Onderdonk v. Voorhis — 25 N.Y. Super. Ct. 24

Majority

p. 24

Abram S. Onderdonk, plaintiff and respondent, vs. Jacob Voorhis, Jr. et al. defendants and appellants.

Headnote

1. Under the statute of April, 1862, relative to demands against ships or vessels, a lien for repairs continues for at least -the time prescribed for filing the specification of such lien, mentioned in the statute, (12 days.) A secret departure of the vessel within that period will not displace the lien.

2. A seizure by the claimant, within such time, of the vessel on attachment, for his lien under the statute, renders the filing of a specification unnecessary.

(Before Robertson, Ch. J. and Moncrief and Monell, JJ.)

Heard January 14, 1864;

decided January 30, 1864.

Appeal from a judgment entered upon the report of a referee. •

The plaintiff, by his complaint, seeks to recover of the defendants the sum of $>813.76, for the amount of work, labor, and materials furnished to and in repairing the schooner Signal, at the instance and request of the defendant, Jacob Voorhis, jun. who was the owner of said vessel, and alleges that' proceedings were taken to enforce payment of said sum as a lien on said vessel, in which proceedings a bond was given by the defendants, and the vessel discharged, the defendants, John Pettigrew and William Voorhis, being co-obligees in the bond with Jacob Voorhis, jun.

The plaintiff alleges that on the 3d day of December, 1862, the work on the vessel was completed, and on that day accepted and received by the owner, the defendant Jacob Voor

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his, jun. That on the 6th day of December, 1862, the specification of the debt and lien, etc. was filed in the office of the clerk of Rockland county. That on the 13th of December, 1862, an application was made to Justice Barnard for a warrant of attachment against the vessel, and on that day the said justice granted the warrant of attachment. That at the time of issuing the warrant, the plaintiff" delivered to" the justice a bond required by law. That within three days after the issuing of the attachment, the plaintiff left at the office of the Daily Transcript, a notice, required by law, which was published on the 15th December. That on the 17th' day of December, 1862, the defendant Jacob Voorhis, jun. applied to the said justice for a warrant to discharge the vessel, which was granted, upon his giving a bond. •

The defendants, by their answer, deny all the material allegations of the complaint touching it, affecting the right of the .plaintiff to enforce the payment of the debt, as a lien, or on the bond.

The action was referred to Henry J. Scudder, Esq. as sole referee, to hear and determine the action.

On the trial of the action, the plaintiff offered evidence that the work and labor had been done and performed to the schooner, to the amount and value by him claimed. He.also offered in evidence, without any further proof, the bond set forth in his complaint, and the same was received, notwithstanding the objection of the defendants. He then rested his case.

The defendants then asked to have the complaint dismissed, which was done, and the defendants excepted. Thereupon the plaintiff offered further evidence, viz : the specification filed in the county clerk’s office, of Rockland county, and the defendants objected. The same was received over the defendants’ objection, and the plaintiff then again rested.

The referee found, and reported as conclusions of fact:

First. That the defendants duly executed and delivered the bond alleged and set forth in the complaint herein, as therein alleged

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Second. That the plaintiff herein had a subsisting lien upon the vessel referred to in said .bond, being the schooner Signal, at the time of the execution and delivery of said bond, and the amount thereof was justly $>600. And that this sum was due him from the defendant, Jacob Voorhis, jun. for work, labor, and materials, done and furnished, in and about the repair of said schooner.

. He stated, also, in his findings, as conclusions of law upon the above facts, that the defendants, above named, are jointly and severally indebted to said plaintiff, in the sum of $>600, with interest thereon, from 'the 17th day of December, 1862, .for which sum, with costs,- he ordered judgment for the plaintiff.

R. M. Harrington, for the appellants.

J. Townshend, for the respondent.

By the Court,

The main, if not the only question in this action, is whether the plaintiff’s claim was a subsisting lien on the vessel attached, on the 13th of December, 1862, the day the warrant of attachment was issued. The condition of the bond sued upon is to pay all claims, established to be due, to the plaintiff, and “ to have been subsisting liens” upon such vessel, pursuant to the provisions of the statute of April, 1862, relative to demands against ships and vessels at the time of exhibiting the same. This follows the requisitions of that statute, as to form. (N. Y. Sess. L. 1862, 960, § 11.) Its fifth section prescribes that the applicant shall "exhibit” and specify his claims and certain particulars relating thereto. This fully explains what is meant by “ the time of exhibiting the same,” in the statute and bond.

The evidence shows the work was completed and the vessel delivered to the defendant Jacob Voorhis, jun. on the third of December, 1862. Consequently, only ten days had elapsed when the warrant was issued. The statute in question, of 1862, (ubi supra,) provides by its second section, that the lien

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created by the first shall cease whenever the vessel on which it exists shall leave the port at which such debt was contracted, unless a certain specification of such lien be filed in the office of the clerk of the county where such debt was contracted, within twelve days after such departure. Assuming Nyack to be the port where the debt was contracted, and the sailing of the vessel for New York to be a leaving within the meaning of the statute, the lien of the plaintiff remained, for at least the time prescribed for filing the specification. That requisition did not mean to deprive the material man of his lien immediately on the departure of the vessel, only to be restored on filing his specification of claim within the time, because it says the lien shall cease. It was not intended that a secret departure, should get rid of the lien ; the workman had twelve days given him in which to discover the departure and put his lien on file. A seizure of the vessel on an-attachment within the twelve days would be a more certain notice to purchasers or other material men, than putting a claim on file. I therefore regard the plaintiff’s claim as a subsisting lien at the time of issuing the warrant of attachment. The mere giving of the bond, subsequently, could not alter the plaintiff’s rights, who substituted the seizure on the attachment for his lien, and thus rendered the filing of any specification unnecessary. The attachment cannot be made conditional on the performance of any subsequent act by the plaintiff. It must be either absolute or irregular and void.

The seal of the bond imports a good consideration. Upon its execution the defendants obtained a discharge of the attachment. If that was irregularly issued, they could have obtained the vessel by an action of claim and delivery; they chose, however,, to apply to the officer who issued the warrant, give the bond and procure the discharge from him. They are, therefore, now estopped, after -having obtained the- favor, from setting up any irregularity. (Ring v. Gibbs, 26 Wend. 502 . Franklin v. Pendleton, 3 Sandf. 572 ; S. C. 7 N. Y. Rep. 508 . Coleman v. Bean, 14 Abb. Pr. 38 .) But the recital in the bond goes no further than the seizure by the sheriff, and

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the defendants had a perfect right to give the bond voluntarily to get rid of that. In any event, the onus lay upon them of proving the illegality of such seizure, which they have not done.

The questions put to witnesses respecting the value of the vessel, were properly rejected as immaterial. One question objected to, as to what was said at an interview between a witness, (Peter Voorhis,) and two other persons, (Dickey and Smith,) does not appear to have been answered. The question put to a defendant, (James Voorhis, jun.) as to a conversation with the plaintiff in regard to a submission to arbitration, in continuation and explanation of a prior negotiation for the purpose, was proper on cross-examination ; the answer showed a refusal to submit, by the plaintiff. An exception appears to have been taken to some statement of a witness, (Dickey,) upon which it is impossible to pass without knowing what the question was which drew it out, whether it was excepted to, or the answer responsive. The question to the same witness, as to a custom in ship yards in doing repairs, is too vague, even if such a custom was admissible as evidence. The admissions of the defendant, Peter Voorhis, in regard to acts within the scope of his authority, from his co-defendant, Jacob Voorhis> were properly admitted.

Hone of the objections taken to the certified copy of the specifications were well founded. (1 R. S. 377, § 65. Salte v. Thomas, 3 B. & P. 188. R. v. Aides, 1 Lev, 391.)

The judgment should be affirmed, with costs.

Cases cited

Ring v. Gibbs 26 Wend. 502 N.Y. Sup. Ct. p. 27
Franklin v. Pendleton 3 Sandf. 572 N.Y. Super. Ct. 1850-04-20 p. 27
Coleman v. Bean 14 Abb. Pr. 38 N.Y.C.P. p. 27