Opinion
June 24, 1927.
Appeal from Supreme Court of Kings County.
Wilbur F. Earp [ Franz Neilson with him on the brief], for the appellant.
James Gillin [ Henry W. Baird with him on the brief], for the respondents.
This action was tried with the case of Lawson MacMurray v. Radford ( 221 App. Div. 268), decided herewith, and the views expressed in the opinion filed with our decision reversing the judgment dismissing the complaint and granting a new trial in that case, apply to the case at bar. In the case at bar, in the contract for construction of the vessel, the shipbuilding company agrees with defendant Wrege:
" Second. That the owner [as Wrege is designated], upon making the various payments is to be absolute owner of the boat to the extent of the value of the money paid. The builder, however, is to be responsible for damage from any cause while the boat is in his yard, and is to carry insurance in favor of the owner for an amount sufficient to cover all payments made.
" Third. That in case the builder fails to continue work to such an extent that it becomes evident that the boat cannot be completed on or near the time specified, the owner may take possession of the boat, removing same if desired, allowing the builder for such labor and materials as he has furnished. Such failure on the part of the builder does not relieve him of responsibility in this contract."
The contract between the shipbuilding company and Rau in the other case did not contain these clauses. But the statement of Mr. Baird, defendants' counsel, made at the trial, as to the manner in which Wrege recovered possession of the vessel in December, applies to this case as well as to the transaction in the Rau case referred to in the opinion. That is, he states that "bills of sale" were given. And in the case at bar the bill of sale was not introduced in evidence, and despite the reference in the contract to defendant Wrege as "owner," it is difficult to understand on this record what bill of sale could be given unless it was a bill of sale from the shipbuilding company which had theretofore had possession and, as I think, title to the uncompleted vessel. The 2d clause in the Wrege contract ( supra) may give rise to equities as between the shipbuilding company and Wrege, or may give Wrege equities as against the general creditors of the shipbuilding company; but it is difficult to understand how it can affect the lien of the materialman for lumber supplied to the shipbuilder, in his possession and the price of which was unpaid. None of these matters was discussed upon the trial or before this court on the appeal. As in the other case, we are constrained to reverse the dismissal of the complaint upon the grounds stated by the learned trial justice, but on this record we must order a new trial of the issues because the evidence at the trial as printed in the record cannot be made the basis of a judgment one way or the other. Upon a complete presentation of the case showing the relations between the plaintiff materialman and the shipbuilding company, the date of the delivery of the lumber for which the lien is claimed, the exact date when the debt became due to the materialman, the trial court may be able to dispose of the case properly.
The judgment and order appealed from should be reversed upon the law and the facts, and a new trial granted, with costs to appellant to abide the event.
YOUNG, KAPPER, LAZANSKY and HAGARTY, JJ., concur.
Judgment and order reversed upon the law and the facts, and new trial granted, costs to appellant to abide the event.