majority">By the court—Hogeboom, Justice.

T think the learned judge who disposed of this case in the court below has inadvertently fallen into some errors in the disposition thereof, which require correction.

1. I have had some difficulty upon the question whether the action was sustainable at all, but, upon the whole, I think it was so, as to the injunction, upon the allegations of the complaint, of the danger of the fund on account of the alleged irresponsibility of the parties having possession of it, and also as to the relief, for an equitable distribution of the proceeds among parties, all performing, to a greater or less extent, a salvage service.

2. As to the objection that the owners of the ship and cargo should have been parties to the action, the appellants, not having taken the same by demurrer or answer, are not in a situation to avail themselves of it. (Code, § 148.) The proof also would seem to show, that the agreement with Bell, to pay seventy-five per cent, of the proceeds as his compensation for his services and expenditures, was made in behalf of the owners of the ship as well as the underwriters. The matter, therefore, seems open for adjudication, as to the disposition of the proceeds.

3. But, I think the appellants were entitled to compensation, and out of the proceeds of the property reclaimed. The service they performed was essentially a salvage service, and it contributed materially to the rescue of the property. It is true, that they proceeded under a contract with Jones, who derived his power to act from the city authorities, and that the agreement between the latter and Jones has been declared void *237in the court below. I do not think the want of power in the city authorities to act by any means apparent, although I have not consulted the provisions of the city charter which the contract referred to is said to violate. If the wreck was a nuisance (and such they declared it in effect to be), and dangerous to the health of the inhabitants, I do not see why they could not order it to be removed. (Hart agt. Mayor of Albany, 9 Wend. 571; Renwick agt. Morris, 3 Hill, 621; S. C. 7 Hill, 575.) I incline to think the power to remove carried with it the right to retain the removed property, until compensation for the expense of removal was made; and, if so, the parties who bestowed the principal labor in effecting this result ought to be protected. But, I think the appellants’ claim may be supported upon another ground, to wit: that they acted in furtherance of the precise object sought to be accomplished by the plaintiff, and with his consent, express or implied. There is some reason for saying that the plaintiff had abandoned the enterprise; he left the work, he engaged in other business, he absented himself from the city, and he sold the materials and motive power which he had used in the abortive attempt to raise the vessel. Whether he designed to return to it or not, the public and the appellants might well conclude that he had given up the job as not remunerative, or as incapable of accomplishment. The appellants undertake it, the plaintiff looks on, makes no objection, rather encourages them than otherwise, and, at all events, suffers them to proceed, and I think pur posely with the view of afterwards availing himself of their labor. He commences this action, not with the view of interrupting the work, but to prevent a sale and appropriation of the proceeds, except under the order of the court, and in a manner which shall protect the rights of all parties interested. He does not pray in his complaint for an absolute injunction, but on his own motion qualifies it, by allowing the defendants to raise the vessel and cargo, and place them in a safe and proper situation, and thus the defendants’ work is allowed to proceed, with his own sanction and that of the court. Indeed, his complaint seems plainly to have been framed upon the *238theory that others than himself .were interested in the proceeds, and he, therefore, prays that the proceeds of the sale may be brought into court, the rights of the parties to the suit thereto judicially ascertained, and the proceeds paid out accordingly. I feel at liberty, therefore, to conclude, that the appellants are entitled to an equitable compensation out of the proceeds of the sale, for their labor and expenditures. These have been considerable, are sworn to exceed $9;000, and I think ought to be protected.

There is no sufficient evidence before the court to determine the precise value of this labor, nor the precise amount of these expenditures, either as made and incurred by the appellants, or by the plaintiff and Bell and Benson. I think they are all equitable liens upon the fund, and- all deserving of remuneration. Nor .is there, that I can discover, any evidence of the amount for which the vessel was sold under the libel for wharfage, or what are the net proceeds remaining in the district court of the United States. Nor does it appear whether the cargo has been sold, or in what condition it remains. Upon these points I think there should be a reference, to ascertain the facts, and the referee should be instructed to charge the parties, respectively, with any amounts they have realized from- the ship and cargo, or their proceeds.

Nor, as at present advised, do I think it a proper caseto charge the appellants with the plaintiff’s costs of the litigation. I incline to think the costs both of the plaintiff and the appellants are a proper charge upon the fund, but my impression is, that that question had better be left until the coming in of the report of the referee.

So far, therefore, as the judgment appealed from fixes the amount to which the plaintiff and the defendants Bell and Benson are entitled, or have a lien, and allows the residue of the proceeds of sale to pass into their hands, and declares that the appellants are entitled to. no part thereof, and awards a perpetual injunction against them, forbidding them to, collect or receive any portion thereof, and charges them with the plaintiff’s costs of the litigation, I think it should be reversed, *239and a judgment entered to carry out the foregoing suggestions, and awarding a reference (the form whereof to be settled by one of the justices of this court), to inquire into and ascertain the particulars before mentioned, and reserving the question of costs, and all other questions, until the coming in of the referee’s report.

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