57 N.Y. 112 | NY | 1874
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *114 The various exceptions taken to the mode in which the plaintiff proved his claim can be of no avail here, as the referee only allowed fifty dollars of the claim, and that there was so much due was not disputed on the trial. Two defences were relied upon on the trial, one that the work upon the boat was done upon the personal credit of the owner, Ketchum, and the other, that the plaintiff gave about three days' time of payment for the fifty dollars. Unless one or both of these defences were good, the referee made a proper decision, and the General Term should not have reversed it. *115 By chapter 482 of the Laws of 1862, it is provided, that when the owner of any vessel shall contract a debt for repairs such debt shall be a lien upon such vessel. No act is required to be done by the one making the repairs to create the lien. The statute itself creates the lien and it exists the moment the work is done. There is nothing in the statute requiring that the work shall be done upon the credit of the vessel before the lien can attach. A party repairing such a vessel always has two remedies, one in personam against the owner and the other in rem against the vessel, unless by express agreement he has in some form relinquished one. Such is the common law rule in all cases where a mechanic does labor upon any article intrusted to him. He may enforce his lien against the article or enforce his claim for the work against the owner. It does not impair his lien that he did the work upon the personal credit of the owner, neither is there anything in the statute providing, expressly or by implication, that the lien shall not attach in case any time of payment is given to the debtor. The statute provides that, whenever a debt of the nature specified shall be contracted it shall be a lien, and the debt is just as effectually contracted whether it be payable presently or at a future day.
There is no limitation in the statute as to the length of time during which the lien may continue to exist, except what is found in section 2. That provides that the lien shall cease to exist at the expiration of six months from the time the debt was created, unless, at the expiration of the six months, the vessel shall be absent from the port at which the debt was created, in which case the lien shall continue until the expiration of ten days after the vessel shall next return to the port. Thus, in case the vessel be absent from the port, the lien may be continued for several years; and the claimant need not have possession of the vessel during any portion of the time, and need do nothing to preserve his lien, except in the single case mentioned below. While the lien exists, the claimant may attempt to collect his debt from the debtor, and if he fails, may still enforce his lien. An attempt to *116
enforce one remedy does not destroy the other. He may give time of payment; and, provided such time does not extend beyond the existence of the lien, he may at the expiration thereof still enforce the lien. As he cannot procure a warrant to enforce his lien until his debt be actually due, it must become due before the lien ceases to exist by the limitation contained in the statute. But the lien will cease to exist in case of the departure of the vessel from the port, unless within twelve days thereafter, the claimant shall cause to be drawn up and filed in the proper office the specification mentioned in section 2. In case the vessel does not depart from the port, the specification is not required, In case she does depart, then the specification is required, and after it has been drawn up and filed the lien will continue to exist without any further action on the part of the claimant, for at least six months, as provided in the earlier portion of the section. To preserve this lien, the claimant is not required to have possession of the vessel during any portion of the time. I, therefore, find nothing either in the policy or the letter of the statute which deprives a party of his lien, in case he does the work on the vessel under a contract giving the debtor any brief time of payment. The only effect of such leniency, on the part of the claimant, would be to postpone his power to enforce the lien until the debt shall become due. (Happy v. Mosher,
The order of the General Term must be reversed and judgment upon report of referee affirmed, with costs.
Concurrence Opinion
The only material question in this case is whether the agreement, on the part of the plaintiff, that Ketchum might take the boat when the repairs should be completed and run her to Whitehall and from thence remit fifty dollars, which it was supposed would be accomplished within about three days after the departure of the boat, was *118 a waiver of his statute lien for that amount. The referee has found, as a fact in the case, that the work and materials to this amount were not done and furnished upon the credit of Ketchum, and, impliedly, that it was done relying upon the security of his statute lien upon the boat. The statute, doubtless, contemplates an absence of such vessels from the port of repairs without impairing the lien upon them for the materials furnished and work done in accomplishing the repairs; and it would be an unreasonable construction of the statute to hold that such absence must be occasioned by the wrong act of the owner and against the consent of the repairer, or the statute lien is lost. (Hitchcock and others v. Dunning Browning, 6 Hill, 494.) It could never have been supposed that vessels would be kept in port six months after the completion of repairs, and yet the statute provides for the continuance of the lien for that length of time after the debt is contracted, and then if the vessel shall be absent from the port the lien is extended for the space of ten days after she shall return, provided the person having the lien shall, within twelve days after such departure, have caused to be drawn up and filed in the office of the clerk of the county, etc., a sworn specification of the lien. (Sess. Laws 1862, 956, 957, §§ 1 and 2.) These provisions, in relation to the departure and absence and return of a vessel, and the continuance of the lien thereon, contemplate a departure with the consent of the lien-holder, and necessarily result in giving a credit to the debtor and at the same time relying upon his statute lien as a security for payment. If a repairer of a vessel at Albany should consent that its owner might sail it from that port to Troy and back, to be absent three days, it cannot be that, if the journey should be performed within the time, he could, in the meantime, attach the vessel; and if, by consenting to such absence, he should lose his lien, the provisions of the statute would be inapplicable to any other than a tortious departure and absence. (See Phillips v. Wright, 5 Sand., 642, 660.) The necessity of filing a specification of the lien in this case was obviated by the issuing *119 and service of the attachment before the twelfth day after the departure of the boat.
We are referred to Veltman v. Thompson (
The judgment appealed from should be reversed, and the judgment entered upon the report of the referee, affirmed.
All concur.
Order reversed, and judgment accordingly.