Board of Commissioners of Pilots v. Dick

5 Daly 391

• Court: New York Court of Common Pleas
• Decided: June 15, 1874
• Status: Published

Opinion

Van Brunt, J.

The statute under which this claim is made is as follows : “ It shall not be lawful to throw, or cause to be thrown into the waters of the port of New York, &c., <fcc., any cinders or ashes from any steamboat under the penalty of fifty dollars for each and every offense, to be recoverable by the commissioners hereinafter named; and for such penalty, the steamboat from which such cinders or ashes were thrown, its master and owner shall be liable.”

The eighteenth section provides that “ all the fines and penalties incurred under this act shall be recoverable by and in the name of the said commissioners. In all cases where the fines and penalties prescribed by this act are made liens upon property, they shall be enforced by attachments issued by the court where the proceedings for the recovery of such fines and penalties shall be pending, to the officers to whom executions of such courts are issued," and shall be enforced and discharged in like manner as attachments against property of non-resident debtors.”

This court has decided that an action may be maintained against the master of a steamboat for the penalty mentioned in the above act (Board of Commissioners of Pilots v. Frost, 4 Daly, 353); but how an action in rem can be maintained has not been pointed out. It is true that the act says that where the penalty is made a lien upon property, it may be enforced by attachment, &c., which attachment shall be enforced and discharged in like manner as attachments against property of non-resident debtors ; bnt it is to be observed that these proceedings are to be governed by the practice of the court from which it issues in respect to attachments against the property of non-resident debtors.

It is not pretended that the requirements of the District Court act in respect to attachments have been complied with in this case, and without such a compliance I am wholly unable to see how jurisdiction can be acquired. There is another fatal objection to this action. This is an action against Philip Dick, master of the propeller Relief, to recover this penalty, and an attachment is issued, not against his property, but against the propeller Relief. Where the court gets the authority to issue such an attachment I have not been able to discover.

If the penalty could be enforced in rem in a State tribunal, it must be as an action against the vessel, as it is clear that no attachment can issue in an action against an individual except against the property of the defendant, In disposing of this case it is entirely unnecessary to determine the question as to the exclusive jurisdiction of the United States courts, and that question is not passed upon.

The judgment must be affirmed.

Robinson and Labbbmobe, JJ,, concurred.

Judgment affirmed.