
    D. FREEMAN POOLE, et al., Plaintiffs, v. ANN ELIZA KERMIT, et. al., Defendants.
    I. Vessels.—Lien on, under Statute Laws.—Act of 1862,
    Chapter 482.
    1. Oonstituüonality of the act of 1862. a. That act, so far as it attempts to give a lien on vessels for money due on a maritime contract, is unconstitutional.
    
    1. This, although there may be no maritime lien in rem for the money due on the contract.
    5. But in respect to demands not in their nature maritime, the courts can proceed and enforce their collection under the act referred to.
    II. Contract Maritime, What Constitutes.
    1. Where work was done and materials supplied for repairing and furnishing for sea a domestic vessel in and to the State of New York, and owned by persons residing in that state, the work being done and materials furnished while the vessel was lying in the port of New York ; but she was a sea-going vessel engaged in foreign commerce,
    Held,
    That the work was done and materials supplied under a maritime contract, and no lien could be obtained, or proceedings had in a State court, under the law of 1862. a. This, although the work was done and materials supplied at the home port of the vessel.
    HI. Conflict of Decisions Between the United States Courts and the Court of Appeals.
    
      1. The inferior courts of this State are bound to to follow the deci-
    sions of the court of appeals.
    
      a. This, although the decision of the court of appeals is subject to review in the supreme court of the United States.
    1. The fact of such power of review being vested in the supreme court of the United States does not abate the authority of the court of last resort in this State, over inferior tribunals.
    2. The court of last resort in this State having laid down and estab-
    lished the propositions contained under the first and second general divisions of this head-note, this court is bound to follow its decisions, although the United States courts have decided directly to the contrary.
    IV. Bond Given on Attachment Issued under said Act on 1862.—When no Recovery can be had thereon.
    1. When the attachment proceeding is void, there is no force in the suggestion that the action,being upon the bond, is inpersonam and not in rem.
    
    Before Monell, Ch. J., and Freedman, J.
    
      Decided February 28, 1874.
    ' Verdict subject to the opinion of the court at general term.
    The action was upon a. bond given to release a vessel from an attachment.
    It was admitted on the trial that the plaintiffs performed work and furnished materials, for repairing and furnishing for sea the ship Edith. That such work, &c., was done at the city and port of New York. That said ship was a domestic vessel in and to the State of New York, and belonged to persons residing in that State. That thereafter, the plaintiffs caused a specification of their alleged' lien upon said vessel, for said work and materials, under the act of the legislature passed April 24, 1862, to be filed in the office of the clerk of the city and county of New York; afterwards the plaintiffs presented their application, in due form, properly verified, and in compliance in all things with
    
      the terms of said act, for an attachment against said vessel to a justice of the supreme court of the State of Yew York. Said justice did thereupon issue in the form prescribed by said act a warrant to the sheriff of the city and county of Yew York, commanding Mm to attach, seize and safely keep the said ship “Edith,” her tackle, apparel and furniture, and said vessel, her tackle, apparel and furniture were in pursuance thereof attached by said sheriff. Ann Eliza Kermit, claiming to be the owner of said vessel, afterward applied to a justice of the said supreme court and presented to said justice and delivered to the plaintiffs a bond, wMch, after reciting the issuing of said attachment, and that the defendant Kermit, the owner of the ship, had applied for an order to discharge the attachment, was upon the following Conditions: “That if the above named obligors will pay the amount of any and all claims and demands which shall be established to be due to the said D. Freeman Poole, A. Judson Buck-man and John E. Leech, and to have been a subsisting lien upon such ship, pursuant to the provisions of said act at the time of the exhibiting the same, then this obligation to be void, otherwise to remain in full force and effect.” Thereupon the said justice ordered the discharge of the attachment. The plaintiffs demanded of the obligors the amount of their said demand, which the defendants refused to pay.
    The particulars and accounts of the claim of the plaintiffs, as set forth in the complaint, were due to the plaintiffs at the time of presenting their claim to the justice. The ship “Edith” was a sea-going vessel, engaged in foreign commerce. The said bond was given solely for the pursose of obtaining her release from the custody of the sheriff. The claim of the plaintiffs was for materials furnished and work done to the ship in repairing her and fitting her for sea.
    Upon these facts the court directed a verdict for the plaintiffs, subject to the opinion of the court at general term.
    The plaintiffs now move for judgment.
    
      Beébe, Wilson & Hobbs, attorneys, and of counsel for plaintiffs, argued:—I.
    The law under which the attachment, against the ship “Edith” was issued, in its application to this case is not unconstitutional, but is a valid enactment. 1. The ship was a domestic vessel, and the supplies and materials, for which the plaintiffs claimed a lien, were furnished to her in her home port, and in July, 1870, such a contract, though maritime, was not the subject of a. maritime lien (McGuire v. Card, 31 How. U. S. 348). 3. Since the revocation of the 12th admiralty rule of the supreme court of the United States, in January, 1872, the lien of the material-man is restored upon domestic vessels; but such revocation is not in its effect retroactive (The Circassian, 5 Am. L. T. 482).. 3. In respect to all con-1* tracts, not the basis of maritime liens, though they be maritime contracts, the legislatures of the several States may declare such liens as are deemed proper, and adopt all needful regulations for the enforcement of the same, not amounting to a regulation of commerce (The Belfast, 7 Wall. 629 ; Leon v. Galceran, 11 Id. 185). 4. It is claimed that the court of appeals in the case of The Josephine, 39 N. Y. 19 ; and Brookman v. Hammell, 43 Id. 554, has declared against the validity of the law as applied to all maritime contracts, whether they are subject of maritime liens or not ; but the decisions in the courts of the United States cited in these cases, and on which the court of appeals bases its decisions, do not go to any such length; on the contrary, they all make a distinction between contracts simply maritime and contracts which are the subject of maritime liens ; the law is upheld as to the former and pronounced invalid as to the latter.
    
      II. If it should be found that there is a conflict of opinion between the court of appeals and the supreme court of tibe United States, we still insist, that the latter, being the superior tribunal for the determination of all constitutional questions, ought to be followed. .
    III. The legislature undoubtedly has the constitutional right to declare that labor performed upon a vessel, materials or supplies furnished to her, shall constitute a lien upon her, and fix the term or time for which it shall exist, and there is no authoritative adjudication which holds that it has not such right. The lien and mode of enforcing it, are two distinct rights,-and the one does not necessarily depend upon the other.
    The lien may be constitutional, and the mode of enforcing it unconstitutional.
    It has been held that it cannot be enforced by a proceeding in rem.
    
    The present suit is not a proceeding in rem / it is an action in personam to enforce the obligation of a bond conditioned to pay, not a certain sum, provided the attachment issued against the vessel is held to have been legally issued, but such sum as shall be established “to be due the plaintiffs, and to have been a subsisting lien on the ship' ‘ Edith.’ ”
    IV. The plaintiff should have judgment upon the verdict.
    
      Vose & McDaniel, attorneys, and Everett P. Wheeler, of counsel for defendants, urged :—I.
    The act in question is unconstitutional and void so far as it undertakes to give a lien for supplies furnished to sea-going vessels, and enforce that lien by proceeding in rem against the ship.
    This has been distinctly^adjudged by the court of appeals, and those decisions cannot be questioned here. The only tribunal competent to review them is the supreme court o£ the United States (Brookman v. Hamill, 43 N. Y. 554; The Josephine, 39 Id. 19).
    In the former case a suit had been brought on the bond. In the latter the appeal was from an order vacating the attachment.
    II. These decisions have been followed in the United States district court (Sedgwick v. The Edith, opinion submitted herewith).
    
    III. The various decisions of the United States supreme. court are stated at length in the opinions already referred to. It can hardly be necessary to restate here the grounds upon which the cases already referred to proceed. But the importance of the question, perhaps, justifies such a statement.
    It is well settled that in all cases to which admiralty jurisdiction is. applicable at all, it is exclusive, saving only such remedies as are given by the common law (The Moses Taylor, 4 Wall. 411; The Hine v. Tre vor, Id. 555).
    It is equally well settled that the contract for supplies furnished to a sea-going vessel in a home port is a maritime contract, and that courts of admiralty have jurisdiction over such contracts by a proceeding in personam; and, if their rules of practice allow, by a proceeding in rem (The St. Lawrence, 1 Black, 522 ; The Potomac, 2 Id. 581; The General Smith, 4 Wheat. 438 ; Peyroux v. Howard, 7 Pet. 324).
    And the supreme court of the United States have twice, by rule of court, allowed process in rem to issue in such cases wherever a lien is given by the local law (Rule 12 of 1844, 3 How. U. S. vi ; revived in 1872, 13 Wall. xiv.
    The question of process is of course subordinate to the question of jurisdiction. If a court of admiralty has jurisdiction of the contract, the mode of enforcing that jurisdiction is matter of practice to be determined by Congrbss or by the supreme court.
    
      But no State court con have jurisdiction over a proceeding in rem to enforce a contract of which courts of admiralty havé jurisdiction.
    The remedy given by the statute of 1862 is in name and nature a proceeding in rem. It is entitled “ In the matter of the ship Edith.” No personal judgment is or can be rendered in it. It is in all respects similar to a libel in rem in admiralty. Such a remedy cannot be given by any State tribunal to enforce maritime contracts.
    IV. The general term should order final judgment for the defendant. The whole cage appears upon the record; only questions of law are involved, and the verdict is subject to the opinion of the court at general term (Code, §265; Oneida Bank v. Ontario Bank, 21 N. Y. 490, 503 ; Chittenden v. Empire Stone Dressing Co., 6 Buer, 30).
   By the Court.—Mohell, Ch. J.

The current and weight of authority in this State is, that the act of 1862, “ to provide for the collection of demands against ships and' vessels,” is unconstitutional only as to claims founded upon maritime contracts. In respect to demands which are not in their nature maritime, the State courts can proceed and enforce their collection under the act referred to.

This limitation of the act is authoritatively decided by the court of appeals, in Sheppard v. Steele (43 N. Y. 52), and in Brookman Hamill (Id. 554). The earlier case of Bird v. The Josephine (39 Id.19), which failed to recognize the distinction, is explained by the court in Brookman v. Hamill, and found not to conflict with more recent adjudications.

The ground upon which the act is declared to be unconstitutional is, that in respect to maritime contracts, the States have granted to the Federal courts exclusive jurisdiction, thus divesting the State tribunals of all jurisdiction, in such cases, to proceed in rem.

The question, therefore, in cases arising under the act, must always be, whether the demand arises under a maritime contract. That will determine the validity or invalidity of the State law.

A distinction, attempted in some of the cases, collected and reviewed, in Brookman v. Hamill {supra), between mere maritime contracts, and such as create a maritime' lien in rem, is repudiated by the latter case ; and it is held to be immaterial whether the admiralty courts do or do not proceed in ren ; the test being the nature of the claim, whether maritime or otherwise, and not the mode of enforcing it.

The ship in question was a sea-going vessel, engaged in foreign commerce. She was “ domesticated,” when the work was done, in the port of New York, and was there repaired and fitted for sea.

This, under the decisions in this State, was a maritime claim. In re The Josephine (supra), the claim was for supplies furnished. In Brookman v. Hamill, it was for wharfage of the vessel. Over such claims, as our courts have held, courts of admiralty have exclusive jurisdiction.

The case of The Belfast (7 Wall. 624), holding that a maritime claim does not arise upon a contract for material and supplies furnished, to a vessel in her home port, is examined in Brookman v. Hamill, and the remark of the learned justice in the “ Belfast” case, is applied only to cases in which the contract is not maritime, and not as intending to decide, that claims for supplies, &c., if furnished at the home port, were not of a maritime nature.

A similar criticism, in effect, was later made by the same court, in Vose v. Cockcroft (44 N. Y. 415, 420 ; see also Sheppard v. Steele, ubi sup).

But the courts of the United States still adhere to the views expressed in The Belfast, and they refuse to recognize, as the subjects of admiralty lien or contract, materials and supplies furnished to a vessel, while in her home port (Leon v. Galceran, 11 Wall. 185). A singular phase, a part of the history of this case, and as exhibiting this conflict of views, between the Federal and State courts, is the result of a proceeding in rem, in the district court of the United States, growing out of the same claim, The ship, upon which the plaintiffs performed the work, was libeled and sold, under a decree of that court. The plaintiffs, claiming a lien upon the proceeds, for their work and materials, petitioned the court to be paid their claim. But the court, following The Belfast (sup.), and Leon v. Galceran (sup.), held, that a maritime lien did not arise on a contract for materials and supplies furnished to a vessel in her home port, even though such contract might be a maritime contract. Judge Blatcheord, in his opinion, says: “It is also a principle recognized by the federal courts, that, in respect to a maritime contract for materials and supplies furnished to a vessel in her home port, a State may lawfully create such liens.

The learned district judge also recognized the differerent principle established by our State courts, in The Josephine (supra), and Brookman v. Hamill (supra), where, as we have seen, it is held, “ that all State legislation providing for the enforcement of a maritime claim or contract, in any other manner than by a common law remedy, infringes on the exclusive jurisdiction of the Federal courts, and violates the constitution of the United States.”

But the learned judge, after holding that the contract in the present case, being one for labor and materials, furnished by shipwrights, in making repairs to a vessel on the water, was a maritime contract, held it to be of no consequence whether, under the decisions of the State courts, and their interoretation of the State law, the contract was or not one which the admiralty' court would enforce by a proceeding in rem against the vessel; or the proceedings in rem against the ship as far as they were authorized by the State law, they were wholly void or not.

As .a - final result of the plaintiffs’ petition in the district court, it was held, that they had no maritime lien upon the vessel; and, therefore, were not entitled to participate in the proceeds.

The decree of the district court, containing the foregoing decision, has since, on appeal to the circuit court of the United States, been, in all respects, affirmed.

Nevertheless, it may be regarded as settled in this State, that contracts for work and materials for a seagoing vessel are maritime contracts, to enforce which, by a proceeding in rem, the courts of admiralty have exclusive jurisdiction. And, therefore, as to such contracts, the act of 1862 is unconstitutional.

There is ho force in the suggestion of the plaintiff’s counsel, that the action being upon the bond it is in personam, and not in rem. This objection is covered by the case of Vose v. Cockcroft (sup.), which, like this, was an action upon the bond ; and the court say, if the attachment proceeding is void, the bond falls with it.

Notwithstanding the conflict existing between our own and the Federal courts, I feel bound by our own decisions.

The power to review such decisions, which is vested in the supreme court of the United States, does not abate the authority of the court of last resort in the State, over inferior tribunals; and therefore, notwithstanding the Federal courts have gone further, to sustain a State law, than our own courts have seen fit to go, we must abide by our own decisions.

Until either the Federal or the State courts recede from their present position in respect to this question, parties having similar causes of action, will be confined to their common law remedies. They cannot obtain, in either court, as the decisions now stand, a remedy in rein.

The verdict must be set aside, and judgment absolute, with costs, rendered for the defendants.

Freedman, J., concurred  