MOORES against LUNT

MOORES against LUNT. Supreme Court, First District; Special Term, June, 1872. Jurisdiction.—Lien on Vessel. A contract for materials furnished to a vessel before launching, is not maritime in its nature. A lien, as authorized by the act of 1862 (Laws of 1862, p. 956, ch. 482), put upon a vessel, for materials, &c., made and delivered at a place within this State, under a contract made in this State, is valid, notwithstanding such materials were furnished to be used on the vessel while in course of construction in another State. Hence, a bond given to discharge a vessel from an attachment under the act is valid. Demurrer to complaint. This action was brought upon a bond given to discharge an attachment issued against the steamship Metropolis, to enforce a lien for materials sold in the city of New York for said steamship, then in course of construction in the State of Massachusetts. When the vessel came to this port an attachment was issued against her, therefor, under the act of 1862; and the bond in suit was given to procure her release. A demurrer was interposed to the complaint, on the following grounds : 1. That the court had no jurisdiction of the subject of the action. 2. That the complaint did not state facts sufficient to constitute a cause of action. Beebe, Donohue & Cooke, attorneys, and Robert W. Andrews, of counsel, in support of the demurrer. I. The act of 1862 is in conflict with the constitution and laws of the United States, and is void (The Josephine, 39 N. Y., 19; Brookman v. Hamill, 43 Id., 554). II. The materials being furnished in the State of New York, for a vessel in course of construction in another State, no lien was acquired under the statute of this State (Mullin v. Hicks, 49 Barb., 250). George W Van Siclen, opposed. I. A distinction exists between maritime contracts, as for supplies, &c., to a vessel engaged in navigation, and contracts non-maritime, as for work and supplies in the construction of a vessel. The cause of action in this case falls within the latter class ; and the act of 1862, as to such class of contracts, is held constitutional (Sheppard v. Steele, 43 N. Y., 52; Brookman v. Hamill, Id., 554). The case of The Josephine (39 N. Y., 19), is thus explained and limited in Sheppard v. Steele (supra). II. The complaint shows that there was a debt of more than fifty dollars, contracted by the builder of a sea-going vessel, or his agent, within this State, for work and materials furnished in this State toward the building or repairing of such vessel, and conforms to every requirement of the statute. For the amendment of May, 1872, to the 12th Admiralty rule, and its construction, see 6 Alb. Law J., 401. [MAJORITY — Brady, J.] Brady, J. The Metropolis was lying upon the stocks, unfinished, and in the course of construction, when the contract referred to was entered into and performed. The claim is for materials furnished to a vessel before launching, and while on the land, and is not, therefore, maritime in its nature (Sheppard v. Steele, 43 N. Y., 54; see also Brookman v. Hamill, Id., 554). If the materials had been delivered at Newburyport, in the State of Massachusetts, the objection that the debt was one not contracted within this State, might be plausible under the ruling in Mullin v. Hicks (49 Barb., 250); but it is alleged, and admitted by the demurrer to be true, that the articles named were furnished in this State,—to wit: at the city of New York,—for and towards the building, fitting out, furnishing and equipping of the vessel. It assumes, the character of a transaction by which the plaintiff undertook to make certain articles, and to deliver them at the city of New York to some person authorized to receive them for transportation. These acts,—namely, the manufacture and delivery here,—would make the debt, beyond all doubt, one contracted within this State. The decision of the court of appeals in the case of The Josephine (39 N. Y., 19), is explained and limited in Brookman v. Hamill (supra), and its operation confined to cases in which the claim is strictly maritime. The demurrer, for these reasons, must be overruled, with leave, however, to the defendants to answer in ten days on payment of the costs of the demurrer. Ordered accordingly.