Rockefeller v. Thompson — 4 N.Y. Super. Ct. 395

Majority

p. 395

Rockefeller and Others v. Thompson and Others.

Headnote

Where a vessel departs from a port at which a debt has been contracted on her account, for repairs, etc., in pursuit of some trade or business, it is a departure within the meaning of the statute relative" to proceedings for the collection of demands against ships and vessels.

Where a steamboat was regularly employed in transporting passengers on the Hudson river between New York and Albany: held, that in contemplation of law, she was engaged in making coasting voyages ; that every trip of the boat was a departure within the meaning of the statute, and that a claim or debt for work, labor and materials furnished such boat in the port of New York, ceased to be a lien upon the boat at the expiration of twelve days from the time of her departure from that port.

And where repairs were made by the plaintiffs upon a vessel at various times during a period of several months, in pursuance of general orders to them to do whatever work they should from time to time be directed by the officers of the vessel to do: held, that the contract, was not an entire and indivisible one, but that each job of work done constituted a separate debt, which might be enforced by the plaintiffs.

March 9;

March 17, 1849.

Motion by the plaintiffs to set aside report of referee. This was an action brought by the plaintiff upon a bond executed by the defendants as the owners of the steamboat Alida, on the 13th October 1847, the conditions of which was, that the defendants would pay the amount of all such claims and demands as had been exhibited, which should be established to have been subsisting liens upon the Alida, at the time the bond was executed. The bond was given to obtain a discharge of the vessel from an attachment issued against her at the instance of the plaintiffs, upon an account amounting to about $270, for

p. 396

work, labor and materials furnished and done by the plaintiffs to the vessel during the summer and fall of 1847.

Upon the trial, it appeared that the plaintiffs were partners in trade, as painters; that in May or June, 1847, they were employed by the agent of the Alida to do work upon the boat, and were authorized by him to do from time to time whatever they should be directed to do by the pilot, éngineer, or any one on board the boat. They did work upon the vessel at various times during the summer, until about the 20th of September. The work was mainly done on Sundays, that being the only day when the vessel was in port. The plaintiffs were in the habit of sending some one every Saturday to see what work was wanted, and they did what they could between that day and Monday. It was shown by the testimony of the witnesses, that the workmen were in the habit of doing as much as they could on each occasion, and then completing their work the next time the vessel ran into port, and that the work was not finished at any one time. There was some conflict as to whether the job was a continuous one or not.

It was shown on the part of the defence that the painting of the boat was done at different times; that whenever the painting became worn, they would have it re-painted.

A bill of particulars of the plaintiffs’ charges were given in evidence.

It also appeared that the steamboat was owned from May 1847 to the 20th of September of that year, by W. R. M'Cullough, and was a passenger boat running in the day time, on alternate days, between New York and Albany. On the 21st of September, M'Cullough conveyed the boat to E. Stevenson, who, on the 27th of the same month, conveyed to the defendants. It was shown that the vessel left New York on the 17th September, 1847, for Albany, and that on the 29th day of December, 1847, a legal tender was made by the defendants to the plaintiffs’ attorneys, of the sum of $70, in full for any lien which the plaintiffs’ had on the 2d of October, 1847, (the time of taking out the attachment,) for work, labor, and materials done or used in the Alida, and also the costs of the proceedings on the attachment, and of this suit up to the time of the tender.

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The amount of work, labor, and materials, as set forth in the bill of particulars, subsequent to the 1 7th of September, on which day the vessel left New York, was less than $70.

It was contended on the part of the plaintiffs, that the job being a continuous one, there was no debt until the work was finished, and therefore there was no such departure of the steamboat within the meaning of the statute, as avoided th e lien at the expiration of 12 days after the debt was contracted.

The defendants contended that the lien for each separate charge embraced in the bill of particulars, ceased within 12 days after the departure of the vessel, and they tendered all that accrued within the twelve days preceding the attachment.

The referee reported that the sailing between New York and Albany was each time a departure such as is contemplated by the statute, and that the lien for whatever was then due, would cease in 12 days; that although the work performed by the plaintiffs might have been a continuous or running account, yet that payment could have been required at any time for the work which had been done; and that, therefore, the work performed constituted a debt by itself; that the lien for the charges in the account of the plaintiffs, was lost within twelve days after the vessel sailed from New York, subsequent to the accruing of such charges respectively. The referee reported that there was due to the plaintiffs the sum of $70, being the amount as tendered.

Dill and Davidson, for the plaintiffs.

Smith and Woodward, for the defendants.

The statute provides, (2 R. S., p. 493, § 1,) that whenever a debt amounting to $50 or upwards shall be contracted by the master, owner, agent or consignee of any ship or vessel within this state, on account of any work done, or materials or articles furnished, in this state, for or towards the building, repairing, fitting, furnishing, or equipping such ship or vessel, such debt shall be a lien upon such ship or vessel.

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The second section 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 the state, any such debt shall cease to be a lien at the expiration of twelve days after the day of such departure; and in such cases, such lien shall cease immediately after the vessel shall have left this state.

The attachment referred to in the bond in suit, was delivered to the sheriff on Saturday, the second of October, 1847, and was executed by the seizure of the steamboat Alida, on the fourth of October, at one o’clock in the morning.

For the plaintiffs, it is insisted that their claim was upon an implied contract running through the whole season ; that there was no particular job done, but the work was going on through the whole season, and that tho proceeding having been taken within twelve days after the last item, was good for the whole. The referee decided otherwise, and. we approve of the conclusion to which he came. The vessel ran to Albany three times a week, and it seems to be conceded that she went to Albany on the 17th of September. If this was “ a departure from the port.f within the meaning of the statute, then the lien for all charges previous to that date was gone before tire attachment was taken out. The vessel was engaged, in contemplation of law, in making coasting voyages. In The Steamboat Company v. Livingston, ( 3 Cow. 747 ,) the court of errors held, that a voyage in a vessel of suitable tonnage between New York and Albany, is as much a coasting voyage as from Boston to Plymouth or New Bedford. Every trip of the boat to Albany was a departure within the meaning of the statute ; and if the plaintiff had a claim or debt, such as is specified in the statute, it ceased to be a lien at the expiration of twelve days after the day of the departure of the vessel. • In Hancox and Others v. Dunning, ( 6 Hill, 494 ,) the vessel made a short excursion beyond the bounds of the state, for the mere purpose of testing her machinery, and immediately returned, and it was held that this was not a leaving of the state within the meaning of the statute. But the court then held, that if a vessel departs from the port in which the repairs are made, in the pursuit of some trade or business, that it is a leaving of the port within the

p. 399

meaning of the statute. That was the case of this vessel. She left New York three times a week in pursuit of her regular business ; and we hesitate not to say, that every time she left New York or Albany, she “ departed” from each port within the meaning of the statute.

The referee repudiates the idea that the claim of the plaintiffs was upon an implied contract running through the whole season, and that it was not due until the transfer of the boat took place ; and in this, too, we think he was right. We see nothing in this case that could have prevented the plaintiffs from enforcing payment of their claim for work and materials, every time the vessel departed for Albany, or, at least, every week. Miller, the clerk of the boat, testified that the boat wanted painting every week or two, and whatever was wanted to be done, they ordered the plaintiffs to do; that the painting of certain parts of the boat was done at different times ; they would wear the part painted two or three months, and then paint it again. This gives a fair idea of the character of the work. It was palpably not the result of one entire and indivisible contract. The plaintiffs could have presented their bills and enforced their claims from time to time.

The motion to set aside the report of the referee is denied.