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Delany v. Brett

27 N.Y. Super. Ct. 712 4 Rob. 712 Court N.Y. Super. Ct. Decision date 1866-06-30 English

Delivered by *713 Barbour, J.

Contents

Majority

p. 712
William H. Delany, plaintiff and respondent, vs. James E. Brett et al. defendants and appellants.

Headnote

1. The justices of the Superior Court have authority to issue attachments against vessels, under the act of 1862. (Laws of 1862, p. 957.)
2. There is no necessity for filing, under that statute, a specification of the lien, unless the vessel has left the port where the debt was contracted.
8. However irregular the attachment issued against a vessel may have been, the bond given for the purpose of procuring the discharge of the vessel will not he void, by reason of snob irregularity. The execution of such bond is a waiver of irregularities.
4.. In the absence of any evidence to the contrary, the court is bound to assume that the justice who issued the attachment performed his duty by receiving from the applicant the undertaking required by the 7th section of the statute, previous to issuing such warrant.
(Before Robertson, Ch. J., and Barboto and Jones, JJ.)
Heard June 14, 1866;
decided June 30, 1866.
This • action was brought upon a bond, given to discharge an attachment against the brig Laura Buss. The attachment was granted by Hon. A. L. Bobertsoit, on application of the plaintiff, on the 28th of September, 1864. The application did not set forth that any specification of the lien or claim had been filed. The action was tried on the 23d of May, 1865, before Hon. Justice Monell and a jury, and a verdict rendered in favor of the plaintiff for $102.86. When the plaintiff rested his case; a motion was made for a dismissal of the complaint ; which motion was denied, and the defendants’ counsel excepted.
Beebe, Dean & Donohue, for the appellants.
Emerson, Goodrich & Knowlton, for the respondent.

The objection of the appellants that the attachment against the vessel in this case was not allowed by an officer authorized by law to perform the duties of a justice of the Supreme Court at chambers, is untenable. The statute expressly declares that the chief justice and each of the associate justices of the Sxiperior Court shall be, and are, authorized to perform all the duties which the justices of the Supreme Court out of term, are authorized to do and perform, by any statute of this state. (3 R. S. 5th ed. p. 359, § 17.)

It was not necessary that the application for the attachment should state in what place the specification was filed. For, the act does not require the filing of a specification at all, unless the ship shall have left the port where the debt was contracted, before such application is made ; and, in this case, she still remained there.

If the specific objection to the attachment, because of the failure of the plaintiff to prove that an undertaking had been given, had been stated to the court, upon the motion of the defendant to dismiss the complaint, it is quite probable that the defect in the proofs in that regard might have been supplied, if the plaintiff had deemed it necessary. As the question was not raised and passed upon at the trial, there is no decision upon the point which we have power to review. Independent of that, however, we are bound to assume, in the absence of evidence to the contrary, that the justice who issued the warrant of attachment, performed his duty, by receiving from the plaintiff the undertaking which is required by the seventh section of the act, previous to issuing such warrant.

The judgment must be affirmed, with costs.

However irregular the attachment may have been in this case, the bond was not void. (Ring v. Gibbs, 26 Wend. 502 . Franklin v. Pendleton, 3 Sandf. 572 . S. C. 7 N. Y. Rep. 508 .) The only proper questions on the trial were as to the nature and amount of the plaintiff’s claim,

p. 714
and whether it was a subsisting lien. (Same cases.) The execution of the bond was a waiver of irregularities.

■ The justices of this court have authority to issue such warrants. (Renard v. Hargous, 3 Kern. 259.) There was no necessity of filing a specification of the lien, unless the vessel had left, the port, (Laws of 1862, 957, § 2,) and there was no proof that she had done so. The warrant recites that an undertaking was given; the defendants did not prove the contrary and every intendment must be made against them.

I concur in affirming the judgment, with costs.

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