The Orescent

88 F. 298

• Court: District Court, D. New Jersey
• Decided: June 27, 1898
• Status: Published

Opinion

KIRKPATRICK, District Judge.

The petitioner, Sciple, claims a lien for work done and materials furnished the steamer Crescent in April, May, June, July, and September, 1896, which became a part of the vessel, and were furnished on the credit of the boat and master at her home port in New Jersey. They claim a lien by virtue of the state statute which provides that' “for work done or materials or articles furnished in this state for or toward the building, repairing, filling, furnishing or equipping such ship or vessel,” the debt incurred therefor “shall be preferred to all other liens thereon, except mariner’s wages.” 2 Gen. St. p. 1966, § 46. Charles Betchner intervenes for his own interest, as the holder of a mortgage on the steamer. dated September 28, 1896, by virtue of which he claims to be entitled to a preference in payment over petitioner Sciple. Both claims are liens by virtue of the state law, and their respective priorities must be determined by it. The; work was done prior to the date of the mortgage, and the lien attached when the work was completed. Betchner, in his answering petition, contends that the Sciple lien was merged in a mortgage upon the vessel, which was registered subsequent to his own. The proofs fail to substantiate this claim. It appears from the evidence that notes were accepted for the greater part of the debt incurred to Sciple, but they were not paid. ‘•The acceptance of notes by persons entitled to maritime lien for repairs does not defeat the lien. There is a presumption that the note is only taken as collateral security.” The Ella, 84 Fed. 471. There is no reason why the same principle should not apply where the lien is given by state statute. As between Betchner, the holder of a mortgage given subsequent to the time when the work was done and materials furnished by petitioner Sciple, the latter is entitled to priority of payment.