In re the Attachment of the Vessel or Canal Boat called the "New York Sensation"

Majority

p. 952

In the Matter of the Attachment of the Vessel or Canal Boat called the “New York Sensation,” otherwise known as the “Sensation.”

(Supreme Court, General Term, Fifth Department,

Filed October 23,1891.)

Headnote

1. Vessels—Lien—Laws 1862, chap. 482.

Respondent built the vessel in question for one Bell under a contract with him, and filed a lien for the unpaid balance of the contract price. Appellant subsequently filed a lien in which he stated that respondent’s lien was prior to his own. In proceedings for distribution of the proceeds of sale of the vessel, it was claimed that Bell and respondent were joint owners, but the contract contained no provision that respondent was to remain an owner of the vessel until completed. Held, that respondent was a person who was entitled to a lien under the statute, and was entitled to the proceeds.

2. Same—Distribution oe proceeds.

An objection that a subsequent lienor was not notified of the application for an order of distribution is of little importance where the order is sought to be set aside, not on the ground of want of proper notice, but on the ground that it awards the proceeds to the wrong party.

Appeal by the claimant, Charles J. Hamilton, from an order of the county judge of Erie county distributing the proceeds of the sale of a canal boat called the “New York Sensation.”

George Clinton, for app’lt; George W. Cothran, for resp’t.

The proceedings against the canal boat were taken in pursuance of chap. 482 of the Laws of 1862, and the amendments- thereof, and were begun and prosecuted by the respondent, Adam Homer, and resulted in the sale of the boat by the sheriff for the sum of $1,600, which sum, after the expenses were paid, was directed by the order in question to be paid over to the respondent, and from that order this appeal is taken.

It is shown by the evidence, and so decided by the county judge, that the respondent, on the 9th day of Hovember, 1889, made a contract with one Chester A. Bell to build for.the latter the whole of a canal boat for the sum of $2,000, under the terms, as to payment, as in the findings are particularly disclosed. The work, it is shown, was completed, together with certain extras, within thirty days before May 8, 1890, when the notice of lien was duly filed. An attachment followed and was issued to the sheriff.

Proper proceedings seem to have been taken throughout for the subjection of the canal boat to the lien of the respondent The force of the appellant’s answer to the petition or application for the distribution of the proceeds of the sale, which asserts that the appellant received no notice of the application for such distribution, cannot be deemed of much importance, inasmuch as his application is not to set aside the order made by the county judge for want of proper notice, but rather to reverse it on the ground that the sum has been awarded to the wrong party.

In view of the testimony and of the findings of fact it also appears to us that 'the contention made by the learned counsel for the appellant, that the respondent could not enforce the lien

p. 953

claimed, because he was not of the description of persons whom the statute so intended to benefit, but on the contrary was in reality the owner of the vessel, cannot prevail upon this appeal. In the application for the lien by the appellant under date of May 21, 1890, Chester A. Bell is mentioned as the person who incurred the indebtedness to the applicant as the builder of this canal boat The bill of items runs as follows :

“ 0. J. Hamilton, sold to boat 1 Sensation.’

“Per Mr. Bell.”

In the further document or answer filed by the appellant' it is conceded that the respondent was prior to him in the lien. But it is denied that Chester A. Bell was the sole owner of the vessel, but that on the contrary the vessel was built by Homer and Bell under an agreement which is set forth as an appendix to the answer. But there is nothing in the agreement, nor in the evidence, to show that Homer was to remain the owner of the vessel until it was completed. On the contrary the case shows that it was clearly contemplated by the party that Homer was a contractor for Bell, and as such was entitled to his lien for the unpaid moneys for constructing the canal boat. The statute expressly gives the lien to a person who has bestowed work or furnished materials for the building of the vessel. Laws of 1862, chap. 482, § 1.

The order appealed from should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.