CHAPTER IV. PROCEEDINGS TO ENFORCE LIENS ON VESSELS. [Code of Civil Procedure, title IV of chapter 22, as enacted by L. 1897, ch. 419.] SECTION 1. Enforcement of liens on vessels. 2. Application for warrant. 3. Undertaking to accompany application. 4. Warrant; execution thereof. 5. Order to show cause; contents; service. 6. Notice of service to be published and served. 9. Sale and proceeds. 10. Notice of the distribution of the proceeds of sale. 12. Contested claims. 13. Trial of issues and appeal. 14. Distribution of proceeds. 15. Payment of uncontested claims. 16. Court may invest proceeds; distribution of surplus. 17. Application for a discharge of warrant.' 18. Undertaking to accompany application for discharge. 20. Action on undertaking. 21. Costs of proceedings. 22. Sheriff must return warrant. 23. Discharge of lien before issue of warrant. Section I Enforcement of Liens on Vessels. [$ 3419, Code Civ. Pro.]-Liens on vessels, created by virtue of article two of the lien law, and not based upon a maritime contract, may be enforced as prescribed in this title. New. See preliminary note to article 2 of the Lien Law, for cases cited showing what liens are subject to the jurisdiction of State courts. Report of Statutory Revision Commission, 1897. [$ 3420, Code Civ. Pro.] — The lienor may make a written application to a justice of the supreme court, at chambers, in the judicial district in which the lienor resides or in a county adjoining such district, for a warrant to enforce a lien on a vessel and to collect the amount thereof. Application for Warrant. The application shall specify: 1. By whom and when such debt was contracted and for what vessel; and the name and residence of the owner of the vessel, if known. 2. The items composing the debt and the amount claimed. 3. That the debt is justly due the applicant over and above all payments and just deductions. 4. Any assignment or transfer of the debt which may have taken place since it was contracted. 5. When and where the notice of lien was filed. The application shall be verified in the same manner as a pleading* a court of record. L. 1862, ch. 482, $$ 4, 5. Under the present law the application must be made to a Supreme Court justice in the county where the vessel is at the time of making the application. Under the proposed section the application may be made to any justice in the judicial district, or in an adjoining county. This practice would be less restricted and could not prove injurious to the persons interested in the vessel. Report of Statutory Revision Commission, 1897. For form of application, see Form No. 38. An application for a warrant to enforce an alleged lien which states the amount of the claim in a gross sum, the claim being based upon several grounds, some of which are not provided for in the statute, so that the court cannot see that the claim for those which are provided for amounts to the sum prescribed by the statute, is not enough to give jurisdiction; and in such case the proceedings are void even when questioned collaterally. An appearance and answer objecting to the sufficiency of the application, and a consent to the striking out of the answer, do not, without trial, waive the defect, for they only give jurisdiction of the person, and the proceeding is one in rem. Nelson v. Yates, 37 Hun, 52. Clerical defects in the application may, however, be amended upon its presentation. Matter of Tilton, 19 Abb. Pr. 50. Omission to state in the application the time and place of filing a specification of the claim against a vessel under Laws of 1862, *So in original. Proceedings to Enforce Liens on Vessels. chapter 482, does not invalidate proceedings under that statute, and the giving of the bond required in the act is a waiver Happy v. Mosher, 48 N. Y. 313. The giving of a bond, in all cases, is a waiver of any technical defect in prior proceedings. Wilson v. Lawrence, 82 N. Y. 409. Section 3 Undertaking to Accompany Application. [$ 3421, Code Civ. Pro.]— Such application shall be accompanied by an undertaking in the sum of at least one hundred dollars, to be approved by such justice and filed in the office of the clerk of the county where the notice of lien is filed, with at least one surety, who shall be a resident and freeholder within the state, to the effect that if it is finally adjudged that the applicant was not entitled to the warrant, he will pay all costs which may be awarded against him, not exceeding the amount specified in the undertaking, and any damages sustained by reason of the seizure of the vessel under such warrant, not to exceed fifty dollars. L. 1862, ch. 482, § 7 A part of such section is omitted. It is intended that the undertaking should be for the payment of costs and damages in case it is adjudged that the applicant was not entitled to the warrant. The change is made to conform with the new course of procedure suggested in the following sections. Report of Statutory Revision Commission, 1897. For form of undertaking, see Form No. 39. Section 4-Warrant; Execution Thereof. [$ 3422, Code Civ. Pro.]—Thereupon, such justice shall issue a warrant to the sheriff of the county where such vessel may be, or, generally to the sheriff of any county, specifying the amount of the claim, and the names of the persons making the claim and commanding him to seize and safely keep such ship or vessel, her tackle, apparel and furniture, to satisfy such claim, if established to be a lien upon the vessel according to law, and within ten days after the seizure to make return of his proceedings under the warrant to such justice. Order to Show cause; Contents; Service. The sheriff shall forthwith execute such warrant, and keep the vessel, her tackle, apparel and furniture to be disposed of according to law. In his return the sheriff shall state also whether he has seized such vessel by virtue of any other warrant, and if so, in whose behalf and for what sum such warrant was issued and the time of its receipt by him. L. 1862, ch. 482, §§ 7, 8, without change in substance. Section 5-Order to Show Cause; Contents; Service. L 3423, Code Civ. Pro.]-At the time of issuing such warrant the justice shall grant an order to show cause, why the vessel seized by virtue of such warrant should not be sold to satisfy the lien specified in the application. Such order shall be returnable not less than eight days after the service thereof, as required in this section, before the justice and at the time and place mentioned therein It shall be directed to the master or other person in charge of the vessel seized and to the owner and consignee thereof, if known. A copy of such order and the application for the warrant shall be served personally upon the master or other person in charge of such vessel at the time of the execution of such warrant; and personally upon the owner and consignee of such vessel if a resident of the state, or if not a resident of the state, by mail addressed to such owner or consignee at his last known place of residence, within ten days after the execution of such warrant. In this and the following sections we have provided proceedings for a hearing of the claims of lienors, after the execution of a warrant and the seizure of the vessel thereunder. By the present law, if the owner or any person interested in a vessel is not able or willing to give the undertaking required for the discharge of the warrant, the vessel is sold by the sheriff, and the only contest authorized is in the proceedings to determine the rights of the several parties to the proceeds of sale. The theory of the present law appears to be that the failure to give a bond for the discharge Proceedings to Enforce Liens on Vessels. of the warrant is an admission of the validity of the claim of the lienor. But such failure may be caused by the inability of the interested party to furnish security. In such case it is not just that he should be deprived of his right to defend. Before the vessel is sold to satisfy a lien, its validity and amount should be determined. It is inadequate to compel the persons interested to wait until the vessel is sold and the proceeds of the sale are to be distributed, before the claim of the attaching lienor can be contested. We retain the provisions of the present law relating to the undertaking of the owner or other person interested, for the purpose of releasing the vessel from the attachment. In such case the undertaking takes the place of the vessel, and the action to establish and enforce the lien is brought upon such undertaking. If the undertaking is not given the vessel may be sold under the proposed law, but before the order directing the sale is granted, the lienor upon notice must show that he has a lien and that it should be enforced. We have also retained many of the provisions of the present law, relating to the distribution of proceeds. Report of Statutory Revision Commission, 1897. For form of order, see Form No. 41. It is evidently not the intent of the statute to deprive the owner of the vessel of his right to secure a discharge of the warrant of attachment by giving an undertaking. That remedy is still retained. See section 3435, post, p. 240. Under the former law the owner's only remedy was in furnishing security, and the cause of action was thereby transferred from the vessel to the undertaking. The only way to contest the lienor's claim in case of a failure to give the undertaking was, after the sale, to contest the lienor's right to share in the distribution of the proceeds. By the law as revised the lienor's claim is to be litigated upon the return of the order to show cause. If his lien is determined to be a valid one, the vessel is to be sold to satisfy such lien, and the proceeds are to be distributed as the equities of the parties interested in the vessel may appear in the proceedings provided for the determination of their rights to share in the distribution. The order to show cause need only be served upon the master or other person in charge of the vessel at the time of the execution of the warrant. The following section requires the notice therein specified to be served upon lienors and mortgagees, whose liens or mortgages are filed in the office of the State comptroller. This notice is not required to enable the lienors or mortgagees |