King v. . Greenway

71 N.Y. 413, 1877 N.Y. LEXIS 518

Opinion

Miller, J.

The action was brought upon a bond executed by the defendants to obtain the release of a canal boat from a warrant issued pursuant to the act relating to the collection of demands against ships and vessels.

A number of questions are raised which affect the validity of the proceedings under the attachment which are proper subjects for consideration. It is quite apparent that Pierce & Sons were the builders of the canal boat within the meaning of the acts of 1862 and 1863, and the facts presented are very similar to those in the case of (Happy v. Mosher, (48 N. Y., 813,) and Sheppard v. Steele, 43 N. Y., 52), where the lien was held to be valid. The case of (Hubbell v. Denison, (20 Wend. 181,) arose under the provisions of the Revised Statutes, and the decision has no application to a case originating under the statutes above cited, which' contain different language.

The canalboat was, we think, a vessel within the meaning of the statute, which created the lien. In Mott s. Lansing, (57 N. Y., 112), and Crawford v. Collins (45 Barb., 269), the liens were against canal boats, and these cases are decisive of the question. The case of Many v. Noyes, (5 Hill, 34); which is cited to sustain a contrary position, arose under the Revised Statutes, and as was held in Crawford v. Collins the act of 1862 was a substitute for the Revised Statutes, enlarged its terms, and was designed to extend its benefits. It is not therefore in point. It is said that the credit was given to Pierce & Sons, and the goods not sold, nor work done on the credit of the boat, as a judgment was recovered for the amount, execution issued, and proceedings supplementary to execution instituted. We think that the credit given, and these proceedings in no way affected the lien. In Happy v. Mosher, (48 N. Y., 313,) it was decided that the taking of the note of a third person, does not affect the lien, except to defer its enforcement. In Mott v. Lansing (supra), it was held that there was nothing in the tetatutes requiring, that the work shall be done upon the credit of the vessel before the lien attaches, and that it does not impair the lien that the work was performed upon the personal credit of the owner.

There is no ground for claiming that the act in question was in violation of the Constitution of the United States. Jurisdiction is vested in the courts of the United States in all matters of contract or tort in certain cases, as when the vessels are sea-going or ocean-bound, or for the coasting-trade, and employed hi business of commerce and navigation between ports in different States and territories. . (Propellor Genesee Chief v. Fitzhugh, 12 How. [U. S.], 443.) And a distinction exists between maritime contracts, as in a case for supplies, etc., to a vessel engaged in navigation, and contracts not maritime for work and supplies in the construetion of a vessel not launched. In the latter case it is held that the provisions of the act of 1862 are not in conflict with admiralty jurisdiction, and therefore are not unconstitutional, and the cases are numerous which uphold such a lien. (Sheppard v. Steele, 43 N. Y., 52; Mott v. Lansing, 57 N. Y., 112; Delaney v. Brett, 51 N. Y., 78; Poole v. Kermit, 59 N. Y., 555; Brookman v. Hamill, 43 N. Y., 554).

The decision In re Josephine (39 N. Y., 19), is not in conflict with the cases last cited, nor is there any case which sustains the doctrine contended for. The fact that the boat was a steamboat and proceeded against by its name, does not alter the case or present any distinction which demands the application of a different rule.

The General Term reversed the judgment of the court below upon the authority of Squires v. Abbott (61 N. Y., 530), which holds that a lien upon a vessel created by chapter 482, Session Laws 1862, ceases when the vessel leaves the port, unless the person claiming the lien files specifications thereof as prescribed by section two of the act, within twelve days after such departure, and that specifications filed prior to departure will not suffice. It is claimed by the counsel for the appellant that the General Term overlooked the amendatory act (chap. 422, S. L. of 1863)', which provides a different time for filing liens against “ other vessels ” than “ sea-going or ocean-bound vessels.” The act of 1862, section one, declares that “ whenever a debt amounting to fifty dollars or upwards, as to a sea-going or ocean-bound vessel, or amounting to fifteen dollars or upwards, as to any other vessel, shall be contracted” by any of the persons named for the purposes therein specified, the same shall be a lien upon the vessel as provided. Section two provides, among other things, that the debt shall cease to be a lien whenever the vessel shall leave the port at which such debt was contracted, “ unless the person having such lien shall within twelve days after such departure cause to be drawn up and filed specifications of such lien,” etc. Two classes of vessels are referred to in the first section of the act, and two classes of debts, and in each case no distinction is made as to the time of filing specifications, or the mode of proceeding to enforce the lien. In each class the same course is to be pursued, and the statute applies alike to. both. By chapter 422, Session Laws of 1863, the act of 1862, already cited, was amended, and it was provided that the second section above cited “ shall not apply to vessels navigating the Western and Northwestern lakes, or either or any of them,” and provision was made changing the time when the lien be filed, and prescribing the mode in which the same might be enforced, and thereby the person claiming a Mem had until the first Tuesday of February next, succeeding the time when the debt was contracted to file specifications. The question then arises whether the canal boat in question was embraced within those especially referred to in the statute. The complaint alleges that the canal boat was used in navigating the lakes, rivers and canals of this State; but the evidence shows that, although regard was had in her construction to her running on Lake Ontario, between Oswego and Canada, she never did run anywhere except upon the canal, Oswego river and Seneca lake, nor is their any finding to the contrary. She was not then a vessel navigating the lakes mentioned, and does not come within the provision cited from the act of 1863. While this class of vessels was excepted from its operation, the “ other vessels ” referred to besides “ ocean-bound and sea-going vessels ” remained as before, subject to the provisions of the act of 1862, which included all vessels navigating the canals and rivers, and there is no ground for claiming, in the absence of any provision to that effect, that the act of 1863 includes vessels navigating the tributaries of the lakes mentioned, and the canals and artificial channels connected therewith. Such an interpretation is not borne out by its language, or its plain import. The construction claimed would include all boats on the canals, which we think could not have been intended.

It follows that the General Term were right in holding that the case last cited was decisive of the question, and in reversing the judgment, and the same must be affirmed, with costs.

All concur, except Church, Ch. J., absent.

Order affirmed, and judgment accordingly.