defendant filed an answer and counterclaim May 18, 1987 demanding refund of sums paid to plaintiff as a result of unauthorized breeding of his horse, and to direct plaintiff to pay stud fees attendant to the breeding.
The Stableman's Lien Act*fn1 provides that
Every keeper of a livery stable or boarding and exchange stable, shall have a lien on all animals left with him in livery, for board, sale or exchange and upon all carriages, wagons, sleighs and harness left with him for storage, sale or exchange for the amount due such proprietor for the board and keep of such animal and also for such storage, and shall have the right, without process of law, to retain the same until the amount of such indebtedness is discharged.
Property retained by the propietor under this article shall be sold at public auction, after the expiration of 30 days from the date of such retention.
Notice of the sale shall be first published once in each of the 2 weeks preceding the day of the sale in a newspaper circulating in the municipality in which the stable is situated, and 5 days notice of the sale shall be given by posting a copy of the notice in 5 public places in the municipality.
The proceeds of sale after the deduction of the expenses thereof shall first be applied to the payment of the indebtedness, and the balance, if any, shall be paid to the owner of the property, or his representative. The balance, if not claimed by the owner within 60 days after the sale, shall be paid to the municipality, in which the stable is situated, for the support of the poor.
Plaintiff is a business entity located in Allentown, New Jersey. From the affidavits submitted, it appears that in May of 1984 the defendant placed with plaintiff for boarding the mare Lenape Lil Feather. The board rate was $12.00 per day plus incidental farrier, veterinary, and miscellaneous expenses. In June of 1985 the mare was bred and a colt foaled in May or June of 1986. The mare was bred again in 1986 without success, and bred a third time in February, 1987 and presently is in foal. Defendant contends the breeding was not authorized by him, which is contested by the affidavits of two of plaintiff's employees.
Plaintiff contends defendant has fallen behind in board payments, calculated at $24.00 per day for mare and colt, in the amount of ...