The only material question in this case is whether the agreement, on the part of the plaintiff, that Ketchum might take the boat when the repairs should be completed and run her to Whitehall and from thence remit fifty dollars, which it was supposed would be accomplished within about three days after the departure of the boat, was *Page 118 a waiver of his statute lien for that amount. The referee has found, as a fact in the case, that the work and materials to this amount were not done and furnished upon the credit of Ketchum, and, impliedly, that it was done relying upon the security of his statute lien upon the boat. The statute, doubtless, contemplates an absence of such vessels from the port of repairs without impairing the lien upon them for the materials furnished and work done in accomplishing the repairs; and it would be an unreasonable construction of the statute to hold that such absence must be occasioned by the wrong act of the owner and against the consent of the repairer, or the statute lien is lost. (Hitchcock and others v. Dunning Browning, 6 Hill, 494.) It could never have been supposed that vessels would be kept in port six months after the completion of repairs, and yet the statute provides for the continuance of the lien for that length of time after the debt is contracted, and then if the vessel shall be absent from the port the lien is extended for the space of ten days after she shall return, provided the person having the lien shall, within twelve days after such departure, have caused to be drawn up and filed in the office of the clerk of the county, etc., a sworn specification of the lien. (Sess. Laws 1862, 956, 957, §§ 1 and 2.) These provisions, in relation to the departure and absence and return of a vessel, and the continuance of the lien thereon, contemplate a departure with the consent of the lien-holder, and necessarily result in giving a credit to the debtor and at the same time relying upon his statute lien as a security for payment. If a repairer of a vessel at Albany should consent that its owner might sail it from that port to Troy and back, to be absent three days, it cannot be that, if the journey should be performed within the time, he could, in the meantime, attach the vessel; and if, by consenting to such absence, he should lose his lien, the provisions of the statute would be inapplicable to any other than a tortious departure and absence. (See Phillips v. Wright, 5 Sand., 642, 660.) The necessity of filing a specification of the lien in this case was obviated by the issuing *Page 119 and service of the attachment before the twelfth day after the departure of the boat.
We are referred to Veltman v. Thompson (3 N.Y., 438), as an authority in support of the defendants' position, that the plaintiff had waived his lien. In that case there was a departure of the vessel from the port where the supplies were furnished, and a return to it three times each week from April to October first. The goods were delivered at short intervals from May eleventh to September twenty-fifth; and because, by the agreement between the parties, it was held that an extended credit was given covering the period of the several departures from and returns to the port of supply, and until the end of the season for navigation for all the goods delivered, the court held that the party furnishing the goods had no lien upon the boat. The cases are unlike in facts as well as in principle.
The judgment appealed from should be reversed, and the judgment entered upon the report of the referee, affirmed.
All concur.
Order reversed, and judgment accordingly.