(147 N.E.) CARDOZO, POUND, CRANE, ANDREWS,, ing Dry Dock & Repair Company. From a and LEHMAN, JJ., concur. MCLAUGHLIN, J., absent. Judgments reversed, etc. (240 N. Y. 23) BUTLER v. ROBINS DRY DOCK & RE PAIR CO. (Court of Appeals of New York. Feb. 25, 1925.) 1. Wharves 4-"Graven dock" defined. A "graven dock" is distinguished from a "floating dock," in that it is permanently attached to, and in that manner is, a part of judgment of the Appellate Division (209 App. Div. 882, 205, N. Y. S. 915), unanimously affirming a judgment of nonsuit, plaintiff, by permission, appeals. Reversed, and new trial granted. William S. Butler, James A. Gray, and Sylvester Sabbatino, all of Brooklyn, for appellant. Paul Koch and A. G. Maul, both of New York City, for respondent. HISCOCK, C. J. This action was brought by the plaintiff to recover damages for the death of his intestate claimed to have been caused by the negligence of the defendant. The case presents the question whether or not this negligence constituted a maritime tort which was the subject of admiralty ju20-Maritime torts not sub-risdiction and which, therefore, the state ject to state Compensation Act. land. 2. Admiralty State Legislature cannot confine relief for maritime torts to Workmen's Compensation Act. 3. Admiralty 18-Maritime tort depends on locality. Whether tort is maritime depends on test of locality. 4. Admiralty 18-Tort on vessel in navlgable waters or in floating dock maritime. Tort occurring on vessel floating in navigable waters or on vessel resting in dock floating in navigable waters is maritime tort. 5. Admiralty 4-Vessel in dock is in navigable waters, though water withdrawn. Vessel floated into dock affixed to land but designed to receive vessel from navigable waters is in navigable waters, though water has been temporarily withdrawn. 6. Admiralty 20-Injury to workman repairing vessel in dock held within admiralty jurisdiction. Injury to workman repairing vessel in dock affixed to land is maritime tort within admiralty jurisdiction, regardless of whether workman was standing on staging outside vessel or on bottom of dock. 7. Admiralty 20-Maritime nature of work held not changed by workman starting for bolts and drink of water. could not bring under our Workmen's Compensation Act (Consol. Laws, c. 67) as affording the appropriate and only means of relief. Thus far the courts have held that it was not a maritime tort, and that the sole remedy must be found under the provisions of the aforesaid statute and that this action cannot be maintained. The action was dismissed solely for that reason. We reach the conclusion that the views which have thus far prevailed are erroneous. The facts which surrounded and constituted the accident and which present the question are as follows: [1] An ocean-going vessel for the purposes of repair had been floated into and was then resting in what is called a "graven dock" projecting into navigable waters. A "graven dock" is distinguished from a "floating dock" in that the former is permanently attached to and in that manner a part of the land. When such a dock is to be used for purposes of repairs to a ship, gates are opened and the ship floated into the dock. The gates are then closed and the water pumped out and the ship allowed to settle on blocks at the bottom of the dock and thus made available for purposes of repair. The intestate, standing on the bottom of the dock, had been engaged in fastening plates on the outside of the vessel. Having completed the particu Maritime nature of work by workman, re-lar operation in which he had been engaged, pairing ocean-going vessel in dock attached to land, was not terminated or changed by his starting for bolts and a drink of water preparatory to continuing his work, where he had taken only a few steps when killed. he started to go wholly or in part up the side of the dock for the purpose of getting bolts and a drink of water preparatory, it is assumed, to continuing his repair work. While he was still under the bulge of the upper part of the vessel and a few feet from the Appeal from Supreme Court, Appellate Di- place where he had been working, a plate vision, Second Department. Action by William Butler, as administrator of Walter Butler, deceased, against the Rob from the side of the vessel dropped upon him and caused his death. [2] In determining whether this accident constituted or was the result of a maritime | whether a ship resting in such a dock as the tort, it becomes our duty simply to interpret present one was in navigable waters or on with accuracy, if we may, the controlling land and that they become authoritative on views which have been expressed by the Su- the present question. preme Court of the United States and to follow them. We think they lead to the conclusion that this was a maritime tort, and that therefore a state Legislature could not exercise the power of confining relief therefor to the Compensation Act. [3, 4] It is so well settled that we find on this appeal no dispute of the proposition that the question whether a tort is maritime or not is settled by the test of locality. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. Unquestionably a tort occurring upon a vessel floating in navigable waters is maritime in its nature, and it is also practically conceded that by extension of the reasoning applicable to such a situation, an accident occurring upon a vessel resting in a dock floating in navigable waters would be a maritime tort. Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756; Danielsen v. Morse Dry Dock & Repair Co., 235 N. Y. 439, 139 N. E. 567. [6] If we are right in the foregoing views, then there are left for brief consideration only the details of the situation in which the intestate was at the moment when he was killed. As stated, he had finished the particular operation upon the side of the vessel in which he had been engaged and had gone a few steps in the direction of getting a drink of water and seeing about some bolts. We have no doubt that within the decisions which we have cited, if we are otherwise right, an accident happening to a workman standing on a staging on the outside of a vessel or on a dock at its keel and working on the vessel is just as much a maritime tort as though the man was standing on the deck of the vessel. The controlling circumstance is that he is engaged in making repairs on a vessel regarded as being in navigable waters and the particular foothold within the limits presented by this case which he utilizes in order to establish contact with the vessel and do his work cannot be material. Great Lakes Dredge & Dock Co. v. Kierejewski, supra; Anglo-Patagonian, supra. Moreover, if for the purpose of the determination of the question now presented to us a ship is to be regarded as still in navigable water when it has been floated into and rests upon the dry bottom of such a dock as this, it must be because such dock is to be regarded as navigable water instead of land, and if that is so the intestate constructively was standing in navigable waters at the time when the plate fell and caused his death. [5] The contention, however, is that a graven dock such as the one involved in this case is part of the land, and that therefore, when a vessel rests in such a dock from which all of the water has been drawn, it is really on land, and that an accident happening to a person then on the vessel and certainly to one standing on the bottom of the dock itself is not a maritime tort. We think the decisions of the Supreme Court hold the other way. We think that for the purposes of disposition of such a question as this, and also [7] If in view of the other circumstances somewhat as a matter of policy lest ad- that fact is material, we do not think that miralty law otherwise be robbed too much of the employment of the intestate was termiits jurisdiction, it is settled that a vessel nated or changed because he had stepped floated into a dock of this kind is still in away for a few steps to do something which navigable waters even though the water has was connected with or incidental to his been temporarily withdrawn. The Robert W. main employment; it not appearing that Parsons, 191 U. S. 17, 24 S. Ct. 8, 48 L. Ed. there was intended any permanent discon73; The Steamship Jefferson, 215 U. S. 130, tinuance of his employment. That question 30 S. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907; seems to be somewhat akin to one which we So. Pacific Co. v. Jensen, 244 U. S. 205, 37 S. have frequently considered in connection Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, with the application of our Workmen's ComAnn. Cas. 1917E, 900. See, also, Anglo-Pata-pensation Act in deciding whether a given gonian, 235 F. 92, 148 C. C. A. 586; Bran- accident arose "in the course of the employdeis Case, 248 Mass. 31, 142 N. E. 844. We do not fail to note the contention of respondent's counsel that the cases of Parsons and Jefferson Steamship, supra, were concerned with the decision of other questions than those arising from a tort. That, of course, is true. Nevertheless it seems to us that the opinions in those cases discussed from a general standpoint the question ment," and we have quite uniformly held that the employment included and was not broken by a slight departure from the site of the specific operations which a man was performing for a purpose which was fairly incidental to such employment. Matter of Moore v. Lehigh Valley R. R.. Co., 169 App. Div. 177, 154 N. Y. S. 620; affd., 217 N. Y. 627, 111 N. E. 1092. (147 N.E.) For these reasons we think the judgments appealed from must be reversed, and a new trial granted; costs to abide event. Appeal from Supreme Court, Appellate Division, First Department. Action by Anna M. Matthews against William Thorne Matthews. From an order of CARDOZO, POUND, CRANE, ANDREWS, the Appellate Division, First Department and LEHMAN, JJ., concur. MCLAUGHLIN, J., absent. Judgments reversed, etc. (240 N. Y. 28) MATTHEWS v. MATTHEWS. (Court of Appeals of New York. March 3, 1925.) I. Constitutional law 309(1)—Divorce ~4 -Statute for sequestration of property in divorce or separation proceedings held not unconstitutional. Civil Practice Act, § 1171-a, providing for sequestration of property of nonresident spouse in divorce and separation proceedings, held not to violate Const. U. S. Amend. 14, or Const. N. Y., art. 1, § 6, as statute confers no power to dispose of property by order of court without notice, actual or constructive, to defendant, being merely remedy analogous to attachment, and may be granted to accompany summons as in other provisional remedies, and must be read in connection with section 232, subd. 5, providing for service of summons by publication at once or within reasonable time; it being necessary for summons when published to bear on its face, "action for separation." under section 1167. (210 App. Div. 652, 206 N. Y. S. 537) reversing an order of the Special Term which granted to the plaintiff alimony and counsel fee to be paid out of defendant's property, sequestrated under an order of the court without notice to him, plaintiff appeals by permission. Questions certified by Appellate Division. Affirmed and questions answered. See, also, 210 App. Div. 877, 206 N. Y. S. 934. Barnett E. Kopelman, of New York City, for appellant. Richard M. Page, of New York City (William H. Page, of New York City, of counsel), for respondent. CRANE, J. Although we must affirm the order of the Appellate Division vacating and annulling ab initio the order entered May 2, 1924, granted herein, yet we do not agree with that court in its finding that section 1171-a of the Civil Practice Act is unconstitutional. This appeal has been sent to us by the Appellate Division, which has certified two questions: "1. Is chapter 51 of the Laws of 1923 amending article 70 of the Civil Practice Act by inserting therein a new section, numbered section 1171-a, unconstitutional in that it is violative of section 1 of the Fourteenth Amendment of the Constitution of the United States and section 6 of article 1 of the Constitution of the state of New York. "2. Was the defendant's motion to vacate and annul ab initio the order of the Supreme Court, New York county, entered herein on May 2, 1924, properly granted, in that said 3. Constitutional law 309 (1)—Sequestra-order deprives defendant of his property withtion of, and payment out of, property with- out due process of law?" out service of summons on defendant held deprivation without due process. In action for separation, order sequestrating defendant's property and directing payment out of it for support and counsel fee, as provided by Civil Practice Act, § 1171-a, without service of summons either personally or by publication, held to deprive defendant of his property without due process of law. 4. Husband and wife 290-Immediate payments out of sequestrated funds before judgment, improper. Where property of defendant has been sequestrated under Civil Practice Act, § 1171-a, court has no power to make immediate payment out of sequestered funds before service or judgment, even where service by publication has been properly commenced. [1] Section 1171-a is headed: "Sequestration of defendant's property in action for divorce or separation where defendant cannot be personally served and there is property within the state." It reads as follows: "Where in an action for divorce or separation it appears to the court that the defendant is not within the state, or cannot be found therein, or is concealing himself therein, so that process cannot be personally served upon him, the court may at any time and from time to time make any order or orders without notice directing the sequestration of his proper. ty, both real and personal and whether tangi * make or ble or intangible, within the state, and may ap-| be granted to accompany the summons. Civil point a receiver thereof, or by injunction or Practice Act, §§ 818, 825. In the case of an otherwise take the same into its possession attachment, for instance, the service of the and control. The property thus sequestrated summons by publication must commence and the income therefrom may be applied in within 30 days after the granting of the orwhole or in part and from time to time, under der for the attachment. Civil Practice Act, the direction of the court and as justice may require, to the payment of such sum or sums § 905. Section 1171-a then goes on to state: as the court may deem it proper to award, by "The court may at any time order or judgment as the case may be, and dur- any order * * without notice directing ing the pendency of the action or at the termi- the sequestration of his property, and nation thereof, for the education or mainte- may appoint a receiver thereof nance of any of the children of a marriage, or otherwise take the same into his possession for the support of the wife, or for her expens- and control." es in bringing and carrying on said action and the proceedings incidental thereto or connected therewith; and if the rents and profits of the real estate, together with the other property so sequestrated, be insufficient to pay the sums of money required, the court, upon such terms and conditions as it may prescribe, may direct the mortgage or sale of sufficient of said real estate to pay such sums. The court may appoint the wife receiver or sequestrator in such cases." 1 Wives and children of absconding husbands who have property within the state, therefore, have this new and additional remedy. The property may be seized and held by the sequestration order, subject to the further provision of the court. This in effect is the same as attaching the defendant's property and holding it subject to the further order or judgment of the court. This is the only step which by this section the court is authorized to take without notice. This section recognizes and must be read in connection with the other provisions of the act which provide that where the defendant is a nonresident or conceals himself so that he cannot be found within the the In its opinion the Appellate Division con- state, service may be made upon him by pubsidered this section unconstitutional as au- lication. Civil Practice Act, § 232, subd. 5. thorizing the payment of alimony and coun- In that case an order of sequestration may sel fee out of the sequestered property with- be made, but the service of the summons by out notice to the defendant and before serv-publication must be commenced at once or ice of the summons in the action upon him. within a reasonable time. We agree that the defendant's property, whether he be resident or nonresident, cannot be paid out and disposed of by an order of the court without some notice actual | or constructive to the defendant and an opportunity afforded him to be heard. We do not read this section, however, as attempting to confer such power upon the court. What the Legislature evidently intended to provide for was the case where a husband had property within the state and was concealing himself or else had disappeared so that personal service could not be made upon him. Under such circumstances, the court, in the interest of his wife and children and the public generally, was authorized to seize his property without notice and to hold it for legal disposition. By article 54 of the Civil Practice Act, attachment was not provided for in matrimonial actions. This section 1171-a attempted to provide a remedy in the nature of an attachment whereby upon the commencement of an action the husband's property could be seized and held for judgment or for order after notice. An analysis of the section leads to this construction. In the very first words we have,."Where in an action for divorce or separation it appears to the court that the defendant is not within the state," etc. "In an action" must refer to an action already pending or presently begun. As in the case of other provisional remedies, the order may In this connection it may be well to note that by section 1167 of the Civil Practice Act the summons when published must bear upon its face, "Action for a separation." Now we come to the provision of section 1171-a, which provides for the disposition of this property sequestered. The words "without notice" do not appear in any of the following sentences. It is said that the property sequestered "may be applied * * * under the direction of the court and as justice may require, * * by order or judg ment * * during the pendency of the action or at the termination thereof, for the * maintenance * * of the children, wife, or for her expenses in bringing * * * * * said action." It must be conceded that no judgment could be obtained for the disposition of the sequestered property without personal or constructive service upon the defendant. We have no such thing in our practice; in fact, there is no such thing in existence in the law as a personal judgment without service or notice of some kind, and the only kind of notice that we recognize in this state for the obtaining of a judgment is (147 N.E.) personal service, substituted service, or the service by publication of the summons in the action. It necessarily follows that when the word "order" is thus linked up to the word "judgment," so that the disposition of the sequestered property is to be "by order or judgment," the order also to be legal and effective must be on notice to the defendant either given personally or in some form recognized by our practice. Plymouth Coal Co. v. Commonwealth of Pennsylvania, 232 U. S. 531, 544, 34 S. Ct. 359, 58 L. Ed. 713; Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 658, 35 S. Ct. 214, 59 L. Ed. 405. An abandoned wife where, as in this case, her husband is a nonresident, may sequester his property; but the service of the summons by publication must be commenced as herein stated. After he has been served by publication and is in default of appearance or pleading, the court can enter judgment and dispose of the sequestrated property as it deems best for the interest of the wife and children. If the defendant appears, of course there is no difficulty. [2] In thus construing section 1171-a, we think we are carrying out what is the manifest intention of the Legislature recognized | in the grievance which has heretofore existed, and the remedy which is sought to be applied. Our construction recognizes the rule that it is the duty of this court in construing a statute which is reasonably susceptible of two constructions, one of which would render it unconstitutional, and the other valid, to adopt that construction which saves its constitutionality. A like duty requires us to avoid a construction which raises grave and doubtful constitutional questions if the statute can reasonably be construed so as to avoid such questions. Knights Templars' & Masons' Life Indemnity Co. v. Jarman, 187 U. S. 197, 23 S. Ct. 108, 47 L. Ed. 139; Harriman v. Interstate Commerce Com., 211 U. S. 407, 29 S. Ct. 115, 53 L. Ed. 253; U. S. v. Delaware & Hudson Co., 213 U. S. 366, 29 S. Ct. 527, 53 L. Ed. 836. to be deduced from a view of the whole statute, and every material part of the same; and where there are several statutes relating to the same subject, they are all to be taken together, and one part compared with another in the construction of any one of the material provisions, because, in the absence of contradictory or inconsistent provisions, they are supposed to have the same object and as pertaining to the same system. Resort may be had to every part of a statute, or, where there is more than one in pari materia, to the whole system, for the purpose of collecting the legislative intention, which is the important inquiry in all cases where provisions are ambiguous or inconsistent." Kohlsaat v. Murphy, 96 U. S. 153, 159 (24 L. Ed. 844); New Lamp Chimney Co. v. Ansonio Brass & Copper Co., 91 U. S. 656, 662 (23 L. Ed. 336). "In construing a statute we have a right to consider conditions existing when it was adopted, and which it must be assumed the Legislature intended to meet, and also other statutes relating to the same subject." Bull v. New York City Ry. Co., 192 N. Y. 361, 372, 85 N. E. 385, 389 (19 L. R. A. [N. S.] 778). "A statute is not to be given a construction at variance with established rules of procedure unless the intention of the Legislature is apparent." State v. Central Vermont Ry. Co., 81 Vt. 459, 71 A. 193, 21 L. R. A. (N. S.) 949. "When a number of statutes, whenever passed, relate to the same thing or general subject-matter, they are to be construed together and are in pari materia." State v. GerL. R. A. 313); Kidd v. Bates, 120 Ala. 79, 84, hardt, 145 Ind. 439, 460, 44 N. E. 469, 476 (33 23 So. 735, 41 L. R. A. 154, 74 Am. St. Rep. 17; Citizens & Taxpayers of De Soto Parish v. Williams, 49 La. Ann. 422, 21 So. 647, 37 L. R. A. 761. Read in this way, our law then conforms to similar provisions receiving like construction in other states. Pennington v. Fourth National Bank of Cincinnati, Ohio, 243 U. S. 269, 37 S. Ct. 282, 61 L. Ed. 713, L. R. A. 1917F, 1159; Wood v. Price, 79 N. J. Eq. 1, 81 A. 1093; Gundry v. Gundry, 11 Okl 423, 68 P. 509; Holmes v. Holmes (D. C.) 283 F. 453. As stated at the beginning, we approve of the disposition of the Appellate Division in reversing the order below and granting the motion to vacate and annul ab initio the order entered May 2, 1924. Neither have we departed from a familiar rule of construction in assimilating the practice under section 1171-a to attachment proceedings. These two remedies are similar in nature, and both aim to seize and hold property found in this state belonging to [3, 4] The plaintiff made out a summons nonresidents to await the further order and and complaint in this action for separation. judgment of the court after proper notice Without having served them personally upon and hearing or notice and opportunity to be the defendant, she obtained an order sequesheard. Similar statutes enacted for the pur-trating the defendant's property and directpose of avoiding similar evils and affording ing payment out of it for support and counsimiliar remedies should have uniformity of application and of construction. "In the exposition of statutes, the established rule is that the intention of the lawmaker is sel fee. No order for service by publication was obtained. Even if service by publication had been properly commenced, the Special Term had no power to make immediate pay |