
    The Merritt & Chapman Derrick and Wrecking Company, Respondent, v. Walter J. Tice and Others, Appellants.
    
      ■‘Salvage—an action for, does not lie in a State court— a State court has jurisdiction where services have been rendered to a stranded, barge under a contract.
    
    A State court has no jurisdiction of an action brought to recover upon a marine contract for salvage; such a court has, however, jurisdiction of an action brought by a wrecking company against the owner of a barge which had gone ashore on the coast of Long Island, to recover the value of work, labor and services rendered by the wrecking company, pursuant to a contract with such owner, in floating the barge and taking it to the port of New York, although the wrecking company might, in the absence of a contract, have been entitled to a claim for salvage for the services rendered.
    Appeal by the defendants, Walter J. Tice and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1902, setting aside the direction of the '.trial court, made before the opening of the case dismissing the ■.'(Complaint, and granting the plaintiff’s motion for a new trial.
    
      James Emerson Carpenter, for the appellants.
    
      Avery F. Cushman, for the respondent.
   ..Hatch, J.:

The complaint avers that the plaintiff is a corporation, and that ;,the defendants were partners and owners of the barge E. W. Stet■sonj “ that at the special instance and request of the defendants, between the 3d day of December, 1898, and the 6th day of January, 1899, both dates inclusive, the plaintiff performed certain wrecking ■services and work and labor and furnished certain materials to the •defendants in and about the rescue and floating of the said barge E. W. Stetson which was ashore off the north shore of Long Island, near Jamesport, New York, and bringing the same to the port of New York, putting her upon a dry dock and delivering her to the •defendants. * "x" "x" That said wrecking services, work and labor sand materials furnished were of the fair and reasonable value of ‘.$4,249.48, no part of which has been paid, although duly demanded.” •Judgment was asked for the recovery of said sum. Before any proof was taken upon the trial, the defendants moved to dismiss the complaint upon two grounds, first, “ that the court has no jurisdiction of the subject of the action,” and, second, “ that the complaint does not state facts sufficient to constitute a cause of action.” It was the contention of the defendants that the complaint merely set forth that the plaintiff had acted in and about what it did in rescuing the barge as a salvor, and that the Federal court alone had jurisdiction of the subject-matter. The court so held and ruled in dismissing the complaint. Subsequently a motion was made for a new trial, and upon such hearing the court reached the conclusion that the State court had jurisdiction of the subject of the action and, therefore, set aside the order and granted a new trial. This appeal is taken from such order.

It is conceded by both parties hereto that if the contract averred in the complaint is a mayine contract for salvage, the State courts have no jurisdiction. Such undoubtedly is the rule. It does not follow, however, that a valid contract may not be made for compensation for work, labor and services, even though the subject-matter of the action might furnish the basis of a claim for salvage. The two matters are quite distinct. Where the contract is made to perform work, labor and services, either for a sum agreed upon or for a reasonable compensation for the services performed, such contract is good and may be enforced in personam. If there were no contract, a claim only for salvage might arise. The disposition, however, of such question rests upon different principles, and facts which- would support one would wholly fail in support of the other. Thus, in a case of salvage, the right of the person making the rescue to compensation is dependent solely upon the fact that the property is saved ; this is a condition precedent to his right to receive any award. The amount of the award rests in the discretion of the court. In the case of a contract to perform work, labor and services in connection with the rescue of a vessel, subject to marine perils, the right of recovery for such service depends upon its rendition pursuant to the contract, and the party entitled to recover for such services is not deprived of such right even though the subject-matter he wholly lost. This distinction is recognized in the cases (The Independence, 2 Curt. 350; Bondies v. Sherwood, 22 How. [U. S.] 214). A claim for salvage and a claim for work, labor and services are inconsistent. In The Independence (supra), Curtis, J., said: “ When, therefore, the subject-matter of a contract is a mere attempt to save property, and when the owner or his representative, or both, become personally liable by the contract, to pay either an agreed sum, or a quantum meruit, for the labor and service rendered, without regard to its results, the parties do not contemplate nor engage in a salvage service, but quite a different service. I know of no reason which forbids parties competent to contract, from fairly contracting concerning such a subject-matter, nor do I perceive how a court of admiralty can, after the property has been saved, set aside such a contract and declare that a salvage service was performed.”

Upon the averments of the complaint in the present case the plaintiff will be authorized to prove a contract for work, labor and services, and, if established, recover therefor the fair value thereof, even though it might have become entitled to salvage for the services rendered, in the absence of a contract. It is clear, however, that in order to maintain the action, it must prove the existence of a contract for the rendition of the service. Under the pleadings, the plaintiff could not recover upon the theory that it was entitled to salvage, as its right of recovery is strictly in personam, and rests, upon contract.

It follows, therefore, that the order granting plaintiff’s motion for a new trial should be affirmed, with costs to the respondent to abide the event.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ.,. concurred.

Order affirmed, with costs to respondent to abide event.  