Sheppard v. Steele

By the Court —

It seems to be settled by authority that, in case a vessel, upon which labor has been expended and materials furnished in its construction, has not departed from the port where the work was performed and materials were provided, the lien created by statute for such labor and materials continues, although a specification of such lien provided by the statute of 1862 (p. 957, § 2), has not been filed. (In the Matter of Tilton, 19 Abb., 50; Delany v. Brett, 4 Rob., 712.)

*419It is contended by the counsel for.the appellant that, from the facts in this case, the vessel must be deemed to have departed from the said port previous to the commencement of the proceedings to enforce such lien. In this we think he is mistaken. She was launched on the 8th of September, in an unfinished state, and ran over to the opposite side of the Rondout creek, to Wilbur, a distance of from half to three-quarters of a mile, for the purpose of having a center-board put in, and from thence she was taken to Jersey City, to be finished. When the proceedings were instituted the vessel laid at Wilbur, not having departed upon a voyage, nor was she employed in any business or trade. We are clearly of opinion that, within the doctrine settled in Hancox v. Dunning (6 Hill, 494), this vessel should not be regarded as having left the port within the meaning of the statute creating such lien. (See, also, In the Matter of the Steamboat J. E. Coffee, Alcot’s R., 401.)

Independent of the view taken, I think there was a substantial compliance with the requirement of the statute in regard to the filing of the specification, as on the 12th day of- September, 1866, there was filed in the clerk’s office of the county of Ulster, as a part of the proceeding to enforce such lien, a particular statement of the plaintiff’s claim, specifying in detail the items of labor' performed and materials furnished in the construction of said vessel, with the dates of the respective items. The language of the statute, in relation to the filing of specifications, is as follows: “ Cause to be drawn up and filed specifications of such lien, which may consist either of a bill of particulars of the demand, or a copy of any contract,” &c. A more perfect bill of particulars could not well be prepared than that which accompanied the proceedings which were filed. The statute should receive a reasonable construction, and substance should not be sacrificed to mere form. Every beneficial object which could have been contemplated as the result of filing such specification was attained in this case by making such statement a part of the proceedings. Certainly all parties interested would be as fully informed of *420the nature and extent of the plaintiff’s claim by an inspection of the specification accompanying the proceedings filed as they would have been if a separate paper had been filed containing the items of the claim.

The appellant’s counsel further contends that the statute of 1862, under which the plaintiff’s proceedings were instituted, is void, because it encroaches upon the admiralty jurisdiction of the United States. The contrary of this proposition has been repeatedly adjudged. (In the matter of the steamship Circassian, 50 Barb., 490, and cases therein cited; Bird v. Steamboat Josephine, 50 Barb., 501; Joseph M. Price v. The Ship Norway, manuscript opinion of Judge Blatchfobd.) To my mind it is very clear that the county judge had jurisdiction to entertain the proceedings. The work performed and materials furnished were not expended in repairing a vessel which .had been in service; but in constructing upon land a new vessel which had not been employed in any trade or business, nor had she received an outfit, license or clearance when the proceedings were instituted. Hence the case is relieved of some questions which might arise in regard to a foreign vessel which had put into port merely for repairing, or a vessel which was employed in running from this to another State. (See also Peoples Ferry Company, of Boston, v. Beers, 20 How., U. S., p. 393; McGuire v. Card, 21 How., U. S, 248.) The case at bar is clearly distinguishable from Bird v. The Steamship Josephine (39 N. Y., 19). The foregoing are all the questions discussed by the appellant’s counsel upon the argument. I have examined the other exceptions stated in the points submitted, and do not perceive that any material error was committed by the referee.

The judgment should be affirmed with, costs.*