
    In the Matter of the Application of Frank L. Froment and Eugene McK. Froment, Respondents, to Establish and Enforce Lien on Vessel at Mariner’s Harbor, Richmond County, The Marine Construction and Dry Dock Company, Constructor, in Custody of William J. Burlee, Trustee in Bankruptcy, Appellant.
    Second Department,
    December 29, 1905.
    Lien Law — ¡no lien on vessel for material furnished but not used — statute authorizing lien on vessel strictly construed.
    A contractor furnishing materials for the construction of a vessel is not'entitled • to a lien on such vessel under section 30 of the Lien Law for materials furnished,, .but not actually used, in the construction of the vessel.
    Section 22 of the Lien Law, requiring a'liberal construction of article 1 of said act; applies only to that part of said statute relating ,to mechanics’ liens. It does not apply <to that part of the statute relating to liens on .vessels, which, being in derogation of _the common law, must be strictly construed.
    Appeal William J. Burlee, trustee in bankruptcy, from an order of' the Supreme Court, made at the Kings County Special' Term, and entered in the office of the clerk of the county; of Kin¿s on the 13th day of March, 1905, confirming the'report of a referee.
    
      Clarence P. Moser [David Bennett, King with him on the brief], for the appellant.
    
      Robert J. Mahon, for the respondents.'
   Hooker, J.:

This is an appeal from an order confirming the - report of a referee granting, to Frank L. Froment and Eugene M. Froment, respondents, a lien upon a vessel in the custody of the-appellant; the trustee in bankruptcy of the Marine Construction and Dry Dock Company. The proceeding was brought pursuant to the provisions ■ of sections 3419 et seq. of the Code of Civil Procedure. The referee has found that the shipments by the respondents to the construction. company of November 5 and 14, 1903, amounted to the. sum of 8106.14, and that they should have a lien against the vessel fpr that amount. He also has found that substantially all of the material sold by them was used in the construction of the vessel, except the shipments of November 5 and 14, 1903, and that the material shipped on these two days remained in the possession of the construction company until November 31, 1904, when it passed into the possession of the receiver in bankruptcy. The appeal presents the sole question whether or not under section 30 of the Lien Law (Laws of 1897, chap. 418) one who furnishes in this State materials or other articles for or towards the building, repairing, fitting, furnishing or equipping of a vessel is entitled to a lien upon it by reason of the fact that the materials are not paid for. It is provided in that section that a debt, not alien by the maritime law, of fifteen dollars or upwards, on a vessel other than a sea-going or ocean-bound, shall be a lien upon such vessel, her tackle, apparel and furniture, and shall be preferred to all other liens .thereon, except mariners’ wages, if such debt is contracted by the master, owner, etc., within this-State for work done, or material or other articles furnished in this State, for or towards the building, repairing, fitting, furnishing or equipping of such vessel. We are referred to and have been able to find no .adjudication in this State upon this question as it is now presented, pursuant to the provisions of section 30 of the Lien Law; that section is a revision of section 1 of chapter 482 of the Laws of 1862, which in turn is a r'evisioh of section 1 of title 8 of chapter 8 of part 3 of the Revised Statutes (2 R. S. 493, as amd. by Laws of 1855,.chap. 110 ; Laws of 1859, chap. 79, and Laws of 1860, chaps. 208, 469). Interpretations of this latter statute are to be found in the books. Prior to being amended it provided that “ whenever a debt, amounting to fifty dollars 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, furnish- . ing or equipping such ship or vessel, . * * * such debt shall . be a lien upon such ship or vessel, * * * and shall be preferred to all other liens thereon, except mariners’ wages.”

In Phillips v. Wright (7 N. Y. Super. Ct. [5 Sandf.] 342) it appeared that a part of the timber furnished was not used in the vessel, and that some of it had been sold bv the purchasers’ assignees, and the probability was that some went for the repair of other vessels. It was there contended on the part of the plaintiff that the non-application of the timber to the building of the vessel in question for which it was bought, was not material; but the court took the opposite view,, and held that to create the lien it is not" sufficient to prove that the materials were purchased With the declared purpose Of being used in the building of the vessel, but positive application to the intended use must be shown.. The court said: “ The whole • theory of a lien for labor and materials rests upon the basis, that such labor and materials have entered into, and contributed- to the production or equipment of the thing upon which the lien is impressed. This imposes on" the material man the necessity of seeing to it, that his materials are applied to the purpose for which they are procured, if he design to rely upon, a lien given to. him, by ' reason of such purpose. * * * It may well be doubted whether a literal interpretation" of the words of the statute (2' It. S. 493), confer alien, unless-the articles furnished are actually used" in the building, &c., of the vessel "against which it is claimed. • Oan it be said that materials are furnished for, or towards building a ship, when no part of them enter into, or become a part of, the ship ? * " * *• This doubt, and our conviction that the spirit" of the act does not warrant its extension to materials bought for, but never used in, the building of :a designated vessel, make it our duty to hold, that for the timber which.did not enter into the construction of-the ship in question, the plaintiff had no lien.” " ■

The same court in Hiscox v. Harbeck (15 N. Y. Super. Ct. [2 Bosw.] 506) considered the .same question, and the case of Phillips v. Wright (supra) was followed.

' Dealing with a similar act, Mr. Justice Sutherland, in Johnson v. Steamboat Sandusky (5 Wend. 510), said: “The supplies .contemplated by the act, it appears to me, must be such as enter into the construction or equipment of a vessel and become a part of her.” In Crooke v. Slack (20 Wend. 177). that case is followed. The Superior. Court cases are referred to and followed in Moores v. Hunt (1.Hun, 650), aqd the Phillips case is cited with approval in Phoenix Iron Co. v. “Hopatcong” and “Musconetcong” (127 N. Y. 206, 211). The principle contended for by the appellant is the, law,, and .has. been deemed^such since the early cases in this State,. (See, also, Happy v. Mosher (48 N. Y. 313, 320).

The case of Sears v. Wise (52 App. Div. 118) is not an authority for the respondents. That case dealt with the construction of article 1 of the Lien Law, which relates to mechanics’ liens. ' In that article (§ 22) is to be found the provision that it is to be construed liberally to secure the beneficial interests and purposes thereof, and that a substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction -to the. courts to enforce the same. While the provisions as to liens on vessels are to be found within the same chapter of the General Law's, as those relating to mechanics’' liens, yet the subject of liens on vessels is treated in an article separate and distinct from that dealing with mechanics’ liens. (See Gen. Laws, chap. 49 [Laws of 1897, chap. 418], art. 2.) Section 22 of the Lien Law is incorporated within article 1, and by its terms refers to the article where it occurs and to none other. While there may be no logical reason why a statute authorizing a lien on a vessel should be strictly construed and that authorizing a lien on real property liberally construed, yet the language of the act itself permits and requires a liberal construction of its provisions so far as they relate to mechanics’ liens, and is silent in that respect as to that part of the act relating to liens on vessels. The act is in derogation of the common law, and under familiar principles should be strictly construed, in the absence of statutory direction to the contrary.. The cases to which attention Has been called seem clearly to demonstrate that the meaning of the words as used in the statute has been judicially determined, and we should not now introduce a different construction. The order should, therefore, be revei'sed, and the proceeding dismissed.

Bartlett, Jenks and Rich, JJ., concurred ; Miller, J., dissented.

Order reversed and proceedings dismissed, with costs.  