Opinion
April 24, 1908.
W. Russell Osborn [ David Bennett King with him on the brief], for the appellant.
Robert J. Mahon, for the respondents.
This is an appeal from a judgment enforcing a lien on a vessel for material used in the construction thereof. When the case was here before it was reversed on a finding of fact that the material never went into or was not used in the construction of the vessel, although purchased and delivered for that purpose ( 110 App. Div. 72; 184 N.Y. 568). On the present trial it was found that the material "was used in or toward the construction" of the vessel, and that finding is sufficiently supported by evidence.
The words of the Lien Law (Laws of 1897, chap. 418, § 30) are that a lien may be had "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." It is objected that the finding of fact is equivocal, and therefore finds nothing, in that it finds that the material was used "in or toward" the construction of the vessel, which, it is claimed, is not a finding that it was "sued in" such construction. This argument is based on the notion that each of the two words "in" and "toward", as used in the finding, or "for" and "towards", as used in the statute, means something different. But it is not so; the phrase in the finding, like that in the statute, which it substantially followed, is tautological.
Section 32 provides that a "debt" shall cease to be a lien upon a vessel unless a notice of lien be filed by the lienor within thirty days after such debt "is contracted". The debt here was contracted November 14th, 1903, and the lien was filed within thirty days thereafter, viz., December 2d 1903. By the subsequent part of the said section the notice of lien is required to contain "a statement of the amount claimed to be due". In this case a credit of thirty days was given, so that the debt did not become due and payable until after the lien was filed, viz., on December 15th. It is therefore argued that as the lien was filed before the debt was due, and therefore could not truthfully state the amount claimed to be due, as there was nothing then due, it was prematurely filed, and therefore did not continue the lien of the debt. But the previous requirement that the notice of lien be filed within 30 days after the debt is "contracted" must govern. By subsequently requiring the lienor to state the amount claimed to be "due", that word was not used in the sense of payable, or due and payable; it was not meant to require the postponement of the filing of notice of lien until within 30 days after the debt became due and payable. The effect of giving credit is only to postpone the beginning of a proceeding to enforce the lien, not the time of filing the notice of lien ( Mott v. Lansing, 57 N.Y. 112).
The judgment should be affirmed.
WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred.
Judgment affirmed, with costs.