Lih v. Wagner

• Decision Date: 15 December 1970
• Citation: 316 N.Y.S.2d 497,65 Misc.2d 38
• Parties: , 1971 A.M.C. 768 Dick LIH, Plaintiff, v. Wofgang WAGNER, Defendant.
• Court: New York Supreme Court

Page 497

316 N.Y.S.2d 497

65 Misc.2d 38, 1971 A.M.C. 768

Dick LIH, Plaintiff, v. Wofgang WAGNER, Defendant.

Supreme Court, Cortland County.

Dec. 15, 1970.

[65 Misc.2d 39] David W. Perfetti, Cortland, for plaintiff.

MacKenzie, Smith, Lewis, Michell & Hughes, Syracuse, for defendant; Alfred W. Popkess, Syracuse, of counsel.

DECISION

ROBERT W. SLOAN, Justice.

Petitioners moves for an order directing the sale of a 36-foot cabin cruiser seized by the Sheriff under warrant from this court in this proceeding to foreclose a lien for repairs on which there is due an alleged balance of $866.33.

The proceeding is brought pursuant to Article 4, Lien Law. On this motion respondent, owner of the cruiser, alleges that the petitioner's work on the vessel was not completed and that the work done was not done in a workmanlike manner and will either have to be corrected and/or completed to his damage in the sum of $9,026.19. He also claims that it is inequitable that a $20,000.00 cruiser be sold to satisfy an $866.33 lien, assuming it is established upon a trial of the issues (Lien Law § 91).

Neither party has touched upon whether this court has jurisdiction to entertain and adjudicate this foreclosure proceeding. However I note the presence of such a question. If I have no jurisdiction of the subject matter of the proceeding, I must refuse to proceed further and dismiss the proceeding even if the parties might be deemed to have consented to the exercise of jurisdiction (Cutting Room Appliances Corp. v. Finkelstein, 33 A.D.2d 674, 305 N.Y.S.2d 348; Robinson v. Oceanic Steam Navigation Co., 112 N.Y. 315, 19 N.E. 625; 1 Carmody Wait 2d §§ 2:77, 2:78 and 2:80).

It conclusively appears from the pleadings that the petitioner's claimed lien is for repairs to the vessel upon order by the owner. Lien Law § 80, provides that a debt for work or material furnished for or toward repairing a vessel, shall be a lien upon the vessel. Lien Law § 85, provides that such lien may be enforced in the courts of this state unless it is founded upon a maritime contract. The Federal Ship Mortgage Act provides that any person furnishing repairs or other necessaries to any vessel, upon the order of the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem (46 U.S.C.A. § 971) and that Act supersedes the provisions of all state statutes conferring liens on vessels, insofar as such statutes purport to create rights of action to be enforced by suits in rem in admiralty against vessels (46 U.S.C.A. § 975). A 36 foot cabin cruiser is a vessel under both Federal (1 U.S.C.A. § 3) and New York State (Navigation...