Kenyon v. Covert — 25 N.Y. St. Rep. 670

Majority

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Henry R. Kenyon and George J. Kenyon, Resp’ts, v. Enoch Covert and Thomas G. Miller, App’lts.

(Supreme Court, General Term, Fourth Department,

Filed July 20, 1889.)

Headnote

1. Vessels—Liens—Laws 1862, chap. 482.

One who contracts to repair a vessel, furnishing the labor and material for a gross sum, is a “ builder” within the meaning of the act giving a lien for materials furnished to such a builder for the work. Kingv. Greenwap, 71 Ñ. V., 413, followed.

3. Same—Evidence.

In an action on a bond given to release the vessel from a warrant issued under that act, evidence to show that the plaintiff's bill was presented to the builder, and admitted by him to be correct, was admitted under objection. Held, that as the amount of the work and materials furnished had been previously shown, and that all the materials furnished were used in the vessel, the admission of this evidence was not prejudicial to the defendants.

Appeal from a judgment entered upon the report of a referee, in the county of Tompkins, for $73.06.

In June, 1887, the steam yacht Cygnus was on the dry dock at Ithaca, and was being repaired by one Walter Bur-ling, at the instance and request of the owner, Enoch Covert. Lumber and materials were furnished Burling by the plaintiffs, which were used in repairing the yacht.

Plaintiffs filed specifications _ of their lien with the clerk of Tompkins county, and duplicates of the said specifications were filed with the auditor of the canal department.

On September 3d, 1887, application was made to the justice of this court for an attachment of the yacht. A warrant of attachment was issued, and the yacht was seized by the sheriff. The warrant of attachment was subsequently discharged upon the giving of a bond by the owner, executed by himself and his co-defendant as surety, and the yacht was delivered over to the owner; thereafter an action was commenced on such bond.

The yacht was used for carrying excursions on Cayuga lake for hire.

■ It appears by the evidence that the lumber and materials furnished by the plaintiffs were used in repairing the steam yacht Cygnus.

Almy & Bouton, for app’lts; J. A. Elston, for resp’ts.

Walter Burling was a boat builder in June, 1887, at the time he was doing the repairs on the yacht Cygnus.

Upon the evidence, that fact was so found by the referee in the following words: “Walter Burling was a boat

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builder, and had a place of business at Ithaca, ¡N". Y., and that the defendant Enoch Covert, was the owner of the yacht Cygnus. * * * ”

It was found by the referee that the contract was made and entered into between Burling and the defendant Covert, the owner, “ by the terms and conditions of which Burling was to furnish all the material and labor required for said repairs, for an agreed gross price for the whole, to be paid him by the defendant Covert.”

The evidence and the finding of the referee bring Burling within the term “builder,” as mentioned in section 1 of chapter 482 of the Laws of 1862, and the “materials furnished ” were “ on account of * * * repairing,” and they therefore fall within the classification found in the first subdivision of the section just referred to.

We think the question insisted upon by the appellants in respect to whether Burling was a builder or not, is conclusively resolved against the appellants by the case of King v. Greenway ( 71 N. Y., 413 ). See, also, Smith on Chattel Mortgages, 99.

When the case of Hubbell v. Denison ( 20 Wend., 181 ) was decided, the statute gave a lien in favor of a party contracting with “the master, owner, agent or consignee of any ship or vessel within this state,” and it was there resolved that the builder is neither one of the persons enumerated in that statute.

_ When the case of Fralick v. Betts ( 13 Hun, 634 ) was decided, the case of King v. Greenway, decided in 1877, had not been reported, and the learned judge who delivered the opinion in Fralick v. Betts does not allude to, and probably had no knowledge of the doctrine laid down in King v. Greenway, when he prepared his opinion in the early part of 1878, and his limitation of the act of 1862, intimated in the opinion, was based solely upon authorities in cases which arose before the passage of the act of 1862.

We are of the opinion that it is the duty of this court to follow the interpretation of the act of 1862, and the amendments thereof by chapter 422 of the Laws of 1863, as laid down in King v. Greenway (supra).

Second. When the plaintiff, Henry R. Kenyon, was upon the stand as a witness, he gave evidence tending to show that Burling requested the plaintiffs to furnish the lumber and materials, and he was asked, during his examination, the following question:

"Q. Did you, after this conversation, furnish the lumber and do the work on this boat to the amount of §73.06 ?”

This _ was objected to as incompetent and immaterial. The objection was overruled and the defendant excepted. The witness answered “yes, sir.” We think the testimony was competent and material to the issue, and that the answer was properly received. Thereafter the witness was asked a question to which he replied: “We had no further conversation excepting when I made out the bill.” Then

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he was asked to state what that conversation was. The same objections were renewed and there was an exception, taken by defendant. The witness answered: “When I presented the bill to him (Burling) I asked him if it was correct, and he 0. K.’d the bill and signed his name to it and gave it back to me, with the remark that the owner would be here on Friday and would pay the bill.”

It is to be_ observed that the objection taken was not that the declarations of Burling were incompetent, but rather that the evidence generally was incompetent. However, in dealing with the answer given by the witness, it is obvious that it was not improper that evidence should be received tending to show that the bill had been presented to Burling, and if it be conceded that the fact that Burling admittted the correctness of the bill by signing his name to it was inadmissible, still, as the principal fact had been shown previous to such declaration, to wit, that the work, and materials had been furnished, and the amount thereof, we are not at liberty to say the ruling, or the reception of the evidence, was prejudicial to the defendants.

In the case of Happy v. Mosher ( 48 N. Y., 320 ), where all the lumber was used in the construction of the vessel which the party sought to recover for was “seriously controverted upon the trial,” and hence the declarations and admissions of Kahler and his agent were presented and their admission, under the circumstances, was held to be error. We think that case does not warrant us in disturbing the judgment before us. Here the witness stated, viz.: “I can state that all this lumber we furnished was in the boat after it was repaired.” Fol. 96. These views lead to an affirmance.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.