96 N.Y.S. 1061 | N.Y. App. Div. | 1905
This is an appeal from an order confirming the - report of a referee granting, to Frank L. Froment and Eugene M. Froment, respondents, a lien upon a vessel in the custody of the-appellant; the trustee in bankruptcy of the Marine Construction and Dry Dock Company. The proceeding was brought pursuant to the provisions ■ of sections 3419 et seq. of the Code of Civil Procedure. The referee has found that the shipments by the respondents to the construction. company of November 5 and 14, 1903, amounted to the. sum of 8106.14, and that they should have a lien against the vessel fpr that amount. He also has found that substantially all of the material
In Phillips v. Wright (7 N. Y. Super. Ct. [5 Sandf.] 342) it appeared that a part of the timber furnished was not used in the vessel, and that some of it had been sold bv the purchasers’ assignees, and the probability was that some went for the repair of other vessels. It
The same court in Hiscox v. Harbeck (15 N. Y. Super. Ct. [2 Bosw.] 506) considered the .same question, and the case of Phillips v. Wright (supra) was followed.
' Dealing with a similar act, Mr. Justice Sutherland, in Johnson v. Steamboat Sandusky (5 Wend. 510), said: “The supplies .contemplated by the act, it appears to me, must be such as enter into the construction or equipment of a vessel and become a part of her.” In Crooke v. Slack (20 Wend. 177). that case is followed. The Superior. Court cases are referred to and followed in Moores v. Hunt (1.Hun, 650), aqd the Phillips case is cited with approval in Phoenix Iron Co. v. “Hopatcong” and “Musconetcong” (127 N. Y. 206, 211). The principle contended for by the appellant is the, law,, and .has. been deemed^such since the early cases in this State,. (See, also, Happy v. Mosher (48 N. Y. 313, 320).
Bartlett, Jenks and Rich, JJ., concurred ; Miller, J., dissented.
Order reversed and proceedings dismissed, with costs.