
    DELANEY against BRETT.
    
      New York Superior Court ;
    
    
      General Term, 1866.
    Attachment against Vessels.—Superior Court of New York.—Recitals of Bond.
    The justices of the Superior Court of the city of New York have power to issue attachments against vessels, under the act of 1862.
    On an application for an attachment under that act, a specification of the debt need not be filed, unless the vessel has left the port where the debt was contracted.
    A bond given to discharge the vessel from such an attachment is not void by reason of irregularities in the issuing of the attachment. (Per Robertson, Oh. J.)
    It will be presumed that the requisite undertaking was given by the creditor on issuing the attachment, especially where the warrant recites that this was done.
    This action was brought by William H. Delaney against Tames E. and Gustavus A. Brett, upon a bond, given to discharge an attachment against the brig Laura Russ, issued under the act of 1862 (laws of 1862, 951). The attachment was granted by Hon. A. L, Bobebtsoit, Chief Justice of the New York Superior Court, on application of the plaintiff, on the 28th of September, 1864. The application did not set forth'that any specification of the lien or claim had been filed. The defendants gave the bond in suit to procure the vessel’s discharge. The action was tried on the 23rd of May, 1865, before Hon. Justice Moitell and a jury, and a verdict rendered in favor of plaintiff for one hundred and two dollars and eighty-six cents. When plaintiff rested his case, a motion was made for a dismissal of the complaint; which motion was denied, and defendants’ counsel excepted.
    
      Beebe, Dean & Donohue, for the defendants.
    I. The complaint should have been dismissed, because, 1. It did not appear that the specification required by the statute had been filed before the application for the attachment. 2. The application did not state where the specification was filed. 3. There was no evidence that any undertaking was given by the plaintiff.
    II. The justice granting the attachment had no power to grant the same.
    A justice of the Superior Court has no power by law to act as justice of the Supreme Court, at chambers in term time. If it should be held that he has, then he has at all times a right to act as such in granting orders of arrest, injunctions, extensions of time, attachments, and any other order or provisional remedy in suits pending in the Supreme Court. It should at least appear affirmatively that the application was made and granted when there was no term of the Supreme Court.
    TIT It did not appear that the vessel was within the county oí New York at the time of the application (§ 4). The application stated “that said vessel has.not departed'from said yoort of New York since said debt was contracted.” The port of New York includes more than the county of New York, it includes Kings, Queens, Richmond and Westchester counties, and Jersey City in the State of New Jersey, and the vessel might have been in any one of those places at the time of the application— it was necessary to state the county to give jurisdiction to the officer granting the warrant.
    Emerson, Goodrich dé Knowlton, for the plaintiffs.
   Barbour, J.

The objection of the appellants that the attachment against the vessel in this case was not allowed by an officer authorized by law to perform the duties of á justice of the Supreme Court at chambers is untenable. The statute expressly declares that the chief justice and each of the associate justices of the Superior Court shall be and are authorized to perform all the duties which the justices of the Supreme Court out of term are authorized to do and perform by any statute of this State. (3 Rev. Stat., 5th ed., 359; § 17).

It was not necessary that the application for the attachment should state in what place the specification was filed. Eor the act does not require the filing of a specification unless the ship should have left the port where the debt was contracted before such application is.made ; and in this case she still remained there.

If the specific objection to the attachment, because of the failure of the plaintiff to prove that an undertaking has been given, had been stated to the court upon the motion of the defendant to dismiss the complaint, it is quite probable that the defect in the proof in that regard might have been supplied, if the plaintiff had deemed it necessary. As the question was not raised or passed upon at the trial, there is no decision upon the point which we have power to review.

Independent of that, however, we are bound to assume, in the absence of evidence to the contrary, that the justice who issued the warrant of attachment performed his duty by receiving from the plaintiff the undertaking which is required by the seventh section of the act, previous to issuing such attachment.

The judgment must be affirmed with costs.

Robertson, Ch. J.

This was an action upon a bond executed by the defendants in a certain penal sum (§206), conditioned to pay the amount of all claims and demands, due the plaintiff, established to be subsisting liens on a certain vessel (The Laura Ross), under an act to provide for the collection of demands- against ships and vessels, passed in April 1862 (N. Y. Session Laws, 1862, 987). The bond recited the issuing of a warrant of attachment against such vessel, but not that such bond was given to procure its discharge; nor is there any evidence that it was given for such purpose.

The only objections on the trial were to the regularity of the issuing of the attachment.

However irregular the attachment may have been, the bond was not void (Ring v. Gibbs, 26 Wend., 502; Franklin v. Pendleton, 3 Sandf., 572; S. C. on appeal, 7 N. Y. [3 Seld.], 508). The oidy questions on the trial were as to the nature and amount of the plaintiff’s claim, and whether it was a subsisting lien (same cases).

The execution of the bond was a waiver of irregularities.

The justices of this court have authority to issue such warrants (Renard v. Hargous, 13 N. Y. [3 Kern.], 259).

There was no necessity of filing a specification of the lien, unless the vessel left the port (Laws of 1862, 957; § 2), as there was no proof that she had done so.

The warrant recites that an undertaking was given; the defendants did not prove the contrary, and every intendment must be made against them.

I concur in affirming the judgment, with costs.  