Majority
p. 494Hancox and others vs. Dunning & Browning.
Headnote
Though, after a lien had been acquired upon a vessel pursuant to 2 JR. S. 493, she made"a short excursion beyond the bounds of- the state, for the mere purpose of testing her machinery, and immediately returned; held, that the creditor had not thereby lost his lien.Otherwise, had the vessel left the state on a trip or voyage in pursuit of some kind of trade or business. Per Bronson, J.
Error to the superior court of the city of New-York. Dunning & Browning sued Hancox and others in the court below, in debt on bond. The plaintiffs had attached the steamboat Napoleon, in the city and port of New-York, and the defendants gave the bond to obtain the discharge of the vessel, with a condition to pay the claims which had been exhibited, and which should be established to1 have been subsisting liens at the time they were exhibited. The cause was referred, and on the hearing it appeared that prior to the 23d of February, 1842, the plaintiffs had, at the request of the master, furnished work, labor and materials for the repair of the Napoleon to the amount of $775,46, the principal part of which was expended upon the toilers of the boat. After the repairs were completed, and on the 19th of March, 1842, the boat left the city of New-York to try her toilers, and went, on an .excursion. The boat went around Staten Island, landed and made fast to the dock at Perth
p. 495cited 2 R. S. 493, § 2; 5 Hill, 34 ; 6 Wend. 553 ; 9 id. 340 ; 20 id. 555 . cited 1 Kents Comm. 460-5; 15 John. R. 358; 3 Cowen, 89; 1 Pick. 254 ; 6 Paige, 332; 11 Wend. 45 .
Amboy, in New-Jersey, and remained there about two horns, when she returned to her former berth in the city of New-York. She left New-York between 9 and 10 o’clock in the forenoon, and got back about 5 or 6 o’clock in the afternoon of the same day. There were twenty or twenty-five persons on board, invited by the master, who said he was going to try the boilers which had been repaired. The persons on board paid no fare. They requested the master to go" around Staten Island, and also to stop at Perth Amboy. On the 26th of March, 1842, the attachment issued, and the boat was seized. The defendants insisted that the boat had left the state, within the meaning of the statute, and that the lien had consequently ceased. The referee overruled the objection, and reported in favor of the plaintiffs. The defendants moved in the court below to set aside the report, but the motion was denied, and judgment rendered for the plaintiffs. A case having been settled and inserted in the record, the-defendants brought error.
A. Schell, for the plaintiffs in error,
E. Sandford, for the defendants in error,
The statute provides, that “ when the ship or vessel shall depart from the port at which she was when such debt was contracted, to some other port within this state, every such debt shall cease to be a lien at the expiration of twelve days after the day of such departure; and in all cases such lien shall cease immediately after tire vessel shall have left this state.” (2 R. S. 493, § 2.) The reasonable construction is, that the lien ceases when the vessel departs from the port where the repairs were made, or leaves the state, upon a voyage or trip in the pursuit of some kind of trade or business. Here there was nothing but an experimental excursion byway of trying the newly repaired boilers, without any intern
p. 496
tion on the part of the master to leave the state for any purpose. And although, at the request of the friends he had invited to go with him, he passed outside of Staten Island, and made a short stop at Perth Amboy, I think this was not a leaving of the state within the meaning of the statute.
Judgment affirmed.
Cases cited
- In re Hollingshead 6 Wend. 553 p. 495