
    (67 Hun, 620.)
    WITHERBEE v. PARIS.
    - (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    Shipping—Contracts op Master—Liability op Owner.
    Though the master of a boat is the agent of the owner, and can bind him for necessary repairs or expenses to enable the boat to continue her voyage, the owner is not liable if the master obtains them under a special contract on his own credit, or on the credit of some third person.
    Appeal from judgment on report of referee.
    Action by Robbins M. Witherbee against Charles R. Paris, as administrator of Augustus Hale, deceased, for money loaned the master of a boat belonging to the estate of said decedent. From a judgment entered on the report of a referee dismissing the complaint on the merits, plaintiff appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Potter & Lillie, (J. Sanford Potter, of counsel,) for appellant.
    D. J. Sullivan, for respondent.
   PUTNAM, J.

The position of the appellant—that the master of a vessel is the agent of its owner, and as such can bind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage— is, I think, correct. Thomas v. Osborn, 19 How. 22; Macy v. Wheeler, 30 N. Y. 240. Therefore, ordinarily, plaintiff could recover from defendant, as the owner of the canal boat in question, the $100 he furnished to Joseph Hale, its captain; said sum being advanced to pay-necessary expenses to enable the boat to continue its voyage to New York. But the authority of a captain of a vessel to bind its owner for repairs and necessary expenses of the voyage is based on his actual or presumptive agency. If, in fact, he.does not contract as agent, but obtains repairs or supplies under a special contract on his own credit, or on the credit of some person other than the owner, the latter is not bound. The'doctrine applicable in such a case is well stated in James v. Bixby, 11 Mass. 39, as follows:

“ Where labor is performed upon a ship or any other chattel, the presumption would naturally and legally be that it was done, not only for the benefit, but at the request, of the owner; and an implied promise to pay would arise, which, in law, would charge the owner for a reasonable compensation for the work and labor performed. But the implication of law may be avoided by showing that there was an express contract for the work and the compensation, or that the work was done upon the credit of another person, without any intention of resorting to the owners. ”

See Warner v. Miller, 13 Hun. 654.

In this case the referee found that the $100. to recover which this action was brought, was loaned to William Guindon; that Joseph Hale, the master of the boat, received it as his agent; and that said money was not advanced to, or for the use of, defendant. If this finding is sustained by the evidence, it is a defense to the action, within the authorities above cited. I think the evidence clearly sustains the conclusions of the referee. The plaintiff charged the $100 to Guindon, presented a claim to him for it, and testified that he had loaned Guindon money before. Hale, the master, testified that he obtained the money in Guindon’s name. Stockwell, plaintiff’s clerk, testified that arrangements had been made with Guindon to advance the money. In fact, it is difficult to see how the referee could have reached any other conclusion than he' did. The judgment should be affirmed, with costs. All concur.  