D. Freeman Poole et al., Appellants, v. Ann E. Kermit et al., Respondents

D. Freeman Poole et al., Appellants, v. Ann E. Kermit et al., Respondents. (Submitted December 21, 1874; decided January 19, 1875.) The act of 1863 (chap. 483, Laws of 1863) providing for the collection of demands against vessels, so far as it gives a lien for supplies furnished to, or repairs made upon a vessel engaged in foreign commerce, is unconstitutional, and a hond given pursuant to the act to release a vessel detained by virtue of an attachment issued thereunder, is void. Appeal from a judgment of the General Term of the Superior Court of the city of Mew York, entered upon an order setting aside a verdict in favor of plaintiffs, and directing judgment for defendants. This was an action upon a bond given to discharge an attachment issued at the instance of the plaintiffs against the ship “Edith,” under the provisions of chapter 482, Laws of 1862, to enforce a claim for work and materials, in repairing and furnishing said ship. The work and materials were furnished at Mew York. The Edith was a domestic vessel, owned in Mew York. She was engaged in foreign commerce. The court directed a verdict for plaintiffs, subject to the opinion of the court at General Term. To the direction defendants’ counsel duly excepted, and a verdict was rendered accordingly Beebe, Wilcox & Hobbs for the appellants. The act under which the attachment was issued is not unconstitutional. (The General Smith, 4 Wheat., 438 ; McGuire v. Card, 21 How. [U. S.], 248; The Circassian, 11 Blatch., 472; The Belfast, 7 Wall., 629; Leon v. Galceran, 11 id., 105; The Josephine, 39 N. Y., 19; Brookman v. Hammill, 43 id., 554; The St. Lawrence, 1 Black, 529.) Everett P. Wheeler for the respondents. The act in question is unconstitutional and void, so far as it undertakes to give a lien for supplies furnished sea-going vessels, and in enforcing that lien by proceedings in rem against the ship. (Brookman v. Hammill, 43 N. Y., 554; The Josephine, 39 id., 19; The Edith, 6 N. Bk. Reg., 449; 11 Blatch., 451; Sheppards. Steele, 43 N. Y., 55 ; The Moses Taylor, 4 Wall., 411; The Hine v. Trevor, id., 555; The St. Lawrence, 1 Black, 522; The Potomac, 2 id., 581; The General Smith, 4 Wheat., 438; Peyroux v. Howard, 7 Pet., 324; 3 How. [U. S.], 6; 13 Wall., 14; The Globe, 2 Blatch., 427, 433.) [MAJORITY — Grover, J.] Grover, J. The verdict directed by the judge and found by the jury was subject to the opinion óf the court at General Term. There was no conflict in the testimony, or any exception taken to any ruling of the judge upon any question.of law during the trial, the only question being as to which party was entitled to judgment upon the undisputed facts of the case. It was entirely correct in such a case for the judge to direct a verdict for the plaintiffs, subject to the opinion of the court, and the exception of the defendants’ counsel to such a disposition was entirely immaterial. It was the duty of the General Term, upon the hearing, to give judgment in favor of the party entitled thereto upon the facts appearing in'the case. It is obvious that if the court had no jurisdiction, under the act of 1862, to issue the attachment, and to cause the vessel to be seized and detained by virtue thereof, a bond given, pursuant to the act, to procure a release of the vessel from such detention is void. This was so held by this court in Brookman v. Hamill (43 N. Y., 554). That supplies furnished to a vessel engaged in foreign commerce, or repairs made thereon in her home port, is a maritime contract, to enforce which the State courts can exercise such jurisdiction only as is given by the common law, and that the act of 1862, providing for a lien upon such vessel therefor, and for the enforcement of such lien by the courts of the State, is unconstitutional, and therefore void, was held by this court In re the Steamboat Josephine (39 N. Y., 19) and in Brookman v. Hamill (supra). The reasons upon which that conclusion was arrived at will be found in the opinion of Mason, J., in the former, and of Uapallo, J., in the latter, and it is unnecessary again to go over the ground. The cases cited by the appellants’ counsel, decided by the Supreme Court of the United States since the decision of the above cases by this court, do not hold that the contracts in question are not maritime, and, as such, proper subjects of admiralty jurisdiction, enforceable by process in personam. They do not, therefore, in any respect, disturb the reasoning upon which the cases were decided, and will not be further noticed. ■ The judgment of the General Term followed the decisions of this court, and must be affirmed, with costs. All concur. Judgment affirmed.