This is an appeal from an order of the Erie Special Term denying a motion made by the appellant, Clara Perry, the owner of the canal boat Robt. W. Parsons, to dismiss the proceedings herein upon the ground that the Supreme Court is without jurisdiction to entertain the same.
The undisputed facts of the case are that the Robt. W. Parrsons is an ordinary canal boat, navigating the Erie canal and the Hudson river ; that in May, 1899, the petitioner made certain repairs to that boat at his dry dock in the village of Middleport, situated on the Erie canal, in'Niagara county, and furnished the necessary material ■and labor therefor; that such repairs, labor and materials amounted in value to the sum of one hundred and fifty-four dollars and forty cents, of which sum ninety dollars and ten cents have béen paid, and that a balance of sixty-four dollars and thirty cents remains due and unpaid, for which amount specifications of lien were filed under the General Lien Law of this State. (Laws of 1897, chap. 418, art. 2.)
By section 35 of the article referred to it is provided that “ if a lien, created by virtue of this article is founded upon a maritime contract, it can be enforced .only by proceedings in the courts of the United States, and in any other case, in the courts of. this state, in the manner provided by the code of civil procedure.”
No criticism is made as to the regularity of the petitioner’s proceedings, provided, he is entitled to invoke the aid of a State court in enforcing his lien ; but it is contended that the contract out of "which his right to a lien arose is maritime ill -its nature, and that the proceeding is, therefore, one of which a State court cannot take cognizance, inasmuch as the District Courts of the United States are by the Constitution and laws given exclusive jurisdiction of proceedings in rem, in maritime and admiralty cases. (U. S. Const. art. 3, § 2; Act of Congress of Sept. 24, 1789, chap. 20, § 9 [1 U. S. Stat. at Large, 76]; U. S. R. S. § 563, subd. 8; The Glide, 167 U. S. 606.)
The question which is thus presented for our consideration is one "which has provoked much discussion, and one concerning which the *552State and Federal courts have apparently entertained and expressed, somewhat diverse views; but we think this diversity is due to the difficulty which necessarily attends any attempt to draw a line which shall-determine in each individual case just when a vessel so far ceases to navigate domestic or inland waters as to become subject to maritime jurisdiction.
No one, of course, doubts that the contract and lien for repair^ to a vessel plying between New York and Liverpool, whether made in a home or a foreign port, would be maritime in their nature, and consequently clearly within admiralty jurisdiction. The same would doubtless be true of a vessel engaged in navigating a gulf or river which adjoined or emptied into the sea (Poole v. Kermit, 59 N. Y. 554; The Glide, supra), but it has been repeatedly held that our State courts have jurisdiction in cases of repairs made and supplies furnished to boats engaged in running between different points-upon some body of water wholly within the State, such, for instance,, as the Erie canal. (Sheppard, v. Steele, 43 N. Y. 52; Brookman v. Hamill, Id. 554; King v. Greenway, 71 id. 413 ; Fralick v. Betts, 13 Hun, 632.)
The truth of this assertion'will doubtless - be conceded, but it is-claimed that a comparatively recent decision of the Supreme Court of the United States has virtually overturned the doctrine of the-cases cited,, and is authority for the proposition that even so insignificant a craft as a canal boat, engaged in navigating an artificial waterway which is' wholly within the borders of a State, • is subject to admiralty jurisdiction, and consequently that a lien for repairs to the same cannot be enforced in a State court. (Ex parte Boyer, 109 U. S. 629.)
It is not to be denied that the principle enunciated in the .case-above cited, and which apparently constituted the appellant’s main reliance in this case, does have a tendency to extend admiralty jurisdiction to a point somewhat in advance of any theretofore attained,, but when, the facts in that case are carefully examined it will be seen, we think, that they bear no analogy to those of the one we are now considering.
It seems that the controversy there arose out of a collision between two canal boats while they were navigating the. Illinois and Michigan canal. Although this canal is wholly within the territorial *553bounds of the State of Illinois, it was constructed upon lands the use of which is vested in .that State by the United States, upon the condition that it should forever remain a public highway for the use of the government. Moreover, its dimensions are stich as to-enable vessels to pass from the Mississippi river into Lake Michigan and thus carry on interstate commerce. The two canal boats in question were propelled by steam and were enrolled and licensed for the coasting trade and were actually employed in the business of commerce and navigation between different ports and places in different States and Territories of the United States, upon the lakes and navigable waters of the United States. A libel in admiralty was filed by the owner of one of the boats, but the court found that both parties were in fault and adjudged that each should pay one-half of the damages occasioned by the collision. One of the owners thereupon presented a petition asking for a writ of prohibition to restrain further proceedings in the suit upon the ground of want of jurisdiction of the District Court as a court of admiralty. But upon the foregoing facts the prayer of the petition was denied, the Supreme Court, by Mr. Justice Blatchforo, saying that “Navigable water, situated as this canal is, used for the purposes for which it is used, a highway for commerce bet/ween ports and places in different States, carried on by vessels such as those in question here, is public water of the United States and within the legitimate scope of the admiralty jurisdiction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial and is wholly within the body of a State and subject to its ownership and control,” to which conclusion, however, the learned justice was careful to add: “ This case does not raise the question whether the admiralty jurisdiction of the district court extends to waters wholly within the body of a State, and from which vessels cannot so pass as to carry on commerce between places in such State and places in another State or in a foreign country; and no opinion is intended to be intimated as- to jurisdiction in such a case.”
The rule, as thus declared, falls far short, we think, of sustaining tlie appellant’s contention in the present case.. For her boat was but an ordinary canal boat, propelled by horse power, and was not “ employed in the business of commerce and navigation between ports and places in different states and territories of the United *554States, upon the lakes and navigable ¡waters of the United States.” On the contrary, its navigating ventures were confined to the-Erie canal and the Hudson river. It i.s true that the. latter stream finds its'way to the Atlantic ocean, and that one of its banks is for a short distance within the territorial bounds of the State of New Jersey; but the court will take judicial notice that such a boat as the one in question cannot and does not navigate the high seas. The purpose for which it was constructed and used was doubtless to engage in commerce -between the city of New York and various points upon the Erie canal, in.the western part of the State, and while, in order to carry out this business, it was necessary that it should be towed through the Hudson river, we do not think that for that reason, or for any other which the record discloses, it can be successfully asserted that its sole purpose and occupation was not that of navigating inland and domestic waters.
If the appellant’s contention is well founded then the State courts are deprived of all jurisdiction to enforce a lien for repairs made to any boat navigating the waters of the Erie canal, however insignificant they may be, because, forsooth, the canal.connects with a stream which ultimately empties into the Atlantic ocean, and by following the course of which the boat might reach the same destination,' although it had no occasion to do so and would be pretty certain to go to the bottom if so perilous a voyage were attempted. We do not believe that the case of Boyer (supra) is authority for any such startling doctrine, and we must refuse to give to it that force and effect until compelled so to do by a decision more directly in point than that appears to be.
In this connection it is perhaps proper to add that the more recent decisions of the same tribunal to which our attention has been directed (Matter of Garnett, 141 U. S. 1; The Glide, supra) simply reiterate the doctrine of the Boyer case and apply it to facts which are even less analogous to those of the case at bar. It follows that the order appealed from should be affirmed.
All concurred, except Williams and Laitghlin, JJ., dissenting.