30 How. Pr. 398 | N.Y. Sup. Ct. | 1866
This action was properly brought in the individual names of the plaintiffs; they were the
It is different with corporations; but the Union Towing Company was not a corporation. Chapter 482, of the Laws of 1862, has application to canal boats. The first section is made applicable to sea going or ocean bound vessels, or to any other vessel; and its fifth subdivision includes, among other items for which a vessel may be seized, that of towing. Bouvier says: “ In maritime law, vessel is a ship, brig, sloop, or any. other craft used in navigation.” When a legislature in its enactments distinguishes between sea going and other vessels, the latter clause should be received in its largest sense, and be held to include all craft used in navigating any of the waters or canals of the state. The case of Many v. Noyes, (5 Hill, 34,) was decided under the Revised Statutes, (2 R. S. 493,) which only contained the words “ships or vessels,” and did not name “ towing” as one of the debts which might be a lien. The act of 1862 was a substitute for the Bevised Statutes, repealing the latter, and its enlarged terms show a design to extend its benefits beyond the narrow construction given, by the courts, to the repealed statute.
The third section of the statute requires the specification of lien to be filed in the office of the clerk of the county in which the debt shall have been contracted. This claim was for towing the canal boat Sidney L. Gross from Troy to Hew York. The offer to tow the boat to Hew York was made at Troy, and there accepted; but no time of payment was specified, no payment made, or negotiable obligation given, and hence the money did not become due until the delivery of the boat at Hew York. The place of bargain was Troy, but the agreement did not become a debt until performance ; it was completed in Hew York; and hence, in a legal sense,
The statute requires that to constitute a lien, a specification of the same shall be sworn to by the person having
For enforcing the lien given by the act, it provides that any person having a lien may apply for a warrant to any officer “authorized to perform the duties of a Justice of the Supreme Court at chambers.” In tMs case application was made to a Justice of the Supreme Court and the warrant granted by him. It is insisted that no authority to issue such warrant is vested in a Justice of the Supreme Court by the act, but only in such officers as are authorized by law to do what a Justice can do at chambers. In this we differ from the learned counsel of the defendants, and hold that the authority exists with the Justices of this court equally with those authorized by law to. perform- their duties at chambers.
The bond sued upon seems to have been executed by all the defendants. Upon its face, all are liable for such an amount as was established as due the plaintiffs. It was insisted that because Vincent, one of the sureties thereon, was objected to as not being a freeholder, and held not competent for that reason, and another surety, Day, afterwards added, the bond again presented and then approved, Vincent was not liable thereon. But objecting to Vincent for insufficiency, even though the objection was sustained, and another surety added, would not release Vincent, so long as his name was on the bond when finally accepted and the property released.
On the trial the plaintiffs' claim for towing was proved; the claim had been made a lien upon the boat, and was in force when the boat was seized; it was released upon the delivery of the bond in suit; its execution by the defendants
Bockes, James and Rosekrans, Justices.]