t i S67 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022801256 OTHEE WOEKS By WILLIAM L. SNYDBE. Great Opinions by Great Judges: A Collection of the Most Im- portant Judicial Opinions by Eminent Judges. With very full Notes, Analyses, etc. 8vo., sheep, $5.00; cloth, $4.50. Great Speeches by Great Lawyers: A Collection of Arguments and Speeches before Courts and Juries by Eminent Lawyers. With full Introductory Notes, Analyses, etc. 8 vo., sheep, $5.00; cloth, $4.50. Notaries' and Commissioners' Manual: With Forms. 8yo., cloth, $1.50; paper covers, $1.00. The Law of Religious Corporations: Also the Laws Relating to Benevolent, Charitable, Scientific and Missionary Societies, also Burial Grounds. With full Notes of Judicial Decisions. 8vo., cloth, $3.50; paper covers, $2.00. The Geography of Marriage, or Legal Perplexities of Wedlock in the United States. 13mo., cloth, $1.50. BAKER, rOORHIS & CO., New York. THE MECHANICS' LIEN LAW • OF THE STATE OF NEW YORK. (Passed Mat 37th, 1885.) WITH ALL THE AMENDMENTS AND APPLICABLE TO THE ENTIRE STATE. ALSO, THE LIEN LAWS AS TO MUNICIPAL PROPERTY IN INCORPORATED CITIES, RAILROADS, OIL WELLS, &c., WITH IVOTES OF JIJDICIA.L. DECISIONS, AND A FULL COLLECTION OF FORMS. BY WILLIAM L. S^NYDER, OF THE NEW TOBK BAR. NEW YORK: BAKER, VOORHIS & CO., LAW PUBLISHERS, 66 NASSAU STREET. 1891. ri ij^Obf fKcpLccv.e,a; Copyright, 1890, by BAKER, VOORHIS & CO. Willis McBonald & Co., PrinterB, 39-43 Gold Street, N. Y PREFACE. On the twenty-seventh day of May, 1885, the laws relating to Mechanics' Liens were in a most unsatisfactory condi- tion. No less than twelve distinct statutes were then in force in this State, limited to specific localities. Some of these acts embraced but one county, others a group of coun- ties. New York City was governed by the Consolidation Act. Buffalo had its particular statute. The other cities of the State were governed by Chapter 486, Laws of 1880, known as " The Cities Act." The object of the legislature in passing the Act of 1885 was to repeal these local statutes, and secure in their stead a uniform system. The Act of 1885 covers the subject gen- erally as to liens against private property. Liens upon municipal property in incorporated cities is governed by Chapter 315 of the Laws of 1878, and this statute has been made applicable to the City of New York, its provisions having been embraced within the Consolidation Act, §§ 1824^1838. iiens upon railroad property and oil wells are, governed by Laws 1875, Chap. 392, and Laws 1880, Chap. 440, respectively. The entire subject of Mechanics' Liens, therefore, is cov- ered by these four statutes ; the first relating to liens upon, private property, the second (Act of 1878 and Consolida- tion Act) relating to municipal or public property, the third to railroad property and the fourth to oil wells, &c. iv PEEPAOB. The law whereby the rights of contractors, sub-contrac- tors, material men and laborers are secured and protected involves difficult and perplexing questions. The rights of the parties, and the equities and priorities among various claimants, growing out of a variety of causes, render this branch of litigation extremely tedious and irksome. I have attempted to present the text of the statute, with all the authorities reported to date of publication, including the 121st volume of the New York Reports. My object has been to group the decisions so as to furnish, in the most convenient form, the information which the busy lawyer re- quires. I have made use of Mr. John S. Derby's very valuable work, retaining the material collected by him. I have, how- ever, re-written most of the notes, and re-arranged and classified the authorities, and have added all decisions re- ported since the last edition of Mr. Derby's book. Ther.e are certain fundamental principles underlying the lien laws enacted throughout the Union, however these laws may vary in detail. The decisions rendered by judi- cial tribunals in other States may, therefore, be useful in solving questions arising under our own statutes. Such authorities as relate to fundamental rules of jurisprudence applicable to the subject of liens will be found in these pages. William L. Sntder. Temple Court, New York, • December, 1890. TITLES TO THE ACTS RELATING TO MECHANICS' LIENS. IS$60. CHAP. 446. An Act for the protection of boarding-house keepers. Passed April 16, 1860. 1870. CHAP, 385. An Act to le^ulate the hours of labor of me- chanics, workingmen and laborers in the employ of the State, or otherwise engaged on public works. Passed April 36, 1870. 1570. CHAP. 539. An Act in relation to mechanics' liens. Passed May 3, 1870. 1571. CHAP. 803. An Act to amend chapter six hundred and seventy-seven, entitled "An Act to prevent fraud and fraudu- " lent practices upon or by hotel keepers and inn keepers,'' passed April twenty-third, eighteen hundred and sixty-seven. Passed April 37, 1871. 1872. CHAP. 498 An Act for the protection of livery-stable keepers and other persons keeping horses at livery or pasture. Passed May 3, 1873. 1875. CHAP. 893. An Act for the better security of railroad em- ployees for labor performed. Passed May 18, 1875. 1876. CHAP. 319. An Act to amend chipter four hundred and forty- six of the Laws of eighteen hundred and sixty, entitled "An " Act for the protection of boarding-house keepers." Passed May 15, 1876 ; three-fifths being present. 1878. CHAP. 315. An Act to secure the payment of laborers, me- chanics, merchants, traders and persons furnishing materials , toward the performing of any public work in the cities of the State of New York. Passed May 33, 1878: three-flfths being present. 1880. CH.AP. 145. An Act to amend section one of chapter four hundred and ninety-eight, of the Laws of eighteen hundred and seventy-two, entitled " An Act for the protection of livery "stable keepers and other persons keeping horses at livery or " pasture." Passed April 33, 1880. 1880. CHAP. 440. An Act to provide for the protection of me- chanics and others. Passed May 37, 1880. VI TITLES TO ACTS. 18§1. CHAP. 439. An Act to amend chapter three hundred and fif- teen of the Laws of eighteen hundred and seventy- eight, en- titled " An Act to secure the payment of laborers, mechanics, " merchants, traders, and persons furnishing materials towards " the performing of am public work in the cities of the State "of New York." Passed May 28,1881. 1882. CHAP. 410. An Act to consolidate into one act and to de- clare the special and local laws affecting public interests in the City of New York. Passed July 1, 1883. 18S4. CHAP. 381. An Act in relation to the rights and liabilities of married women. Passed May 38, 1884. 1885. CHAP. 343. An Act for the better security of mechanics, laborers and others who perform labor or furnish material for buildings and otiier improvements in the several cities and counties of this State, and to repeal certain acts and parts of acts. Passed May 37, 1885. 1886. CHAP. 383. An Act to limit the operation and effect of chap- ter three hundred and forty-two of the Laws of eighteen hundred and eighty-five, entitled " An Act for the better se- " curity of mechanics, laborers and others who perform labor " or furnish material for buildings and other improvements in "the several cities and counties of this State, and to repeal " certain acts and parts of acts.'' Passed May 14, 1886. 1887. CHAP. 430. An Act to amend chapter three hundred and forty-twoof theLaws of eighteen hundred and eighty-five, en- titled " An Act tor the better security of mechanics, laborers, " and others who perform labor or furnish material for build- " ings and other improvements in the several cities and coun- " ties of this State, and to repeal certain acts and parts of " acts.'' Passed May 31, 1887. 1888. CHAP. 316. An Act to amend chapter four hundred and twenty of the Laws of eighteen hundred and eighty-seven, entitled "An Act for the better security of mechanics, laborers " and others who perform labor or furnish material for bnild- '• ings and other improvements in the several cities and coun- " ties of this State, and to repeal certain acts and parts of acts.'' Approved by the Governor, May 17, 1888. 1 888. CHAP. 543. An Act for the protection of dealers in monu- ments, gravestones, inelosures or other structures in ceme- teries. Approved by the Governor, June 9, 1888. 1889. CHAP. 380. An Act to regulate the rate of wages on all public works in this State, and to define what laborers shall be em- ployed thereon. Approved by the Governor, June 6, 1889. TABLE OF CASES. Abram v. Boyd, 39, 80 Addison v. Tuttle, 13 Allen V. Carmen, 37 Allen e. Frument Co. 41 Althouse V. Warren, 39, 63, 68 Ames B. Dyer, 19 Amidon «. Benjamin, 47, 64, 66 Anderson v. Dillaye, 10, 50 Arata a. Tellurium Co. 53 Atley V. Haviland, 16 Babb ». Eeid, 15 Bailey v. Adams, 39 Bailey v. Johnson, 61, 63, 63 Baker v. Fessenden, 19, 31 Bank v. Curtiss, 33 Barrows ». Knight, 55 Baum ». Covert, 33 Baxter v. Smith, 49 Beals «. Congregation, &c. 48 Bell V. The Mayor, 92 Bell 11. Vanderbilt, 93, 96 Belmont v. Smith, 10 Benedict v. Danbury E. R. 37 Benton v. Wickwire, 11 Bicknell v. Trickey, 40 Birmingham ®. Glen Cove, 33 Bishop V Boyle, 34 Bishop !). Honey, 2:3, 29, 40 Black, Matter of, 48 Blethen ii. Blake, 64 Blythe «. Pultney, 36, 63, 68 Boody V. Rexford, 70, 71 Bossier ». Putney, 91 Bowen v. Aubrey, 37 Bowers v. N. Y. Christian Home, 59 Bradish ». James, 51, 63 Bradley «. Stafford, 34 Brady v. Anderson, 11, 38 Broadway Sav. Bk. v. Cummings, 53. 83 Broderick v. Poillon, 28, 63 Broman v. Young, 1C3 Brown ». Harper, 13 Brown v. Smith, 54, 71 Brown u. Welch, 53 Brown v. Zeiss, 40, 47, 78 Burkitt 13. Harper, 37, 50, 63 Burroughs v. Tostevan, 76 Burrows ». Baughan, 39 Burst v. Jackson, 15, 21 Butler 0. River, 18 Byrne v. Harron, 25 Caldwell v. Lawrence, 13, 71 Carbett v. Greenlaw, 24 Carman ». Mclncrow, 35 Carter v. Byzantium, 39 Ciishman «. Henry, 13, 17, 29 Central Trust ». Texas Ry. 55 Cheney ». Troy Hospital,' 12, 35, 45, 65 Childs ». Anderson, 40 Childs ». Bostwick, 76 Choteau v. Thompson, 33 Clarke -o. Boyle, 65 Close V. Clark, 29, 31, 51, 65 Collins V. Comley, 38 Couklin V. Baur, 57 Conklin v. Wood, 53, 53, 63 Conkright v. Thompson, 10, 61 Cooke B. Odd Fellows' F. U. 34, 38 Copley V. O'Neil, 17 Corbett v. Greenlaw, 57 Cornell v. Barney, 24, 28 Cox V. Broderick, 17, 35, 47 Craig V. Swinerton, 26 Crane v. Geuin, 35, 43, 45 Cranston v. Union Trust Co. 97 Crawfordsville v. Barr, 63 Crean v. McFee, 39 Cronk «. Whittaker, 69 Crouch V. Moll, 69, 76 Crystal v. Flannelly, 79 Cummings v. Halstead, 79 VIU TABLE OP CASES. Datiziger d. Simonson, 59 Darrow v. Morgan, 51, 60, 76 Davis J). Alvord, 11, 65 Davis 11. Bilsland, 71 Davis V. Humphrey, 27 Davis V. Livingston, 50 Deady v. Fink, 14 Dean v. Wheeler, 63 DeardorflE v. Everhardt, 12 Dennistown ». McAllister, 12, 2ft De Ronde «. Olmstead, 38 Develin v. Mack, 65 Digan v. Brophy; 50 Dixon !). La Farge, 33, 38. 63 Dobschultz 1). Holliday, 34 Donahy v. Clapp, 12, 28 Donaldson «. O'Connor, 54 Donaldson -o. Wood, 12 Donnelly «. Libby, 53 Dorsey v. Langworthy, 33, 39 Doughty V. Devlin, 35, 63 Dowdney d. McCuUam, 32, 69, 83 Driesbach v. Keller, 48 DriscoU «. Hill, 40 Drucker v. Simon, 66 Dufiy V. Baker, 54 Duffy ®. McManus, 62, 63 Dngan v. Brophy, 11, 53 Dunbar v. Diem, 48 Dunning i>. Clarke. 49, 61, 68, 86 Dutro V. Wilson, 34 Bagleson v. Clarke, 68 Ehlers v. Elder, 39 EUenvrood v. Burgess, 40 Emigrant Bank v. Brown, 60 Ernst V. Reed, 47 Faircliild v. Burt, 40 Fargo V. Helmer, 71, 75, 89 Farmilo v. Styles, 17 Fay V. Adams, 63 Ferguson v. Burke, 37 Fettrich v. Totten, 85 Filey «. Thousand Islands Hotel, 49 First Nat. Bk. e. Day, 13 First Nat. Bk. v. Redman, 30 Flynn v. Butler, 61, 86 Fogerty v. Wick, 49 Fnrd v. Bailey, 86 Foster v. Poillon, 61 Foster v. Schneider, 51 Foster v. Skidmore, 79 Fox «. Kidd, 58, 71, 75 Frazer v. McGuckin, 65 Freeman v. Carson, 40 Freeman «. Cram, 11, 58 Freeman v. Gilpin, 19 Frost ». McGinnis, 31 Fulton Iron V\ orks v. Smelting Co. 62 Galbreath v. Davidson, 33 Gallagher «. Earns, 103 Gambling ». Haight, 64 Garrison «. Mooney, 43 Gates D. Whiteomb, 37 Gauher v. Mills, 66 Gauss 1). Hussman, 40 Gay 1). Brown, 28, 57 Gibson «. Lenane, SS, 43, 43, 45 Glacius V. Black, 30 Goodwin v. Elleardsville, 21 Gorbam v. Sagner, 39 Gourdier v. Thorp, 65 Graf V. Cunningham, 32 Grant v. Strong, 39 Grant v. Vandercook, 10, 66 Gray ». Holdship, 21 Green v. Fox, 39 Greene v. Ely, 39 Grey v. Vorhis, 53 Gridley v. Rowland, 13 Grogan ». Mayor, 35 Grogan v McMahon, 55 Gross V. Daly, 47, 66 Grosz V. Jackson, 23 Grove v. Gather, 34 Hackett v. Badeau, 35, 37, 57 Haden v. Buddenseik, 53, 60 Hagan V. Am. Bap. Soc. 37, 71, 76 Hall V. Pettigrew, 39 Hall 'J. Sheehan, 33, 86 Hallahan v. Herbert, 11, 13, 52, 53, 57, 63 Halley v. Alio way, 33 Haman v. Ashmead, 63 Hammond v. Sheppard, 58 Harris v. Schulte, 32 Hart V. Wheeler, 27 Hartness ®. Thompson, 13, 29 Haswell v. Goodchild, 36, 68 Hatch V. Coleman, 15, 31 Hauptman v. Catlin, 17, 33, 53 llauptman v. Halsey, 49 Hayden v. Wulling, 50 Hazard Powder Co. ■». Byrnes, 23 TABLE OF CASES. ix: Heckman v. Pinkney, 30, 35, 37 Heidegger v. Atlantic Mill Co. 22 Hellwig V. Blumberg, 25, 30 Henderson v. Sturgis, 80 Henry v Lyncb, 59 Henry v. Plitt, 48 Herbert v. Herbert, 85, 45 Hill ®. Newman, 19 Hills » Halliwell, 29 Hilton V. Merrill, 57 HoagB. Hilmever, 80, 58 Hobby V. Day,'26 Hofgesang v. Meyer, 85, 43, 45 Holland v. Garland, 48 Hollister v. Mott, 31 Homans v. Coombe, 10, 66 Hooper n. Sells, 13 Hope. Matter of, 19 Hopkins v Forrester, 39 Hoyt ». Miner, 20, 29, 33, ,65 Hubbell V. Schreyer, 11, 48, 49, 52, 54 Hull of New Ship, in re, 71 Husted V. Matbes, 12, 17, 25, 27, 29 Ireland v. Atcliison, &c., E. R. Co. 97 Iron Manfg. Co. v. Brown, 21 Jackson v. Bunnell, 67 Jackson v. Sloan, 14, 47 Jacques ». Morris, 63, 63 Jenkes v. Parsons, 62 Jennings v. Newman, 74 Johnson v. De Peyster, 30 Jones V. Holy Trinity Ch. 58 Jones V. Hurst, 48 Jones Lumber Co. ». Murphy, 36 Jones ». Manning, 17, 18, 26. Keckler ». Stumme, 61, 63 Keller v. Struck, 24 Kelley v. Kelley, 40 Kenney v. Apgar, 11, 55, 66, 70, 75, 79 Keogh v. Main, 53 Kerby v. Daly, 15 Kerns v. Plynn, 79 Kerrs. Moore, 71 Kiel V. Carll, 50 Kinzey t>. Thomas, 39 Knapp V. Brown, 18, 24, 28 Knickerbocker Ins. Co. v. Hill, 70 Knox o. Starkes, 63 Laflin v. Powder Co. 86 Larken b. McMullin, 37, 38 Lauer v. Dunn, 14 Lawson v. Reilly, 68, 71, 76 Lawton v. Case, 68 Leary ». Gardner, 11 Lehretter ». Koffman, 64, 69 Leiegne v. Schwartzer, 50, 63, 04 Lenox v. Yorkville Ch. 68 Leonard «. Brooklyn, 91 Lind V. Braender, 42 Lindley ». Cross, 53 Linn tj. O'Hara, 37 Livingston ». Mildram, 47, 69 Livingston ». Miller, 24, 69 Lombard v. Pike, 22, 40 Loonie ». Hogan, 29, 85, 5 7 Lorson v. Horgan, 66 Lowber v. Childs, 79 Lumbard v. Syracuse, 35, 44 IJuscher «, Morris, 50, 80 Lutz V. Ey, 39, 49, 51, 54 Lynch v. Feigle, 62 Machier «. Burroughs, 17 Manchester v. Searle, 29 Marryatt v. Riley, 70, 75 Marston ». Stiokney, 16 Martine v. Nelson, 19 Matthews v. Daly, 60 Mauch Chunk v. Shortz, 15 Maxey ». Larkin, 13 Mayor B. Crawford, 43, 86 McAdow V. Ross, 65 McAllister ». Case, 59 McAuley s. Mild'rum, 48, 64 McBride v. Crawford, 64 McCarty ». Carter, 17, 29 McOarty «. Van Etten, 63 McCorkle ». Herrman, 34, 36 McCormick «. Los Angelos, 19 McCrea «. Craig, 63 McDermott v. McDonald, 91 McDermott v. Palmer, 16 McGraw «. Godfrey, 24, 57, 76 McGrew ». McCarty, 79 McGuckin «. Coulter, 67 McLaughlin v. Page. 89 McMillan v. Seneca, 35, 45 McMurray v. Hutcheson, 14, 68 MoSorley ». Hogan, 63 Mechanics' & T. Nat. Bk. ». Winant, 93 Meehan «. Williams, 47, 63, 64, 68 TABLE OF CASES. Meyer v. Beach, 75 Meyer v. Seebaloh, 67 Meyers v. Bennett, 40, 78 Miller i>. Mead, 35, 36 Millers. Moore, 39, 63 Mims V. Macon, 38 Miner ». Hoyt, 13, 30, 65 Montandon v. Deas, 34 Moran v. Chase, 33, 48, 53 Moran v. Murray Hill Bk. 13, 64 Morgan ». Arthurs, 33 Morgan ». McMahon, 65 Morgan v. Stevens, 20, 35, 45, 70, 75 Morgan v. Taylor. 30, 33, 49, 51 Morse «. School Dist. 38 Mountain City House «. Kearne, 53 Muir V. Cross, 39 Muldoon V. Pitt, 16, 18, 34, 38, 66, 67 Mulrey o. Barrow, 37, 38, 40 Munger v. Curtis, 34, 47, 56 Murphy ». Adams, 71 Murphy V. Murphy, 40 Murray v. Brown, 83 Murray v. Rapley, 49 Muslitt «. Silverman, 11 Mutual Ins. Co. v. Rowand, 18 Myers v. Burnett, 38 Nazareth, &c. v. Lowe, 16 Nellis 11. Bellinger, 25, 36 New York L. & W. W. Co. ». Schnei- der, 31 New York Lumber Co. v. Seventy- Third St. Bdg. Co. 85 Nichols V. Culver, 55 Nichols*. Hill, 70 Nobis V. Pollock, 66, 67 Nolan 1). Gardner, 39 Nolan 1). Lovelock, 63 Noyes v. Burton, 14, 47 Gates «. Haley, 36 O'Donnell v. Rosenberg, 67 Ombony i). Jones, 17, 18, 34, 69 Otis V. Ousack, 18 Otis 1!. Dodd, 25, 27 Otley 1). Haviland, 16 Ottiwell V. Muxlow, 35 Owens V. Ackerson, 65 Paine v. Bonney, 23 Pairo V. Bethell, 11, 78 Panola County ». Gillen, 91 Patterson ». Pennsylvania, &c. 91 Payne v. Wilson, 35, 43, 47 Peabody v. East Met. &c. 16 Pearsons J). Tincker, 13, 54 Peck ». Bridwell, 40 Peck V. Brummagin, 15 Pendlebery v. Meads, 38 Peyroux v. Howard, 38, 39 Phelps V. The Camilla, 38 Phillips V. Gallant, 30 Phillips V. Gilbert, 41 Phillips ». Hyde, 50 Phillips V. Wright, 13, 31 Phoenix Iron Co. v. Vessels, &c. 23 Pickett V. Gollner, 33 Pike i>. Irvin, 35 Poersclike » Redenburg, 60 Pollock !). Ehle, 13 Portsmouth Iron Co. b. Murray, 38 Post V. Campbell, 33, 35, 36, 43, 43 Powers V. City of Yonkers, 33, 67 Powers i>. Hogan, 31 PreuBser v. Florence, 61 Prior ». White, 58, 59 Protective Union ». Nixon, 49 Quackenbush v. Carson, 53 Quinby «. Sloan, 10, 14, 33, 47 Quinby v. Wilmington, 39 Quinlan «. Russell, 91 Quinn ». Mayor, &c. 28, 63 Randolph v. Leary, 10 Eeid V. Bank of Tenn. 16 Reynolds b. Hamill, 70, 75 Richardson, B. & Co. v. Reid, 26 Riggs V. Chapin, 36, 63 Roberts v. Fowler, 13, 53, 71 Rogers v. Currier, 13, 31 Rogers v. McGuire, 30 Roland ». Centreville Ry. 97 Rollin V. Cross, 13, 13, 16, 24, 26, 53, 57 Rope ». Hess, 28 Ross V. Derr, 65 Ross i>. Simon, 28, 49, 62 Rush V. Able, 30 Ruth ». Jones, 71, 76 Ryan ®. Klock, 50 St. Jago, The, 38 Sands v. Sands, 41, 64 TABLE OF CASES. XI Schaefler v. Weed, 34 Schaettler v. Gardiner, 67, 76, 86 Scheaby ». Tomlinson, 66 Schmaltz ii. Mead, 27, 34 Schmidt v. Qilson, 39 Schneider v. Hobein, 35, 45 Scbukraft v. Ruck, 40 Schwartz v. Allen, 21, 53 Scott V. Cook, 55 Shannon v. Coursen, 86 Sbaw ». Allen, 63 Sheffield ». Loeffler, 38 Sinclair v. Fitch, 47, 62 Smith V. Bailey, 14, 50, 53 Smith e. Coe, 68 Smith V. Corey, 68 Smith ». Ferris, 37 Smith V. Norris, 27, 57 Smullen v. Hall, 34 Southard ®. Lavelle, 51 Spencer v. Barnett, 54 Spencer v. Qriswold, 79 Spurgeon ». McElwain, 33, 39 Stevens v. Reynolds, 33, 36, 42 Stevenson v Stonehill, 15 Stryker «. Cassidy, 18 Stubbs V. Railroad Co. 63 Stuyvesant v. Browning, 47 Sullivan v. Brewster, 61, 63 Sullivan ». Decker, 79 Suydam v. Holden, 79 Taylor ®. Baldwin, 67 Teaze v. Christie, 39 Teller v. Kierstead, 54 Tewksbury c. Bronson, 13 The St. Jago, 38 Thomas «. Sahagan, 14, 70, 76 Thompson's Case, 39 Thompson v. Gilmore, 10 Thompson «. Wickersham, 24 Thompson s. Yates, 35 Tiley v. Thousand Islands, &c. 41 Tinker «. Geraghty, 51 Tisdale ». Moore, 64 Tizzard v. Hughes, 19 Tombs «. Rochester, 38 Tooker «. Rinaldo, 66 Towner v. Remick, 48 Trask ®. Searle, 20 Tuttle V. Howe, 71 Urquhart ®. Mclver, 13 Van Bremer ii. Cooper, 12, 39 Vanbrouker v. Eastein, 24 Van Clief ». Van Vechten, 33, 37 Van Court v. Bushnell, 39 Vandive ®. Hodge, 39 Vogel t). Luitwieler, 15, 51 Vreeland ii. Boyle, 53 Wademan v. Thorp, 32 Walker ». Paine, 28, 35, 36, 57 Ward V. Kilpatrick, 21, 60, 66 Watrous v. Elmendorf, 63 Watts Campbell Co. o. Yuengling, 21, 54 Weaver v. Demuth, 89 Weaver v. Sells, 15, 21 Webb ?). Van Zandt, 64, 67 ' Weeks v. Little, 30 Weisman ii. City of Buffalo, 38 Welde «. Henderson, 20, 58 Welsh V. Mayor, 58 Welsh v. McGrath, 79 Westervelt v. Levy, 64 Wheeler i>. Port Blakely, 49 Whiting V. Story, 91 Whitney v. Coleman, 86 Wilder v. French, 39 Williamette Falls ■». Remick, 19 Williams ». Root, 52 Williamson v. Hendricks, 70, 75 Woodward v. Fuller, 30 Woolreich ». Pettretch, 32 Wright V. Roberts, 30, 37, 58, 59, 60 Yates «, Meadville, 15, 91 Yates ». Whitcomb, 57 Yeates «. Wbeaden, 29 Young 8. Lyman, 15 Young ». Stoutz, 56 Ziegler v. Galvin, 28 THE MECHANICS' LIEN LAW OF NEW YORK. [Laws 1885, Chap. 343, passed May 27.] The People of the State of New York represented in Senate and Assembly^ do eriact as follows : § 1. How and by Whom Lien Acquired.— Any per- son or persons, firm or firms, corporation or associa- tion, who shall hereafter perform any lalDor or service, or furnish any materials which have been used or which are to be used in erecting, altering or repair- ing any house, wharf, pier, bulkhead, bridge, vault, building or appurtenances to any house, building or building lot, including fences, sidewalks, paving, foun- tains, fish ponds, fruit and ornamental trees, or who shall hereafter perform any labor or services, or fur- nish any materials which have been used or which are to be used in improving or equipping any house, building, or appurtenances, with any chandeliers, brack- ets, or otber fixtures or appurtenances for supplying gas or electric light, with the consent of the owner, as hereinafter defined, or his agent or any contractor, or sub-contractor, or any other person contracting with such owner to erect, alter, repair, improve, or equip, as aforesaid, within any of the cities or counties of this State, may upon filing the notice of lien prescribed in the fourth section of this Act, have a lien for the prin- cipal and interest of the price and value of such labor 2 10 mechanics' lien law. ^and material upon sucli house, wharf, piers, bulkheads, bridges, vault, building or appurtenances, and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, to the extent of the right, title and interest at that time ex- isting of such owner, whether owner in fee or of a less estate, or whether a lessee, for a term of years, or vendee in possession under a contract existing at the time of the filing of said notice of lien, or of the owner of any right, title or interest in such estate, which may be sold under an execution under the gen- eral provisions of the statutes in force in this State re- lating to liens of judgment and enforcement thereof, and also to the extent of the interest which the owner may have assigned by a general assignment for the benefit of creditors, within thirty days prior to the time of filing the notice of lien specified in the fourth section of this Act. But in no case shall such owner be liable to pay by reason of all the liens filed pursuant to this Act, a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or in case there is no contract, than the amount of the value of such labor and ma- terial then remaining unpaid except as hereinafter provided. [As amended by Laws 1888, ch. 316.] The Nature op the Eemedt. A Proceeding in Rem.— So far as the law seeks to subject the specific property of those against whom no personal judgment is asked to the enforcement of the security secured by the lien, the remedy is substantially a proceeding in rem. Oonkrite v. Thompson, 1 E. D. Smith, 661; Randolph v. Leary, 3 E. D. Smith, 637; Quinby v. Sloan, 3 Abb. Pr. 93; Thompson v. Gil- more, 50 Me. 428; Homans v. Goombe, 3 Cranch C. C. 365; Grant T. Vandercooh, 57 Barb. 165. THE NATUEE OP THE REMEDY. 11 A Proceeding in Equity. — As the remedy requires a judg- ment for specific property, with directions for its sale, and the distribution of the proceeds as in foreclosure of a mortgage, it partakes of the characteristics of a Bill in Equity. Davis v. Al- vord, 94 U. S. 545; Kenney v. Apgar, 93 N. Y. 54; Pairo v. Bethell, 75 Va. 825. And even in those States where the procedure allows a per- sonal judgment for the amount due, with directions to apply the property, upon which the lien is claimed upon the execution, if other estate of the debtor cannot be found, this fact does not change the character of the proceeding from one of equity cogniz- ance. Davis V. Alvord, 94 tJ. S. 545. And section seven of the Act of 1885 specifically declares-, that the procedure to enforce the lien shall be the same as- in actions for the foreclosure of mortgages upon real property, ex- - cept as the act otherwise expressly provides. See Laws 1885,.. chap. 342, § 7, posi. Security to the Lienor. — The design of the statute is. tot.. give security to those who, by their labor, skill and materials, .. add value to property, by a pledge of the interest of their em- ployer for their payment, and to subordinate other , interests to . that end. Davis v. Alvord, 94 U. S. 545. Abatement. — Under former laws, passed prior to the Act of ' 1885, the proceeding to enforce the lien was held not to consti- tute an " action " within the definition of the Code, and was de- clared to abate by the death of the owner. Leary r. Gardner, 63 N. Y. 624; Hallahan v. Herbert, 57 K Y. 409. But section seven ■ of the Act of 1885 expressly provides that liens under it shall be enforced by " a civil action," and the decisions abovQ cited are no longer applicable. Statute to be Construed Liberally.— Under former stat- utes, the courts have held, that in so far as the lienor attempted to enforce his remedy against persons other than those with whom he contracted, and encumbered property without the own- er's consent, the proceeding was in derogation of the common- law. Mushlitt V. Silverman, 30 N. Y. 360; Benton v. Wichwire 54 N. Y. 226; Davis v. Alvord, 94 U. S. 545. ' That since the remedy was in derogation of the common- law, it could not be extended beyond the reasonable import of the statutory language, and that the statute must be strictly con- strued. Freeman v. Cram, 3 N. Y. 305 ; Mushlitt v. Silverman 30 N. Y. 360; Bubbell v. Shreyer, 15 Abb. N. S. 300; Dugan t. Brophy, 55 How. 121; Brady v. Anderson, 24 III. 110. Section twenty-five of the Act of 1885, however, expressly de^ clares the law to be " a remedial statute, and is to be construed 12 mechanics' lien law. " liberally io secure the beneficial interests and purposes thereof." See Laws 1885, chap. 342, § 25, post. But the provisions of an act which imposes upon one person the obligation of discharging the debts of another, will not be extended by judicial construction to afford equitable relief to persons not embraced clearly within the enactment. Cheney v. Troy Hospital, 65 K Y. 282; Donaldson v. Wood, 23 Wend. 395. The Remedy Cnmulative.-^The remedy under a statute creating a lien for labor and materials is cumulative, and hence a proceeding to enforce the lien is not of itself a bar to an ac- tion against the contractor. Gridley v. Rowland, 1 E. D. Smith, 670; Maxey v. LarUn, 2 E. D. Smith, 540; Pollock v. EUe, Id. 541. ^'he, foundation of the claim is an indebtedness, existing wpon contract, express or implied, in favor of the person who seeks to subject the property to the lien. Muldoon v. Pitt, 54 N". Y. 269; Knapp V. Brown, 45 N. Y. 207; Cornell v. Barney, 94 N. Y. 394. It affords security only for labor and materials which have actually entered into the construction or repair of the structure upon which the lien is claimed. Phillips v. Wright, 5 Sandf. 343 ; Miner v. Hoyt, 4 Hill, 193 ; .Bennistown v. McAllister, 4 E. D. Smith, 729; Rogers v. Currier, 13 Gray, 129; Deardorff y. JEverhardt, 74 Mo. 37. By Whom Lien Acquired. One Cajpable of Contracting.— Any person legally capable of entering into the contract upon which the claim is based, may acquire the lien prescribed by the statute. Van Bremer v. Cooper, 2 Johns. 379; Hartness v. Tlwmpson, 5 Johns. 160; Cashman v. Henry, 75 IST. Y. 103; Husted v. Mathes, 77 N. Y. 388; Donahy v. Clapp, 12 Cush. 440. Assignee. — Under former laws passed prior to the Act of 1885, it was held that a lien could not be acquired in the name, of an assignee, because the right to the lien was purely a personal one, which could not be assigned, although after the right is once acquired it may be prosecuted by the real owner. Roberts v. Fowler, 3 E. D. Smith, 632; Rollin v. Cross, 45 N. Y. 766; Pear- sons V. TincTcer, 36 Me. 384; Hooper v. Sells, 58 Ga. 127; Fi/rst Nat. Bank v. Day, 32 Iowa, 680; Caldwell v. Lawrence, 10 Wis. 331; Tewksbury y. Bronson, 48 Wis. 581; Brown v. Harper, 4: Oregon, 89 ; and cases cited under section 17, infra. Section seventeen of the Act of 1885, however, expressly de- clares that any person filing a notice of lien, or the assignee of such person after the filing thereof, shall be the plaintiff in ac- BY WHOM LIEN ACQUIBED. 13 tion to foreclose. (See, also. Laws 1885, chap. 343, § 25, post.) While the statute still provides that the person who shall perform the labor or furnish the material may file the notice of lien, his assignee is expressly authorized to enforce it as plaintifE in the action. Agent of Lienor. — The courts have recognized the princi- ple that though a factor cannot pledge the goods of his principal as his own, he may, nevertheless, deliver them to a third person as security, with notice of his lien, and as his agent to keep the possession for him, in order to preserve the lien. Urquhart v. Mclver, 4 Johns. 116. The Court of Appeals applied this doc- trine to liens under the statute, and declared that while the lien was a personal right, given to the mechanic, material man and laborer, for his own protection; and that the right to create such lien could not be transferred, unless the assignment as made for the benefit of the assignor, and to be held as his agent, so that the lien may be preserved. Rollin v. Cross, 45 N. Y. 771 ; Hallahan V. Herbert, 57 N. Y. 409. Assignee of Contractor. — Lien filed pursuant to provisions of Laws 1878, ch. 315 (Consolidation Act, § 1834), under a mu- nicipal contract. The contract provided that the owner might deduct from moneys due the contractor the amount which might be allowed lienors. The contractor borrowed money from a bank, and assigned as security monies due or to grow due under the con- tract. A second assignment was given by the contractor as se- curity for a debt for work and materials used in the building, subject to the prior assignment. Held, that the second assignee, not having accepted the assignment in payment of his debt, did not waive his right to file a lien for the work and materials fur- nished by him. Moran v. Murray Hill Bank, 9 N. Y. Supp. 715. EtjLUitable Assignment. — Where, for a valuable considera- tion, a contractor makes an order directing the owner to pay a sub-contractor for materials furnished or work performed, out of a particular fund, then due, or to become due from such owner to the contractor, it operates as an assignment pro tanto of the fund. Addison v. Tuttle, 81 N. Y. 454. The contractor, Herle, gave to Lauer & Co., sub-contractors, the following order, upon the owner, for labor and materials fur- nished : '•Rochester, N. Y., April 19, 1888. "Mr. B. Dcnn: " Please pay A. E. Lauer & Co.; seven hundred dollars, and charge to ' ' contract, and oblige, '"William Herle." 14 mechanics' lien law. The order was presented to the owner, who put off payment, and shortly afterwards liens were filed on the building. In an action, upon the instrument, it was held to operate as an assign- ment -pro tanto of the fund in the owner's hands, and hence took precedence over the liens subsequently filed. Lauer v. Dunn, 115 N. Y. 405. Assignee for Benefit of Creditors.— The owner refused to make a second payment due contractors, and the latter made an assignment. In an action by sub-contractors to foreclose liens the assignee was made a party, and pleaded the breach of con- tract with his assignors, in refusing to make the second payment when due. Held, that the assignee, under Laws 1885, ch. 343, § 15, was entitled to a personal judgment against the owner for the balance due his assignors on the second payment after discharg- ing the liens of the sub-contractors, though no lien had been filed either by the contractors or their assignee. Tliomas v. Sahagan, 10 N. Y. Supp. 874. Under prior statutes it has been held that an assignee for the benefit of creditors takes the property of the assignor free from the lien, unless it has been perfected by filing the notice prior to the assignment. Quimhy v. Sloan, 3 Abb. Pr. 93 ; s. c. 3 B. D. Smith, 594; Jackson v. Bloan, 2 B. D. Smith, 616; s. C. 3 Abb. Pr. 104; Woyes v. Burton, 39 Barb. 631. But where the contractor executes an assignment for the ben- efit of creditors, it has been held that he could not thereby cut off the sub-contractors' liens. Smith v. Bailey, 8 Daly, 138; McMurray v. Hutclieson, 10 Daly, 64. The liberal provisions of the Act of 1885, § 1, however, presertres the rights of laborers and material men, and extends the lien to the interest which the owner may have assigned for the benefit of creditors within thirty days prior to the time of filing the notice of lien. Eeceiyer in Supplementary Proceedings.— A balance being due to the contractor from the owner of the building, the plaintiff was appointed receiver of the property of the contractor in supplementary proceedings under a judgment. Liens were subsequently filed to secure claims for materials furnished the contractor. The receiver having begun this action against the owner and the lienors, the owner paid the balance due into court. Held, that the receiver's title to the fund was subject to all the equities existing against the contractor and his position was the same as that of an assignee in a general assignment, and that the material men were entitled to be paid first. Deadv v. Finh, 5 N. Y. Supp. 3. Sub-Contractor.— Material Man.— Claimant filed a lien under § 1885, ch. 343, for painting materials furnished to a sub- MEANING OF TEEM "OWNER." 15 contractor. Held, that he was entitled to a lien although it .ap- peared that the materials were furnished on the personal credit of the sub-contractor and charged against him m the books of the claimant. Vogel v. Luitwieler, 5 N. Y. Supp. 154. Owner. — An owner of a building cannot prejudice the rights of others by acquiring a lien in his own behalf. Babb v. Beid, 5 Eawle, 151 ; Stevenson v. Stonehill, 5 Whart. 301. Nor will an owner be permitted to acquire such lien, through ■one acting as his agent, though the latter shall himself subse- quently pay the claim. Kerby v. Daly, 45 N. Y. 84. A Husband. — It has been held in California, where there is community property, that a husband cannot create a lien upon a structure erected with community funds upon the wife's land. Pech V. Brummagin, 31 Cal. 440. Members of Voluntary Association. — It has been held upon the same principle in Pennsylvania, that individual mem- bers of a voluntary unincorporated association cannot charge the joint property of the society. Babb v. Reid, 5 Eawle, 151. But where the title stands in the name of trustees, individual members may acquire a lien, as against such trustees. Young v. Lyman, 9 Penn. St. 449. Municipal Corporation. — A municipal corporation, being .an artificial person in law, can acquire the right to acquire a lien only through the express provisions of the statute. Yates V. Meadville, 56 Penn. 21 ; Mauch Chunk v. Shortz, 61 Penn. St. ' 399. Material for no Particular Building. — It has also been held that where a lumber merchant furnishes materials to a con- tractor, without any previously existing contract, and without any intention or understanding that they shall be applied to a particular building, he is not within the statute, and can acquire no lien upon the owner's interest. Hatch v. Coleman, 29 Barb. 201 ; Burst v. Jackson, 10 Barb. 219 ; Weaver v. Sells, 10 Kan. 609. For other decisions as to acquiring lien, see notes under "Ac- quiring Lien " and " Form and Eequisites of Notice," under sec- tion four of the Act of 1885, post. Meakikg of Teem "Owner." The Act of 1885, chapter 342, contains a broader and more comprehensive definition of the term "owner" than exists in any of the prior statutes relating to Mechanics' Liens. A person performing labor or services or furnishing materials with the 16 mechanics' lien law. consent of the " owner," as defined in the first section of chapter 342, Laws of 1885, "or his agent, or any contractor, or suh-con- " tractor," or any other person contracting with such "owner," may have a lien, to the extent of the right, title and interest of such owner, existing at the time of the filing of the lien, "Whether " owner in fee, or of a less estate, or whether a lessee for a term " of years, or vendee in possession under a contract existing at the "time of the filing of said notice of lien, or of the owner of any " right, title, or interest in such estate which may be sold under "an execution," and also to the extent of the interest embraced within a general assignment for the benefit of creditors, made within thirty days prior to the filing of the notice of lien. Section five of the act declares, also, that where an owner has. agreed to sell he shall be deemed the "owner" within the statute, until the deed has been actually delivered. In view of these elaborate provisions, many of the earlier de- cisions made with respect to the language of prior statutes can have no application to the Act of 1885. Definition of Owner Under Prior Statutes.— Under the restricted language of prior statutes, the courts have held that within the meaning of the law no person could be regarded an " owner " who was not a party to the contract. Muldoon v. Pitt, 54 N. Y. 369; McDermott v. Palmer, 11 Barb. 9. Legal Title. — The person holding the legal title will be re- garded as the owner, although, he purchased the property with trust funds, and holds the lands for the beneficial enjoyment of his cestui que trust. Yet he may subject the property to the lien. Anderson v. Dillaye, 47 N. Y. 678 ; Peabody v. East Met., &c., 5 Allen (Mass.), 540. So long as the person holds the legal title, he will be regarded as owner, although his grantor retains a lien on the property for the entire amount of the purchase money. Nazarette, &c. Inst. V. Lowe, 1 Ky. 258. Equitable Title. — And where it appeared that the contrac- tor who subjects his interests to the lien, has only an equitable title to the premises, he will nevertheless be regarded as the owner, within the meaning of the statute. Belmont v. Smith, 1 Duer, 675. And where the owner of the equity is in possession of the premises, he will be deemed the owner under the statute. Knapp V. Brown, 45 N. Y. 307; Rollin v. Cross, 45 N. Y. 769; Reid v. Bank of Tenn., 1 Sneed. 263; Afley v. Haviland, 36 Miss. 19; Marston v. 8tichney, 60 N. H. 113. MEANING OF TEBM "OWNEB." 17 Husband as Agent of Wife an Undisclosed Principal— A married woman was sued to enforce a lien for work done in the erection of a building on her land. Plaintiffs did the work under a contract with defendant's husband, who represented himself as the owner. Defendant testified that she orally con- tracted with her husband for the erection of the house and had paid him in full. Held, that a non-suit was error and the facts entitled plaintiffs to submit to the jury the question whether defendant's husband was or was not acting as her agent. Farmilo v. Styles, 5 N. Y. Supp. 579. Where the labor is performed at the instance of the husband, and with the knowledge of the wife, it will be sufficient to estab- lish his agency and render her estate liable. Hauptman v. Caflin, 30 N. Y. 247. Married Women. — Under the early statutes, with regard to the separate estate of married women, it was held, that a married woman could charge her separate estate and subject it to the operation of a mechanic's lien. Gashman t. Henry, 75 N. Y. 103 ; Rusted v. Mathes, 77 K Y., 388 ; Machier v. Burroughs, 14 Ohio St. 519. The rights and liabilities of married women have now been extended under chap. 381, Laws 1884, so that she may make any contract, as if she were single, unless dealing directly with her husband. The Act of 1884 is as follows : Act of 1884. — § 1. A married woman may contract to the same ex- tent, with like effect and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary. § 3. This act shall not affect nor apply to any contract that shall be made between husband and wife. [Laws 1884, chap. 381, passed May 38th.] Mortgagee. — A mortgagee will not be deemed an owner un- less he is in actual possession of the premises under his mort- gage. Gox^. Broderich, 4 E. D. Smith, 721; Omhony v. Jones, 19 .N. Y. 234. Infant. — An infant may subject his estate to the operation of the lien, if after attaining his majority he ratifies the contract ; so held under similar statutes in Illinois. McCarthy v. Carter, 49 111. 53. Guardian.— It has been held, however, that a guardian of the property and estate of infants can not encumber the proper- ty held by him in trust. Copley v. CNeil, 57 Barb. 399. Merger. — Where the lessee's estate is merged in the fee such merger does not destroy a lien upon the leasehold estate. Jones V. Manning, 6 N. Y. Supp. 338. 18 mechanics' lien law. Tenant.— A tenant, under the prior statutes, could pharge only his interest, whateTer it may be, and however temporary its tenure. Knapp v. Brown, 45 N. Y. 307; Mxildoon v. Pitt, 54 N. Y. 269; Ombony v. Jones, 19 K Y. 234. Tenants in possession of separate portions of joint property under a parol agreement for partition may charge the separate lots. Otis V. Gusack, 43 Barb. 546. Grantor Prior to Delivery of Deed.— One who contracts for the sale of his real estate, will be deemed to be the owner within meaning of Laws 1885, chap. 342, until the deed has been actually delivered to the purchaser. (See Laws 1885, chap. 343, § b,post. Purchaser Who Buys Subject to Liens.— A purchaser who takes a grant of the fee subject to all liens does not thereby be- come personally liable for such liens, and he may contest their validity. Jones v. Manning, 6 N. Y. Supp. 338. [See, also, decisions cited under title " Estate subject to the Lien," pages 23, 24, ^os^.] Meaning oj Tekm " Labor." Under prior lien laws considerable discussion arose as to the meaning of the term " labor," as used in the statute. The ques- tion has arisen as to the services of draughtsmen, architects, su- perintendents, which are not regarded as toil or manual labor in the ordinary sense. In the Act of 1885, chap. 343, in view of these decisions the legislature has added the word "services." The statute now provides a remedy not only to persons who perform " any labor," but to those who render services. The courts, however, under the earlier statutes gave a liberal construction to the word "labor," so as to protect architects and professional men en- gaged in the erection of the structure upon which the lien is filed. Any Labor. — Under the statutory term " any labor," is in- cluded the skilled labor of the architect who designs as well as the unskilled labor of the person who aids in the erection of the building or structure. Striker v. GassMy, 76 N. Y. 50; Mutual Ins. Go. V. Rotvland, 36 N. J. Eq. 389. The Supreme Court of Ehode Island has held that the reme- dy extends to all labor ordinarily employed in the construction or repair of a building. Butler v. River, 4 R. I. 38. MEANING OF TEBM "LABOB." 19 Preparing Plans.— The Supreme Court of Maine, however, have held that services in preparing a plan of a house or a model of a ship did not properly fall within the definition of the term "labor." Ames v. Dyer, 41 Me. 397. Time and Skill.— The Supreme Court of Oregon has held under its statutes that time and skill employed in supervising the building or construction of any structure is embraced in the term labor. Williamette v. Remick, 1 Oregon, 169. Eepairing Machinery. — The courts of Maine have held, also, in construing their statutes with respect to the term labor, that services rendered in altering and repairing machinery will not subject the premises to a lien unless it be shown aflBrmatively that the machinery constituted a fixture and formed part of the realty. Baker v. Fessenden, 71 Me. 292. Paper Hanging. — Labor performed and materials furnished in papering a building, have been held to fall within the purview of the statute by the Pennsylvania courts. Freeman v. Gilpin, 1 Phila. 33. Painting. — Under the Illinois Statutes the courts have sus- tained a lien for services rendered and materials furnished in painting a dwelling. Martine v. Nelson, 51 111. 433. Hoisting. — The courts of Pennsylvania, also, sustained a lien for services rendered in furnishing a hoisting machine and der- ricks and the labor employed in their use in the erection of the building. Tizzard v. Hughes, 3 Phila. 261. Transporting Materials. — There are also authorities to the effect that a lien may be had for the labor employed in conveying or transporting materials to the structure which are to be used in its erection. Hill v. Newman, 38 Penn. 151; In re Hope, 1 Sumner, 710. Ferriage Exclnded. — The Oregon courts have held that the lienor could not recover under his lien an item for the ferriage paid in transporting laborers to and from the place where the work was performed. Williamette Falls v. Remick, 1 Oregon, 169. Postage. — An item for postage and similar charges claimed by the lienor in his claim under his lien were also excluded as not within the purview of the statute. Ih. Cooking. — The California courts have also excluded an item for cooking food for workmen employed upon the building, as not recoverable in an action to enforce the lien. McGormick v. Los Angelas, 40 Cal. 185. 20 mechanics' lien law. Tarnishing and Painting.— The Maine courts hare also excluded items for varnishing carpets in and painting fences about the building as not embraced within the purview of their statutes. First Nat. Bank v. Redman, 57 Me. 405. Moving Building. —In Massachusetts it has been held that services rendered in moving a building or structure from one location to another, do not fall within the remedy contemplated by the lien law. Trask v. Searle, 121 Mass. 329. Extra Work. — Where extra work is performed for the own- er, and in pursuance of employment by him or by his directions, a lien may be acquired therefor. Morgan v. Stevens, 6 Abb. N. C. 357 J Rush V. Able, 90 Penn. St. 153. Damages not Recoverable. — The statute, however, extends the remedy only to work, and labor, and materials furnished. Hence the lien does not attach, nor can a recovery in its fore- closure be had for damages arising from a breach of the contract which prevents performance. Dennistown v. McAllister, 4 E. D. Smith, 729; Miner v. Hoyt, 4 Hill, 193; Hoyt v. Miner, 7 Hill, 525. This is the construction also that has been applied by the courts to Laws 1885, chap. 342. The contractor having complied with his agreement to a certain stage of the work, was prevented by the owner from finishing the contract, held that his remedy un- der the lien law extended only to the work and labor actually performed and rendered, and his remedy for damages for the breach of contract was by an independent action at law. Morgan V. Taylor, 5 N. Y. Supp. 920. Damages Assessed on Default.— Under Laws 1873, chap. 489, damages for value of labor and materials could be assessed by the clerk on default, and an erroneous assessment would not make the judgment a nullity. Welde v. Henderson, 6 N. Y. Supp. 176. Articles to Which Lien Attaches. The property, improvements and appurtenances to which the lien attaches are designated in the Act of 1885, chap. 342, in comprehensive terms, and include not only the structure itself, but to the appurtenances to any lot, including fences, sidewalks, paving, fountains, fish ponds, fruit and ornamental trees. By chapter 316, Laws of 1888, the provisions of the act were extend- ed to gas fixtures, brackets and chandeliers or apparatus for elec- tric lights. The general rule seems to be, however, that the arti- ARTICLES TO WHICH LIEN ATTACHES. 21 cle or object for which the lien is claimed must be attached to and form part of realty, unless otherwise declared by the statute, as in case of gas fixtures, brackets, and the like. Material Must be for the Structure.— The term materials in the statute embrace whatever is ordinarily used in erecting, altering or repairing, and whatever is necessarily used for those purposes. But the materials must be furnished for and used in the particular building. Phillips v. Wright, 5 Sandf . 345 ; Rogers V. Cunier, 13 Gray, 129; Weaver v. Sells, 10 Kan. 609. Materials for no Special Structure.— It has been held, un- der prior statutes, that where materials are not furnished for the particular building or structure on which the lien is claimed, but are sold only in the ordinary course of business and with no knowledge of their intended use, the material man can claim no lien upon ascertaining that they have been used in a particular building. Burst v. Jackson, 10 Barb. 219 ; Hatch v. Coleman, 29 Barb. 201 ; Weaver v. Sells, 10 Kan. 609. Mirrors. — Mirror frames fastened permanently into the structure, and intended to be used in and to pass with it, form part of the realty, and are within the statute. Ward v. Kilpatrick, 85 ISr. Y. 413. Boiler. — A boiler put into a brew house, and which forms a necessary part of the building, is a fixture within the meaning of the statute, and subjects the property to a lien. Gi-ey v. Hold- ship, 17 Serg. & E. 413. Machinery. — The test applied in Maine and Tennessee, with regard to machinery for manufacturing purposes, was as to whether such machinery would necessarily pass upon a convey- ance of the realty. Iron Mfg. Go. v. Bynum, 3 Sneed (Tenn.), 268; Baker Y. Fessenden, 71 Me. 292. Brewing Apparatus. — Where machinery for a brewery is placed in a brewery building at the request of the owner of the land and building, it becomes a part of the freehold, and the land and building are subject to a lien under the provisions of Laws 1885, chap. 342, in favor of the person who furnishes the ma- chinery. Watts-Campbell Co. v. Yuengling, 3 N. Y. Supp. 869. Heating Furnace. — A furnace and its appurtenances set up in a dwelling house during its constuction become a part of the freehold, and a lien may be had for the price, under Laws 1885, chap. 342, § 1. Schwartz v. Allen, 7 N. Y. Supp. 5. The same ruling was made under the Missouri statute. Goodwin v. Mleardsville, 5 Mo. App. 289. 22 mechanics' lien law. Stoves and furnaces set up in a dwelling, and in no way at- tached to or forming part of the realty, will not subject the property to a lien. Lombard v. Pike, 33 Me. 141. Terracing and Sodding.— The language of the statute (L. 1885, ch. 343, § 1) is broad enough to include a claim for terracing and sodding the yard of a building lot. Pickett v. Toll- ner, 7 N. Y. Supp. 196. Saw-Mill Engine. — An engine and boiler erected in a saw- mill is a fixture and necessary appurtenant, and subjects the property to the lien. Morgan v. Arthur, 3 "Watts (Pa.), 140. Mill-Stones. — Likewise mill-stones placed in a building of which they form part. Wademan v. Thorp, 5 Watts (Pa.), 115. Bolting- Cloth, forming an essential part of the machinery of a flouring-mill, is also within the statute. Heidegger v. At- lantic Mill Co. 1 Mo. App. 327. Boat. — In Arkansas, the courts have held, under a statute giving a lien on a wharf, that a boat which is attached to and forms a permanent portion of the wharf, subjects the structure to a lien. Galhreath v. Davidson, 35 Ark. 490. Lightning Bods. — When afiBxed to a dwelling-house, form part of the realty within the meaning of the statute, and entitles tke party furnishing them to a lien for the price. Quimhy v. Sloan, 3 E. D. Smith, 594; Harris v. Schulte, 64 Iowa, 539. Powder and Fuses furnished for and actually used in the construction of a building, are within the statute. Hazard Pow- der Co. V. Byrnes, 13 Abb. Pr. 469. Hoisting Apparatus furnished for and necessarily used in erecting a building, held also to fall within the statute. Dixon v. La Farge, 1 E. D. Smith, 733. Theatre Chairs. — Where theatre chairs were manufactured with special reference to the form of the auditorium, and at- tached to the building, held to form part of the realty, within , the meaning of the statute authorizing a lien for labor and ma- terials. Grosz V. Jackson, 6 Daly, 463. Theatre Scenery.— The courts of Tennessee have also held that theatre scenery, machinery and chairs, made and affixed in a similar manner, formed part of the freehold, and lien could be enforced therefor. Halley v. Alloway, 10 Lea (Tenn.), 533. Counters.— And where counters in a store were not affixed in such a manner that their removal would injure the structure,. ESTATE SUBJECT TO THE LIEN. 23 they were held in Maine not subject to the provisions of the lien law. Baum v. Covert, 63 Mass. 113. Illegal Structure. — A lien cannot be acquired for materials furnished for an unlawful purpose, or for the erection of an ille- gal structure, where it is shown that the parties had knowledge of their intended use. Spurgeon v. Mcllvane, 6 Ohio, 442 ; Dor- sey T. Langwortliy, 3 Greene (Iowa), 34; Bishop v. Honey, 34 Texas, 245. Material Purchased in Another State. — A contract exe- cuted in Connecticut, whereby certain machinery was made and de- livered to a Connecticut contractor, and was subsequently sold by the latter to the defendant, and sent into this State, is not under Laws 1862, ch. 478, subject to a lien of the material man who sold the machinery in Connecticut. Birmingham Iron F. Go. V. Olen Gove S. Mf'g Go. 78 IST. Y. 30. But where the contract is made in this State, for materials to be brought into this State, and delivered here, a lien attaches for the value of such materials. Phcenix Iron Co. v. Vessell, &c. 43 Hun, 429. Contract Made Prior to Passage of the Act.— The stat- ute operates upon a contract executed and performed after the passage of a lien law, although the contract was prepared and signed before the law was passed. Hauptman v. Oautlin, 20 N. Y. 247. Estate Subject to the Lien. The Lot. — The meaning of the term " lot," where a inechan- ic's lien was filed, was construed by the Supreme Court of Con- necticut to include the parcel of land inclosed, or so connected with the structure as to be naturally understood by the parties as belonging thereto. Bank v. Curtiss, 18 Conn. 342. And the Supreme Court of Ohio, where there were several lots, held that the parcel covered by the lien embraced the parcel including several lots which were capable of being used together and were actually used in connection with the structure. Cha- teau V. Thompson, 2 Ohio St. 114. Several Buildings. — Where the lots or parcel of land con- tains several buildings which are being erected under one con- tract, the land and buildings embraced within the contract will be subject to the lien. Paine v. Bonney, 4 E. D. Smith, 734; Moran v. Chase, 52 N. Y. 346; Hall v. Sheehan, 66 N. Y. 618. And where the contract provided for payment in a gross sum, the lienor is entitled to be paid out of all or any of the buildings 24 mechanics' lien law. embraced within the terms of the contract. Livingston v. Miller, 16 Abb. Pr. 371. Tenant's Interest. — Where the contract was made with the tenant, the latter's interest alone can be subjected to the lien. Muldoon V. Pitt, 54 N. Y. 269; Kiiapp v. Brown, 45 K. Y. 207; Dutro V. Wilson, 4 Ohio St. 101. "Where knowledge, acquiescence, or consent of the owner of the fee cannot be shown, and the contract was with the tenant only, the latter cannot subject the fee to the operation of the lien. Cornell v. Barney, 33 Hun, 134. The interest of the lessee, however, embraces all improvements erected by him which may be removed without injury to the freehold. Ombony v. Jones, 19 N. Y. 234; Dobshultz v. Holliday, 82 111. 371. Equitable Owner. — An equitable owner, under prior stat- utes, could not charge the legal estate by a contract to which the legal owner is not a consenting party. Rollin v. Gross, 45 K Y. 766. But if the equitable owner subsequently acquires the fee the estate becomes subject to the operation of the lien. Rollin v. Gross, 45 N. Y. 766; McGraw v. Godfrey, 56 N. Y. 610. Contractor who Acquires tlie Fee. — Where the contractor at the time of the execution of the contract has no title, but sub- sequently acquires the fee, the fee thus acquired becomes subject to the operation of the lien. Garhett v. Greenlaw, 117 Mass. 167. Perfecting of Defective Title.— And where the title of the contractor is defective, and is subsequently perfected, the benefit of the perfect title enures to the benefit of the lienor. McGraw V. Godfrey, 56 N. Y. 610; Montandon v. Deas, 14 Ala. N. S. 33. Inchoate Right of Dower.— A mere right of dower, incho- ate, is not an estate in the land as will become subject to the operation of the lien. Vanhroker v. Exstein, 7 Met. (Mass.), 162 ; Grove v. Gather, 23 111. 634; Bchaffer v. Weed, 3 Gilm. (111.), 511; Bishop v. Boyle, 9 Ind. 169. Homestead.— A homestead, though usually exempt from ordinary debts under the laws of the various States, has been held to be subject to the operation of a lien for buildings and improve- ments erected thereon. TJiompson v. Wickersham, 9 Baxter (Tenn), 216; see contra Keller v. Struck, 31 Minn. 446. House of Foreign Minister.— The house of a minister, or ambassador, representing a foreign nation, may be subjected to the operation of the lien, where it is shown that the building was CONSENT, EXPBESS OB IMPLIED. 25 not used for purposes connected with his official duties. The burden of proof is on the owner to show that the lex ret situs does not apply. Byrne v. Harron, 1 Daly, 344. Consent, Express or Implied. Standing By and Taking Benefit.— The legislature, in authorizing a lien where the claim of the laborer or material man arose by the owner's consent, intended to enforce the equi- table principle that one who knowingly takes the benefit of the property and labor of another, in the form of improvements on his lands, ought to have the land subject to the lien therefor. Nellis V. Bellinger, 6 Hun, 560; Otis v. Dodd, 90 N. Y. 336. Consent Implied by Acts and Declarations.— The doc- trine of consent extends to cases where an owner by his acts and declarations impliedly consents to the erection of buildings ons-_ his land. And this implied consent becomes operative to the same extent as if such owner had contracted directly for the im-^ provements. Nellis v. Bellinger, 6 Hun, 560; Otis v. Dodd, 90' K Y. 336. Consent Synonymons with " Permission."— The term " consent " in Laws 1885, ch. 343, § 1, is used with the same effect as the term " permission " in Laws 1862, ch. 478 (citing, Uachett V. Badeau, 63 N. Y. 476). Miller v. Mead, 6 N. Y. Supp., 273. Knowledge Implies Consent.— Where the owner is not a party to the contract, his consent thereto will be implied, if it be ehown that the work proceeded with the knowledge and approba- tion of such owner. Hellwig v. Blumberg, 7 N. Y. Supp. 746. And the same rule applies where it is shown that the owner had', knowledge of the fact that the labor was being performed or the. materials furnished, and interposed no objection. Husted y„ Matthews, 77 K Y. 389; Nellis v. Bellinger, 6 Hun, 560. Consent by Acquiescence.— Eyidence.-The contract for improvements was made with the lessee, who was an irresponsible person, and the plaintiff sought to charge the landlord as having given " consent " under Laws of 1885, ch. 343, § 1. Held, that the plaintiff was properly allowed to introduce evidence of the own- er's way of dealing with the property, from which his acquies- cence may be inferred. The term " consent " defined. Ottiwell V. Muxlow, 6 N. Y. Supp. 518. When Consent not Inferred under Act of 1875.— Under the Act of 1875, it has been held that where the owner who visited the premises while his lessee was making certain improvements, 3 26 mechanics' lien law. which he had a right to make, and approved of the same, he does not thereby subject his interest to a lien for the value of such im- provements on the ground that he has given his consent under L. 1875, ch. 233. Only the lessee's interest is liable. Jones v. Manning, 6 N. Y. Supp. 338. To the same effect is the case of Oraig v. Swinerton, 15 N. Y. Superior Ct. R. 144. Consent Evidenced by the Contract.— Where the owner has made a written contract with the principal contractor, and himself makes the payments therein provided for in good faith, he cannot be charged further by a sub-contractor on the ground of an alleged "consent" under Laws 1885, ch. 342, § 1. In such a case the written contract is the proper evidence of his " consent " and the measure of his liability. Riggs v. Chapin, 7 N. Y. Supp. 765. The owner of the land agreed with a purchaser to advance a sum of money for the completion of certain buildings on the land by the purchaser, and on their completion agreed to convey at a certain price. The purchaser made a contract with the plaint- iff for materials, which were furnished and used in the buildings. Held, that the owner's agreement was evidence of the " consent " required by L. 1885, ch. 342, § 1, and that the plaintiff was en- titled to a lien on the land as against the owner. Miller v. Mead, 3 N. Y. Supp. 784; affirmed 6 N. Y. Supp. 273. To the same effect (citing Rollin v. Gross, 45 N. Y. 766); Hobby V. Day, 3 F. Y. Supp. 900, Materials Ordered at Owner's Request.— The owner of a lot contracted with a building company for the erection of a house on the same to be equipped with a furnace and range of a certain size. The company ordered the latter of the plaintiffs. Afterwards the owner, with the consent of the contractors, ordered the plaintiffs to substitute a larger and more expensive furnace and range on his own responsibility. Held, that these facts were sufficient to sustain a lien regularly filed against the owner's interest in the real property. Richardson S Boynton Co. V. Reid, 3 N. Y. Supp. 224. Advances to one who has Contracted to Farchase.— The legislature intended, also, where the claim accrued with the own- er's consent, to authorize a lien against the legal owner who con- tracts to sell his land, and advance money to the vendee for the erection of buildings thereon, though the latter is not strictly a contractor. Nellis v. Bellinger, 6 Hun, 560. So where the owner advances money to a party to whom he has contracted to sell, for the purpose of erecting buildings on the land, though the relation of owner and contractor does not exist, still the latter may be entitled to a lien, as having performed CONSENT, EXPBESS OB IMPLIED. 27 labor by consent. Gates v. WJiitcomb, 4 Hun, 137; Hart v. Wheel- er, ll.k 0. 403; Smith, v. Nm-ris, 120 Mass. 58. So where the vendor agrees with the vendee, that the latter shall erect buildings on the land, there is an implied consent by the owner of the fee that the materials for such buildings may be furnished and the labor necessary in their construction may be performed. Hackett v. Badeau, 63 N. Y. 476; Davis v. Hum- phrey, 112 Mass. 309. Consent of Owner Making Advances.— The owner and her husband made a contract with one Kuhn to convey her land to him upon the completion by the purchaser of certain build- ings thereon, and agreed to advance moneys to be used in com- pleting the buildings. Liens were filed by certain mechanics and material men. Held, that the owner had given her " consent," within the meaning of Laws 1885, chap. 342, §§ 1 and 5, and became liable, and that such liability was not limited by the sums agreed to be advanced by her. Schmaltz v. Mead, 4 N. Y. Supp. 614. Agent's Consent. — The owner's husband acted as her gen- eral agent throughout the transaction, but the moneys were ad- vanced by her, and the contracts though made in her husband's name were for her benefit. These facts raise a presumption of knowledge and tacit consent on her part, which is sufficient to establish the lien. lb. Lease with Privilege to Tenant to Improve. — Where the owner makes a lease, with an agreement that the tenant shall make improvements, which are to become the property of the landlord at the expiration of the term, there is an implied con- sent of the owner to furnishing the necessary labor and mate- rials for such improvements. Burkitt v. Harper, 79 N. Y. 273; Otis V. Dodd, 90 K Y. 336. Stipulating as to Discharge of Liens.— Consent to the creation of liens may also be implied where the owner makes a contract to convey the land, and consents to a stipulation in the contract of sale, that before delivery of the deed all liens upon the property shall be discharged. Such a stipulation obviously' contemplates the creation of liens. Murley v. Barrow, 11 Allen (Mass.), 152. Married Woman. — A married woman's consent will be in- ferred when, having knowledge of the fact that improvements are being made on her lands by her husband, she interposes no objection thereto. Husted v. Matthews, 77 N. Y. 389 ; Schmaltz V. Mead, 4 N. Y. Supp. 614. It has been held, however, under Laws 1880, chap. 143, a local statute, limited to the city of Buffalo, that a married 28 mechanics' lien law. woman's consent will not be inferred where it clearly appears the contract for the improvements were made expressly with th© husband, and the credit is given to him. Ziegler v. Galvin, 45 Hun, 44. But where it is claimed that the husband is the wife's agent, and the agency is denied, the husband may be called and exam- ined on behalf of the wife, on the subject of the agency, and it is error to exclude his testimony. Rope v. Hess, 6 N. Y. State Eep. 710; reversed Rope v. Hess, 118 N. Y. 668. Corporation.— Employment by Building Committee.— Sub-contractors, performing work upon a structure under one employed by a building committee duly authorized by vote of the corporation owning the fee, will be deemed to furnish their labor by the owner's consent. Morse v. School District, &c., S Allen (Mass.), 307. Capacity to Consent. — Where consent is relied upon it must be shown that the party whose consent is alleged had the legal capacity to confer the right to perform the work and fur- nish the materials. Donaley v. Glapp, 13 Cush. (Mass.), 440. Consent, Hott Pleaded. — The complaint need not state ho^ or under what .circumstances the owner's consent was given. After setting forth the performance of the work and furnishing of materials, it will be sufficient to allege that the building was erected by the lessee of the premises, with the knowledge and consent of the owner. Ross v. Simon, 9 N. Y. Supp. 536; re- versing Ross V. Simon, 8 N. Y. Supp. 2. The Contbact. — Pebfoemance. — Waiveb. The Debt. — The obligation, or indebtedness, existing upon contract, express or implied, in favor of the person seeking to subject the property to the operation of the lien, is the founda- tion of the claim of every lienor. Dixon v. La Farge, 1 E. D. Smith, 733; Gay v. ^rowre, 1 E. D. Smith, 735; Pendleburgy. Meads, 1 E. D. Smith, 738; Broderick v. Poillon, 3 E. D. Smith, 554; Quinn v. New York, 2 E. D. Smith, 558; Walker v. Paine, 2.E. D. Smith, 663; Myers v. Burnett, 1 Daly, 471; De Ronde v. Olmstead, 47 How. 175 ; Knapp v. Brown, 45 N. Y. 207 ; Muldoon V. Pitt, 54 N. Y. 269; Cornell v. Barney, 94 N. Y. 394. Damages.— Cancellation of the Debt.— Where the amount of the indebtedness due the lienor has been paid and the debt ex- tinguished, the lien is no longer operative and can not be enforced. Any sum agreed upon in the contract as compensation for damages suffered by the contractor, by reason of any default on the part of THE CONTBAOT. — PBBFOBMANOE. — WAIVES. 29 the owner, can not be enforced by virtue of the lien, but must be recovered in an independent action at law. Nolan v. Gardner, 4 E. D. Smith, 727; Hoyt v. Miner, 7 Hill, 535. Definite and Certain— The contract upon which the lien is predicated must be sufficiently certain and definite, to enable the amount claimed thereon to be determined with reasonable preci- sion and accuracy. Wilder v. French, 9 Gray (Mass.), 393 ; Man- chester V. Searle, 121 Mass. 418. Postscript. — A postscript, where the contract is in duplicate, written upon one copy, in the presence and with the oral consent •of all parties, will be construed to form part of it, and to be valid and binding. Close v. Glarh, 9 N. Y. Supp. 538. Contract within Statute of Frauds. — The contract on which the lien is based must be one which is enforceable in an action at law. And where the same has not been executed, and falls with- in the statute of frauds, it can not be enforced in proceedings to foreclose the lien. Loonie v. Hogan, 9 N. Y. 435. Illegal Contract. — A contract which is illegal, can not be en- forced by proceedings to foreclose a lien. Where the agreement was to furnish labor or materials for an illegal structure, with the object and intent of aiding and furthering an illegal design, the lienor who knowingly and wilfully aided in the work was denied relief. Dorsey v. Langworthy, 3 Iowa, 341 ; Spurgeon v. McEl- wain, 6 Ohio, 444 ; Bishop v. Honey, 34 Texas, 248. Statute of Limitations. — In those States where the statute is so framed that the lien might fall within the statute of limitations, if barred thereby it can not be enforced. Yeates v. Wheadon, 6 Bush (Ky.), 438; Vandire v. Hodge, 4 Bush (Ky.), 538; Hills v. Halliwell, 50 Conn. 270. Infant's Contract. — Where the contract has been executed by an infant, he may enforce a lien therefor. The statutory dis- ability of infancy is created solely for the benefit of the infant, and can not be taken advantage of by another to defeat the in- fant's rights. Van Brenner v. Cooper, 2 Johns. 279 ; Hartness v. Thompson, 5 Johns, 160; McCarty v. Carter, 49 111. 53. Married Woman's Contract. — A married woman may like- wise enforce by lien a contract executed in relation to her sepa- xate estate. Cashman v. Henry, 75 N. Y. 193 ; Husted v. Mathews, 77 K Y. 388. Note. — The early decisions with regard to married women's contracts have no bearing, since the enactment of chap. 381, Laws 1884, authorizing a married woman to contract, save with her husband, as if she were single. See text of the statute on page 17, ante. 30 mechanics' lien law. Words "Liable to Pay."— The words "liable to pay "in 8 1, Laws 1885, chap. 342, have been construed to mean liability to pay under and by virtue of the owner's contract, and in accord- ance with its terms. Heckmann v. Pinkney, 81 N. Y. 217. Term "Excavating" in Contract.— Where the agreement provided that the contractor should do " all the excavating," and rock was subsequently discovered, and it was then agreed that the expense of blasting should be borne equally by the contractor and owner. Held, that the last agreement constituted a separate contract, and in view of this fact the words "all excavating "^ did not necessarily include blasting. Hellwig v. Blumenberg, 1 K Y. Supp. 746. Substantial Performance.— Performance of the conditions and requirements of the contract are essential, to authorize its enforcement by the lienor. But a substantial compliance and not a literal performance of the terms of the agreement is all that justice requires in this class of cases. Olacius v. Black, 50 N. Y. 145; Johnson v. De Peyster, 50 N. Y. 666; Phillips v. Gallant, 62 N". Y. 264; Heckmann v. Pinkney, 81 N. Y. 211; Woodward V. Fuller, 80 N. Y. 312; Wright v. Roberts, 43 Hun, 413. And it has been held that this substantial compliance must be shown affirmatively by the lienor, although not denied specifically in the answer. Hoag v. Hillemeyer, 15 Weekly Digest, 323. The contract provided for a second payment/' when cornice is set, siding on, and floors laid." The evidence showed that a small portion of the siding, which could be done better at a later stage,^ was omitted. The bwner made no objection to the omission, but promised payment. The referee found that there was a substan- tial compliance, and that the second payment was due. Held, no error, and that the finding would not be disturbed on appeal. Rogers v. McOuire, 10 N. Y. Supp. 831. Excuse for Non-Performance. — When the contractor has been prevented by the acts or conduct of the owner from com- pleting the contract, he will not be debarred thereby from enforc- ing his lien. Insolvency of the owner which prevented perform- ance, is a valid excuse for non-performance. Henderson v. Stur- gis, 1 Daly, 336. Where delay has been occasioned by the fault of the owner, or his employees in failing to complete work which in the nature of things had to be first performed, the lienor is excused for the delay. Weeks v. Little, 9 Abb. N. C. 415. Allotrance for Work Not Performed.- The contractor agreed to build houses, and connect them with main sewer. Af- ter the houses were finished the connection could not be made, because the main sewer was not deep enough. Afterwards the^ THE CONTRACT. — PEBFOEMANCE. — WAIVER. 31 contractor allowed $120 for deepening the sewer, and the owner completed the connections at a cost of $180. Held, that the con- tract was substantially complied with, and the contractor could enforce his lien thereon, less the sums of $130 and $180 paid on account of the sewer connection. Hollister v. Mott, 10 N. Y. Supp. 409. Waiver of Performance.— Qnantam Meruit.— Where, after the work has progressed to a certain stage, the contract is aban- doned by the mutual consent and agreement of the parties, the lien may be enforced upon a quantum meruit. Powers v. Hogan, 67 How. Pr. 355; s. c. 13 Daly, 444. Waiver by Arbitration. — The right to file a notice of me- chanic's lien is waived and surrendered when the parties have submitted all matters in dispute to a common law arbitration. No recovery can be had upon a lien filed after such submission. N. Y. Lumber and Wood Working Go. v. Schneider, 1 N. Y. Supp. 441. Waiver. —Departure from Flan. — Where there have been departures from the original plan, which has been concurred in by the parties, and made by mutual consent, such consent when acted upon operates as a waiver of the express terms of the con- tract. Close V. Olark, 9 N. Y. Supp. 538. Waiver as to Time. — Where the time prescribed by the con- tract has expired, and the builder is notified to go on and com- plete the contract, such instructions operate as a waiver of the provision as to completion within the time limited in the con- tract. Close V. Clarh, 9 N. Y. Supp. 538. As to Waiver in Subsequent Action. — Where the owner employed a builder and subsequently paid for a portion of the materials used by the builder, thereafter, in an action by a receiver of the builder against the owner for extra work, held, that the owner could ofE-set the amount paid for the builder's materials, although he did not claim such off-set in the action to foreclose the builder's lien, and his failure to do so constituted no waiver in the subsequent action for extra work. Frost v. McGinnis, 3 N. Y. Supp. 341. ■- Notice to Complete. — The owner refused to pay the con- tractor when due a balance of an installment, after the same had been demanded by the contractor. The owner, after such notice and refusal, then served written notice on the contractor to proceed with the work within two days, and on his failure to do so the owner would consider the work abandoned, and in that ease the owner would finish it, and hold the contractor for the damages. Held, that the owner being in default in refusing to 32 MECHANICS LIEN LAW. pay the installment when due, cannot put the contractor in de- fault for his refusal to complete. Qraf v. Cunningham, 109 N. Y. 369. When such a notice has been served upon the contractor, and he remains silent, and the owner finishes the work, the contractor will be deemed to have acquiesced, and the owner when the work is completed at less than the contract price, will be regarded as finishing the work at the owner's expense, and the sub-lienorg will be entitled to the surplus. Ih. After Abandonment RecoTery May be had for Mate- rials Left on Premises. — Plaintiff after doing part of the work and furnishing part of the materials, abandoned his con- tract with the defendant, but filed a lien for a portion of the con- tract price, alleging that the abandonment was because of the de- fendant's failure to pay the installments required. Defendant proved that both the work and the materials were defective and that there had been no substantial performance to any extent, although it cost less than one-half the contract price to finish the work after the plaintiff abandoned it. The plaintiff can recover nothing under the contract. As to materials left by him on the premises and used by the defendant, the plaintiff is in the position of a vendor and is entitled to recover their value. Wollreich v. Fet- tretch, 4 N. Y. Supp. 326. Forfeiture.^ — Failure to Complete.— The common council of Yonkers by resolution forfeited a contract for grading and improving a street, reciting a breach of one of its conditions as the ground of such forfeiture. Held, that in determining the amount due to the contractor and the sub-contractors who had filed liens (under L. 1878, c. 315) for so much of the contract work as had been performed, the city was not limited on the trial to setting up the breach recited in the resolution of forfeit- ure. Having alleged one sufficient cause, the contract was abso- lutely forfeited, and the city could prove all the contractor's defi- ciences in reduction of the amount of his claim. Powers v. City of Yonkers, 114 N. Y. 145. Failure to Establish Lien; When no Bar to Recovery.— The failure of the plaintiff to establish his claim cannot prevent other lienors from obtaining such relief as they may be entitled to, in the same action, under Consolidation Act, § 1815, as amended by L. 1883, chap. 276. See, also. Laws 1878, chap. 315. Morgan v. Taylor, 5 N. Y. Supp. 920. Payment in Specific Property.— Where the contract stipu- lates for payment in specific property, though a specific per- formance can not be decreed, yet the contract may be enforced under the lien. Dowdney v. McCullom., 59 N. Y. 367. THE CONTBACT. — PEBFOBMANCE. — WAITER. 33 Moneys Due on the Contract. — The moneys due upon the contract constitute a fund for the payment of those who furnish labor and materials which enter into and enhance the value of the owner's buildings. Hoyt v. Miner, 7 Hill, 525. The contract and the payments to become due thereunder constitute the security of mechanics employed by the contractor, who furnish work and materials on the faith of the agreement. Post V. Campbell, 83 N. Y. 282. Moneys thus payable or to become payable can only be di- verted, so as to defeat liens of sub-contractors, by bona fide pay- ments made by the owner, in accordance with the terms of the contract. lb. It is not necessary to show " collusion," where moneys have been assigned by contractor in payment of debts other than those incurred in erecting the structure. Stevens v. Reynolds, 7 N. Y. Supp. 771. See, also, authorities under " Funds in Owner's Hands," page 35, post. Amount Due Contractor. — The contractor allowed the city of Buffalo to retain 20 per cent, of the contract price for ninety days after the completion of the work. The contractor abandoned his work, after having been paid more than 80 per cent, of the value of the work he had performed. The plaintiff, a sub-con- tractor, at this stage filed his lien for work done. The work was completed by the contractor's sureties under a new agreement with defendant. Held, that by abandoning the work before its completion the contractor forfeited all right to the balance re- tained by the city, since it did not become due him until three months after completion of the work by him. That as no bal- ance ever became due the contractor, the sub-contractor acquir- ed no lien on any portion of the balance of the contract price. The contract with the sureties was a new contract. Weisman v. City of Buffalo, 10 N. Y. Supp. 569. Liens Not to Exceed Amount Beniaining Unpaid.— Al- though Laws 1885, chap. 342, § 1 provides that the owner is not liable to pay a greater sum than the amount agreed to be paid in the contract remaining unpaid at the time of 'filing of th^ lien, the right to file the lien does not depend upon the right of the contractor to collect the money from the owner, at the time the lien is filed. Van Cliefv. Van Vechfen, 8 N". Y. Supp. 760. Contract with Owner. — Under the peculiar wording of the Lien Law of 1883, chap. 276, it was held, that the only contract contemplated by the statute was a contract with the owner, and hence did not embrace work done under a contract of sale. Hence, when the owner contracted to sell land and to complete the houses thereon prior to passing the title,, it was held that the 34 mechanics' lien law. land subsequently conveyed was not liable to a lien for work done for the vendor, on a contract made with him to complete the houses. Smullen v. Hall, 13 Daly, 392; compare Schmdtz v. Mead, 4 K Y. Supp. 614. Note.— See, also, authorities as to meaning of term "owner," pages 15-18, ante. Also, Laws 1885, chap. 343, § 5, which pro- vides that where an owner has agreed to sell she shall be deemed the " owner " within the meaning of the statute, until the deed has been actually delivered. For other authorities, as " abandonment " and " substantial performance," see below, under " Eights of Sub-Contractor." Priorities.— Eights of Mortgagee.- The owner of a house and lot borrowed money from a savings bank upon a mortgage covering the premises, with the understanding that the debt due to plaintifE for materials furnished by him and used in the build- ing would be paid out of the sum loaned. The owner absconded the same day with the entire sum ; the mortgage was recorded the next day and still later the plaintiff filed his lien. Held, that plaintifE was merely a creditor at large until the filing of his lien, and his claim must be subordinated to the mortgage. Munger v. Curtis, 43 Hun, 465. A mortgage to secure materials to be manufactured and fur- nished for a building is a prior lien to the extent of the value of materials actually furnished thereunder, and also to the extent of a personal debt to the mortgagee. Bradley v. Stafford, 1 N. Y. Supp. 138. Priorities.— When Arbitration not Binding on Sub- Contractor. — One who claims a mechanic's lien upon the sums due from the owner to the contractor is not bound by an arbitra- tion between the owner and contractor, which is not provided for by the terms of the contract and to which he has not given his assent. It is not sufficient to give him notice of the arbitra- tion and an opportunity to be heard. Cooke v. Odd Fellow^ Fra- ternal Union, 49 Hun, 23. Priorities.— Receiver in Supplementary Proceedings.— A receiver of the contractor, in supplementary proceedings, has a prior lien upon moneys due from the owner, if the order in supplementary proceedings was served upon the contractor before the liens of laborers and material men were filed. The title of the receiver relates back to the time of the service of the order (Code Civ. Pro. § 2469). No other priorities are given than those pre- scribed by L. 1885, chap. 343, § 5. The position of the receiver is at least as good as if prior to the filing of the liens the con- tractor had, in good faith, assigned his claim against the owner to the creditor in the supplementary proceedings. McCorkle v. Herrman, 117 N. Y. 297. RIGHTS OP 8UB-C0NTBACT0B. 35 Eights of Sub-Oontbactob. Dependent on Contract with Owner.— The rights of a sub-contractor, as the term " sub-contract " implies, are necessar rily dependent upon the existence of a valid contract between the contractor and owner. Pike v. Irwin, 1 Sandf. 14; Doughty V. Devlin, 1 E. D. Smith, 625 ; Loonie t. Hogan, 1 E. D. Smith, 652; Walker v. Paim, 2 E. D. Smith, 652; Grogan v. Mayor, 2 E. D. Smith, 693; Gox v. Broderick, 4 E, D. Smith, 721; Thomp- son V. Yates, 28 How. 142 ; Carman v. Mclncrow, 13 N. Y. 70 ; Crane v. Oenin, 60 N. Y. 127 ; Cheney v. Troy Hospital, 65 N. Y. 282; Heckmann v. Pinkney, 81 N. Y. 211. Subrogated to Bights of Contractor.— The intent of the statute with relation to the sub-contractor was that he should be subrogated to the rights of the contractor, with respect to the funds due or to become due on the contract. Herbert v. Herbert, 57 How. Pr. 333; Schneider v. Hohein, 41 How. 232; Hofgesang V. Meyer, 2 Abb. N. C. Ill; Cheney v. Troy Hospital, 65 N. Y. 282; McMillan v. Seneca, etc. 5 Hun, 12. Money Due Contractor .-^The lien of the sub-contractor, in view of the fact that he is merely subrogated to the contractor's rights, attaches only to the moneys due or to become due on the contract with the owner. The moneys in the hands of the owner, due or to become due to the contractor, constitute a fund out of which the lienors are entitled to be paid. Crane v. Oenin, 60 N. Y. 127; Gibson v. Lenane, 94 N. Y. 183; Post v. Campbell, 83 N. Y. 282. Suh-Contractor Kay Rely on Terms of Contract.— Since the contract between owner and contractor forms the basis of the rights of the sub-contractor, the latter has a right to examine it and rely upon its terms, whereby the fund to which his lien at- taches is accumulated or disbursed. Lumbard v. Syracuse, 55 N. Y. 494. Equities between Owner and Contractor.— It has been held also that the claims of the sub-contractor, who is simply subrogated to the rights of the contractor, are subject to all equities which exist between the parties to the original contract. Morgan v. Stevens, 6 Abb. N. 0. 356. Fnnds in Owner's Hands. — The moneys due from the owner on his contract, which constitutes a fund to which the liens of sub-contractors attach, can only be diverted from this object by bona fide payments made by the owner, in accordance with the terms of his contract. Crane v. Genin, 60 N. Y. 127;. Payne v. Wilson, 74 N, Y. 348; Gibson v. Lenarie, 94 N. Y. 183; 36 MBOHANICS' LIEN LAW. Jones Lumber Co. v. Murphy, 64 Iowa, 166; Post v. Campbell, 83 F. Y. 282. Assisrnment of Contract.— It has been held, under former lien laws, that where the contractor, in good faith for value, assigns all his rights and interest under the contract, and his right to all payments arising thereunder, a sub-contractor who afterwards performs labor can acquire no lien, if it be shown that he had knowledge of the assignment and assented thereto. Gates V. Haley, 1 Daly, 338. Equitable Assignment. — The contractor assigned to ma- terial men moneys due him from the owner, to the extent of $909.94 in payment of a debt, of which about $400.00 was for materials used in the construction of the building. The plaintifl afterwards filed a lien on account of lumber used in the building. The sum due from the owner to the contractor is $1,545.48. Held, that the sum of $400.00 should be paid first, on account of the equitable assignment, for the materials used in the construc- tion of the house in question, and then the plaintiff's claim. The Law of 1885, chap. 342, was intended to secure the sumg payable under the cqntract to the laborers and material men. It is not necessary to show collusion as to the balance due under said assignment in order to postpone its payment. Stevens v. Rey- nolds, 7 N. Y. Supp. 771. The statute, L. 1885, c. 342, § 2, prohibits a payment in ad- vance of the terms of any contract " by collusion," and in this respect differs from the mechanic's lien law for Kings County. L. 1862, c. 478. Id. Receiver in Supplementary Proceedings. — Where the order in Supplementary Proceedings was served on the con- tractor prior to the filing of liens by the sub-contractors, the title of the Receiver relates back to the time of the service of the order (Code of Civ. Proc. § 2469), and gives the latter a prior lien upon the funds due .from the owner. The position of the Receiver is as good as that of an assignee of the contractor's claim, taken in good faith prior to the filing of the liens. Mc- Corkle V. Herrman, 117 N. Y. 297. Burden of Proof on Sub-Contractor. — The onus probandi is upon the sub-contractor to show that his labor and materials were performed in accordance with the contract, and that moneys are due from the owner to the contractor in accordance to the terms of such contract, or earned under said contract. Walker V. Paine, 2 E. D. Smith, 662; Haswell v. Goodchild, 12 Wend. 373; Blythe v. Poultney, 31 Cal. 233. Cancelling Contract.— Where the contract between the owner and contractor was cancelled by applying upon said con- BIGHTS OP 8DB-CONTBA0TOB. 37 tract an amount of indebtedness which arose upon an indepen- dent transaction, it was held that the lien of the sub-contractor was thereby extinguished, though the latter had no knowledge of the transaction between the owner and contractor. Hagan v. Am. Baptist, etc., Soc. Com. Pleas Gen. T., Oct., 1886, Larremore, C. J., dissenting. Clanse Prohibiting Snb-Letting. — It has been held in other States that where the contract by its terms prohibits the contractor to sublet the work, a sub-contractor making an agree- ment in violation of said prohibition can acquire no lien. Bene- dict V. Danhury R. R., 34 Conn. 320; Bowen v. Aubrey, 22 Cal. 566. Wlien Entitled to Amount Earned. — There is no pro- vision of the statute which, either directly or inferentially, re- quires the contract to be fully performed, in order that the sub-contractor's lien may attach for work and material, furnished by him, and used by the contractor, in the erection of the build- ing. Hence the sub-contractor is entitled to judgment, if it be shown that at the time of the filing of the lien a sum of money sufficient to pay his claim had been earned under the contract, according to the price agreed upon; which sum exceeded all previous payments made by the owner. And the sub-contractor may recover, notwithstanding the fact that the entire payment, though partly earned was not technically " due " by the terms of the contract. Wright v. Roberts, 43 Hun, 413; Van Gliefy. Van Vechten, 48 Hun, 306 ; s. c, 1 N. Y. Supp. 99 ; compare Larkin V. McMullin, 120 N. Y. 206 Nothing Dne at Time of Filing.— The fact that nothing was technically due at the time of filing the lien is not material, if it be shown that money had been earned. The provision of the statute which provides that the liens must not exceed the amount the owner would otherwise be liable to pay, was intended only to limit the owner's liability to the aggregate amount of the contract. Heckmann v. Pinkney, 81 N. Y. 211 ; Wright v. Roberts, 43 Hun, 413; Van Oliefv. Van Vechten, 48 Hun, 306; compare Larkin v. McMullin, 120 N. Y. 206. Abandonment. — Under the statutes enacted prior to Laws 1885, chap. 342, it has been held, that where the contractor aban- dons his contract, he thereby defeats the sub-contractor's right to recover. Allen v. Carmen, 1 B. D. Smith, 692 ; Linn v. O'llara, 2 E. D. Smith, 560; Ferguson v. Burke, 4 B. D. Smith, 760; Smith V. Ferris, 1 Daly, 18. Under Laws 1885, chap. 342, it has been held that where the work has been abandoned before completion, the contractor there- by forfeits all right to any balance due under the contract, by rea- 38 mechanics' lien law. son of his breach ; and the sub-contractor who files his lien is in no better position, as to the amount earned and not paid, than the contractor; unless he assumes the contract and carries it to com- pletion, so as to protect the owner from further liability than the amount of his contract. Larhin v. McMullin, 120 If. Y. 20,6. The Court holds that in such a case the sub-contractor may protect himself by demanding an inspection of the contract un- der which the work is progressing, as he has a right to do under § 3 of the Act of 1885, chap. 342. II. Compare Sheffield v. Loeffler, 3 N. Y. Supp. 150, sustaining sub-contractor's claim to amount earned up to time of abandon- ment. It has been held also that where the contractor abandoned his work and made an assignment for the benefit of his creditors, a lienor who claimed a lien as against the interest of the contractor, and who offered to complete the contract, had no right to do so, either as a creditor of the insolvent contractor or as a lienor. That the right to complete, under such circumstances, might vest in the assignee of the contractor, as trustee for all the creditors. Collins V. Comley, 14 N. Y. State Kep. 444. Sub-Contractor, when not Bound by Arbitration.— A sub-contractor who claims a lien on the amount due the contractor, is not bound by the result of an arbitration agreed upon by the owner and contractor, not provided for by the terms of the con- tract, and to which he has not consented. Merely giving the sub- contractor notice of the arbitration, and an opportunity to be heard, is not sufficient. Cooke v. Odd Fellows' Fraternal Union, 49 Hun, 23. Lien, How Waived and Defeated. Waiver, Express. — The right to acquire a lien, like any other right, may be waived by express agreement of the parties. Tombs y. Rochester R. R. Co., 18 Barb. 583 ; Mulvey v. Barrow, 11 Allen (Mass.), 52. Waiver by Implication.— Waiver of the right to acquire a lien may be either by express stipulation, or such waiver may be implied by the acts and conduct of the parties. Peyroux v. How- ard, 7 Peters (U. S.), 324 ; Minis v. Macon R. R. Co., 3 Kelly (Ga.), 333; Portsmouth Iron Co. v, Murray, 38 Ohio St. 323. Where the party entitled to a lien accepts security for the amount of his debt, such acceptance will be construed as a waiver of his right to file the lien. The St. Jago, 9 Wheat. 416; Phelps Y. The Camilla, Taney, 400; Brady v. Anderson, 24 111. 110; LIEN, HOW WAIVED AND DEFEATED. 39 Kinzey v. Thomas, 28 111. 502 ; Bwrrows v. Baughman, 9 Mich* 213; Gorham v. Sanger, 22 Mo. 137; Grant v. Strong, 18 WaU- 623. Where the party entitled to the lien makes an agreement whereby he is to receive a mortgage upon the property as security for the labor and materials furnished by him, such acceptance will be deemed a waiver of his right to a lien. Weaver v. Demuth, 40 N. J. Law, 238. But where the mortgage accepted as security has been fore- closed and results in a deficiency, the lienor wiU not thereby be precluded from prosecuting his lien to recover such deficiency. ffall V. Pettigrew, 10 Hun, 609. Where there is an express agreement by the lienor to accept the personal credit of the owner, or of some other person, such acceptance will operate as an implied waiver of his right to the lien. Bailey, \. Adams, 14 Wend. 201; Muir v. Gross, 10 B. Munroe, 277; Green v. Fox, 7 Allen (Mass.), 85; Peyroux v. Howard, 7 Peters, 324. Where the party entitled to the lien accepts as security for his claim negotiable paper, which carries the date of payment be- yond the statutory period for acquiring the lien, the extension of credit operates as a waiver of the lien. Miller v. Moore, 1 E. D. Smith, 739; AUhouse v. Warren, 2 E. D. Smith, 657; Lutz v. Ey, 3 E. D. Smith, 631; Ehlers v. Elder, 51 Miss. 495; Quimby V. Wilmington, 5 Del. 26. But where the lienor accepts the debtor's note, whereby he does not extend the credit beyond the time within which the lien may be acquired, such acceptance will not operate as a waiver of his right to the lien. Teaz v. Christie, 2 E. D. Smith, 621; Alt- house V. Warren, 2 E. D. Smith, 657; Garter v. Byzantium, 1 Clif- ford, 1; Van Court v. Bushnell, 21 111. 624; Greetie v. Ely,_ 2 Greene (Iowa), 508; Schmidt v. Gilson, 14 Wis. 514; Hopkins V. Forrester, 39 Conn. 351. And where the lienor has accepted commercial paper as se- curity for his debt, which has been actually negotiated, his ac- ceptance and negotiation thereof will not operate as a waiver of his lien, provided he regains possession of the paper before the foreclosure proceedings are terminated. Teaz v. Christie, 2 B. D. Smith, 621; Garter v. Byzantium, 1 Clifford, 1. It has been held, also, that where the lienor accepted as security a bond, this security will not operate as a waiver of the lien, if the credit is not thereby extended beyond the limitation of the time for the filing of the lien. Thompson's Case, 2 Browne (Pa.), 297; Crean v. McFee, 2 Miles (Pa.), 214. And where there is an agreement by the lienor to accept the credit of a third person, where the agreement is void by the stat- ute (d frauds, it will not operate as a waiver of the lien. Abram V. 5oy«Z, 7 Daly, 30. 40 MECHANICS LIEN LAW. Intent to Waive must be Clear.— The intent to waive the lien must clearly appear, and the security or collateral taken and accepted must be of such a nature as to be wholly inconsistent with the right to the lien. Pech v. Bridwell, 10 Mo. App. 524. BemOTal of Building.— The party, by removing the build- ing upon which the labor has been performed and for which the material has been furnished, can not thereby defeat the lien which attaches thereto. Bishop v. Honey, 34 Texas, 245. Destruction of Buildings.— Where the building upon which the labor has been performed, and for which the material has been furnished, has been destroyed prior to the filing of the notice, the right to the lien is thereby lost. Shuckraff y . Ruck, 6 Daly, 1. But after the lien has been properly acquired, it attaches to the entire freehold, and the mere destruction of the building will not defeat it. Freeman v. Carson, 27 Minn. 516. Death of Owner. — Under prior statutes it has been held, that as the right to the lien depends upon contract with the owner, the ownership must continue during the performance of the contract, and that the death of the owner before the filing of the notice of lien terminates the ownership, and so far defeats the contract as to extinguish the right to the lien. Meyers v. Bennett, 7 Daly, 471; Brown v. Zeiss, 9 Daly, 396. Extraneous Obligations. — It has been held in many States that the lien may be lost by including in the claim for which the lien is filed items for which the statute did not expressly author- ize a lien ; and these were so intermingled that the exact amount to which the lienor was properly entitled could not with certainty be ascertained. Pairchild v. Burt, 11 Pick. 245; Lambard v. Pihe, 33 Me. 141; Bicknell v. Trickey, 34 Me. 273; Kelley v. Kelley, 77 Me. 135; Oauss v. Hussman, 22 Mo. App. 115; Murphy \. Murphy, Id. 18. And where the contract under which labor and materials are furnished embraces items for which a lien is authorized, as well as those not within the terms of the lien law, for a lump sum for all items, whereby the amount of lienable items cannot clear- ly be shown, the right to the lien is lost and defeated. Mlenwood V. Burgess, 144 Mass. 534; Mulvey v. Barrow, 11 Allen (Mass.), 152 ; Childs v. Anderson, 138 Mass. 108. And where the lienor has accepted general payments under a contract which embraces both classes of items, some of which the lien law authorizes and others which are not so authorized, so that the amount of the lien account cannot be fixed, the contractor has no right to the lien. Driscoll v. Bill, 11 Allen (Ha^s.), 154. PAYMENTS IN ADVANCE OR BY COLLUSION. 41 Inadvertence or Mistake. — But where improper items, not .-authorized by the lien law, are embraced in the claim by mis- take or inadvertence, and can be easily distinguished or separat- ed, the right to the lien is not thereby defeated. The objection- .able items may be stricken out and the lien preserved. Allen v. Frument Co. 73 Mo. 688; Sands v. Sands, 74 Me. 239. Bight Cannot he Revived. — It has been held, also, that where the right to acquire a lien has been once defeated or lost absolutely, the right so lost cannot again be acquired or revived. Phillips V. Gilbert, % McArthur, 415. § 2. Payments in Advance or hj Collusion.— If the owner or such person in interest as aforesaid, of any house, wharf, pier, bulkhead, bridge, vault, building and appurtenances, for or toward the construction, altering, repairing or improvement of which, labor or service have been performed or materials have been furnished by contract, whether oral or written, shall for the purpose of avoiding the provisions of this act or in advance of the terms of any contract, pay by col- lusion any money or other valuable thing on such con- tract, or give a mortgage or make any other lien or incumbrance upon said house, wharf, vault, building or appurtenances, lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, or said improvement shall be made, and the amount still due or to become due to the contractor, sub-contractor or assignee after such payment has been made, shall be insufficient to satisfy the claims made in conformity with the provisions of this Act, the owner or other person in interest as aforesaid, shall be liable to the amount that would have been unpaid to said contractor, sub-contractor or assignee, had said owner or other person in interest made no such payment or given no such mortgage, or effected no such lien or incumbrance, at the time of filing the 4 42 mechanics' lien law. notice of lieu prescribed in the fourth section of this-- Act, in the same manner as if no such collusive pay- ment, mortgage, lien or incumbrance had been made^ given or effected. Payments by Collusion oe in Advance of the Teems OF the Conteact. CoUnsion. — Where it appears that a payment has been made- by collusion^ for the purpose of aToiding the provisions of the lien law, it is ■wholly immaterial whether such payments have been made in advance of the terms of the contract. A collusive- payment intended to evade the statute, cannot be allowed tO' operate to the prejudice of the lienor. Hofgesang v. Meyer, 2 Abb. N. 0. 111. Under the Act of 1885, it has been held (distinguishing Post v. Campbell, 83 N. Y. 283), that it is not enough to show that a payment has been made in advance of the terms of contract, in order to hold the owner liable under the provisions- of chap. 342, Laws 1885, § 2. It must also appear that such payment was made by collusion. Lind v. Braender, 7 N. Y. Supp. 664 (N. Y. Common Pleas, Gen. Term). The words " by collusion " in the statute apply to two classes of payments, viz. : such as are made " for the purpose of avoiding " the provisions of the Act," and such as are made " in advance " of the terms " of the contract. lb. But where it appears that the contractor has assigned moneys due or to grow due under his contract, in payment of debts other than those incurred in erecting the structure, it is not nec- essary, in order to defeat such an assignment, that the money was paid "by collusion." Stevens v. Reynolds, 7 N. Y. Supp. 771. It has been held, also, that moneys due from the owner, upon his contract with the builder, constitutes a fund to which the liens of sub-contractors attach; and that this fund can only be diverted by bona fide payments, made by the owner, in accord- ance with the terms of the contract. Crane v. Genin, 60 N. Y. 127 ; Payne v. Wilson, 74 IST. Y. 348 ; Gibson v. Lenane, 94 K Y. 183. Advance Payments.— Under Laws of 1862, chap. 478, it was held, that where payments are made in advance of the terms of the contract, they cannot operate to the prejudice of the lienor, although made without fraud or collusion. The sub-contractor has a right to rely on the terms of the contract. Post v. Camv- hell, 83 N. Y. 279. ^ DEMAND UPON OWNEB FOE TERMS OF CONTEACT. 43 lienor Alone Can Qnestion Payments.— The proyisions of the Lien Law with regard to premature or collusive payments were intended solely for the protection and benefit of the lienor, and he alone can assail their validity. The person to whom the advances were made cannot take advantage of these provisions. Post V. Campiell, 83 N. Y. 379. Acceptance of Order, When Payment.— The acceptance of an order for the payment of money, or legal assumption of liability by the owner on account of the contractor, is equivalent to a payment, and has the same effect. Gibson v. Lenans, 94 N. Y. 183 J Garrison v. Mooney, 9 Daly, 218. Payment. — Liens were filed pursuant to Laws 1878, chap. 315 (Consolidation Act, §§ 1824-1838), relating to municipal con- tracts. The city paid the money claimed to certain claimants who executed a bond of indemnity to the city. Held, that such pay- ment in no wise prejudiced the rights of the proper claimant, and could not relieve the city from liability to the party to whom it was adjudged the money rightfully belonged. Mayor v. Craiv- ford, 111 K Y. 638. § 3. Demand upon Owner for Terms of Contract. — Any person or persons, firm or firms, corporation or association, performing any labor, or service, or furnish- ing any materials for any of the purposes specified in the first section of this act, to or for any person other than the owner, may at any time demand of such owner or of his authorized agent, the terms of the contract or agreement by which said house, wharf, pier, bulkhead, bridge, vault, building or appur- tenances is being erected, altered, repaired or im- provements made to any such house, building or building lot, and the amount due or unpaid the person or persons, firm, corporation, or association erecting, altering, repairing or improving the same ; and if such owner or his said agent at the time of said demand shall neglect or refuse to inform the person making such demand of the terms of the contract or agree- 44 mechanics' lien law. ment under which the same are being erected, altered, repaired or made, and the amount due and unpaid upon such contract or agreement therefor, or shall inten- tionally and knowingly falsely state the terms of said ■contract or agreement, or the amount due or unpaid thereon ; and if the person, or persons, firm or firms, corporations or associations furnishing such materials or performing such labor or service, shall sustain loss by reason of such refusal or neglect or false statement, the said owner shall be liable to them in an action therefor and the return unsatisfied of an execution against the party to whom such materials were furnished or for whom such labor and service were performed, in an action for the collection of the value thereof, shall be presumptive proof of such loss, and the person or persons, firm or firms, corporation or as- sociation furnishing such materials or performing such labor and service or making such improvement, shall by filing within the time and in the manner the notice of lien prescribed by this act, have a lien upon the house, wharf, vault, pier, bridge, bulkhead, building or appurtenances, and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, or improvement is made, as in this act provided, for all the materials furnished and labor and service performed after such neglect, refusal, or false statement. Terms of the Contract.— This provision of the statute, au- thorizing parties to demand the terms of the contract, was in- tended for the benefit of sub-contractors, laborers and material men. Since the contract between the owner and contractor forms the basis upon which their rights attach, they have a right to rely upon its terms, whereby the fund in which they have an I^Ht^^^t ^! accumulated and disbursed. Lumbard v. Syracuse, ■65 N. Y. 494. " ' NOTICE OF LIEN. 45 Doctrine of Subrogation.— As between the contractor and sub-contractors, laborers and material men, the doctrine of sub- rogation applies, and the latter become subrogated to the rights of the former, with respect to funds due, or to become due on the contract. Herbert v. Herbert, 57 How. Pr. 333; Schneider v. Hobein, 41 How. Pr. 232 ; Hofgesang v. Meyer, 2 Abb. K C. Ill ; Cheney t. Troy Hospital, 65 N. Y. 282 ; McMillan v. Seneca, etc. 5 Hun, 12 ; Crane v. Oenin, 60 N. Y. 127 ; Gibson v. Lenane, 94 N. Y. 183. Equities Existing. — Sub-contractors and material men, being subrogated to rights of contractor, are so subrogated sub- ject to all the equities existing between the owner and contractor. Morgan v. Stevens, 6 Abb. N". C. 356. [See, also, authorities under heading " Eights of Sub-Contrac- tor," ante, page 35.] § 4. Notice of Lien. Filing and Requisites of. Notice upon Owner. — At any time during the performance of the work or the furnishing of the materials, or with- in ninety days after the completion of the contract or the final performance of the work, or the final fur- nishing of the material for which a lien is claimed, dating from the last item of work performed or from the last item of material furnished, the person or persons, firm or firms, corporation or associa- tion furnishing such material or performing such labor or service may file a notice of lien in writing in the clerk's office in the county where the property is situated against which the lien is asserted, containing the names and residences of the claimants, the nature and amount of the labor and service performed, or the materials furnished or to be furnished, with the name of the owner, lessee, general assignee or person in pos- session of the premises against whose interest a lien is claimed ; the name of the person or persons, firm or firms, corporation or association by whom he was em- ployed, or to whom he furnished or is about to furnish 46 mechanics' lien law. such materials, or whether all the work for which the claim is made has been actually performed or furnish- ed, and if not, how much of it, and also a description of the property to be charged with a lien sufficient for identification, and if in a city or village the situation of the building or buildings by street and number, if the street and number be known. But the failure to state the name of the true own- er, lessee, general assignee, or person in possession shall not impair the validity of the lien. The said notice of lien must be verified by the per- son or one of the persons, member of a firm or firms, an officer of the corporation or association making the claim or his, its or their agent, to the effect that the statements therein contained are true to the knowledge or information and belief of the person making the same. The county clerk of each county shall provide and keep a book in his office to be called the " lien docket," which shall be suitably ruled in columns headed " claimants," " against whom claimed," " owners and " parties in interest," " premises," " amount claimed ;" in which he shall enter the particulars of such notice of lien together with the date, hour and minute of filing of the notice of lien, and what proceedings have been had, the names of the owners and persons in interest, and other persons against whom the claims are made shall be entered in said book in alphabetical order. A fee of twenty cents shall be paid to said clerk on filing such notice of lien. Every claimant shall within ten days after filing his notice of lien as herein provided, serve a copy of such notice upon the owner, or other person in inter- MODE OP ACQUIRING LIEN. 47 'est, by delivering the same to him personally or by leaving a copy thereof at his last known place of resi- dence in the city or town in which such lands or part thereof are situated, with some person of suitable age and discretion, or if such owner or person in interest has no such residence, or such person cannot be found, by affixing a copy thereof conspicuously on said prem- ises described in said notice of lien, between the hours of nine o'clock in the morning and four o'clock in the afternoon. And after such service such owner or the person in interest shall not be protected in any payment made to such contractor or other claimant. Mode op Acquihing Lien. Filing Notice.— The lien is acquired by the filing of the no- tice prescribed by the statute, and dates from the time of such filing. Conveyances made in good faith prior to such filing will defeat ihe lien. Jfoyes v. Burton, 29 Barb. 631; Ernsts. Reed, 49 Barb. • 367; Quinby v. Sloan, 2 Abb. 93; Sinclair v. Fitch, 3 E. D. Smith, 677 ; Oox\. Brodericlc, 4 B. D. Smith, 721 ; Brown v. Zeiss, 9 Daly, 242; Stuyvesant t. Browning, 33 Supr. 203; Livingston v. Mil- dram, 19 N. Y. 440; Payne v. Wilson, 74 N. Y. 348; Hunger v. Gurtis, 42 Hun, 465. Bona Fides of Conyeyance. — Where a lien has been acquired in the mode prescribed by the statute, a conveyance of the prop- erty made by the owner will not defeat the lien, unless the con- veyance is bona fide and the validity of the transfer may be tested in the action to foreclose the lien. Meelian v. Williams, 36 How. 743; Gross v. Daly, 5 Daly, 540; Amidown v. Benjamin, 126 Mass. 276. Assignee for Benefit of Creditors.— Where the owner is insolvent and makes an assignment for the benefit of creditors, such assignee under prior statutes took the property free from the lien, unless the notice of lien was filed prior to the assign- ment. Noyes v. Burton, 29 Barb. 631; Quimby v. Sloan, 2 Abb. Pr. 93; s. c, 2 E. D. Smith, 594; Jackson y. Sloan, 2 E. D. Smith •i617; s. c, 2 Abb. Pr. 104. Note. —Chapter 342, of the Laws of 1885, § 1, now provides. 48 mechanics' lien law. that an assignee for the benefit of creditors takes the property sub- ject to liens filed within thirty days after such assignment. One of Several Buildings.— When the lien covers a number of buildings a conveyance of one building may be made without removing the lien as to the others. McAiily v. Mildram, 1 Daly, 396. The Notice — Form and Eeqdisites of. The liberal provision of the Act of 1885, chap. 343, with respect- to the contents of the notice of lien, relieves the lienor from the em- barrassment and responsibility which might arise from delay occa- sioned in ascertaining the name of the true owner, or person in pos- session. While the statute provides that the notice shall state " the " name of the owner, lessee, general assignee, or person in posses- "sion," yet there is a saving clause which declares specifically that the failure to do so " shall not impair the validity of the lien." Form of Notice. — The mere form in which the notice is- framed is immaterial, so long as its allegations substantially con- form to the requirements of the statute. Beals v. Congregation, 1 E. D. Smith, 654; Dunbar v. Diem, 9 Weekly Dig. 231; Hub- bell V. Sohreyer, 14 Abb. IST. S. 387; Towner v. Remick, 19 Mo. App. 237. Certainty to a common intent is all that is required in order to fulfil the requirements of the statute. Driesbacli v. Keller, 2 Pa. St. 77; Holland v. Garland, 13 Phila. 544. The object and purpose of the notice is to put the owner and other parties in interest on their guard, and to convey to them the statutory information for that purpose. Henry v. Plitt, 84 Mo. 337. J ' Toluntary Association, How Named.— The statute re- quires that the names and residences of the claimants must be contained in the notice of lien. Where the claimant is a volun- tary association, it has been held that the names of the persons composing the association should appear. Beales v. Conqregation, 1 E. D. Smith, 654. y y > Firm Name. — But as to a copartnership, it has been held that the firm name may be used without settingforth the names of the^ individual members. Black's Appeal, 2 yfsA.is & S. (Pa.), 179; Jones V. Hurst, 67 Mo. 568. Name of Owner.— If the owner's name appears anywhere in the notice of lien, it will be sufficient, although the claim is in- advOTtently made against another person. Moran v. Chase, 53; THE NOTICE. — FOEM AND BEQUISITES OF. 49 The notice will be sufficient if it sets forth the names of the persons against whose interests the lien is claimed, with a state- ment of the facts subjecting their interests to the lien. The statute (Laws 1885, ch. 343, §§ 1, 4) does not require the notice of lien to state, in so many words, that the lien is claimed against the interest of any particular person or owner. Ross t. Simon, 9 N. Y. Supp. 536; Ross v. Simon, 8 IST. Y. Supp. 2, reversed. _ Change of Ownership. — Where there is a change of owner- ship during the progress of the work, the person in whom the fee is vested at the time of the filing of the notice is the owner against whom the claim should be made. Filey v. Thousand Islands Hotel, 9 Hun, 434. Name of Claimants.— Laws of 1883, chap. 376, §14, re- quired the notice to state the name and residence of " all the " claimants." Held, that the statute did not contemplate all the claimants against the same property, but all those interested in any specific claim or demand. Morgan v. Taylor, 5 N. Y. Supp. 930. Joint Contractors. — Where the indebtedness accrues to sev- eral persons as joint contractors, the names of all the claimants may be used, and a notice by one of them in his own name is in- suificient. Huhbell v. Schreyer, 14 Abb. Pr. N. S. 306; Haupt- man v. Halsey, 1 E. D. Smith, 668. Nature of the Claim. — The notice should set forth clearly the nature of the claim, so that it may appear that the claimant has taken all the material steps necessary to acquire the lien. Murray v. Rapley, 30 Ark. 568. 8nms Due. — The notice must contain also a clear statement of the sums alleged to be due, the manner in which the alleged indebtedness accrued, and the fact that the labor for which the lien may be had has been performed. Fogarty v. Wick, 8 Daly, 166. And the amount for which the lien is claimed must be set out in such a manner that the balance can be clearly determined, and the judgment is limited to the balance so claimed. Pro- tective Union v. Noxon, 1 E. D. Smith, 671 : Dunning v. Clark, 3 B. D. Smith, 535; Lutz v. Ey, 3 E. D. Smith, 631. If, from the notice taken as a whole, and its different statements construed together, the actual amount due can be ascertained, it will be deemed sufficient. Wheder v. Port Blakely, 3 Wash. 71 ; Baxter v. Smith, 3 Wash. 97. Credits and Oifsets. — All just credits and offsets should be deducted, and the notice should set up a claim only for the bal- 50 MECHANICS LIEN LAW. ance due upon the claim. Diegan v. Brophy, 55 How. Pr. 121; Davis Y. Livingston, 29 Cal. 283. But the claim of the contractor is not necessarily limited to the exact amount paid by him to workmen or laborers, but may include also disbursements necessarily incurred for labor. Ander- 3on Y. Dillaye, 47 N. Y. 678. Bill of Items. — So the notice with respect to the amount due, may have annexed thereto a bill of items purporting to con- tain " a correct statement of the work done, and moneys paid, " and balance due." And this may be taken to form part of the notice. Smith v. Bailey, 8 Daly, 128. A notice of lien, filed pursuant to Laws 1885, chapter 342, § 4, stated that the claim was " for work, labor and services rendered, " and materials furnished in the erection, altering and repairing ''of a two-story frame dwelling," and stated also the place or' lo- ca.tion of the dwelling. Held that the omission to state ''the "nature, amount," etc., and "whether all the work has actually " been performed or furnished, and if not, how much," was a fatal defect, and that the notice was not a substantial compliance with the requirements of the statute. Lusclier y. Morris, 18 Abb. N. 0. 67. Consent. — That fact that the work was performed or materials furnished with the " consent " of the owner, must be alleged in the complaint, and proven at the trial. But this allegation as to consent need not necessarily appear in the notice of lien. Bur- kitt Y. Harper, 79 K Y. 273. Date When Debt Accrued. — It has been held that the notice should show also the date when the indebtedness accrued, so that it shall appear upon the face of the notice that the same has been filed within the period of limitation prescribed by the statute. Phillips v. Hyde, 45 Ga. 220 ; Hayden v. Wulfing 19 Mo. App. 353. But our courts have held that this fact is sufficiently shown by the date at the end of the notice. Ryan v. EJock, 36 Hun, 104. False Statements, Errors, and Omissions.— Where there are incorrect statements in the notice of the amount due, and it appears that such statements were made through inadvertence, and without intent to deceive, and no person has been thereby actually misled, the error will not invalidate the claim. Kiel v. Oarll, 51 Conn. 440. So where the notice contained an error, as to the name of the owner, discovered after the notice was filed, it was held not to vitiate the claim, since the name can be corrected in the com- plaint by setting forth the error and naming the true owner. Leiegne v. Schwartzer, 10 Daly, 547. THE NOTICE. — FOEM AND REQUISITES OF. 51 Where the sub-contractor omitted to state the character of the material furnished by him to another sub-contractor for which he claimed a lien, his claim is not vitiated as against the contractor, where it appears that the latter has not been surprised or misled through such omission. Vogel v. Luitwieler, 5 N. Y. Supp. 154. And where, through inadvertence, the number of acres con- tained in' the lot upon which the lien was filed was overstated, it was held that the error would not invalidate the lien. Bradish V. James, 83 Mo. 313. And where the name of the county was omitted in the notice, the error will not be regarded as fatal where the notice is correct in other respects, and has been filed in the proper county. Tinker V. GeragUy, 1 B. D. Smith, 687. The sub-contractor, who claims that he furnished materials to the contractor, should state that fact in his notice, and should state also the relation of the contractor to the owner ; but a failure to do so is not a fatal omission, and will not invalidate the lien. Lutz V. Ey, 3 E. D. Smith, 621; Darrow v. Morgan, 65 N. Y. 333. Under Laws of 1883, chapter 376, § 14, it was held that the mere fact that the amount claimed in the notice was for more than it appeared the claimant was entitled to, would not invalidate the claim for the work and materials actually performed and fur- nished. The lienor is Justified in claiming what he believes he is justly entitled to in any event, Morgan v. Taylor, 5 N. Y. Supp. 920. The statute does not require that the notice of claim itself should show the facts, when the work was done, nor when it was completed, nor " the time given." These facts may be shown on the trial. Where the claim arises through contract with a sub-con- contractor, it need not appear in the claim against the contractor that the sub-contractor has not been paid. Id. But where it appears that the statements and allegations in the notice of lien are false and might mislead the public and' subsequent lienors, and appear to have been wilfully made, the lien must be declared invalid. Close v. Clark, 9 N. Y. Supp. 538. Laws 1885, chap. 342, § 4, requires that the notice shall state " whether all the work for which the claim is made has been ac- " tually performed or furnished, and if not, how much of it." A notice stating positively that all the work has been performed, when in fact it has been only performed in part, is false and mis- leading, and does not entitle the claimant to a lien. This re- quirement of the statute is jurisdictional, and renders a substantial compliance necessary. Foster v. Schneider, 2 N. Y. Supp. 875. Notice no Estoppel. — TheplaintifE in an action to foreclose a mechanic's lien is not estopped by the recitals in his notice, so 52 mechanics' lien law. as to prevent him from showing upon the trial that the materials were actually sold to another person. Williams v. Root, 14 Weekly Dig. 338. Contract in Writing.— Claims for work and labor must be executed, in order to fall within the operation of the statute. They may be verbal or written. But the notice of lien need not state that the contract under which the work was performed was in writing. Smith v. Bailey, 8 Daly, 138. Name of Employer. — The notice should set forth the name of the employer, and not the name of the employer's agent with whom the contract was made. Hauptman v. Catlin, 30 N. Y. 247. But where there were several joint employers the notice was held to be sufficient, though it contaiiied only the name of one employer. Bran v. Welch, 5 Hun, 583; Dugan v. Brophy, 55 How. Pr. 131. A claim against both the owner and the contractor may be joined in the same notice. Huhbell v. Schreyer, 14 Abb. N. S. 384.- Description of Premises. — The description of the prem- ises must be sufficiently definite to identify the property. In Illinois, under a similar statute, it has been held that an imper- fect description may be rendered sufficient by such a reference to facts and circumstances of occupation as to enable the parties by extrinsic evidence to precisely locate the premises. Quachen- bush V. Carson, 31 111. 99. But a description of the premises sufficiently definite to iden- tify the property is absolutely essential to the validity of the claim. Donnelly v. Libhy, 1 Sweeney, 259. A description will be sufficient where the notice contains such a recital of the situation and peculiarities of the premises as. would suffice for their identification. Mountain City House v. Kearne, 103 Pa. St. 304. Amount on Each Enilding. — Several contiguous buildings or a row of buildings may be covered by the lien. Moran v. Chase, 53 N. Y. 347. Prior to the Act of 1885 [Laws 1885, chap. 343] it was held, that where there was a blanket lien covering a number of houses, it should state the amount claimed against each building. And where subsequent liens so specify, they will be given priority over a blanket lien, speeifiying only a lump sum. Broadway Savings Bank v. Cummings,iS. Y. Daly Eeg. Jan. 10, 1884. Amendment.— After a notice of lien has been filed, it can- not be amended. Hallahan v. Herbert, 57 N. Y. 409 ; Conklin v. Wood, 3 E. D. Smith, 663. THE NOTICE. — FOEM AND EEQUISITES OF. 53 And even where no rights of third parties have intervened, the rule as to amendment is the same, if the statute contains no provision authorizing the amendment of a notice of lien. Lind- ley V. Gross, 31 Ind. 106; Vreeland v. Boyle, 37 N. J. Law, 346. Second Notice.— Where the first notice was cancelled, in re- liance upon an absolute promise of payment, which promise was not fulfilled, the lienor may file a second notice, provided the time limited by the statute has not expired. Haden v. Budden- siek, 6 Daly, 3. Teriflcation.— The notice of claim filed must be verified, and without verification the claim is a nullity. Conklin v. Wood, E. D. Smith, 662; Hallahan v. Herbert, 37 N. Y. 409. The form of verification prescribed by Laws 1885, chapter 342, is "to the effect that the statements therein contained are "true to the knowledge or information and belief of the person "making the same." Laws 1885, chap. 342, § 4. A substantial compliance with this provision of the statute, as well as with other provisions will be sulficient. The courts have held good a verification, although the word or term " state- " ment " used in the language of the statement is omitted there- from. Schwartz v. Allen,_ 7 N. Y. Supp. 5. Under prior statutes, it has been held that a verification " to " the best of his own knowledge" was insufficient. Keogh v. Main, 50 K Y. Superior Ot. Eep. 183. A verification, likevrise, that the statements contained in the notice were " in all respects true to his knowledge and belief," was held bad under the former statute. Grey v. Vorhis, 8 Hun, 612. ^ And under a similar statute in California, it was held that where the language of the verification was that the notice was " true," without adding the words " to his knowledge," was bad. Arata v. Tellurium Co. 65 Oal. 240. Section twenty-five of the Act of 1885, also declares that the statute must be construed liberally, and a substantial compliance with its several provisions shall be sufficient. Laws 1885, chap. 342, § 25. Assignment. — The right to acquire a lien is a purely per- sonal right, and prior to the filing of the notice it cannot be as- signed or filed by an assignee. Roberts v. Fowler, 3 E. D. Smith, 632; Rollin v. Cross, 45 N. Y. 766. But where the assignment is merely nominal, such assignee may file the claim for the benefit of the real owner and in his be- half. Rollin V. Cross, 45 N. Y. 766; Hallahan v. Herbert, 57 N. Y. 409. After the notice of lien has been filed, and the lien acquired, it can be assigned, and the assignee has full right, power and au- 54 mechanics' lien law. thority to enforce the lien so acquired and assigned. " Pearson v. Tincker, 36 Me. 387; Brown v. Smith, 55 Iowa, 31. And the Act of 1885 [Laws 1885, ch. 342, § 17] provides that such assignee shall be plaintiff in the action to foreclose. Death of Contractor.— Where the contractor died, and moneys were due him under the contract at the time of his death, the notice of lien may be filed after the death of such contractor. Telfer v. Eierstead, 2 Hilt. 577. Time of Filing. — In order to secure the benefit of the stat- ute the lien must be filed within time limited by the statute. If the notice is not filed within the time prescribed the claim is void absolutely. Donaldson v. O'Connor, 1 E. D. Smith, 695; Lutz V. Eij, 3 E. D. Smith, 631; Hubbell v. Schreyer, 14 Abb. N. S. 284; Speiicer v. Barnett, 35 N. Y. 94. The Ninety Days Runs from. Completion and Accept- ance. — The plaintiff completed the erection of the machinery in a brewery on the 13th of June and the engine was started, but plaintiff's constructing engineer had charge of the work and was making alterations until the 21st of June, when the machinery worked to his satisfaction. It was afterwards accepted by the owner as a completion of the contract. Held, that a lien for the price filed by the plaintiff on the 17th of September was filed within ninety days after the completion of the work. Watts- Gamphell Go. v. Yuengling, 3 N. Y. Supp. 869. When Time of Tiling Cannot he Extended.— The stat- utory period within which the notice must be filed cannot be ex- tended by tacking one lien on to another, so as to bridge over the lapse of time. Spencer v. Barnett, 35 N. Y. 94. Where the claimant had completed his contract and agreed upon the amount due thereon, it was held, that incidental assist- ance voluntarily rendered in the re-adjustment of part of the work apparently for the purpose of sustaining a claim that the- notice was filed within the statutory period, which had expired prior to the supplemental services, could not under the circum- stances become available to extend the time of filing. Duffy v. Baker, 17 Abb. N. C. 357. The labor must be shown to be part of a continuous work, or performed at the instance and request of the owner. It cannot avail if it appears to have been resorted to as a pretext for evad- ing the law. Id. Where it is shown that the work done after the completion of the contract was necessary, and was performed in good faith, at the special instance and request of the owner, the statutory period will be deemed to run from the time of completion of this- PBIOEITY OF LIENS. — BUILDING CONTBACT. 55 supplemental or additional work. Nicols v. Culver, 51 Conn. 177. And items of an open and running account are preserved and taken as part of continuous work within the meaning of the lien law, if the last item fall within the statutory period author- izing the filing of the lien. Central Trust Co. v. Texas, &c. B. R. Co. 23 Fed. Kep. 673. But where the additional work is not necessary to complete the contract and was not incurred at the request of the owner, the time of filing cannot embrace these items. So held, where the additional work was painting weatherstrips, where the item of painting was not required by the contract. Scott v. CooTc, 8 Mo. App. 193. And it was held under a similar California statute, that merely supplying a few bolts, after all the materials provided for in the contract had been furnished, and which were not neces- sary, could not extend the period for filing the lien. Barrow v. Knight, 55 Cal. 155. Service upon Owner.— The provisions of the statute which require that within ten days after filing, the claimant shall serve notice of his lien upon the owner or other person in interest, does not afEect the validity of the lien, and such service is not ne- cessary to preserve it. The object of the service is notice, and to prevent payments by the owner after filing the lien. Kenny v. Apgar, 93 N. Y. 541. Personal service upon the owner or other person in interest is not absolutely essential. The mode of service as prescribed, pro- vides that it may be made by serving a copy of the notice, by de- livering the same personally to the owner or other person in in- terest, " or by leaving a copy thereof at his last known place of " residence in the city or town in which such lands or part thereof " are situated, with some person of suitable age and discretion, or " if such owner or person in interest has no such residence, or such "person cannot be found, by affixing a copy thereof conspicuously " on said premises described in said notice of lien, between the " hours of nine o'clock in the morning and four o'clock in the " afternoon." Laws 1885, chap. 343, § 4. § 5. Priority of Liens.— Building Contract.— The liens provided for in this Act shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the fourth section of this act, and prior to advances made upon any 56 mechanics' lien law. mortgage on the premises after the filing of such notice of lien, and prior to the claim of any creditor "who has not furnished materials or performed labor upon any land, or towards the erection or improvement of prem- ises, described in said notice of lien and which have been assigned by the owner, lessee, or person in pos- session thereof, by a general assignment for the bene- fit of creditors within thirty days before the filing of the notice of lien provided for in the fourth. section of this Act. But nothing in this Act shall affect the priority of the amount actually owing on a mortgage given for purchase-money. In cases in which the owner has made an agree- ment to sell and convey the premises to the contractor or other person, such owner shall be deemed to be the owner within the intent and meaning of this Act until the deed has been actually delivered and recorded con- veying said premises pursuant to such agreement. Mortgage to Secure Loan.— Where money was loaned by a bank to the owner, who gave a mortgage on the premises to se- cure the loan, which was recorded two days prior to the filing of the notice of lien, it was held that the mortgage preceded the lien, although the bank knew of the lienor's indebtedness, there being no evidence of collusion between the bank and the owner to defeat the claim. Hunger v. Curtis, 42 Hun, 465. Attachments.— The lien of the laborer or material man when duly filed, takes precedence over subsequent attachments, granted in actions against the owner or contractor. Jones v. Holy Trinity Church, 15 Neb. 81; Young v. Stoutz, 74 Alabama, 574. _ Owner Contracting to Sell.— Under the lien laws in force prior to the enactme^;^t of Laws 1885, chapter 342, an owner who contracted to sell the land to the contractor, and to loan such contractor the money with which to improve the property, was not deemed an " owner " within the lien law, though the title was still m him. In order to establish the lien, it was necessary to show the express consent to the owner with the sub-contractor. LIMITATION AND CONTINUANCE OF LIEN. 57 HallagMnN. Herbert, 11 Abb. N. S. 326; Oay v. Brown, 1 E.D. Smith, 725; Walker v. Paine, 2 E. D. Smith, 662; Loonie t. Hogaii, 9 N. Y. 435 ; Conklin v. Bauer, 62 N. Y. 620 ; Yates y. Whitcomb, 4 Hun, 137. Although under the laws in force prior to the Act of 1885, the relation of owner and contractor was not deemed to exist between the mechanic, where the owner had made a contract to sell and loan the vendee the fjinds with which to build, yet the sub-con- tractor could sustain his lien, if he could show the consent of such owner to the furnishing of the labor and materials. Yates V. Whitcomb, 4 Hun, 137; Hackett v. Badeau, 63 N. Y. 476; Hilton V. Merrill, 106 Mass. 528; Smith v. Norris, 120 Mass. 58. Contractor Acquiring Fee. — It has also been held, under laws in force prior to the act of 1885, that where the owner con- tracted to sell to the builder and loan bim money to make im- proyements, and thereafter such contractor acquired the fee, the conveyance of title enured to the benefit of the sub-contrac- tor. Rollin V. Cross, 45 N. Y. 766; McGraw v. Godfrey, 56 N. Y. 610; Corbett v. Greenlaw, 117 Mass. 167. § 6. Limitation and Continuance of Lien.— Lis Pendens. — No lien provided for in this Act shall bind the prop- erty therein described, for a longer period than one year after the notice of lien has been filed, unless 'within that time an action is commenced to enforce the same ; and if the action is in a court of record, a notice of the pendency of such action is filed with the county clerk of the county in which such notice of lien is filed, containing the names of the parties to the action, the object of the action, and a description of the premises affected thereby, and the time of filing the notice of lien. Or unless an order be made by a court of record continuing such lien, and a new docket be made statiug such fact. And when a claimant is made a party defendant to any action brought to enforce any other lien, such ac- tion shall be deemed an action to enforce the lien of such defendant, who is a claimant within the pro- visions of this Act. 5 58 mechanics' lien law. The neglect to file the notice of pendency provided for by this Act, shall not abate any action which may be pending to enforce the lien, but such action may be prosecuted to judgment against the person or per- sons, firm or firms, corporation or association liable for the debt. Limitation of Lien. — After the lapse of one year from the time of filing the notice, the lien expires by limitation, and ceases absolutely for all purposes, unless suit is brought to foreclose and a lis pendens is filed, or unless an order of court is made extend- ing the lien. Welsh v. The Mayor, &c. 19 Abb. Pr. 133. And eTen in case the action has been tried, the lien neverthe- less expires after the lapse of one year, in case no lis pendens has been filed. Prior v. White, 32 Hun, 14. If proper proceedings are commenced within the year to fore- close the lien, it continues till final judgment, and if the judg- rnent is for defendant, and is subsequently reversed, the lien stiU. continues. Fox v. Kidd, 77 N. Y. 489 ; Hoag v. Hillemeyer, 41 Hun, 390. Under the early statutes, which were strictly construed and defective in many respects, it was held that the lien could not continue beyond the year in any event, and that even the re- covery of judgment within that time did not continue it beyond the expiration of the year. Freeman v. Gram, 3 N. Y. 305. The rule is otherwise under Laws 1885, chap. 342, § 6. See Wright v. Roberts, 8 N. Y. Supp. 745. Summons. — Under the provisions of Laws of 1873, chap. 489, no summons was required in an action to foreclose a lien. Laws 1885, chap. 342, § 26, saves the rights of lienors under such prior act. Welde v. Henderson, 6 N. Y. Supp. 176. Limitation. — Delivery of Summons to Sheriif. — The summons was delivered to the sheriff within the one year after filing of notice of lien, the time limited for the commencement of the action by Laws 1885, chap. 342, § 6. The defendants were served by the sheriff after the expiration of the year. Held, that the action has been seasonably commenced against the de- fendants thus served. What constitutes " the commencement of " an action " in a courtof record is defined by Laws 1885, chap. 342, § 8, and by the Code Civil Procedure, § 399. An action to foreclose a mechanic's lien is not within the exception provided by Code Civ. Pro. § 414. Hammond v. Sheppard, 3 N. Y. Supp. LIMITATION AND CONTINUANCE OP LIEN. 59 Limitation. — Service on All Defendants. — Plaintiffs were sub-contractors under one having a contract with the city of New York. ' The defendants in the foreclosure action were the city, the contractor, and the assignee of the contractor's claim against the city pursuant to §§ 1824-1838 of the Consolidation Act (Laws 1882, chap. 410). The summons was served within the time limited by the statute only upon said assignee and afterwards upon the other defendants. Held, that the action could not be maintained agaiust the other defendants as they were not united in interest with the defendant served. Henry v. Lynch, 1 N. Y. Supp. 780. Lis Pendens. — The filing of a lis pendens or notice of pen- dency of action, is essential in order to keep the lien alive. If no such notice is filed within a year after the filing of notice the lien expires, notwithstanding the fact that the case has been tried. Prior V. White, 32 Hun, 14. The statutory period for filing the lis jjendens can not be ex- tended beyond the year. And under the prior statutes the strict and rigid construction was declared, that if the last day fell upon Sunday the statutory period expired on Saturday, and it was too late to file on Monday. Bowers v. iV. y. Christian Home, 64 How. Pr. 509. The filing of a complaint in an action to foreclose a mechanic's lien, is notice of the pendency of such action, within the mean- ing of Laws 1885, chap. 342, § 6, which provides that a lien shall not bind the property longer than a year, unless an action is com- menced and a notice of the pendency of such action is filed. Wright v. Roberts, 8 N. Y. Supp. 745. Under the liberal construction required to be given to the Act of 1885, it has been held that where plaintiff filed a notice of lis pendens, it preserves also the liens of defendants, as if each defendant lienor had filed a separate notice of pendency of ac- tion. Consolidation Act, as amended by Laws 1883, chap. 276, § 17, distinguished. McAllister v. Case, 5 N. Y. Supp. 918. An appeal was allowed to the Court of Appeals, in the case last cited, by the General Term of the Common Pleas, on the ground that the Act of 1885 was a general law. McAllister v. Case, 7 N. Y. Supp. 600. But under the provisions of Laws 1882, chap. 410, § 1813 (Consolidation Act), as amended by Laws 1883, chap. 276, it was held that a lienor, who is made a defendant in an action for the foreclosure of a mortgage, who by his answer demands the fore- closure of his mechanic's lien, must file a notice of the pendency of the action in his own behalf before the expiration of ninety days after the filing of his lien. His lien is not preserved by the notice of pendency of action filed by the plaintiff. Danziger \. Simonson, 116 TST. Y. 329. 60 ■ mechanics' lien law. A lis pendens is necessary only to continue in force the lien. But where the lien has been discharged by a deposit as prescribed by the statu te^ it is not necessary to show the filing of a lis pendens. Ward v. Kilpatrick, 85 N. Y. 413. Order Continuing Lien. — An order continuing the lien is not necessary under Laws 1885, chap. 342, § 6, where judgment of foreclosure~is obtained within one year from the filing of no- tice of lien. Wright v. Roberts, 8 N. Y. Supp_. 745. Such an order for continuing the lien applies only to the lien upon the land and buildings. If the realty has been sold under foreclosure, and the lien was valid at the time of sale, it attaches to the surplus money arising thereon ; and an order continuing the lien is not necessary to preserve it, as to the fund. Emigrant Bank v. Broivn, 75 N. Y. 127. Where an order continuing the lien was made, and the clerk refused to docket it for an alleged clerical error, and the lienor's agent took the order away and failed to leave it with the clerk, it was held that the lien expired, as the granting of the order, without docketing or filing, was not sufiicient to presei-ve it. Mattliews v. Daly, 7 Abb. N. S. 379. The order continuing the lien may be made by any court hav- ing jurisdiction to foreclose the lien. Darrow v. Morgan, 65 N. Y. 333. Notice of application for snch an order is not necessary un- less the Court directs such' notice to be given. The original lien is created e.r parte, and an order continuing it may be made ex jjarte. lb. The order of continuance, however, can not be made after the year expires, and no order can thereafter be made to operate nunc pro tunc. Poerschke v. Redenhurg, 6 Abb. IST. S. 172. In computing the time in which the order can be made, the day on which the notice is filed is to be excluded. Haden v. Budensiek, 6 Daly, 8. § 7. Action to Enforce Lien. — Any claimant who has filed the notice of lien mentioned in the fourth section of this Act, may enforce his claim against the property therein mentioned, and against the person or persons, firm or firms, corporation or associations, liable for the debt, by a civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a judgment in an action founded upon a contract, for a sum equal to the amount of the lien. PLEADINGS IN FORECLOSURE ACTIONS. 61 Foreclosure, When Begun.— Although the steps to acquire the lien may be taken at any time, the action to foreclose can not be commenced until the money claimed under the contract is due. Preussery. Florence, 4 Abb. N. 0. 136; Sullivan y. Brewster, 1 E. D. Smith, 681. Foreclosure to Reach Deposit.— And where the lien has been discharged by depositing the money with the Court, as pro- vided by the twenty-fourth section of the Act of 1885, yet the claimant has no right to the money until he has established it by an action to foreclose. — Flynn v. Butler, 61 How. Pr. 274; Dun- ning V. Clarice, 2 B. D. Smith, 535. § 8. Procedure to Enforce. — Pleading.— The manner and form of instituting and prosecuting any such action to judgment, or an appeal from such judgment, shall be the same as in actions for the foreclosure of mortgages upon real property, except :is herein otherwise pro- vided. A certified copy of the notice of lien filed, as here- in provided, shall be entitled to be read in evidence, with the same force and effect as if the original were provided [produced], and such copy shajl be prima facie evidence of the execution and filing of the orig- inal. Pleadings in Foreclosure Actions. Allegations in the Complaint. — The complaint must al- lege that the plaintifE has taken the necessary steps to acquire the lien. An ordinary complaint for work, labor and services will be Bet aside on motion. Gonkright v. ilwnipson, 1 E. D. Smith, 661; Foster v. Poillon, 2 E. D. Smith, 556; Baile/j v. Johnso7i, 1 Daly, 61. It must state all the facts which are essential to an enforce- ment as well as an acquisition of the lien. Southard v. Lavelle, 4 Monthly Bulletin, 30 ; Keckler v. Stumme, 4 Jones & S. 337. The material allegations in the complaint may be grouped as follows ; 1. As to Description. — The complaint should set forth a de- scription of the premises sought to be charged, sufficiently minute to identify them and to determine the exact estate to be sold. b"M MECHANICS ilEJN LiAW. Duffy Y. McMamms, 3 E. D. Smith, 657; Shaw v. Allen, 24 Wis. 563. . . The complaint should also allege the interest of the parties m the premises described, since the proceeding requires not the prop- erty but the interest of the parties therein to be sold. Bailey v. Johnson, 1 Dalv, 61 ; Sinclair v. Fitch. 3 E. D. Smith, 677; Jenkes V. Parsons, 2 Hun, 667; Knox v. Starks, 4 Minn. 30; McCarty v. VanEtten,4: Minn. 461; Althouse v. Warren, '3 E. D. Smith, 657; Meehan v. Williams, 2 Daly, 367. '' 2. As to the Contract.— The complaint should also set forth the contract under which the labor was performed or materials fur- nished, or state the facts relied upon as constituting the contract. Mian V. Lovelock, 1 Mont. 334; Fulton Iron Works t. Smelting Co., 80 Mo. 265. The nature and character of the services must also be alleged. Lynch v. Feigle, 11 Phila. 347. In an action by the sub-contractor it must be alleged in the complaint, and proved at the trial, that the labor was performed or the materials furnished in conformity with the contract be- tween the owner and contractor. Doughty v. Devlin, 1 E. D. Smith, 635; Dixon v. LaFarge, 1 E. D. Smith, 733; Broderick V. Poillon, 2 E. D. Smith, 554; Quinn v. The Mayor, 2 E. D. Smith, 558. 3. As to the Consent — Where the plaintiff relies upon the fact that the work was performed and materials furnished with the owner's consent, he must allege that fact in the complaint. Bur- kett V. Harper, 79 N. Y. 273. The complaint in an action by a sub-contractor against the owner and contractor, set forth the contract between such owner and contractor, and alleged that there was a balance due thereon to the latter from said owner. The complaint did not allege the "consent" of the owner, or his promise to pay. Held, that the consent not being alleged, could not be proved by plaintiff for the purpose of charging the owner personally, nor could his promise to pay be shown. Biggs v. Chapin, 7 N. Y. Supp. 765. It will be sufficient to allege that the work was performed and the materials furnished with the knowledge and consent of the owner, without alleging how, in what manner or under what cir- cumstances such consent was given. Boss v. Simon. 9 N. Y. Supp. 536; Ross v. Simon, 8 N. Y. Supp. 3, reversed. 4. As to Performance. — The complaint must also allege that the contract was duly performed, or that the work and labor was duly performed or the materials furnished and actually used in the structure upon which the lien is claimed, and that at the time of the commencement of the action there was an amount actually due plaintiff therefor. Haman v. Ashmead, 60 Cal. 439 ; Jaques PLEADINGS IN FOEEOLOSUEE ACTIONS. 63 V. Morris, 3 B. D. Smith, 639; Bailey v. Johnson, 1 Daly, 67; Liegne v. Schwartzer, 10 Daly, 547 ; Stubbs v. Railroad Co., 62 Iowa, 380 ; Bradish v. James, 83 Mo. 313. The allegation is sufficient, if it sets forth that the amount claimed was due plaintiff at the time of the commencement of the action. Though the notice of lien may be filed at any time, the action to foreclose can not be prosecuted till the debt becomes due. Sullivan v. Bretoster, 1 E. D. Smith, 681. It must also be positively alleged that the materials or labor furnished were actually used in, as well as that they were furnished for the particular building or structure upon which the lien is claimed. Watrous v. Elmendorf, 55 How. Pr. 461; Grawfordsville V. Barr, 45 Ind. 358; Lawton v. Case, 73 Ind. 60. 5. As to the Notice. — The complaint must allege that the no- tice of lien was duly filed within the statutory period, and prior to the commencement of the action. Bailey v. Johnson, 1 Daly, 67; McCrea v. Craig, 33 Cal. 533; Dean y. Wheeler, 2 Wis. 334.. The plaintiff's right to the remedy must be shown by proper allegations, and a mere recital of the filing of the notice is not sufficient, Btijfy v. McMannus, 3 E. D. Smith, 657. An allegation in the complaint that the notice claimed to have been filed was " a notice in conformity with the statute " is a mere conclusion, and is not sufficient. Ketchler v. Stumme, 56 N. Y. Supr. 337; Fay v. Adams, 8 Mo. App. 566. But the complaint need not allege all the facts required in the notice. An allegation that the claimant filed a notice in the man- ner and form required by the statute will be sufficient. Watrous V. Elmendorf, 55 How. Pr. 461. But the time of docketing the notice of lien must be alleged in the complaint, and it must appear upon the face of the com- plaint that the action was seasonably commenced. McScrley v. Hogan, 1 Code Eep. N. S. 285. The complaint should allege also that the notice filed was duly verified, as the verification of the notice is jurisdictional. Hal- Idhan v. Herbert, 57 N. Y. 409 ; Conhlin v. Wood, 3 E. D. Smith 662. 6. As to Other Allegations.— The complaint must allege also that at the time of the filing of the lien, or subsequent to such filing and prior to the commencement of the action, a payment was due, or has become due, from the oWner to the contractor, on the contract. Bailey v. Johnson, 1 Daly, 61 ; Leigne v. Schwartzer, 10 Daly, 547; Blythe v. Pultney, 31 Oal. 233; Lawton v. Case 73 Ind. 60. The complaint should allege also service of a copy of the no- tice of lien upon the owner, within ten days after the filing there- of, as affecting subsequent payments, if any, made by the owner, and a statement of other liens if any pending at the time of the 64 mechanics' lien law. commencement of the action, to enable the court to ascertain if all parties have been brought in. See Laws 1885, chap. 343, § 17. If the name of the owner has been incorrectly stated in the notice of lien, that fact must be alleged in the complaint and the true name of the owner set forth. Leigne v. Scliwartzer, 10 Daly, 547. If a transfer of the property has been made to defeat the lien, and the plaintiff seeks to set it aside, he must set forth in his complaints the facts relied upon to establish that fact, so that proof as to the fraudulent nature of the transfer may be admitted. Meehan v. WiUiams, 36 How. Pr. 73; Tisdale v. Moore, 8 Hun, 19 ; McAuley v. Mildrum, 1 Daly, 396 ; Amidown v. Benjamin, 126 Mass. 276. Amendments. — The manner 'and form of instituting and prosecuting proceedings to enforce the lien, shall be the same as in foreclosure actions. Hence the pleadings may be amended in like manner as in foreclosure actions, or other actions. Gamb- ling V. Haighf, 58 N. Y. 623; Saiids v. Sands, 73 Me. 239. Allegations in the Answer.— Defenses.— As to the right of a sub-contractor under section 1830 of the Consolidation Act (Laws 1878, chap. 315, § 7), to set up a lien in a prior action in which no claim had been;filed by him, see Moran v. Murray Rill Bank, 9 N. Y. Supp. 715. In an action brought by a lienor for labor and materials fur- nished a sub-contractor, the owner , may .set up in his answer that there are liens prior to the plaintiff's, exceeding the amount due him to the contractor, the payment of which will exhaust the funds due from the owner upon the contract. Lekretter v. Koff- mann, 1 E. D. Smith, 664. But where the suit is brought by the contractor against the owner, he cannot plead in bar of the action out-standing claims of material men. Westervelt v. Levy, 2 Duer, 354. ' Where the action is brought by the sub-contractor, or a lienor who has furnished labor and materials, the owner, if he desires to avail himself of the defense of a breach of contract on thb part of the contractor, must allege the facts constituting the breach in his answer. Bletlien v. Blake, 44 Cal. 117. By contesting the claim upon the merits, the defendant waives informalities in the notice. McBt ide v. Craioford, 1 E. D. Smith, 658. The following defenses, set up by way of answer, have been held not to be frivolous or irrelevant : (1), that the contract provided for payment in installments, and that the notice was not filed after the first installment fell due, within the statutory period; (2), that an action at law was pending between the par- ties. Webb v. Van Zandt, 16 Abb. Pr. 190. Where it appears that the action is for materials furnished to PROCEEDINGS IN THE ACTION. 65 a contractor, and is tried upon that theory, and it appears there was money due such contractor from the owner at the time of filing the lien, defendants may show, though the allegations are not set up in the answer, that the contractor has not completed his work, what remains uncompleted, cost of completing, and payments made to contractor. N. Y. Superior Ct. 1890. Frazer T. McGuckin, 9 N. Y. Supp. 435. As to Counterclaim. — The answer may set up facts consti- tuting a counterclaim, as between the contractor and subjcon- tractor. Morgan v. McMaJion, 4 E. D. Smith, 754; Miner v. Hoyt, 4 Hill, 193; Hoyt v. Miner, 7 Hill, 525. And as between the owner and contractor, the answer may set up facts constituting a counterclaim, which would be available as such in a personal action between the parties. Oivens v. Ack- er son, 1 E. D. Smith, 691. As between the owner and one who has furnished labor or materials to the sub-contractor, the owner can plead only dam- ages growing out of the original contract, through the fault or negligence of either. the contractor or sub-contractor, abandon- ment of the contract, defective work and the like. Ulieney v. Troy Hospital, 65 N. Y. 282; MUler v. Moore, 1 E. D. Smith, 739; Oourdier v. Thorp, 1 E. D. Smith, 698; Develin v. Mack, 2' Daly, 100. In an action by a sub-contraCtor, the owner may set up as a counterclaim the plaintiff's guaranty that the building should be erected in a workmanlike ihanner, and completed within a given time; this being matter growing out of the subject of the action. McAdow V. Ross, 53 Mo. 199. [See, also, as to rights of parties under section one " Eights of sub-contractor," page 35, ante.l General Denial, What may be Proved under.— Where the complaint alleges that the plaintiffs furnished all the mate- rials for the building, and the answer is a general denial, the de- fendant may show that certain materials and lumber were fur- nished by her. Close v. Clark, 9 N. Y. Supp. 538. PeOCBEDINGS IN THE ACTION. An Action in Equity. — An action to foreclose a mechanic's lien is in the nature of a bill in equity, and governed by the rules applicable to chancery causes. Davis v. Alvord, 94 N. S. 545; Ross V. Derr, 18 111. 245 ; Clark v. Botjle, 51 111. 104. And § 8 of Laws 1885, chap. 342', specially declares that the proceeding shall be governed by the rules applicable to actions for the foreclosure of mortgages. 66 mechanics' lien law. Proceeding In Kern.— As against the owner and all parties against whom no personal judgment is sought, the proceeding partakes of the nature of a proceeding in rem. Homans v. Goonibe, 3 Cranch C. Ot. Eep. 365; Grant v. Vandercook, 57 Barb. 165. Bona Fides of Conveyance.— And where the complaint al- leges that any conveyance has been made in fraud of the rights of the claimant, the bona fides of the transfer may be inquired into and the equities existing between the parties adjusted in the action. Gross y. Daly, 5 Daly, 540 ; Amidown v. Benjamin, 126 Mass. 376. Trial by Jury Not a Matter of Right.— The action being an action in equity and not a common-law action, is cognizable only in a court of equity, or such courts as the statute prescribes, and a trial by jury cannot be demanded as matter of right. Ken- nedy V. Apgar, 93 N. Y. 571. And where issues are framed, and these specific issues are sent to a jury, the findings upon application to the court for final judgment, or upon appeal, may be disregarded, and judgment given upon the merits as equity requires. Muldoon v. Pitt, 54 N. Y. 369. Reference. — The action may properly be sent to a referee when the owner sets up payment in full and the trial will require the examination of a long account. Tooker v. Rinaldo, 11 Hun, 154. The reference, when ordered, may be as to the entire matter in controversy. Scliealiy v. Tomlinson, 1 Weekly Dig. 24. The Court may also appoint a Eeferee to sell, and report the deficiency as in actions for the foreclosure of mortgages. GauJier Y. Mills, 3 Abb, N. C. 114. Where the reference is to hear and determine the issues, it has been held the judgment should be entered by the clerk without application to the Court. Ward v. Kilpatrick, 1 Mon. Law Bul- letin, 31. The rule requiring exceptions to the referee's report to be heard in the first instance at Special Term, does not apply to the reference of the issues in this proceeding. Drucker v. Simon, 4 Daly, 53. Findings.— In an action to foreclose a mechanic's lien, where the Court made certain findings not contained in a case on appeal, the General Term has power to remand the case, to have proper findings prepared. Nobis v. Pollock, 6 N. Y. Supp. 373. Appeal. — The appeal will not operate to stay the proceed- ings, even where a deposit has been made, unless an undertaking has been given. Lorson v. Horgan, 3 Monthly Law Bulletin, 74. PE0CEEDING8 IN THE ACTION. 67 Upon an appeal, the Appellate Court may render judgment contrary to the findings of the jury, if equity requires it. Such findings are not conclusive. Muldoon v. Pitt, 54 N. Y. 269. The respondents insist that as the amount of their respective liens as sub-contractors is less than $500, no appeal can be taken to the Court of Appeals from the judgment as to them. Held, that the amount in controversy, however, is the sum of $3,454.94, adjudged to be due the contractor from the city by the judgment from which the appeal is taken, and as that amount must be established before any lien upon it can be enforced, the case is appealable. Powers v. City of Yonkers, 114 N. Y. 145. The Appellate Court, in reversing a Special Term order dis- charging a lien and vacating an order continuing a lien, may in- clude in its order of reversal an order requiring the County Clerk to restore the lien and the record of the order continuing it. McGuckin v. Coulter, 33 Superior Ct. 328. The Appellate Court has power, also, where findings were made by the lower court and were not contained in the case, to remand the cause and have the proper findings prepared and inserted. Nobis V. Pollock, 6 N. Y. Supp. 73. The objection that it does not appear that a copy of the notice was served on the owner, cannot be first taken on appeal. Schaettler v. Gardiner, 4 Daly, 56. The Appellate Court will reverse a judgment in claimants favor, if it appears uncontradicted that the lien had expired by reason of failure to file proper notice of lien. O'Donnell v. Rosen- berg, 14 Abb. N. S. 59. In an action in the City of New York, plaintiff made certain defendants parties, as holding an' apparent prior lien, and by the judge, such prior lien was declared to be invalid. In the mean- time said defendants obtained a judgment foreclosing their alleged apparent lien in the District Court, the plaintiffs herein not being parties. Held, that the plaintiffs could not obtain an injunction against the defendants in this action after proceeding to the final judgment, but must bring a new action. Jackson v. Bumiell, 113 N. Y. 216. Injunction and Beceiver. — As to the granting of an injunc- tion and appointment of a rfeceiver in these proceedings, see Webb V. Van Zandt, 16 Abb. Pr. 314; Meyer v. Leebald, 11 Abb. Pr. K S. 326. The Burden of Proof. — In foreclosure proceedings, the burden of proof is upon the claimant to establish the facts and circumstances upon which he seeks to establish his lien and charge the property. Taylor v. Baldwin, 10 Barb. 626. The burden of proof is upon the sub-contractor to show that the moneys to which he claims his lien attaches are due from the 68 mechanics' lien law. owner to the contractor. Haswell v. GoodcMld, 12 Wend. 373; Rlythe v. Pultney, 31 Cal. 233. Upon proof of the indebtedness, and the facts as to_ filing the notice, having been found, the question as to the liability of the owner becomes a question of law. Smith v. Coe, 29 N. Y. 666. The Judgment and its Provisions. As to Sale. — The judgment must direct a sale, not of the property, but of the owner's interest therein, and must prescribe also the manner -in which the proceeds shall be distributed. AUJwuse V. Warren, 2 B. D. Smith, 657; Lenox t. Yorkville Church, 2 E. D. Smith, 673; Smith v. Corey, 3 B. D. Smith, 643; Meehan v. Williams, 2 Daly, 367'. Upon Default. — Where judgment is taken by default in an action by the sub-contractor against the owner, the judgment should direct a sale of the owner's interest in the premises; the application of the proceeds to the claim and costs, and . for any deficiency against the contractor. Eagleson v. Clarke, 2 B. D. Smith, 644. Lien Discharged by Deposit.— It has been held under former lien laws that when the lien has been discharged by pay- ment of the money into Court in the mode prescribed by the statute, the judgment should not declare or adjudge a lien against the property. Dunning v. Clarke, 2 E. D. Smith, 539. The lien of a sub-contractor was filed after the contractor had failed and made an assignment for the benefit of creditors. The assignee proceeded with the contract and completed the work, and discharged the sub-contractor's lien by payment of the amount ■ into court. Held, that the judgment should provide that the sub-contractor should be paid from said deposit, with costs. McMurray v. Hutchinson, 10 Daly, 64. Lien Discharged by Undertaking. — But under Laws 1885, chap. 342, it has been held that where the lien has been dis- charged in the mode prescribed by Section 24 of the Act, Sub- division 6, by giving an undertaking, the judgment should provide, not only for a recovery against the property, but also against the owner personally. The plaintifE's recourse is upon the under- taking, and the judgment against the property is formal only. The lienor is entitled also to personal judgment against the party owing the debi. Lawson v. Reilly, 13 Civ. Proc. Kep. 290. Specific Performance. — The judgment in an action to fore- close a mechanic's lien cannot provide for a specific performance THE JUDGMENT AND ITS PROVISIONS. 69 as to the mode of payment, although the contract expressly pro- vides for payment in specific property. Dawdney v. McCullom, 59 N. Y. 367. Subsequent Lienor's Rights.— The rights of subsequent lienors should be protected as far as possible by the Court in order- ing a sale under the foreclosure of a prior lien, and the judgment should provide therefor. Livingston v. Mildram, 19 N. Y. 440. Subsequent liens are cut off by a judgment and sale under and in accordance therewith. Livingston v. Miller, 16 Abb. Pr. 371. As to Prior Liens. — The judgment should provide as to prior liens existing at the time of the filing of the notice of lien. These prior liens must be taken into consideration in the fore- closure, so as to determine the amount for which the owner is liable. Cronk v. Whittaker, 1 E. D. Smith, 647. If it appears that such prior liens are sufficient in the aggre- gate to absorb the fund realized upon the sale, the lien of the plaintiff will be cut off. Lehretter v. Koffnian, 1 E. D. Smith. 647. Property of Tenant.— A building erected by a tenant at will, and which, as between such tenant and the landlord, is remov- able at the tenant's pleasure, may be sold under a judgment of foreclosure and sale against the tenant. Omhony v. Jones, 19 N. Y. 334. Personal Judgment. — It was held under the Cities Act (Laws 1880, ch. 486, § 7, now repealed), that a personal judg- ment against the owner of premises was proper, in an action to foreclose the lien, though by reason of the foreclosure of a prior mortgage pending the action on the mechanic's lien, it becomes improper to foreclose the latter. Crnmli v. Moll, 8 N. Y. Supp. 183. Personal Judgment where no Lien Established. — The contract provided for a second payment on the architect's certif- icate. The architect unreasonably refused a certificate, and the owner refused to make the second payment. The contractors thereupon made an assignment for the benefit of creditors, and the sub-contractors filed liens. Neither the contractors nor their assignee filed liens. The sub-contractors sued to foreclose, and made the assignee of the contractors a defendant, and the latter, in his answer, asked damages against the owner for breach of contract in refusing to make the second payment. The judg- ment awarded the balance due on the second payment after satisfying the liens to he paid to the assignee. Held, no error. That although no lien was filed by the contractors or their assig- 70 mechanics' lien latv. nee, Laws 1885, chap. 342, § 15, provides that any claimant who fails to establish a valid lien may recover a judgment for what- ever is due him, which he might recover in an action on contract against the said party. Thom.as v. Sahagan, 10 N. Y. Supp. 874. Note. — See further as to personal judgment. Laws 1885, chapter 342, § lb, post. Rights of Purchaser. — A purchaser under a judgment of foreclosure and sale in these proceedings may contest the claim of a prior mortgagor, and set up usury as against such prior « mortgagor. Knickerbocker Ins. Co. v. Hill, 6 Thomp. & 0. 285. The purchaser may claim, also, that a prior mortgage was void for want of consideration. Nichols v. Hill, 6 Thomp. & C. 335. Amendments. — A judgment in these proceedings may be amended, as in foreclosure actions. And an execution directing a sale of defendant's interests in the lands, as of a date earlier than the lien may be amended. A sale under such an execution is not void. Boody v. Rexford, 13 Weekly Digest, 130. Payment before Service of Summons. — Where after the notice of claim is filed, and the lien is acquired, the amount of the claim is paid before a summons is served, the claimant is not entitled to costs. Reynolds v. Hamil, 1 Code Eep. N. S. 330. Oifer of Judgment. — Laws of 1885, chapter 342, § 19, pro- vides for an oifer of judgment as in civil actions. In case of failure to accept the ofEer, plaintiff must pay costs, unless he recovers a more favorable judgment than that embraced in the offer. See Section 19, j90s^. ' Costs against Executor. — It has been held that in an action against an executor or administrator, where the claim has not been unreasonably resisted, the court may properly refuse costs. Marryatt v. Riley, 2 Abb. N. C. 119. Owner should Discharge Lien. — An owner against whom a notice of lien is filed for an amount actually due, and not in excess of the sum owing, must discharge the lien by deposit if he would protect himself against costs. Williamson v. Hendricks, 10 Abb. Pr. 98. And the Court may require the owner to pay the costs, in addition to what is due the contractor where- the owner defends the action. Kenny v. Apgar, 93 N. Y. 535. See, also, as to the owner's liability for costs where there are several liens, prosecuted by different claimants, which suits have been contested by the owner. Morgan v. Stevens, 6 Abb. N. 0. 356. THE JUDGMENT AND ITS PEOVISIONS. 71 Costs out of Fund. — As to the propriety of directing that costs be paid out of the proceeds of the sale, not by the owner personally, see Fox v. Kidd, 77 N. Y. 489. Costs in Suit Begun under Prior Law. — It has been held, also, that where an action to foreclose the lien was begrm prior to the passage of the Act of 1885, chap. 343, the amount of costs to be recovered must be governed by the Laws of 1885, the action having been tried and concluded after the Act of 1885 went into effect. Fargo v. Helmer, 43 Hun, 17. Extra Allowance. — It was held under former lien laws, that as an extra allowance was not in express terms authorized by the statute, none could be made to a successful party. Ruth v. Jones, 1 Monthly Law Bui. 61; Hagan v. American Baptist Soc. Gen. Term Com. Pleas, Oct. 1886; Larremore, C. J., dissenting; 6 State Eep. 313. But under the provisions of Laws 1885, chap. 343, § 14, it has been held that an extra allowance might be granted to the suc- cessful party. Lawson ^. Reilly, 13 Civ. Proc. Eep. 390. Note. — See further as to costs. Laws 1885, chapter 342, § 14, post. Assignee of Lienor. — The lien must be filed by the person who performed the labor or furnished the materials. But the Act of 1885, chap. 343, § 17, provides specifically, that after the lien has been acquired the assignee of the lienor may enforce it as plaintiff in the foreclosure action. This rule was recognized also under prior lien laws. It has been held that although the assignee of the contractor, laborer or material man cannot acquire the lien, he may take an assignment of it after the lien has been acquired, and enforce his claim by foreclosure. Brown v. Smith, 55 Iowa, 31; Roberts y. Fowler, 3 E. D. Smith, 632. And see authorities under § 1, "Assignee," page 13, ante. There has been doubt in many States upon the question as to the right of a lienor to assign his lien. But the weight of author- ity is in favor of the rule that a lien, once acquired, may be assigned and enforced by the assignee for his own benefit. Murphy V. Adams, 71 Me. 113; Kerr v. Moore, b4, Miss. 386; Tuttley. Howe, 14 Minn. 150; Davis v. Bibsland, 18 Wall. 659; Hull of New Ship, Daveis, 199 (Dist. of Me.); Caldivell v. Laivrerxe, 10 Wis. 331. And where several liens, created at different times and by different persons, have been duly assigned to one person, such assignee may enforce them in one action, if jio other rights have intervened between the several filings. Boody V. Rexford, 13 Weekly Dig. 130. 72 mechanics' lien law. Judgment for Deficiency.— As to mode of entering judg- ments for deficiency, see § 23, post. § 9. Jurisdiction of Courts not of Becord.— Summons and Complaint— An action to foreclose a lien, provided for in this Act, may be brought in a court not of re- cord, whict would have jurisdiction to render a judg- ment in an action upon a contract for a sum equal to the amount of the lien, and shall be commenced by the personal service anywhere within the State, of a sum- mons and a complaint verified according to the pro- visions of section five hundred and twenty-six of the Code of Civil Procedure, upon the owner or other person in interest as described heretofore in this Act. The complaint must set forth substantially all the facts contained in the notice of lien filed with the clerk of the county as provided in section five [four] of this Act, and the substance of the contract. The form and contents of the summons shall be the same as prescribed by the Code of Civil Procedure for the commencement of an action in a court not of record. The summons must be returnable not less than twelve nor more than twenty days after the date when it is issued. § 10. Service of Summons by Publication in Courts not of Record.— When the summons in an action in a court not of record cannot be served personally on the owner or party in interest, by reason of absence from the State or concealment therein, such service may be made by leaving a copy of such summons at the last place of residence of such owner or person in interest, as aforesaid, and by publishing a copy of such summons for three weeks in succession in a newspaper pub- PROCEDURE IN COURTS NOT OF RECORD. 73 lished in the city or county where the property is situated. If the service of the summons is made by publica- tion, the time when said summons is returnable shall commence to run from the day of the last publication. § 11. Procedare iu Courts not of Record.— At the time and place specified in the summons for the return thereof, issue must be joined if both parties appear, by the owner or other person in interest filing with the justice an answer in writing verified as herein pro- vided for verifying the complaint, and which may contain a general denial of each allegation of the com- plaint or a specific denial of one or more of the ma- terial allegations thereof; it may also set forth any legal or equitable defense or counterclaim to such com- plaint. If the owner or other party in interest fails to ap- pear on the return day of the summons on proof by affidavit of the service of the summons and complaint, if personal service thereof be made, or if by publica- tion or [on] proof of the service of summons by ad- vertisement, judgment may be entered for the amount claimed in the complaint with the costs ; execution may thereupon be issued for the collection of said judgment and costs, the same as upon judgments in actions on contract in such courts, except that the execution shall direct the officer to sell the right, title and interest of the owner or other person in interest as aforesaid in the premises, upon which the claim set forth in the complaint was a lien at the time of filing the notice of lien prescribed in the fourth section of this Act. Form of Justice's Judgment. — ^A justice's judgment in the ordinary form held, in connection with the previous proceedings, 6 74 mechanics' lien law. a sufficient judgment to establish the lien. Jennings v. Isewman, 52 How. Pr. 283. § 12. Trial of Issues in Courts not of Record.— The iasue joined as provided in the preceding section, must be tried the same as other issues are tried in the respec- tive courts in which the action is brought, and the judgment thereon be enforced; if for the claimant as provided in the preceding section, if for the owner or other person in interest it must be enforced the same as in actions arising on contracts in the respective courts. § 13. Appeals from Courts not of Record.— Appeals may be taken from such judgments rendered in courts not of record, in the same manner and according to the same provisions provided by statute for appeals from judgments in actions in such courts arising on contract for the recovery of money only. § 14. Costs. — Costs and disbursements, except in courts not of record, in which they shall be the same as allowed in civil actions in such courts, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defend- ants, or any or either of them as may be just and equi- table, except as provided in section nineteen of this Act, and shall be included in the judgment recovered therein. The expenses incurred in serving the summons by publication may be allowed in courts not of record, and added to the .amount of costs now allowed in said courts. When an action is brought in a court of record such direction shall be made in the discretion of the COSTS. 75 court as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid. No Costs where Lien Paid before Suit.— Where the amount of the lien, which has been duly acquired, is paid before the summons in the foreclosure suit is served, the claimant is not entitled to costs. Reynolds v. Hamill, 1 Code Eep. N..S. 230. Costs after Offer of Judgment.— Offer of judgment can be made pursuant to Laws 1885, chapter 342, § 19, as in a civil ac- tion. If plaintiff refuses to accept the oiler he cannot recover costs, unless he recovers a more favorable judgment than* that embraced in the offer. See § 19, post. Costs Against Executor. — Where the lien is foreclosed against an executor or administrator, and the claim is not un- reasonably resisted, the court may, in its discretion, refuse to award costs. Marryatt v. Riley, 2 Abb. N. C. 119. Owner may Protect Himself as to Costs by Discharging Lien. — An. owner against whom a notice of lien is filed for an amount actually due and not in excess of the sum owing, must, in order to protect himself against costs, discharge the lien by deposit in the mode prescribed by the statute. Williamson v. Hendricks, 10 Abb. Pr. 98. When Owner Liable for Costs. — And the court may, where the owner defends the action, require him to pay the costs in ad- dition to the sum actually due the contractor. Kenny v. Apgar, 93 N. Y. 53^ See, also^as to the owner's liability for costs where there are several liens prosecuted by different claimants, where the suits have been contested by the owner. Morgan v. Stevens, 6 Abb. N. C. 356. Costs Out of the Fund. — As to the propriety of directing that costs be paid out of the proceeds of the sale, not by the owner personally, see Fox v. Kidd, 77 N. Y. 489. Costs in Action Begun Under Prior Lien Law.— It has been held, also, that where action to foreclose a lien was begun prior to the passage of the Act of 1885, chap. 342, the amount of costs to be recovered must be governed by the Act of 1885, the ac- tion having been tried and concluded after said Act of 1885 went into effect.. Fargo v. Helmer, 43 Hun, 17. 76 mechanics' lien law. Extra Allowance. — Under prior lien laws no provision being made therefor an extra allowance could not be made. Ruth V. Jones, 1 Monthly Law Bui. 61; Hagan v. American Baptist Soc. 6 State Rep. 212. But under the provisions of chap. 342, Laws 1885, § 14, it has been held, that an extra allowance may be granted to the successful party. Lawson v. Reilly, 13 Civ. Proc. Rep. 290. See, also, as to provisions as to judgment, under § 13, page 74, ante. § 15. Personal Judgment. — Whenever in any action brought under the provisions of this Act, any claimant shall fail, for any reason, to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him, and which he might recover in an action upon a contract against the said party or parties. Rule under Prior Laws. — Prior to the enactment of this provision the power to render a personal Judgment was merely incidental to the enforcement of the lien. If no lien had been acquired no personal judgment could be rendered. Burroughs v. Tostevan, 75 N; Y. 571; Meyer v. Beach, 79 N. Y. 409 : Ghilds v. Bostwick, 65 How. 146. But the court having once acquired jurisdiction such judgment , could be rendered as justice required. Schaettler v. Gardiner, 47 ]Sr. Y. 10; McOraw v. Godfrey, 59 IST. Y. 610; Darrow v. Morgan, 65 N. Y. 338. Personal Judgment in Absence of Lien. — An assignee of a contractor for the benefit of- creditors was made defendant in a foreclosure suit by a sub-contractor. The assignee in his answer claimed damages against the owner for a breach of contract on the part of the owner in refusing to pay an installment when due. The judgment, after providing for the payment of the sub-lien- ors, awarded the balance to the contractor's assignee. Held, that the judgment in favor of' the assignee was proper, even though such assignee had not, nor had his assignor filed a lien. Thomas V. Sahagan, 10 JST. Y. Supp. 874. And where the mechanic's lien cannot be foreclosed, by rea- son of the fact that a prior mortgage had been foreclosed against the premises, a personal judgment against the' owner, in the tne- chanic's lien suit is proper. Grouch v. Moll, 8 N". Y. Supp. 183. PAETIES TO ACTION. 77 § 16. Transcript of Judgment.— A transcript of every judgment rendered under and according to the pro- visions of this Act headed " lien docket " shall be fur- nished by the clerk of the county where rendered and docketed to the successful party who may file the same with the clerk of any other county, and if the judg- ment is for twenty-five dollars or upwards exclusive of ■costs, the same shall thereafter be a lien on the real property in the county where the same is filed and docketed of every person against whom the same is rendered, in like manner and to the same extent as in other actions for the recovery of money arising on <3ontra,cts. When the action is tried and the judgment ren- dered in a court not of record, the justice of the court in which the action is tried, or other person authorized to furnished transcripts of judgments therein, shall fur- riisli the successful party a transcript thereof, who may file the same with the clerk of the county with whom the notice of lieu is filed. The filing of such transcript shall have the same cifect as the filing of transcripts of judgments rendered in such courts not of record. In all cases where the judgment is against the claimant or claimants the county clerk shall enter the word " discharged " under the last head in his lien docket. For authorities as to the judgment and its previsionSj see § 8, pages 61 and 68, ante. As to deficiency Judgment, see § 23, post. § 17. Parties to Action.— Any person or persons, firm •or firms, corporation or association, filing a notice of lien, or the assignee of such person or persons, firm or 78 mechanics' lien law. firms, corporation or association, after the filing thereof shall be the plaintiff in such action. The plaintiff must make the parties who have filed notice of liens against the property as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendant. And as to all persons, firms, corporations or associa- tions against whom no personal claim is made, the plaintiff may with the summons serve a notice stating briefly the object of the action, and that no personal claim is made against it or them. And all persons, firms, corporations or associations who have filed notice of liens under this Act shall by answer in such action set forth same, and the court in which the action is brought may settle and deter- mine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims of all parties to the action and upon every counter-claim or set-off alleged therein, to the extent of their respec- tive jurisdiction. The provisions in( this section in regard to making parties who have filed notices of liens against the prop- erty as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendants shall not apply to proceedings to enforce liens instituted in courts not of record. Parties. — Assignee of Contractor. — Where the con- tractor has made an assignment for the benefit of his creditors, or has assigned his contract, such assignee is a proper party and must he joined in the foreclosure proceedings. Paird v. BetJiellf 75 Va. 825. Parties.— Executor and Administrator.— It has been held, under prior lien laws, that if the owner dies before the lien is acquired, it cannot be thereafter enforced against the executor or administrator of the deceased owner. Meyers v. Bennett, 7 Daly, 471 ; Brown v. Zeiss, 9 Daly, 240. PARTIES TO ACTION. 79 But after the lien has been acquired, it may be enforced against the executor or administrator of the deceased owner. Cummings V. Halstead, 36 Min^. 151. If, however, the fee of the land to which the lien attaches does not vest in the executor or administrator, it has been held they are not proper parties to the action. Crystal v. Flannelly, 2 E. D. Smith, 583. In other States, also, it has been held that the lien attaches te the land. If after the lien is acquired the owner dies, and his realty vests in his heirs in fee, the heirs of such deceased owner are the proper parties in the action to foreclose. Mb Grew v. Mc- Carty, 78 Ind. 496; and see, also, Welch v. McGratli, 59 Iowa, 519, Parties.— Contractor. — In an action by a sub-contractor to foreclose a lien he Inust make the contractor a party. Kerns v. Fhjnn, 51 Mich. 573. But it has been held, under prior lien laws, that where all the statutory requirements have been complied with, the fact that the contractor was not made a party defendant is not ground for defense. Foster v. Skiclmore, 1 B. t). Smith, 719. "Where the action is brought by a material man, who furnished materials to the contractor, and the owner is the only defendant, the Court will not dismiss the complaint for failure to join the contractor, but will proceed as in other cases where only one necessary party has been served. Lowher v. Chillis, 2 E. D. Smith, 577. On proper application, the contractor may be brought in and made a party to the action. Sullivan v. Declcer, 1 E. D. Smith, 699. Parties. — Subsequent Lienors. — Where the action to fore- close a lien has been begun, and others subsequently acquire liens upon the property, plaintiff is not bound to Join such subse- quent lienors as defendants. Suydam v. Holden, 11 Abb. N. S. 329. But upon proper application, subsequent as well as prior lienors may be brought in and made parties to the action, and the equities will be adjusted in accordance with their respective rights. Ken- ney v. Apgar, 93 E". Y. 539. Parties. — Husband and Wife.. — Plaintiff sued defendant to foreclose a mechanic's lien, and it appearing that defendant's wife was the real owner, plaintiff moved for leave to substitute the wife and her grantee as defendants. Held, that the provision of Laws 1885, chap. 342, that a lien shall not be invalid because of a mis- take in the name of the owner, does not apply to this case, and plaintiff must bring a new action. (N. Y. Common Pleas, Sp. T., Van Hoesen, J.) Spence v. Oriswold, 7 N. Y. Supp. 145 ; s. c. 23 Abb. N. C. 339. 80 mechanics' lien law. New Parties, Bight to Continue the Action.— Where prior or subsequent lienors have been brought in and made parties to the foreclosure, they have a right to carry on the action for their own benefit, and to enforce their liens respectively, if the plain- tiff abandons the action. Abram v. Boyd, 5 Daly, 331. As to bringing in other Lienors. — Whether a plaintiff, fore- (Closing a mechanic's lien, can gain priority by making other lienors parties under an allegation such as is usual in foreclosure, that they claim some interest or lien subsequent to hia, qumre. Luscher v. Morris, 18 Abb. N. C. 67. § 18. Consolidation of Actions. — Any persons, firms, corporations or associations claiming . liens upon the same property may join in the' same action, and when separate actions are commenced the court in which the first action was brought may, upon the application of the owner of the property, or of any part thereof, or of any party to either action, consolidate them. The provisions of this section shall not apply to actions commenced in courts not of record. § 19. Offer of Payment.— At any time after an action is commenced, the owner or owners of the property affected, may, in writing, offer to pay into court any amount stated in the offer, or to execute and deposit any securities or papers which he may describe, in dis- charge of the lien or liens. If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that on executing and depositing with the clerk of the county the amount offered, or the securities or papers described, the lien ol- liens be discharged and the moneys or securities deposited take the place of the property upon which such lien or liens was or were created, and shall be subject to the same. In case the offer shall not be accepted within ten SUB-CONTEACTOB ; DEFINITION OP TEBM. 81 days, and the plaintiff fails to recover any more favor- able judgment against the property, he shall pay any costs in the action incurred by the owner from the time 6f the offer. Costs. — For authorities as to costs and parties liable therefor, see § 14, page 75, ante. § 20. Subcontractor ; deflnition of term.— Eank of various Liens.— All j^ersons, firms, corporations or as- sociations entitled to liens under the provisions of this Act, except those who contracted with the owner, shall be deemed sub-contractors, and the court in the judg- ment shall direct the amount due sub-contractors and workmen to be paid out of the proceeds of sales in their order of priority as herein provided before any part of such proceeds are paid to the contractors. In case of several buildings erected, altered or re- paired under one contract, and of conflicting liens, each lienor shall have priority upon the particular building or premises where his labor is performed or his material used. Persons standing in equal degree, as co-laborers or various persons furnishing materials, shall have priority according to the date of filing their liens, provided, however, that in all cases workmen or laborers working for daily or weekly wages shall have preference over employers of labor, sub-contractors or contractor with- out reference to the date when such workmen or la- borers shall have filed their liens. Where several notices of liens are filed for the same demand, as in case of a contractor including claims for workmen to whom he is indebted, and the liens by the workmen, the judgment shall provide for the proper payment, in order of priority as herein pro- 82 mechanics' lien law. vided, so that under the liens filed double payment shall not be required, and no payments voluntarily made upon any claim wWch has been filed as a lien shall impair the lien of any person except the lien of the person so paid to the amount of such payment. [As amended by Laws of 1887, ch. 420.] Liens on Contiguous Buildings.— Lienors claiming a lien upon several contiguous buildings who do not specify the amount due on each will be postponed to those who do so specify. Broad- way Sav. Bk. V. Cummings, Daily Eeg. Jan. 30, 1884. Priorities.— Rights of Sub-Contractor.— As to further provisions under these heads, see § 1, pages 34-38, ante, and § 31, infra. § 21. Priority of Liens, how Determined.— In every case in which different liens are asserted against prop- erty, the court in the judgment must declare the priority of each lien, and the proceeds of the sale of the property must be applied to each lien in the order of its priority. See, also, authorities under § 17, on page 79, ante. § 22. Contract for Payment in Specific Property.— Whenever, by the terms of his contract, the owner has stipulated for the delivery of bills, notes or other ob- ligations or securities, or of any other species of prop- erty in lieu of money, the judgment may direct that such substitutes be delivered or deposited as the court may direct, and the property affected by the liens can only be directed to be sold in default of tte owner to deliver said substitutes within such time as may be directed. Substituted Property.— The lien had been held to be en- forceable when the contract stipulated for payment in specific property, before the passage of this section. Dowdney v. Mc- aaiom, 59 N. Y. 367. DISCHARGE OF LIEN. 83 But the court cannot decree a specific performance of such a contract. Ibid. Upon the failure of the owner to comply with the terms of a contract, by which he was to pay for a building in real estate, the workman may enforce his lien. Murray v. Brown, 91 U. S. 257. § 23. Judgment for Deficiency.— Whenever, on the sale of property against which a notice of lien is filed as provided in the fourth section of this Act, there is a deficiency of proceeds, judgment may he docketed for deficiency against the persons, firms, corporations or associations named in the judgment as personally • liable therefor, and therein adjudged to pay the same in like manner and with like effect as in actions for the foreclosure of mortgages. The provisions of this section shall not apply to actions commenced in courts not of record. j> / % 24. Discliarge of Lien.— A lien may be discharged (^^1^^/^^?^:^^ as follows : _ _ . ^ ^^^^ 1. By filing a certificate of the claimant or his sue- // /- ^^ cessor in interest, duly acknowledged or proved, stat- y ^, ing that the lien is satisfied and may be discharged. 3 OO rC^t^s^ 2. By depositing with the county clerk, if before <^ /'^^ the suit, of a sum of money equal to the amount claimed, with interest to the time of such deposit. 3. After the commencement of the action, by the deposit with the clerk of the county of such sum of money as in the judgment of the court, after due no- tice to all claimants or parties to the action, will be sufficient to pay any judgment which may be recovered against the property. In ease the deposit of money is made with the county clerk as provided in subdivisions two and three of this section, the same shall be repaid by said clerk to the party making such deposit, or his 84 mechanics' lien law. assigns, upon the lien or liens being discharged by the claimants who have filed a notice or notices of lien or liens. 4. By the lapse of time. When one year has elapsed from the time of filing the notice of lien, and no action has been commenced either to enforce such claim or order of the. court made continuing said lien, as provided in section six of this Act. 5. By order of the court for neglect of the claim- ant to prosecute the same, as hereinafter provided. The owner of the property or of any part thereof af- fected by any notice of lien filed under this Act, or the person or persons, firms, corporations or associations against whom the claim is made, may, at any time after the filing of the notice of lien, serve a notice in writing upon the claimant or any one of several claimants united in interest, or by leaving such notice at his last known place of residence, with some person of suftable age, with direction to deliver the same, requiring said claimant to commence an action to enforce the claim within the time to be specified in the notice, which shall not be less than thirty days from the time of such service ; or to show cause at a special term of any court of record, at which a motion might be made in an action to enforce the lien or at a county court of the county in which the property is situated, at a time to be specified in such notice, why the notice of lien filed should not be vacated and canceled of recoi'd. There- upon, upon due proof of the service of said notice, and that no action has been dbmmenced to enforce the claim, the court may make an order that the claim be- vacated and canceled of record. 6. By the owner of the premises, person or per- DISCHAEGE OP LIEN. 85 sons, firm or firms, corporations or associations against whom or which the notice of lien is filed, executing with two or more sufficient sureties, who shall be freeholders, a bond to the clerk of the county where the premises are situated, in such sum as the court may direct, not less than the amount claimed in said notice, conditioned for the payment of any judgment which may be rendered against the property. The sureties on said bond must justify in at least double the sum named in said bond. A copy of said bond, with a notice that the sure- ties will justify, before the court or a judge thereof, at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the com-t or^ a judge thereof . / , < . Discharge Mu^t be4n Accordance with Statute.-The/ '^^""^ "^ court has no power to discharge a lien, except in the mode pre-^<=2y *-<-i-<«^^^ scribed by the statute; and in accordance with a proceeding //,/ / / taken thereunder. Fettrich v. Totten, 2 Abb. N. S. 264. U^^^z^ 'Q) Bond to Discharge Lien. — Owner need not join in. — Where a sub-contractor has filed a lien to secure his claim against the contractors, it is not necessary for the owner to join in a bond given by the contractors under Laws of 1885, chap. 343, § 24, subdivision 6. N. Y. Lumher & Wood- Working Co. v. Sev- enty-third St. Building Co. 3 N. Y. Supp. 937. Bond by Surviving Partner. — Two of the three con- tractors having withdrawn from their firm it is sufficient for the remaining member to execute the bond as the successor to the firm. Id. Indemnity.— liability of Sureties.— The contractors ex- ecuted a bond of indemnity to the city of New York, under mu- nicipal contract, to protect it against liens filed pursuant to chap. 315, Laws 1878 (Consolidation Act, §§ 1824-1838), Held, that the sureties were liable, in an action by the city, after recovery of 86 mechanics' lien law. judgment directing it to pay the amounts of balance due the con- tractor, or secured by the indemnity bond, although the judg- ment provides for no personal judgment against the city. Mayor V. Crawford, 111 IST. Y. 638. A subsequent amendment of such judgment, whereby the clause forbidding a personal judgment against the city is stricken out, does not alter or impair the liability of the sureties on the indemnity bond. lb. Amount of Deposit must be Fixed by the Court.— A motion to discharge a lien upon giving bond cannot be enter- tained, unless the applicant has first had the amount of deposit fixed by the court. Shannon v. Coursen, Daily Reg. Oct. 12, 1882. Bond Must Cover Entire Lien. — A portion of the property covered by the lien cannot be discharged on motion, unless the bond given shall be sufficient to embrace the entire lien. Ford\. Bailey, 5 Monthly Law Bulletin, 95. But the lienor may, if he chooses, release a portion of the property covered by his lien, and retain his lien upon the re- mainder. Hall V. SJieehan, 69 N. Y. 618. Seal Omitted from Paper Discharging Lien.— Where an instrument filed for the purpose of discharging a lien has no seal affixed, but is in other respects in proper form, and has been ap- proved by the Courts, and the lien has been discharged, liabiUty cannot afterwards be evaded by a suit on said instrument, on the ground that it contained no seal. Whitney v. Coleman, 9 Daly 238. Money Deposit After Lien Expires. — When a lien has been discharged by a deposit of money, and the time within which to bring the action to enforce such lien has expired, an order of the Court, it has been held, is not necessary in order to obtain a return of the money so deposited. Re Laflin, &c. Powder Co., 5 Monthly Bulletin, 64. When Money Deposit Discharges Owner.— When the suit is brought by a sub-contractor against the owner and contractor, and no personal claim is made against the owner, the owner may deposit the money necessary to discharge the lien, and is then entitled to have the proceeding, as to him, dismissed. Schaettler V. Gardiner, 4 Daly, 56. Claimant Must Establish Lien. — The deposit of the money to discharge lien does not give the claimant a right to receive the fund so deposited until he establishes his lien. Flynn v. Butler, 61 How Pr. 374; Dunning v. Clarke, 2 E. D. Smith, 535. REPEALING CLAUSE. 87 § 26. Construction of Statutes.— This Act is hereby declared to be a remedial statute and is to be con- strued liberally to secure the beneficial interests and purposes thereof; and a sijbstantial compliance with its several provisions shall be sufficient for the validity of the lien, or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same. § 26. Repealing Clause.— Chapter one hundred and eighty-four of the laws of eighteen hundred and forty- six, chapter one hundred and sixty-nine of the laws of eighteen hundred and fifty-one, chapter three hundred and eighty-four of the laws of eighteen hundred and fifty -two, chapter four hundred and two of the laws of eighteen hundred and fifty-four, chapter six hundred and sixty-three of the laws of eighteen hundred and fifty-seven, chapter four hundred and seventy-eight of the laws of eighteen hundred and sixty-two, chapter five hundred of the laws of eighteen hundred and sixty-three, chapter three hundred and sixty-six of the laws of eighteen hundred and sixty-four, chapter seven hundred and seventy-eight of the laws of eighteen hundred and sixty-five, chapter five hundred and fifty- eight of the laws of eighteen hundred and sixty-nine, chapter one hundred and ninety-four of the laws of eighteen hundred and seventy, chapter four hundred and eighty-nine of the laws of eighteen hundred and seventy- three, chapter five hundred and fifty-one of the laws of eighteen hundred and seventy-four, chapter three hundred and seventy-nine of the laws of eighteen hundred [and seventy-five, chapters one hundred and forty-three and four hundred and eighty-six of the laws of eighteen hundred and eighty, sections eighteen hun- dred and seven to eighteen hundred and twenty-three 88 mechanics' lien law. inclusive of chapter four hundred and ten of the laws of eighteen hundred and eighty-two, sections eleven to twenty-seven inclusive of chapter two hundred and seventy-six of the laws of eighteen hundred and eighty- three and all acts amendatory of the above mentioned acts or extending the provisions thereof are hereby re- pealed. But this Act shall not be so construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien now pending by virtue of any of the provisions of the acts hereby repealed, nor to revive any other or former acts or parts of act repealed by the acts hereby re- pealed. § 27. This Act shall take effect immediately. List of Statutes Repealed by the Act of 1885.— The following are the acts repealed by the preceding section : 1846, c. 184, Richmond County. 1851, c. 169, Westchester, Ulster and Putnam Counties. 1853, c. 384, Eepealing the last preceding act and enacting a lien law for Westchester and five other counties. 1854, c. 403, Old State Act. 1857, c. 663, Saratoga Act. 1863, c. 478, Kings and Queens Act. 1863, c. 500, Old New York City Act. 1864, c. 366, Onondaga Act. 1865, c. 778, Eensselaer Act. 1869, c. 558, General amendment to State Act. 1870, c. 194, Amending last preceding Act. 1873, c. 489, State Act. 1874, c. 551, Extending State Act to Brie County. 1875, c. 379, New York City Act. 1880, c. 143, Buffalo Act. 1880, e. 486, Cities' Act. 1883, c. 410, So much of the provisions of the N. Y. City Consol- ' idation Act as relates to liens against private property; to wit, §§ 1807-1833. 1883, c. 376, Amending the N. Y. City Consolidation Act, re- lating to liens against private property, to wit, §§ 1807-1833 of said Act. KEPEALINO CLAUSE. 89 , Yalidity of Liens Filed Prior to June 27, 1885.— Any notice of lien filed in accordance with any act in force at the time of the passage of Chapter 342, Laws 1885, or filed prior to the 27th day of June, 1885, shall not be impaired or affected by the passage of the latter act, but such liens shall be deemed to be subordinate to liens filed in accordance with said act of 1 885. Laws 1886, Chap. 382, passed June 27th. Costs Under Prior Acts. — Costs, in an action commenced under a former Mechanics' Lien Law and terminated after the passage of the act of 1885, are governed, as to costs, by § 14 of the act of 1885. Fai-go v. Helmer, 43 Hun, 17. Local Statute Applicable to New York City, in Force September 21, 1882. — The mechanics' lien law of 1875 (Laws of 1875, chap. 379), applicable exclusively to the city of New York, was the only law in force there September 21, 1882, as the General Mechanics' Lien Law of 1880 (Laws oi 1880, chap. 486), by its terms applicable to all the cities of the State of New York except Buffalo, did not expressly repeal the local law. McLaugh- lin V. Page, 8 N. Y. State Reporter, 367. MECHANICS' LIENS AGAINST MUNICIPAL PEOPEETY, UNDER CONTEACTS WITH INOOEPOEATED CITIES. [Laws 1878, Chap. 315, passed May 22. Consolidation Act (New York City), §§ 1834-1838.] The People of the State of New York, represented in Senate and Assembly, do enact asfoUotvs: § 1. Who may acquire Lien.— Against what property Lien to Attach.— Any person or persons who shall here- after as laborer, mechanic, merchant or trader, in pur- suance of or in conformity with the terms of any con- tract made between any person or persons and [the city. N. Y. Cons. Act, § 1824] any incorporated city in the State of New York, perform any labor or fur- nish any material toward the performance or coipple- tion of any contract made with said city, on comply- ing with the second [next] section of this Act, shall have a lien for the value of such labor or materials or either, upon the moneys in the control of the said city, due or to grow due under said contract with said city to the full value of such claim or demand, and these liens may be filed and become an absolute lien to the full and par value of all such work and materials, to the extent of the amount due or to grow due on said ■contract, in^^favor of every person or persons who shall be employed or furnish materials to the person or per- sons with whom the said contract with said city is AGAINST MUNICIPAL PROPERTY. 91 made, or the sub-contractors of said person or persons, their assigns or legal representatives, provided that no city shall be required to pay a greater amount than the contract price or value of the work and the ma- "terials furnished, when no specific contract is made in the performance of said work by the contractor. (See, al'io, N. Y. Consolidation Act, § 1824.) [This Act of 1878, with respect to incorporated cities, has been incorporated in the Consolidation Act, §§ 1824-1838, and hence applies to the city of New York.] Lien as to Mnnicipal Property wholly Statutory.— A municipal corporation, being an artificial person in law, not ca- pable of acquiring a lien in the absence of express statutory pro- vision, can not be subject to liens for labor or materials in the absence of an express statute. Leonard v. Brooklyn, 71 N. Y. 498; Whiting v. Story, 54 Iowa, 81; Patterson v. Pennsylvania, d-c, 92 Pa. St. 229; Panola County v. Gillen, 59 Miss. 198; Yates Y. Mcadville, 56 Pa. St. 21. Except in those cases which the statute expressly authorizes, liens can not be filed against municipal property. Bo.tsler v. Put- npy. 53 N. Y. Supr. Ct. E. 456. Funds Liable to Lien. — A lieji for labor or materials can not be enforced against funds retained by a municipal corpora- tion for evidence of the payment of mechanics' liens, unless the fund arose upon the particular contract under which the labor was performed or the materials were furnished. Quinlan v. R^is- sell, 94 N. Y. 350. Parties. — One who is made' a party to a proceeding to en- force a lien, under a municipal contract, may have his rights ad- judicated in such proceeding without bringing a separate action. 'McDermott v. McDonald, 50 N. Y. Supr. Ct. E. 153. § 2. Claim of Lienor, what to Contain.— When and how Filed.— At any time before the whole work to be per- formed by the contractor for the city is completed or accepted by the city, and within thirty days after the same is so completed or accepted, any claimant may file with the head of the department or bureau having charge of said work, and with the [Comptroller. N. Y. Cons. Act, § 1825] financial officer of said city, no- tices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and if not due, when it will be due, 92 mechanics' liens giving the amount of the demand after deducting all just credits and offsets, with the name of i the person by whom employed, or to whom materials were fur- nished ; also a statement of the terms, time given, conditions of his contract, and also that the work was done or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city, but no variance as to the name of the contractor shall affect the validity of the said claim or lien. (See N. Y. Consolidation Act, § 1825.) School Buildings. — In proceedings to acquire a lien for work or materials furnished toward the erection of school buildings, the provision for service of notice is suflBciently complied with in the city of New York by filing such notice with the Comptroller and the clerk of the Board of Education. Bell v. VanderUU, 12 Daly, 467. In an action brought against the defendants, The Mayor, &c., of the city of New York, to foreclose a sub-contractor's lien on certain moneys in the hands of the Comptroller to pay the amount due on a contract between one of the defendants and the trustees of the public schools in the Twelfth Ward of the city of New York, for mason work on a building to be erected for school pur- poses. Held, that for the purposes of L. 1878, c. 315, such con- tract, although not expressly, was, in fact, made with the City of New York, and the notice of the claim was properly filed with the clerk of the Board of Education and the Comptroller. Bell V. Mayor, &c., of New York, 105 N. Y. 139. Filing Notice for Street Improvement jLu New York City. — A contract with the city of New York for a street im- provement required all notices of claims to be filed with the Com- missioner of Public Works; but a sub-contractor filed such a notice with the Comptroller, by direction of an official in the office of the Commissioner of Public Works, as he testifies. Held, that the claimant's ignorance was no excuse, and he could only obtain a lien by strictly following the requirements of the con- tract. Mechanics' and Traders' Nafl Bank v. Winant, 1 N. Y. Supp. 659. § 3. Liens to be Entered.— What l^ntry to Contain.— The financial officer -of said city [the Comptroller. N. Y. Cons. Act, § 1826] shall enter the claims in a book kept for that purpose by him, called the ''lien book." Such entry shall contain the name and residence of AGAINST MUNICIPAL PBOPEETY. 93 claimant, the name of the contractor, the amount and date of the filing, and a brief designation of the contract upon which the claim is made. (See N. Y. Consolida- tion Act, § 1826.) § 4. Time within which Lien must be Foreclosed.— Lis pendens, where Filed.— No lien provided for in this Act shall be binding upon the property therein described, unless an action be commenced within ninety days from the filing of the same, and a notice of pendency of said action be filed with [the Comptroller, N. Y. Cons, Act, § 1827] the financial officer of the city. (See N. Y. Consolidation Act, § 1827.) § 5. When Lien Attaches.— Extent of Lien.— The lien shall attach from the tiirie of filing thereof to the extent of the liability of the contractor for the claim preferred upon any funds which may be due or to grow due to the said contractor from said city, under the contract against which the lien is filed. (See N. Y. Consolida- tion Act, S 1828.) ' § 6. Civil Actions to Enforce Liens, where hrought.— Any claimant who has filed the notice mentioned in the second section of this Act [title. N. Y. Cons. Act, § 1829], may enforce his claim against the said fund therein designated and against the person or per- sons liable to the debt by a civil action. Actions to determine or terminate said liens may be commenced by the contractor or said city in any court of compe- tent jurisdiction. (See N. Y. Consolidation Act, § 1829.) - § 7. Who must be made Parties.— Priority of Claims.— The plaintiff must make all parties who have filed claims, the contractor, and the said city, parties de- fendant, and as to all parties against whom no per- sonal claim is made, the plaintiff may, with the sum- mons, serve a notice stating briefly the object of action, and that no personal claim is made. But all parties who have filed claims under this Act [title. N. Y. Cons. Act, § 1830] may, by answer in such action, set forth the same, and the court in which the action is 94 mechanics' liens brought, may decide as to tli« extent, justice and pri- ority of the claims of all parties to the action. (See N. Y. Consolidation Act, § 1830.) §8. Judgments in Foreclosure.— Execution.— Appeals. The court in which the action is brought shall deter- mine the validity of the lien, the amount due from the debtor to the contractor under his contract, and from the contractor to the respective claimants, and shall render judgment, directing that the said city shall pay over to the claimants, for work done and materials fur- nished in the execution of the said contract or contracts, whose claims or liens it shall hold to be valid and just, in the order of their priority as determined by said court to the extent of the sum found due to said claim- ants from their contractor, so much of said funds or money which may be due from the said city to the con- tractor, under his contract, against which the lien i& filed, as will satisfy their liens or claims, with interest and costs,, to the extent of the amount due from said city to said contractor. The judgments rendered un- der this [title. N. Y. Cons. Act, § 1831] Act may be enforced by execution, and an appeal may be taken therefrom in the same time and manner as in civil ac- tions. (See N. Y. Consolidation Act, § 1831.) § 9. Successive Liens.— Priority according to Date of Filing.— In case of successive liens, or a number of liens,, in favor of different persons, their rights and priorities shall be determined as follows : Persons standing in equal degrees as co-laborers, or various persons fur- nishing materials shall have priority according to the date of the filing of their liens. When several lien notices are filed for the same demand, the judg- ment shall pi'ovide for the proper payments according to priority, so that, under liens filed, double payment shall not be required. (See N. Y. Consolidation Act, § 1832.) § 10. When Actions may be Consolidated.— When sep- arate actions are commenced, the court in which the first action was brought may, upon the application of AGAINST MUNICIPAL PROPERTY. 95 the said city, consolidate them. (See N. Y. Consoli- dation Act, § 1833.) § 11. Costs in the Discretion of the Court.— Costs in all actions shall rest in the discretion of the court, and shall be awarded to or against the plaintiff or defend- ants, or any or either of them, as may be just. (See N. Y. Consolidation Act, § 1834.) § 12. Kight to Personal Action not aflFected.— Nothing contained in this [title. N. Y. Cons. Act, § 1835] Act shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor. (See N. Y. Consolidation Act, § 1835.) § 13. How Lien may be Discharged. — The lien may be discharged as follows : First. By filing a certificate of the claimant, or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. Second. By lapse of time when ninety days have elapsed since the filing of the claim, and no action shall have been commenced to enforce the claim. Third. By satisfaction of any judgment that may be rendered in actions to foreclose said liens or claims. (See N. Y. Consolidation Act, § 1836.) §14. Term "Contractor" defined.— The term "con- " tractor," as used in this [title. N. Y. Cons. Act, § 1837] Act, shall be construed as meaning the per- son with whom the contract with the said city is made, his assigns or legal representatives. (See N. Y. Consolidation Act, § 1837.) § 15. When Act to take effect.— Repealing Clause.— This Act shall take effect immediately ; but nothing herein contained shall affect the validity of any claims or liens upon moneys due or to grow due under con- tracts made by cities prior to its passage. All acts and parts of acts inconsistent with the terms of this 96 MECHANICS LIENS, Act are hereby repealed* (See N. Y. Consolidation Act, § 1838.) * Section 1838 of the N. Y. Consolidation Act reads as follows : § 1838. " Nothing in this title contained shall affect the validity of " any claims or liens upon moneys due or to grow due under contracts " made by the city prior to the twenty-second day of May, eighteen " hundred- and seventy-eight, but the title shall aiJply to and include all " cases and contracts under which work and materials have heretofore " been, or shall hereafter be done and furnished upon any land, the title " of which was, at the time of the making of the contract, and now is in "the city, and for the performance of which appropriations have been, " or shall hereafter be made and raised by the city; and shall apply to " and include actions pending on the twenty-eighth day of May, eight- " een hundred and eighty-one, for work done and materials furnished " under any such contract. " § 16. In what cases Act to apply.— This Act shall apply to and. include all cases and contracts under which work and materials have heretofore been, or shall hereafter be done and furnished upon any land, the title of which was, at the time of the making of the contract, and now is in any city, and for the perform- ance of which appropriations have been, or shall here- after be made and raised by any city ; and shall apply to and include actions now pending for work done and materials furnished under any such contract. [Added by Act of 1881, chap. 429.] Contracts wif h Ward Trustees.— This Amendment extends the operation of the Act to all contracts, whether made with in- corporated cities or with the School Trustees of a ward of the city. Bell V. VanberUU, 13 Daly, 467. School Buildings. — The requirement of the Act of 1878, that, to acquire such a lien, notice of claim should be filed with the head of the department or bureau having the work in charge, and with the financial of&cer of the city, is sufficiently complied with, in the city of New York, by filing such notice with the clerk of the Board of Education of that city, he having charge of all the papers and records of the Board, and in the office of the Comptroller of the city. Bell v. VanderUU, 13 Daly, 467. Proceedings Rendered Valid by Act of 1881.— The pro- vision in the Amendment of 1881, that the Act " shall apply to ' and include actions now pending for work done and materia,ls " furnished under any such contracts," although proceedings in actions which were before invalid were thereby rendered valid, was within the power of the legislature. Bell v. VanderMU, 13 Daly, 467. MECHANICS' LIENS AGAINST EAILROAD CORPORATIONS. [Laws 1875, Chap. 393, passed May 18.] The People of the State of Neio York, represented in Senate and Assembly, do enact as follows : § 1. Who may acquire Lien against Railroad Corpora- tion.— To what Property Lien Attaches. — Any person who shall hereafter perform any labor for a railroad corporation shall, on filing with the county clerk of any county in which such railroad corporation is situ- ated, or through which the road of such corporation passes, the notice prescribed by the second section of this Act, have a lien for the value of such labor upon such railroad track, rolling stock and appurtenances, and upon the land upon which such railroad track and appurtenances are situated, to the extent of the right, title and interest of such railroad corporation in the property existing at the time of filing the said notice. Lien against Entire Road. — The lien must be enforced against the whole railroad, and not against such portion thereof as was benefited by the labor. Cranston v. Union Trust Co. 75 Mo. 39. Or, against so much of the road as lies within the jurisdiction of the court, if the railroad have its termini in other States. Ireland v. Atchison, Topeka, &c. 79 Mo. 573. Payments in Good Faith.— This lien, like others, is defeated by payments in «good faith, and According to the terms of the con- tract, before filing the notice of lien. Roland v. Centerville, &c., By. 61 Iowa, 380. 98 mechanics' liens against railkoads. § 2. Notice of Lien, when and how filed.— Within thirty days after the performance and completion of such labor, such person shall file a notice, in writing, with the county clerk of the county where the prop, erty is located, specifying the amount of claim, and the corporation against whom the claim is made. The county clerk shall enter the particulars of such notice in a book to be kept in his office, to be called the "lien docket," with the name of claimant, amount claimed, the name of such corporation against which such claim is made, and the date of the filing of the notice, hour and minute. A fee of ten cents shall be paid to said clerk on- filing such lien, and said notice, when so filed, aball thereafter operate as an incum- brance upon said property. § 3. What Evidence Lienor must Produce upon the Trial. — Any person performing labor, in availing him- self of the provisions of this Act,- shall upon the trial, or at the assessment of damages, produce evidence to establish the value of such labor, and that the same was performed for such railroad corporation. § i. Action to Enforce Lien, where brought.— Any laborer performing any work, or assignee thereof, may, after such labor is performed, and the service of the notice required by the first section of this Act, bring an action in any of the courts of the county in which said property is situated to enforce said lien, requiring such railroad corporation to appear, by attorney, within thirty days after such service and answer the same, or, in default thereof, the claimant may take judgment for the amount of claim and costs. § 5. Lien to Continue One Tear.— Every lien created under the provisions of this Act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of th* claimant in the proceed- ings; but when a judgment is entered therein, and mechanics' liens against railroads. 99 docketed with the county clerk within said year, it shall be a lien upon the real property of the railroad corporation against whom it is obtained, to the extent that other judgments are now made a lien thereon. § 6. Priority of Liens.— The liens created and estab- lished by virtue of the provisions of this Act shall be paid and settled according to the priority of the notice filed with the county clerk^ as directed by the second section hereof. § 7. How Liens may be Discharged.— All liens created by this Act may be discharged as follows : 1. By filing with the county clerk a certificate of the claimant, or his successors in interest, acknowl- edged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged ; or 2. By depositing with the court or clerk of the court a sum of money equal to double the amount claimed, which money shall be thereupon held subject to the determination of the lien ; or 3. By an entry of the county clerk, made in the book of liens, that the proceedings on the part of the claimant have been dismissed by the court in which it is brought, or a judgment rendered against the said claimant; or 4. By an afiSdavit of the service of a notice from such railroad corporation, or its attorney, to the claim- ant, requiring such claimant to commence an action for the enforcement of said lien within twenty days after service of said notice and the failure of said claimant to commence an action as aforesaid § 8. Personal Liability of Stoctholders, how Enforced. — Each and all the stockholders of such corporation shall be jointly and severally liable for the debts due or owing to any of its laborers or servants, other than 100 mechanics' liens against eaileoads. contractors, for personal service for ninety days' ser- vice, or less than ninety days' service, performed for such corporation, but shall not be liable to an action therefor, before an execution shall be returnf^d unsatis- fied in vvhole or in part against the corporation, and the amount due on such execution shall be the amount recoverable vpith costs against such stockholders ; before such laborer or servant shall charge such stockholders for such ninety days' service or less than ninety days' service, he shall give notice in w^riting, within twenty days after the performance of such service, that he in- tends to so hold him liable, and shall commence such action therefor within thirty days after the return of such execution unsatisfied, as above mentioned; and every such stockholder against whom any such re- covery by such laborer or servant shall have been had, shall have a right to recover the same of the other stockholders in such corporation in ratable proportion to the amount of the stock they shall respectively hold with himself. Liens on Railroad Bridges.— Sec. 1. The provisions of the laws relating to mechanics' liens heretofore passed shall apply to bridges and trestle work erected for railroads and materials fur- nished therefor, and labor performed in constructing said bridges, trestle work and other structures connected therewith, and the time within which said liens may be filed shall ' be extended to ninety days from the time when the last work shall have been performed on said bridges, trestle work and structures connected therewith, or the time from which said materials shall have been delivered. This act shall apply to all uncompleted work com- menced previous to the passage of this act. (Laws 1870, chap. 529, passed May 2, 1870.) MECHANICS' LIENS AGAINST OIL WELLS, &c. [Laws of 1880, Chap. 440, passed May 27, 1880.] The People of the State of New York, represented in Senate and Assembly, do enact as follows : § 1. By whom and against what Property Lien may be Acquired. — Any person who shall hereafter perform any labor in or about the sinking, drilling or completing of any oil well, or any well sunk or drilled for oil, or gas, or other volatile or mineral substances, within the State of New York, or in sinking or drilling any water well, sunk or drilled for the purpose of di*'illing or operating any such oil well or other well as aforesaid, or who shall erect, build or furnish any tank or other receptacle for oil, gas or water which shall be built, erected or fur- nished for any of the purposes aforesaid, or who shall perform any labor, or furnish any materials in or for the building or erecting of such tank or other such receptacle as aforesaid, or who shall furnish any ma- terials for any of the purposes aforesaid, including tubing, casing, sucker rods, packers or other appur- tenances or appliances to any such well as aforesaid, with the consent of the owner, being such owner as in this section hereinafter described, shall, on filing with the county clerk of the county in which the property is situated, the notice prescribed by the next section of this Act, have a lien for the value of such labor and materials upon such tank or other receptacle as afore- 102 mechanics' liens against oil wells. said, and upon such well as aforesaid, and appurtenances, and upon the lot, premises, parcel or farm of land upon which the same shall be situated, to the extent of the right, title and interest of the owner of the -property, whether owner in fee or of a less estate, or whether lessee for a term of years thereafter, or'vendee in pos- session under a contract existing at the time of the filing of said notice, or any right, title or interest in real estate against which an execution at law may now be issued under the provisions of the statutes in force in this State, relating to liens of judgment and the en- forcement thereof Torpedoing. — Although the use of torpedoes in oil wells does not primarily produce oil, such use serves to. increase the flow of the oil. One who, in the construction and operation of such well, explodes torpedoes therein in the usual and customar)- manner, is entitled to a lien for the value of such labor and material under Laws 1880, chap. 440. Gallagher v. Earns. 27 Hun, 375. Receiver. — A proceeding to enforce a lien under chap. 440, Laws 1880, is an action, and in a proper case the court, in such an action, may appoint a receiver of the property while such action is pending. Gallagher v. Karm, 37 Hun, 375. Bight of Mortgagee. — The right of a mortgagee of a lease- hold interest in oil lands, before default, cannot be subjected to a lien for work done for the mortgagor. He is not " an owner " within the meaning of this section. Broman v. Young, 35 Hun, 173. § 2. Contents of Notice and Docketing of Lien.— With- in sixty days after the performance and completion of such labor or the final furnishing of such materials, the contractor, sub-contractor, laborer or person furnishing the same, shall file a notice in writing in the office of the clerk of the county where the property is located, specifying the amount of the claim and the person against whom the claim is made, the name of the owner or of the party in interest as aforesaid of the premises, lot, parcel or farm of land, together with a description of said lot, parcel or farm of land. The mechanics' liens against oil wells. 103 county clerk shall enter the particulars of such notice in a book to be kept in his office to be called the " lien " docket," which shall be suitably ruled in columns headed " claimants," " against whom claimed," owners and parties in interest, " amount claimed," and the date of the filing of the notice, hour and minute, what pro- ceedings have been had, the names of the owners and parties in interest and the person against whom the claim is made, shall be entered in said book in alpha- betical order. A fee of ten cents shall be paid to said clei'k on filing said notice, and no lien shall at- tach to said land, well, tank or other receptacle or appurtenances or appliances, unless said notice shall be filed by said clerk,' and when so filed said notice shall thereafter operate as an incumbrance upon said property. ' § 3. Limitation of Owner's Liability to Sub contractor. — Whenever the labor performed or materials fur- nished shall be upon the credit of any contractor who shall have made a contract therefor with the owner of the property, or such party in interest as afore- said, whether such contract shall be oral or in writing, or express or implied, or for any specified sum or otherwise, or on the credit of any sub-contractor or the assignee of any contractor or sub-contractor, the provisions of this Act shall not oblige the owner or party in interest as aforesaid, to pay for or on account of any such labor or materials, any greater sum or amount than the price stipulated and agreed to be paid therefor by said contract, or the value of such labor and materials except as in the next section provided. § 4. Service of notice upon Owner.— Collusive Payments. — At the time of the filing of said notice prescribed by the second section of this Act, the person filing said notice may serve upon the said owner, or party in inter- est as aforesaid, a written notice specifying the amount 104 mechanics' liens against oil wells. of the claim, the name of the person against whom the claim is made, and for what labor or materials tbe claim is made, which said notice shall be served, by delivering the same to such owner or party in interest as aforesaid personally, or if there shall be two or more of such owners or parties in interest, to either or any one of them, or by leaving the same at the place of residence of such owner or party in in- terest, or if there be two or more, of either or any one of them, or in case said owner or party in interest shall have no place of residence within the county where such property as aforesaid shall be situated, then by mailing said notice to said owner or party in interest, securely inclosed in a sealed envelope directed to said owner or party in interest at his post-office address, with the postage prepaid thereon, and from the time of the service of such notice as aforesaid, such owner or party in interest shall be liable to said claimant to the amount then due or owing to the contractor, sub- contractor or assignee of such contractor, sub-contractor, upon whose credit such labor shall be performed or ma- terials furnished as hereinbefore provided. And in any case whether the notice above prescribed shall or shall not be served as above provided upon such owner or party in interest as aforesaid, if such owner or party in interest as aforesaid shall pay, or cause to be paid, to any contractor, sub-contractor or assignee, or any other person, any money or other valuable thing for the -pur- pose of avoiding or with intent to avoid any of the provisions of this Act, when the amount still due or to grow due to said contractor, sub-contractor or assignee shall be insufficient to satisfy the demands made in con- formity with the provisions of this Act, the owner or other party in interest as aforesaid shall be liable to the amount that would have been due or owing to said contractor, sub-contractor or assignee, at the time of the filing of the notice in the second section of this Act, in the same manner as if no such payment had been made. mechanics' liens against oil wells. 105 §6. Action to Enforce Lien.— Any contractor, sub- contractor, mechanic, laborer, or other person per- forming any work or furnishing any materials as above provided, or the assignee of any such person or persons, may, after such labor has been performed or materials furnished, and the filing of the notice provided by the second section of this Act, when the amount of the claim exceeds fifty dollars, bring an action in the supreme court in the county in which the property is situated, or in the county court of said county, to en- force such lien, which action shall be commenced, and the proceedings therein conducted, and judgment en- tered in the same manner and to the same effect as in actions brought in said courts to enforce liens, pro- vided by chapter four hundred and two of the laws of eighteen hundred and fifty-four,* and the several acts ameuding the same, and the said courts shall have full power to adjust and enforce all the rights and equities between any or all of the parties to such actions, and enforce or protect the same by any of the remedies usual in said courts. § 6. Action in Justice's Court.— When the amount of the lien claimed is two hundred dollars or under, the claimant may commence his action in a justice's court of the town or city in which the premises are located, which action shall be commenced, and the proceedings therein conducted and the judgment entered, and tran- script filed in the same manner and with the effect as in actions commenced in justices' courts to enforce liens pursuant to said chapter tour hundred and two of the laws of eighteen hundred and fifty four, and the several acts amending the same. § 7. Costs.— Costs and disbursement, in actions to enforce liens provided for by this Act, shall be allowed to either party upon the principles and by the same * Eepealed by Laws 1885, chap. 343, § 36, pp. 87, 88, ante. 8 106 mechanics' liens against oil wells. rules as are now allowed by law in actions for relief arising on contract, and shall be included in the judg- ment recovered therein, and the expenses incurred in serving the notice by which such actions shall be commenced by publication may be allowed in justices' courts and added to the amount of costs now allowed in said courts. When the action is brought in the supreme court or in a county court, such direction shall be made in the discretion of the court as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to. whom and by whom the costs are to be paid. §8. Transcript of Judgment— A. transcript of every judgment rendered under this Act shall be furnished by the clerk of the county where rendered and ■docketed to the successful party, who may file the same with the county clerk of any other county, and the same shall thereafter be a lien on the real property in the county, where the same is filed and docketed,: •of every person against \7h0m the same is rendered, if for twenty-five dollars or upwards, exclusive of ■costs, in like manner and to the same extent and enforceable by execution in the same manner, as in ■other actions for the recovery of money arising on con- tract. § 9. Form of Execution.— Whenever any judgment shall be entered in any such action as aforesaid, execu- tion shall thereupon issue for the enforcement and col- lection of such judgment in the same manner as execu- tions are issued upon other judgments in actions on contract for the payment of money only, except that •when the judgment is in favor of the claimant the ex- ecution shall direct the officer to sell the right, title and interest which the owner or other party in interest had in the premises at the time of filing the notice prescribed by the second section of this Act, and if the same shall be insufficient to satisfy said judgment, then to mechanics' liens against oil wells. 107 collect such deficiency as shall remain out of the per- sonal property of such owner or party in interest, or if there be two or more of either of them, or if sufficient personal property cannot be found, then out of the real property of such owner or party in interest, or if there be two or more, of either of them, in the county to which said execution is issued, on the day such judgment was docketed in said county, or on any day thereafter. But no such deficiency shall be collected out of any real property, unless such deiency* shall amount or to exceed the sum of twenty-five dol- lars. § 10. Continuance of Lien.— Every lien created under the provisions of this Act shall continue until the ex- piration of six months from the time of filing the notice prescribed in the second section of this Act, unless sooner discharged by the court or some legal act of the claimant in the proceedings ; but if within such period of six months proceedings are commenced to enforce or foreclose such lien, then such lien shall continue until judgment shall- be entered thereon, and for one year thereafter such lien shall also continue during the pen- dency of an appeal and for one year after the deter- mination thereof. When a judgment is rendered as aforesaid it may be docketed in any county of this State and enforced as if obtained in an action in a court of record. § 11. Appeals. — Appeals from judgments rendered pursuant to this Act may be taken by either party in the same manner, within the same time, and subject to the same rules and course of procedure as in appeals taken in civil actions arising on contract, and with like costs and disbursements, and the judgment thereon shall be enforced as judgments on appeal are now en- forced and collected. Such appeal shall be had and * So in original. 108 mechanics' liens against oil wells. taken only in the proceeding or action wherein judg- ment shall be given or rendered, but such appeal shall not operate as a stay of proceedings or in any manner to affect the foreclosure or action of any other claimant or claimants then pending. § 13. Priority of Liens.— The liens ci-eated by virtue of the provisions of this Act shall be paid and settled according to priority of notice filed with the county clerk as directed by the second section of this Act. § 13. Discharge of Liens. — All liens created by this Act may be discharged as follows : First, by filing with the county ckrk, a certificate of the claimant or his successor in interest acknowl- edged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged. Second, by depositing with the justice before whom, or the cleik of the court in which proceedings shall be coinraenced to enforce or foreclose said lien, a sum of money equal to double the amount claimed, which money shall thereupon, be held subject to the determination of such proceedings ; or, Third, by an entry of the county clerk made in the book of liens that the proceedings on the part of the claimant have been dismissed by the court or a judg- ment lendered against the said claimant. Eight Hours a Legal Da.v*s Worlc.— Eight hours shall constitute a legal day's work for all classes of mechanics, working- men and laborers, excepting those engaged in farm and domestic labor, when employed by the State or any municipal corporation therein, through its agents or officers, or in the employ of persons contracting with the State or such municipal corporation Over- work is permitted for an extra compensation by agreement. A violation of this statute is a misdemeanor. Laws 1870, chap. 385. Wages.— The wages of day laborers employed by the State or any officer thereof, shall not be less than two dollars a day, and as to employees other than day laborers the price shall be at a rate of mechanics' liens against oil wells. 109 not less than twenty-five cents per hour. On any public work in this State preference shall be given to citizens of the State of New York. Laws 1889, chap. 380. Boarding House Keepers are entitled to a lien upon the baggage and effects of any boarder to the extent and in like manner as an inn-keeper. Laws 1860, chap. 446 ; as amended by Laws 1876, chap. 319. And see Laws 1871, chap. 803. Livery Stable Keepers. — Livery stable keepers are entitled to a lien for the board, pasture or keep of a horse, under any agreement with the owner, where notice in writing is given to the owner of intent to enforce the lien. Laws 1872, chap 498 ; Laws 1880, chap. 145. Liens on Grarestones and Monuments. — Persons or cor- porations who shall manufacture, sell or furnish any gravestones, monument, inclosure or other structure, may acquire a lien thereon for the purchase price. Laws 1888, chap. 543. FORMS, I. Notice of Iiien Claim. To THE ClEKK op the COUNTT of , AND TO WHOM IT MAT CONCERN': Take notice, that , residing at N'o. Street, in the city of , claims a lien in accordance with the facts below stated, and alleges : I. That the nature of the labor and services, for which a lien is claimed, and the amount justly due claimant therefor, is as fol- lows: II. That the name of the owner [or, lessee, general assignee or person in possession] of the premises upon which this lien is claimed is III. That the name of the person by whom the claimant was employed [or, to whom he furnished the materials] as below stated, is IV. That the labor and materials for which this lien is claimed were actually performed and furnished in accordance with a written contract of the following purport : [If the contract was not in writ- ing, state its substance.] V. That all the work and materials for which this claim is made have been actually performed and furnished towards the con- struction [alteration or repair] of a house situated in Ward of the city of , and numbered 6n Street; the foUowiiig being a diagram of the premises upon which said house is situated and this lien is claimed : 112 FOKM0. VI. That alien is hereby claimed against said building, the land upon which it stands, together with the appurtenances thereto, pursuant to the provisions of the laws of this State. Dated, New York, COXJKTY OF , ss. : , the claimant above-named, being duly sworn, says : that he has read the foregoing notice and claim, and knows the contents thereof, and that the statements therein contained are true to the knowledge [or, information and belief ] of this deponent. Subscribed and sworn to ) before me this f II. Notice of Claim. — Material Man. — Another Form. To Host. Leonard A. Giegekich, Cleek of the City and County of New Yokk, and all others whom it may CONCERN : Please take notice that I, Cneius Pompey, residing at 35 West 72d street, in the city of New York, have and claim a lien for the principal and interest of the price and value of the materials here- inaftar mentioned, upon the house, building and appurtenances, and upon the lot, premises and parcel of land upon which the same may stand, or be intended to stand, hereinafter mentioned, pursuant to the provisions of the Act of the Legislature of the State of New York, entitled, " An Act for the better security of Mechanics and Laborers and others, who perform labor or furnish material for buildings and other improvements in the several cities and counties of this State, and to repeal certain acts and parts of acts," passed May 27th, 1885, being chapter 342 of the Laws of 1885. That the nature and amount of the materials so furnished are as follows : I, Cneius Pompey, dealer in building materials, doing business at No. 8 Amsterdam Avenue, in the city of New York, sold and delivered to Titus Brown, at his request, certain building materials, consisting of lumber, lath, nails, lime, sand, hair plaster and ce- POEMS. 113 ment to be used in the erection and construction of a certain build- ing or buildings upon the premises hereinafter mentioned, as shown on the diagram below, which said materials were reasonably worth the sum of six hundred dollars, which said Brown promised and agreed to pay me therefor, which said materials were duly fur- nished by me to said Brown, with the knowledge and consent of said owner of said premises and contractors hereinafter men- tioned, and were actually used by said Brown in the construction and erection of the building or buildings upon said premises, but said Brown has not paid me for said materials said sum of $600, nor any part thereof, except the sum of $100, and there is now justly due and owing to me on account of said materials, so fur- nished as aforesaid, the sum of five hundred dollars. The name of the owner of said premises, against whose interest a lien is claimed, is, as I am informed, Giovanni Colombo. The name of the person by whom claimant was employed, and to whom he furnished such materials is Titus Brown. That all the work and materials for which the claim is made has been actually performed or furnished, and the amount now due claimant therefor is the sum of $500, and interest thereon from August 1st, 1890. The property to be charged with a lien is described as fol- lows: ^Insert a careful description of the premises by metes and bounds.] Dated, New York, August 29, 1890. CifEius PoMPBY, Claimant. [Add verification as in Form I.] [For notice of claim under municipal contracts see post, page 138, Form XIX.] 114 FOEMS. III. Complaint. Contractor Against Owner. COUET OF COMMON PLEAS. CixY AND County of New Yobk. Joseph Flatteet' vs. Y Complaint. Feank McGinn. The plaintiff complains and alleges : I. That at the time hereinafter mentioned the defendant was, and still is, the owner [if the defendant is not the owner of the fee, set forth specially the interest which he has in the premises^ of the fol- lowing real estate, situated in the city of New York, and thus de- scribed : [Insert a careful description of the premises by metes and bounds.^ II. That on the day of , the parties hereto entered into a written contract, a copy of which is hereto annexed and made part of this complaint, marked Exhibit A. [If not a written con- tract, state its substance.^ III. That the plaintiff duly performed for defendant the work and furnished the materials provided for in said contract, and said work was performed and said materials were furnished toward and actually used in the erection [altering or repairing] of the building mentioned in the contract aforesaid on the lot above described; that the plaintiff duly fulfilled all the conditions of said contract on his part to be performed, within the time therein specified [or allege any excuses for non-perfurmance upon which plaintiff relies\ and on the day of , at the time of the filing of the lien hereinafter mentioned [or, prior to the commencement of this action]* plaintiff became entitled to receive from defendant the sum of , which sum has not been paid [except the sum of * The amouut must be due on the contract when the lien is filed or the action is commenced. See ante, page 63, and foot-note on page 116. FORMS. 115 ], 9,nd there is now due the plaintiff from the defend- ant the sum of , under said contract. IV. That on the day of , 188 , and within ninety days after the completion of the contract ahove set forth, the plaintiff filed a notice of lien in writing in the clerk's ofBce of the county in which the property aforesaid against which a lien is asserted is situated, on and against the said premises for the amount of labor and materials aforesaid, to wit, dollars ; that said notice of lien contained the name and residence of the claim- ant, this plaintiff, the nature and amount of the labor and service performed and the materials furnished, with the name of the owner as hereinbefore given; the name of the person by whom plaintiff was employed; together with a statement that the work for which the claim was made had been actually performed and the materials actually furnished, and contained also a description of the prop- erty to be charged with the lien sufficient for identification; that said notice of lien was duly verified and complied in all respects with the requirements of the statutes of the State of New York; and that on the day of , 188 , said lien was duly entered and docketed by said clerk in the lien docket kept in his oflfice. Plaintiff annexes hereto a copy of said notice of lien and makes the same a part of this his complaint, the same being marked Exhibit B. V. That on the day of , and within ten days after filing his notice of lien as hereinbefore set forth, the plaintiff caused a copy of said notice to be served personally upon the owner, the defendant herein. VI. That no other persons have filed liens against said prop- erty nor have subsequent liens or claims by judgment, mortgage or conveyance. \If there he any such liens or claims, the fact must be stated and the lienor or claimant mad'f a party, nnd the demand for judgment must ask for a determination of the priority of liens or claims, and an ad- judication of the rights of the parties.^ Wherefore plaintiff demands judgment : — 1. That he be adjudged to have a lien on said property for the sum of 3. That the defendant and all persons claiming under him be 116 FORMS. foreclosed of all equity of redemption or other interest in said premises. 3. That the defendant's interest in said premises be sold as provided by law, and that from the proceeds of such sale the plaintiff be paid the amount of his lien aforesaid and interest thereon from , together with the expenses of sale and costs of this action. 4. That plaintiff have Judgment against the defendant for any deficiency that may remain due him after sale. 5. That plaintiff may have such further judgment, decree or order as may be necessary to protect his rights in the premises. [If the lien has been discharged by deposit with the clerk, as pro- videdin, § 24, the complaint should recite that fact, and the demand for judgment should be as follows .•] Wherefore plaintiff demands judgment against the defend- ant: — ^ '^ 1. That it be adjudged that he acquired a valid lien on said premises, and has now a lien on the money in the hands of the clerk for the sum of dollars and interest thereon from , and the costs hereof.* 3. That plaintiff have judgment against the defendant for any deficiency that may remain afteil applying the amount of said de- posit to the payment of his claim, with interests and costs hereof.* 3. That plaintiff have such further judgment, decree or order as may be necessary to protect his rights to the premises. f [ Verification in usual form.] * Where an undertaliing has been given to discharge the lien, the plaintiff should have judgment in form against the property, and also against the owner personally. The formal judgment against the property brings it within the con- dition of the undertaking. Plaintiff is also entitled to a personal judgment against the party liable for the debt, in view of the fact the sureties may have becume insolvent. Lawson v. Jieilly, IS Civ. Proe. Rep. 290, and see ante page 68. I For authorities upon the question as to the form of the judgment and its provisions, see ante pages 68-71. POBMS. 117 IV. Complaint. Sub-Contractor against Owner and Contractor. COURT OF COMMON PLEAS. City and County of New York. Silas Carter against )■ Oomflaint. Charles Near and Oliver Wendell.^ The plaintiff, complaining against the defendant, alleges : I. That on or about the first day of January, 1887, the de- fendant C. N. made, executed and entered into a written con- tract with defendant 0. W., the owner of the premises below de- scribed, whereby the said C. N. agreed to furnish and provide all the carpenter work and materials for and towards the erection of a dwelling-house on the following described lot : [Insert a careful description of the premises by metes and hounds.] II. That in and by said contract it was agreed that said con- tractor should be paid by said owner the sum of three thousand dollars, to be paid in installments, as follows : one thousand dol- lars when said building had been erected to the first tier of beams ; one thousand dollars when the building should be enclosed, and the balance upon the final completion of the building in accord- ance with the contract. III. That said contractor duly performed all the conditions of said contract on his part to be performed, and so far completed the same as to become entitled at the time of the filing of the notice of claim by plaintiff herein, or prior to the commencement of this action, to receive thereon a payment of one thousand dollars; and that at the time of the filing of the notice of lien below mentioned and prior to the commencement of this action, there was due to said contractor from the owner aforesaid the sum of one thou- sand dollars [or, if the amount is not known, say, " a sum in excess of the amount of the plaintiff's claim herein "J. "r'«?fl5^ 118 FORMS. IV. That on the second day of February, 1890, the plaintiff entered into a verbal contract with said C. N., the contractor aforesaid, whereby plaintifE agreed to furnish to said contractor and to deliver upon the premises aforesaid all, the sash and blinds for said building, being part of the labor [or, materials] required and stipulated to be furnished by the contract between the said owner and contractor, for the sum of one hundred and fifty dol- lars, to be paid to plaintiff upon the delivery of the same as afore- said; and that in pursuance of said contract and in conformity therewith, plaintiff did so furnish ^nd deliver said sash and blinds, and the same were actually used in and upon said building. V. That said sum of one hundred and fifty dollars become due to the plaintiff upon the 6th day of April last past, upon which day the last of the materials aforesaid were furnished, and that said sum is now due to plaintiff. VI. That on the twentieth day of April, 1890, and within ninety days after the completion of the contract above set forth, plaintiff filed a notice of lien in writing, in the clerk's office of the county in which the property against which the lien is asserted is situated; that said notice of lien contained the names and resi- dences of the claimants, this plaintiff, the nature and amount of the labor and service performed, and the materials furnished, with the name of the owner as hereinbefore given; the name of the person by whom the plaintiff was employed; together with a state- ment that the work for which the claim was made had been actually performed and the materials actually furnished, and con- tained a description of the property to be charged with the lien suflScient for identification; that said notice of lien was duly veri- fied and complied in all respects with the requirements of the statutes of the State of New York, and that on said twentieth day of April last past said lien was duly entered and docketed by said clerk in the lien docket kept in said oflBce. Plaintiff annexes hereto a copy of said notice of lien and makes the same a part of this his complaint. VII. That on the twenty-first day of April last past, and within ten days after .the filing of the notice of lien aforesaid, plaintiff caused a copy of such notice to be served personally upon the owner, said 0. W., one of the defendants herein. VIII. That no persons have filed liens against said .property nor have subsequent liens or claims by judgment, mortgage or con- veyance. FORMS. 119 \lf any such liens or claims exist, state the fact and make the lienor or claimant a party.'] [Allege, also, that notice of claim was served upon the contractor or other persons in interest, as required by Laws 1885, chap. 342, §4.*] Wherefore plaintiff demands judgment : — 1. That he be adjudged to have a lien on said property for the sum of one hundred and fifty dollars and interest from April 6, 1887. 2. That defendants and all persons claiming under them be forever foreclosed of all equity of redemption or other interest in said premises. 3. That said premises be sold as provided by law, and that from the proceeds of such sale plaintiff be paid the amount of his lien aforesaid, and interest, with expenses of sale and costs of this proceeding. 4. That plaintiff have judgment for any deficiency that may then remain against said 0. N. 5. That plaintiff have such further judgment, decree or order, as may be necessary to protect his rights in the premises, f [If the lien has been discharged by deposit, insert as in preceding form.] Y. Ccmplamt. Contractor against Lessee and O'wner vrho has Consented to the Erection. COUET OF COMMON PLEAS. City and County op New York. Caius Nicras Complaint. Opalcus Winebekg and Ltjcullus Edwards. The plaintiff, complaining against the defendants, alleges : — I. That on the first day of January, 1890, plaintiff made, ex- * For the provisions of the statute as to service of the notice of lien on the owner and pther persons in interest, see ante pages 46, 47. For form of the al- legation see post. Form VI, page 120. f For authorities as to the form of tlie judgment and its provisions see ante pages 68-71. 120 POEMS. ecuted and entered into a written contract with the defendant L. E., lessee in possession of the premises hereinafter described, whereby the plaintiff agreed to erect a building upon the folbw- ing described premises : [Give a specific description of the premises upon which the lien is claimed.] II. That between the first day of January aforesaid and the sixth day of April last past, plaintiff furnished, at the special in- stance and request of the said L. E., certain labor and materials in and towards the erection of the building aforesaid, a more specific statement of which is shown by the bill of particulars hereto annexed and made a part of this complaint ; that said labor and materials were reasonably worth the sum of five hundred dollars. III. That said sum of five hundred dollars is still due to the plaintiff, and that said labor and materials were perforined and furnished for the erection of, and were actually used in the build- ing aforesaid. IV. That the defendant 0. W. is the legal owner ^f the prem- ises hereinbefore described, and on the day of , executed a lease thereof to defendant L. E. for the term of five years, and that said L. E. thereafter entered into and has since continued in possession of said premises. V. That 0. W., the owner of said premises, consented to the erection of the building aforesaid, and the labor and materials for which this plaintiff claims a lien were furnished and performed with the knowledge and consent of said owner. [Follow Form III, from paragraph III to end.] VI. Complaint. Material Man against Owner, Contractor and Sub-Contractor, Fuller Form. SUPREME COUET. New York County. Cnbius Pompey against Titus Beown, Cornelius '>' (Complaint. Flaherty, Publius Jones, and Giovanni Colombo. The plaintiff complains and alleges: I. That at all the times hereinafter mentioned, the plaintiff FOKMa. 121 was and still is a dealer in building materials, carrying on busi- ness in the city of New York. II. That at all the times hereinafter mentioned the defendant, Giovanni Colombo, was and still is the owner of the following de- scribed premises in said city of New York, to wit: "AH that cer- tain lot, &c., &c." [Give description of premises upon which lien is claimed.'] III. PlaintifE further alleges, upon information and belief, that at and prior to the times hereinafter mentioned, defendants, Cornelius Flaherty and Publius Jones, were and still are co-part- ners, carrying on business as contractors and builders, under the firm name and style of Flaherty & Jones. That as such co-part- ners they made a contract with the defendant, Giovanni Colombo, the owner of the premises above described, whereby said Flaherty & Jones agreed to furnish and provide all the carpenter work and materials for and towards the erection of a dwelling-house on the said premises of defendant Colombo, above described. IV. Upon information and belief, that in and by said contract it was agreed that said contractors should be paid by said owner in installments as said work progressed, at particular stages of said work, and the balance or final installment upon the completion of said contract. [If pleader has terms of contract he may set them forth. In the absence of the contract above form is convenient.'] V. That after the making of said contract said contractors en- tered into an agreement with the defendant Titus Brown, whereby said Brown agreed to furnish and provide the mason work, plastering, brick and carpenter work, and the labor and materials for and towards the erection of said dwelling-house agreed to be erected by said Flaherty & Jones, for said defendant Colombo, on the premises aforesaid, which said agreement was made with the knowledge and consent of said defendant Colombo. VI. Upon information and belief, that at the time of the filing of the notice of claim and lien by plaintiff as hereinafter set forth, said contractors, Flaherty & Jones, had duly performed part of the conditions of said contract on their part to be performed and so far completed the same as to become entitled at the time of 9 122 FOKMS. the filing of said lien* to a payment on account of said contract, and at the time of filing said lien* there was due and owing to said contractors and to the sub-contractor, Titus Brown, from said owner Colombo, a sum in excess of the amount of plaintiif's claim herein, and there was remaining unpaid at the time of filing said lien, a balance and a sum agreed to be paid under said contract for work done and about to be done, far in excess of the amount of the plaintifE's claim herein. VII. That at divers times between June 16 and August 1, 1890. plaintiff sold and delivered and furnished to said defendant. Titus Brown, at his request, certain building materials consisting of lumber, lath, nails, lime, sand, hair, plaster and cement, which said materials were furnished for and used in the construction and erection of said dwelling-house on the premises of defendant Colombo, aforesaid, which said materials were reasonably worth the sum of six hundred dollars [or, which, at prices agreed upon amounted in the aggregate to the sum of six hundred dollars, which sa'd sum defendant promised and agreed to pay plaintiff therefor], which said materials were duly furnished by plaintiff with the knowledge and consent of said owner, defendant Colombo, and with the knowledge and consent of the agents and contractors of said defendant Colombo, to wit, said defendants Flaherty & Jones, and said materials were actually used in the erection and construction of said dwelling-house with said knowledge and con- sent of defendants as aforesaid. VIII. That said defendant, Titus Brown, has net paid said sum of six hundred dollars, nor any part thereof, except the sum of one hundred dollars. IX. That on or about the 30th day of August, 1890, and within ninety days after the furnishing of said materials as afore- said, plaintiff filed a notice of lien in writing in the office of the clerk of the city and county of New York, where said premises are situated, and against which a lien is asserted on and against said premises for the value of materials furnished and sold as above set * The plaintiff may all ge that the amount of the claim was due plaintiff at the time of the commencement of the action. Though notice of Hen ma3- be filed at ' any time, the action to foreclose can not be prosecuted till the debt becomes due. Sullivan v. Brewster, 1 E. D. Smith, 681, and see ante page 63. FOEMS. 123 forth, to wit: Five hundred dollars, with interest thereon from August 1st, 1890, and said notice of lien contained the name and residence of the claimant, this plaintiff, and the entire amount of the materials furnished, with the name of the owner as hereinbe- fore set forth, the name of the persons to whom plaintiff furnished said materials, and also a description of the property to be charged with said lien sufficient for identification, said notice was duly verified and complied in all respects with the requirements of the Statutes of the State of New York, a copy of which said lien is hereto annexed. On the 30th day of August, 1890, said lien was duly entered and docketed by said clerk in the lien docket kept in his office. X. That within ten days after filing said notice of lien, plaint- iff caused to be served a copy of said notice personally upon saidi owner, the defendant Colombo, and upon defendants Bro^wn, Flaherty and Jones. [Or, if the contractors and sub-contractor have no residence in the town or city where lands are situated, or cannot be found therein, allege as follows :] That within ten days after filing said notice of lien, hereinbe- fore set forth, plaintiff caused a copy of said notice to be affiled conspicuously on said premises hereinbefore described, and de- scribed iu said notice of lien, between the hours of nine o'clock in the morning and four o'clock in the afternoon, said defendants, Titus Brown and Flaherty & Jones, as plaintiff is informed and believes, have not, nor has either of said defendants a residence in the city and county of New York, or in the town in which said lands above described or a part thereof are situated, and said de- fendants .could not, nor could either of them be found therein.* Wherefore plaintiff demands judgment : [Follow Form III, prayer for judgment, and demand deficiency judgment against the sub-contractor, Titus Brown, liable for the debt, and add ■verification,'] • This mode of service is prescribed by § 4, Laws 1886, chap. 342, see ante pages 46, 47. 124 FORMS. VII. Xiis Pendens. SUPREME COURT. New York Cottnty. _ Laws 1885, chap. 343, § 6, ante page 57. Cneius Pompet, Plaintiff, against Titus Brown, , Cornelius Flaherty, Publius Jones and GriovANNi Colombo. Sir: Notice is hereby given that an action has been commenced, and is now pending in this, court, by the above named plaintiff .against the above named defendants, the object of which said action is to foreclose a mechanic's lien, notice of which said lien and claim was duly filed in the office of the clerk of the city and county ■of New York on the 30th day of August, 1890. The following is a description of the premises affected by said lien in said action : [Here insert description of premises as set forth in the com- plaint in the action.} Dated New York, Nov. 1st, 1890. Edward Coke,, Plffs. Atty., 120 Broadway. To the Clerk of the City and County of JVeto YorJc : Sir: Please index the foregoing notice against all the defend- ants. Edward Coke, Plffs. Atty. [For Lis Pendens under municipal contract see post, page 164, Form XXI.] FORMS. 125 VIII. Order of Reference. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the County Court Hoiise in said city on the day of , 1890. Present, Hon. Joseph F. Daly, Chief Judge. Antonio de Gamma against EiNALDO DE Balboa. )■ See authorities, page 66 ante. A motion having been made on the pleadings herein by the plaintiff for a reference of all the issues in this action, and after hearing the parties by their respective counsel, and upon motion of M; J. E., Esq., attorney for the plaintiff. It is oedered. That the above-entitled action and all the issues therein be and the same hereby are referred to , Esq., of the city of New York, counselor-at-law, as sole referee to hear and determine the same. IX. Beport of Keferee. COUET OP COMMON PLEAS For the Citx and County oe New York. Antonio de Gamma ] I against )■ Referee's Report. EiNALDo de Balboa. J To THE Court of Common Pleas eoe the City and County OF New York. I, , the Eeferee named in the order made herein and 126 FORMS. dated the day of , 1890, by which the above-entitled action and all the issues therein were referred to me to hear and determine the same, do respectfully report — That I have been attended by the parties to this action with their respective counsel, and having taken and subscribed the oath prescribed by law, I have heard the proofs and allegations of the respective parties, and from the pleadings and such proofs and allegations, I find and decide as MATTEES OP FACT. First. That at the several times hereinafter and in the com- plaint mentioned, prior to the day of j 18 , the de- fendant was the owner in fee of the lot of land described in the complaint in this action. Second. That on or about the day of , 18 , the plaintiff made a contract with the defendant, whereby plaintiS agreed to construct for said defendant and furnish to him seventy i-ear and gable window frames and sash for the price of two hun- dred and forty dollars, which sum defendant promised and agreed to pay to the plaintiff, for the work and materials aforesaid. Third. That thereafter, and between said day of , 18 , and the day of j 18 , the plaintiff, under and pursuant to the terms of the contract aforesaid, perfol-med certain work, consisting of constructing the window frames and sash aforesaid, and furnished to said defendant, pursuant to said con- tract, materials, being the window frames and sash aforesaid. Fourth. That all of the work performed and materials fur- nished as aforesaid were agreed to be, and^were so performed and furnished to be used, and were actually used in and toward the erection of five buildings on the land hereinbefore mentioned and in the complaint described, and were so performed and furnished under, pursuant to and in conformity with the terms of the con- tract aforesaid ; that plaintiff performed all the conditions of said contract on his part to be performed, and prior to the filing of the lien hereinafter mentioned became entitled to receive from said defendant, under and by the terms of said contract, the sum aforesaid, to wit, the sum of two hundred and forty dollars. FORMS. 127 Fifth. That said sum has not, nor has any part thereof been paid, and in said sum and interest, thereon from , 18 , said defendant is now justly indebted to plaintiff. Sixth. That within ninety days after the completion of said contract, and on the day of , 18 , the plaintiff caused to be filed in the office of the clerk of the city and county of New York, a notice of claim and lien on and against said buildings and land (which are situate in said county) for said sum of two hun- dred and forty dollars, the unpaid price of said work and mate- rials, which notice was duly verified and was in the form pre- scribed by, and contained all the statements required by, and com- plied in all respects with the requirements of, the statutes of New York in such case made and provided, and was so filed pursuant to said statutes. That on said day of , 18 , said lien was duly entered and docketed by said clerk on the lien docket kept in his office. That said lien has not been paid, canceled or other- wise discharged of record, and no other action or proceeding has been had or commenced to recover said debt or foreclose said lien, and that no persons have filed liens against said property nor have subsequent liens or claims by mortgage, judgment or conveyance on or against said premises, and that on the day of , 18 , within one year after the filing of said lien, a notice of the pendency of this action, which is brought to foreclose the same, was duly filed and recorded in the office of said clerk. AND AS CONCLUSIONS OF LAW. First. That under and by the terms of the contract aforesaid, and for and on account of the work, and materials aforesaid, the defendant was at the time of the filing of the lien hereinbefore mentioned, and when this action was commenced was and now is jusi,ly indebted unto the plaintiff, in said sum of two hundred and forty dollars, and interest thereon from , 18 . Second. That by the performance i:nd furnishing of said work and materials and the filing and docketing of said lien, the plaint- iff acquired and now has a good and valid mechanic's lien on all 128 FOKMS. the right, title and interest which the defendant had on the day of , 18 , at the time of the filing of said lien, in and to the buildings and land hereinbefore and in the complaint men- tioned. Third. That the plaintiff is entitled to judgment against the defendant, barring and foreclosing him of all interest and equity of redemption in and to said premises, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing said lien, and for the payment to plaintifE from the pro- ceeds of such sale of said sum of two hundred and forty dollars and interest thereon from , 18 , which, at this date, amounts to four dollars and eighty cents, making together two hundred and forty-four dollars and eighty cents, and the plaintiff's costs and disbursements of this action, to be taxed, which are hereby granted to him; and also in case said proceeds be insuffi- cient to pay the sums aforesaid plaintiff is entitled to judgment against the defendant for the amount of any deficiency so remain- ing. And I order and direct judgment accordingly. All which is respectfully submitted. Dated New York, , 18 . Referee. X. Judgment on Report of Referee. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the County Court House in said city on the day of , 18 . Present, Hon. Joseph F. Daly, Chief Judge. PuBLius Cornelius SciPio, plaintiff, against Marcus Portius Cato, defendant. > Judgment on Report of Referee. This action being for a foreclosure of a mechanic's lien, and FORMS. 129 the issues therein having been referred to , Esq., as sole re- feree, to hear and determine the same, by order duly made and entered herein bearing date , 18 , and the said referee hav- ing duly made his report dated , 18 , and which has been duly filed, whereby he orders and directs judgment in favor of the plaintiff against the defendant, barring and foreclosing him of all interest and equity of redemption in and to the premises described in the complaint herein, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing the lien described in the complaint herein, and for the payment to plaintiff, from the proceeds of such sale, of the sum of two hun- dred and forty-four dollars and eighty cents, being the amount of plaintiff's claim and interest to the date of said report, and the plaint'fi's costs and disbursements of this action to be taxed, which are thereby granted to him, and in case said proceeds be insuffi- cient to pay the sums aforesaid, for judgment against the defend- ant for the amount of any deficiency so remaining, and the plaint- iff's costs having been duly taxed at ninety-six dollars: Now, on motion of M. J. E., plaintiff's attorney. It is Ordered, that said report be, and the same is hereby, in all respects, confirmed, and on like motion. It is adjudged and decreed, that all the right, title and in- terest which the defendant had in and to the premises described in the complaint herein, and hereinafter particularly described, on the day of j 18 » at the time of filing plaintiff's lien de- scribed in the complaint herein, be sold in one parcel at public auc- tion in the city and county of New York, by or under the direction of , Esq., of the city of New York, counselor-at-law, who is hereby appointed referee for that purpose, and the said referee give public notice of the time and place of such sale according to law; that either of the parties to this action may purchase at said sale; that said referee deliver to the purchaser or purchasers a deed or deeds of the premises sold on the purchaser's complying with the terms on which the same were sold; that out of the proceeds of such sale, after deducting his fees and the expenses thereof, the said referee pay to the plaintiff or his attorney ninety-six dollars, the costs taxed as aforesaid hereby adjudged to said plaintiff with interest thereon from this date, and that he further pay to the plaintiff or his attorney two hundred and forty-four dollars and eighty cents, the amount of claim and interest reported due as 130 FORMS. aforesaid, and with interest thereon from the date of said re- port, or so much thereof as the purchase-money of said premises will pay of the same, and take receipts therefor and file them with his report ; that said referee pay the surplus arising on said sale, if any, to the Chamberlain of the city of New York to the credit of this action, to be drawn only on the order of this court signed by the clerk and a judge thereof, within five days after he receives the same ; that he make a report of such sale and file it with all convenient speed with the clerk of this court ; that if there be any deficiency remaining on snch sale said referee specify the amount thereof in his report of sale, and that the plaintiff recover of the defendant the amount of deficiency so remaining and have execu- tion therefor, and that the purchaser be let intro possession on pro- duction of the referee's deed. And it is further adjudged, that the defendant and all persons claiming under him subsequent to the filing of the notice of pendency of this action (which, as appears by said referee's re- port, was filed in the office of the clerk of the city and county of New York on the day of , Ifi ) be forever barred and foreclosed of all right, title, interest, estate, claim, lien and equity of redemption of, in and to the premises sold as aforesaid and every part thereof, with the appurtenances. The following is a description of said premises : ^Insert description of premises by metes and bounds.] XI. Demand upon Owner for Terms of Contract. [Laws 1885, chap. 343, § 3, page 43 ante.} To , owner of the premises situated [insert description stiifflcient for identification]. You are hereby notified that I have entered, as sub-contractor, upon the performance of a contract with the contractor, for the furnishing of materials [or, labor] of the following nature [state generally the nature of the materials or labor to be supplied] ; that FORMS. 131 the same is to enter into the construction of the building upon said premises, now in process of erection by said contractor, and that I am now furnishing the same therefor; and I HEEBBY DEMAKD Of you the terms of the contract or agreement by which said building is being erected; and the amount due and unpaid to said contractor under and by virtue of your agreement with him. This demand is made upon you in accordance with the pro- visions of section three of chapter three hundred and forty-two of the laws of eighteen hundred and eighty-five, of this State ; and I shall hold you responsible for all loss that I may be subjected to on account of your neglect or refusal to comply herewith. New York City, , 1890. Suh-contr actor. xri. Affidavit to obtain Continuance of Lien. COURT OF COMMON PLEAS, CITY AND COUNTY OF NEW YORK. Chaeles Kendal , Laws 1885, cMf. 343, § 6. See ^ pages 57-60 ante. Oelando Ceomwell, et al. , City and County of Nevs^ York, ss. : Chaeles Kendal, being duly sworn, says : I. That prior to the first day of October, 1890, there were fur- nished by me the materials more particularly set forth in the annexed 132 FOEMS. notice of claim, which I hereby make a part of my affidavit; and said materials were furnished for and used in the construction of the building therein mentioned. II. That on the said first day of October, and within ninety days after the furnishing of the last item of said materials, I caused to be filed in the office of the Clerk of the city and county of New York a notice of lien against the owner of said premises and the contractor for the erection of said building, to whom the materials were furnished. III. That the names of the owner and contractor are, respec- tively, 0. C. and C. N., and that a copy of the notice filed as aforesaid is annexed hereto. IV. That by the terms of the contract between said owner and contractor, the final payment is not yet due from the former to the latter, and the same will not fall due until November first of the present year, and that by the written agreement existing be- tween this claimant and said contractor the payment for the materials furnished as aforesaid is not due until said last date. V. That affiant's lien expires on the first day of October of the present year, and by reason of the premises the proceedings for the foreclosure thereof cannot be commenced before November 1, 1890. Dated New York, September 30, 1890. Charles Kendal. Sworn to this 30th day of Sep- ) tember, 1890, before me, ) J. J. T., Notary Public, FORMS. 133 XIII. Ordsr contintiing Lien. At a Special Term of the Court of Common Pleas for the City and CoviBty of New York, held at the Court House'in said city on the 30th day of September, 1890. Present, Hon. Joseph F. Daly, Chief Judge. Charles Kendal I Laws 1885, chap. 342, § 6. See ^' j pages 57-60 ante. Orlando Cromwell, et al. J On the affidavit of C. K., sworn to and filed this day, and on motion of E. & P., his attorneys : It is ordered, That the lien acquired by said Charles Kendal by his notice of lien filed October 1st, 1890, upon the following premises [description in fwtice], of which 0. C. is alleged to be owner, and C. N. con- tractor, for the erection of a building on said premises, be and the same hereby is continued agreeably to section six of chapter 342 of the Laws of 1885 of the State of New York. And the Clerk of the city and county of New York is hereby directed to make a new docket of the lien continued hereby. XIV. Bond to Discharge Lien. [Laws 1885, chap. 342, § 24, pages 83-86 ante.] Know all men by these Presents, that we, 0. C, as principal, residing at No. in the city of ; and , residing 134 FORMS. at No. in said city, and residing at , as sureties, are held and firmly bound unto Hon. Leonard -A. Giegerich, Clerk of the city and county of New York, in the sum of dollars; to which payment, well and truly to be made, we bind ourselves,' our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , one thousand eight hundred and ninety. Whereas, one Charles Kendal filed with the clerk of the County of New York, on the day of October, 1890, a notice of lien agreeably to the provisions of chapter 342 of the Laws of 1885 of the State of New York, wherein he claimed a lien to the amount of dollars for materials fui'nished by him for the erection of a building upon the following premises [description as in notice of Ken]; and the said 0. C. was named as tlie owner therein and one C. N. as the contractor for the erection of said dwelling. Now, the condition of this obligation is such that if the said 0. C. or his legal representatives shall well and truly pay any Judg- ment that may be rendered 'against said property in any proceeding to enforce the aforesaid lien, then this obligation shall be void, other- wise to remain in full force and virtue. (L. S.) (L. S.) (L. S.) Signed, sealed and delivered ) in presence of f STATE OF NEW YORK, City and Couxtt op New York, ss.: One of the sureties on the foregoing bond, being duly sworn, says, that he is a resident and freeholder within this State, and is worth double the amount of the foregoing bond, over all his debts and liabilities, and exclusive of property . exempt by law from execution. Sworn to before me, this ) first day of October, 1890. ) Notary Public, [Similar justification for other surett/.] p FOKMS, 135 City and County of New York, ss. : On this first day of October, 1890, before me personally ap- peared the within-named , known to me to be the individuals described in and who executed the within bond, and severally ac- knowledged, each for himself, that he executed the same. Notary Public. I hereby approve the within bond, and of the sufficiency of the sureties therein. , Judge. XV. Affidavit for Deposit to Discharge Lien prior to Commencemaut of Foreclosure Froceediugs. [The County Clerk will not receive moneys to be deposited with him to discharge lien, unless the owner or contractor shall file with said Clerk an affidavit describing the lien and premises and setting forth that no action or proceeding has been commenced to fore- close the same. The following form will be found convenient.] STATE OF NEW YOEK, County of New Yoek, ss,: Orlando Cromwell, being duly sworn, says, that he is the [oioner or contractor!] mentioned in a certain mechanic's lien, filed in the office of the Clerk of the city and county of New York, on the day of , 1890, by as claimant against as owner and- against as contractor, and against property situated as follows : [^Here describe the property] for the sum of $2,000. Deponent further says that no proceedings have been com- menced to foreclose said lien. " Sworn to before me, this ) day of , 1890. j 136 FORMS. XVI. Certificate to Release Deposit, where Lien is Satisfied before Foreclosure Proceedings. [The County Clerk will require a certificate duly acknowledged or an affidavit showing that the lien has been satisfied, before he will repay moneys deposited with him to secure such lien. The following form will be found convenient.] STATE OF NEW YOEK, County of New York, ss.: I, Orlando Cromwell, do hereby certify that I am one of the [own- ers or contractors] mentioned in a certain mechanic's lien filed in the office of the Clerk of the city and county of New York on the day of , 189 , by as claimants against as owner and against as contractor and against property situated as follows: [Here describe property/] for the sum of $3,000, and that on the day of , 189 , I de- posited the sum of $2,000 and accrued interest, to discharge the said lien, which said sum I request be paid to [owner, lienor, Or at- torney, as circumstances warranf] on presentation of satisfaction of said lien. Oelando Cromwell. STATE OP NEW" YOTIK, County of New York, ss. : On this day of , 1890, before me oame Orlando Crom- well, to me known and known to me to be the individual described in, and who executed the foregoing instrument, and acknowledged that he executed the same. Hugh Scribe, mtary Public, N. Y. Co. XVII. Discharge of Lien. To THE Clerk of the County of , and to whom IT MAY concern: Please take notice that I, Charles Kendal [the claimant or Ids successor in interest], FORMS. 137 Do hereby certify, that a mechanic's lien, filed in the office of the Clerk of the county of the day of , in the year eighteen hundred and ninety, at o'clock in the noon, for 13,000, in favor of , claimant, against the following described property [here describe property], and known as No. Amsterdam Avenue, in the city of New York, owner contractor, is satisfied, and may be discharged. Chaeles Kendal. In presence of STATE OF NEW YOEK, County of , ss. : On the day of December, in the year one thousand eight hundred and ninety, before me personally came Charles Kendal, to me known, and known to me to be the individual described in and who executed the foregoing instrument, and duly acknowledged that he executed the same. XVIII. Order Discharging Lien on Bond. At a Special Term, &c. Charles Kendal V. . Laws 1885, chap. 343, § 34, sub-div. 5, page 84 anie. Orlando Oeomwell, et al. j Upon the approval and filing of a bond executed in accordance with section 34 of chapter 343 of the Laws of 1885 of the State of New York, whereby the obligors therein have bound themselves to the payment of any judgment that may be rendered, in proceed- ings to foreclose a lien filed by said Charles Kendal on the day of , 1890, against the following property [description as in lien notice], in which notice 0. C. is named as owner of said premises, and C. N. as contractor for the erection of a building thereon, and on motion of G. B. G., attorney for said owner- 10 138 FOEMS. It is okdeked. That the lien aforesaid be, and the same hereby is, discharged; and the County Clerk is hereby directed to cancel and discharge the same of record, and to make upon the lien docket and upon all indices the appropriate entry thereof. XIX. MUNICIPAL CONTRACTS. Notice of Claim. [Laws 1878, chap. 315, § 1, Consolidation Act, § 1824; see ante pages 90, 91.J To the New Groton Aqueduct Commissioners of the City of New York, and Hon. Theodore W. Myers, Comptroller of the City of New York: You and each of you will please take notice that I,' Pierre De Marco, residing at Yonkers, Westchester County, New York, have a claim against Lewis & Clark, contractors, of the city of New York, and a lien upon the moneys now due and to become due under the contract between said contractors and the Mayor, Aldermen and Commonalty of the city of New York, for Sec- tion Bight of the New Croton Aqueduct, bearing date the 18th day of December, 1884. The said claim arises on the following facts : On or about the 2d day of August, 1889, the said contractors, by Lewis & Clark, employed this claimant to furnish the materials mentioned in the bill of particulars hereto annexed, marked Exhibit A, and agreed to pay therefor the several prices in said bill mentioned and specified, and set opposite the same respectively, and to pay the same upon delivery of the said materials. That said materials have been actually furnished to the said contractors, and were actually used in the execution and comple- tion of the said contract with the said Mayor, Aldermen^ and Commonalty. F0BM8. 139 That the whole work to be performed by said contractors Lewis & Clark and Kosebud & Hay has not been completed or accepted by the said city. [If the work has been so completed, allege that thirty days have not elapsed since the whole work to he performed by said con- tractors Leijois & Clark, has been comijleted or accepted.^ And the claimant further alleges that there is now due to him, on the 25th day of December, 1889, for such materials under the said agreement with said contractors, the sum of two thousand dollars, after deducting all just credits and offsets, and that the same is a lien upon the moneys now due and to become due as aforesaid, under said contract between said contractors and the said Mayor, Aldermen and Commonalty. Dated New York, December 26, 1889. PlEBKE De MAKCO. (l. S.) Signed and sealed in ) presence of • j Felix Malnati. BILL OF PARTICULAKS, EXHIBIT A. Yoi^KEES, N. ¥., Oct. 12, 1889. Mess. Lewis & Clark To Pierre De Marco, Dr. To 395 loads sand at 85 cts., for month of Aug $335 75 " 348 " " " Sept 295 80 " 606 " " " Oct 515 10 " 187 « " " Nov 158 95 For services excavating, as per agreement 600 00 For pasturing seven mules 94 40 $2,000 00 0. K, Oct. 16, 1889. L. &C. O. 140 FORMS. STATE OF NEW YOEK, County of Westchbstee, ss. : PiEKEE De Maeco^ being duly sworiij says, that he is the claimant mentioned in the foregoing claim, and that the state- ments therein contained are true to his own knowledge. PiBEEE De Maeco. Sworn to before me, this 26th ) , day of December, 1889, f Hugh Sceibe, Notary Public, W. C. Co. XX. Complaint in Action to Foreclose Lien upon Munic- ipal Contract. SUPEEME COURT, new yoke county. Pieeee Db Marco against Laws 1878, chap. 315, The Mayor, Aldbemen and Common- \ Consolidation Act, ALTY of the City of New York, §§ 1824-1838. James Lewis, William Clark, Richard Rosebud, Evandbr Hay, Roland Park, and Edward Gray. The plaintiff comjJlains and alleges : I. Upon information and belief, that heretofore and at the times hereinafter mentioned, the defendant, the ]i[ayor. Alder- men and Commonalty of the city of New York, was and now is a domestic corporation, duly existing under 'and by virtue of the laws of the State of New York. FOBMS. 141 II. Upon information and belief, that heretofore and at the times hereinafter mentioned, the defendants James Lewis and William Clark were, and still are, copartners carrying on busi- ness under the firm name and style of Lewis & Clark. III. Upon information and belief, that heretofore, and at the times hereinafter mentioned, the defendants Eichard Rosebud and Evander Hay were, and still are, copartners, carrying on business under the firm name and style of Eosebud & Hay. IV. Upon information and belief,' plaintiff further alleges that prior to the times hereinafter mentioned the defendants James Lewis and William Clark were copartners as aforesaid, carrying on business in the city and county of New York and in the county of Westchester and elsewhere, under the firm name of Lewis & Clark, and that as such copartners on or about the 18th day of December, 1884, they made a contract with the aqueduct commissioners acting for the city of New York, where- by the said defendants Lewis & Clark agreed to construct a portion of a new aqueduct or water conduit from some point on the Croton Eiver or Croton Lake to some point in the city of New York, such portion being known as Section Eight, and to construct one or more dams to retain such water, and to con- struct such sluices, culverts, canals, pumping works, bridges, tun- nels, blow-offs, ventilating shafts and other appurtenances as might be necessary to the proper construction, maintenance or operation of such portion of said aqueduct known as Section Eight, and of such dams and reservoirs ; on the lines shown upon the maps in the office of the Aqueduct Commissioners for the prices mentioned in said contract. That said contract was executed in triplicate by the said con- tractors and the said Aqueduct Commissioners, and that one of said originals was delivered to the said contractors, and the other two filed, one in the finance department of the city of New York, and the other with the said Aqueduct Commissioners. And for a fuller description of said contract reference is hereby made to the original contracts so filed as aforesaid. That thereafter the said commissioners or a majority of them certified in writing that the acceptance of said contract would in their judgment best secure the public interest and the efficient 142 POKMS. performance of the work therein mentioned, and the said contract was duly accepted for and on behalf of the defendant, the Mayor, Aldermen and Commonalty of the city of New York. V. Plaintiff further alleges, upon information and belief, that thereafter the said contractors, the defendants Lewis & Clark, entered upon the performance of said contract, and that at the time of the filing of the notice of claim and lien by the plaintiff, as hereinafter set forth, said contractors had performed part of the conditions of said contract on their part to be per- formed, and so far completed the same as to become entitled to a payment on account of said contract, and that there was then moneys in the control of the said defendant, the Mayor, Alder- men and Commonalty of the city of New York, due and to grow due under said contract far in excess of the plaintiff's claim herein. ■ VI. That at Nepperhan, Westchester County, New York, be- tween and including the 1st day of September, 1889, and the 1st day of February, 1890, the above-named plaintiff sold, de- livered and furnished to the above-named defendants Lewis & Clark [and Kosebud & HayJ at their request, goods, wares, mer- chandise and materials at the price and of the value of two thousand dollars, no part or portion of which has been paid, although payment thereof has been demanded, and the said sum of $2,000 is now justly due and owing to plaintiff from said defendants. That said goods, wares, merchandise and materials were fur- nished in conformity with the terms of and towards the per- formance or completion of the aforesaid contract, between the defendants Lewis & Clark, and the Mayor, Aldermen and Com- monalty of the city of New York, or as called for and required by the defendants the Mayor, Aldermen and Commonalty, the Aqueduct Commissioners and the Engineer in-charge, in connec- tion with the performance and completion of the same, and were actually used in the execution and completion thereof. VII. That in pursuance of and in conformity with the pro- visions of the Act of the Legislature of the State of New York, entitled " An Act to secure the payment of laborers, mechanics. FOBMS. 143 "traders, merchants, and persons furnishing materials toward the " performance of any public work in the cities of the State of "New York," passed May 22, 1878, which said act is also em- braced and contained in chapter 410 of the Laws of 1882, entitled " An Act to consolidate into one act, and to declare the "special and local laws affecting public interests in the city of " New York," known and designated " The Consolidation Act," §§ 1824-1838, and the acts amendatory thereof and supplemental thereto, this plaintiff, on or about the 14th day of February, 1890, filed with the Comptroller of the city of New York (being the financial officer of said city), and with the Aqueduct Commis- sioners of said city (being the head of the department or bureau having charge of the work under the said contract between the said defendants Lewis & Clark and the said corporation), a no- tice in writing stating the residence of this plaintiff as such claimant, and verified by his oath, stating that he claimed a lien upon the moneys due, and to grow due, to the said defendants Lewis & Clark under said contract with the said corporation, for the said sum of $2,000 and interest, being the balance due him from said defendants Lewis & Clark for said labor and materials, so furnished by him as aforesaid upon said contract with said corporation, and that said sum and interest thereon, as aforesaid, was justly due and owing to him, after deducting all just credits and offsets, and that such notice contained the names of said de- fendants James Lewis and William Clark [and their agents and superintendents, Eichard Eosebud and Evander Hay] as the per- sons by whom he was employed, and also a statement of the terms, time given, and conditions of their said contract with said defend- ants Lewis & Clark, and also that the said materials so furnished and labor performed were actually used and performed in the exe- cution and completion of said contract with said corporation. That at the time of filing said notice with the said Comptrol- ler of the city of New York, and with the said Aqueduct Com- missioners, thirty days had not elapsed since the completion or acceptance by said corporation of the said work under the said contract, and that said notice contained all things necessary and requisite under the provisions of "the acts aforesaid, to constitute a good and valid lien upon the said moneys under the control of said corporation, due and to grow due to said Lewis & Clark un- der said contract with said corporation, to the extent of the amount therein claimed, and the interest thereon as aforesaid. 144 FORMS. VIII. Plaintiff further alleges that neither the said lien nor the claim on which the same is founded has been waived, satisfied or discharged, and that no other proceedings at law or in equity have been commenced for the foreclosure of said lien or the re- covery of the amount due plaintiff as aforesaid. IX. On information and belief that the said contract between Lewis & Clark and said corporation contained a covenant in words and terms as follows : " And it is further agreed by the party of the second part " that said party will furnish the said Aqueduct Commissioners " with satisfactory evidence that all persons who have done work " or furnished materials under this agreement and who may have " given written notice to said Commissioners before, or within " ten days after the final completion and acceptance of the whole " work under this contract that any balance for such work or " materials is due and unpaid, have been fully paid or satisfac- " torily secured ; and in case such evidence is not furnished as " aforesaid, such amount as may be necessary to meet the claims " of the persons aforesaid may be retained from the moneys due " said party of the second part under this agreement, until the "liabilities aforesaid shall be fully discharged, or such notice " withdrawn." And on information and belief this plaintiff alleges that in pursuance of said covenant and said act the said corporation is retaining a sufficient amount of money from the moneys due and to grow due under said contract to pay and discharge the claim of this plaintiff and interest and costs. X. That the defendants, Eichard Eosebud, Evander Hay, Eoland Park and Edward Gray, have, or claim to have, some lien or interest in or upon said funds due under said contract between Lewis & Clark and said corporation, but plaintiff avers upon information and belief that the said liens, claims or inter- est, if any be valid, are subsequent to the lien of this plaintiff. Wheeefore, plaintiff prays that it may be adjudged and decreed Fir$t, That plaintiff's claim is a valid lien upon the funds now due and to grow due under the said contract of the said Lewis & Clark, and the said The Mayor, Aldermen and Com- POBMS. 145 monalty of the city of New York, prior to all other liens, claims, interests and demands thereon. Second, That the said The Mayor, Aldermen and Commonalty of the city of New York pay oyer to this plaintifE, out of said funds due and to grow due under the said contract, the amount adjudged herein to be due to this plaintiff from the said defend- ants Lewis & Clark, together with the interest thereon and the costs of this action, and that this plaintiff hare judgment against the said The Mayor, Aldermen and Commonalty of the city of New York therefor. Third, That plaintiff have personal judgment against the defendants Lewis & Clark for the amount of his said lien and interest and costs. Fourth, That plaintiff have such other or further relief as to this court may seem just and proper in the premises. James Pitzjames, Plaintiff's Attorney, Temple Court, N. Y. [Add usual verification.'] XXI. Municipal Contract. Lis Pendens. [Chap. 315, Laws 1878, § 4, Consolidation Act, § 1827; see ante page 93.] SUPREME COURT. New York County. Pierre Db Marco against The Mayor, Aldermen and Commonalty of the City Notice of Lis Pendens must be filed within ninety days from OS New York, Jambs Lewis, j the filing of notice of lien. William Clark, Richard | Rosebud, Edward Hay, | Roland Park and Edward | Gray. J Sm: Notice is hereby given that an action has been commenced, and is now pending in this court by the above named plaintiff 146 FORMS. against the aboTe named defendants for the foreclosure of a mechanic's lien, of which duplicates were filed with the Aqueduct Commissioners of the city of New York, and in the office of the Comptroller of the city of New York, on the 26th day of December, 1890, by the plaintiff, for the sum of $3,000, and interest, under and pursuant to an Act of the Legislature of the State of New York, passed May 23, 1878, entitled, " An Act to secure the pay- " ment of laborers, merchants, traders and persons furnishing ma- " terials toward the performance of any public work in the cities " of the State of New York," and the acts amendatory thereof and supplementary thereto (which act also is embraced in the New York Consolidation Act, §§ 1834-1838). That the property affected by said lien is the funds or money now due or to grow due to the firm of Lewis & Clark, or their assigns, under a contract dated December 18th, 1884, made be- tween said Lewis & Clark, and the Mayor, Aldermen and Com- monalty of the city of New York, for the construction of Section Eight of the new Croton Aqueduct. Dated New York, December 37, 1890. Edwaed Coke, Plfls. Atty. To Hon. Theodoeb W. Meyer, Comptroller of the city of New York. XXII. Notice to Commence Action. [Laws 1885, chap. 343, § 24, sub-div. 5, ante page 84.] Sir: Please take notice that you are hereby required to commence an action to enforce the alleged claim for $3,000 and interest, referred to in your notice of claim or lien, heretofore filed by you in the office of the Clerk of the city and county of New York on the 1st day of December, 1890, against the premises described in said notice. No. 8 Amsterdam Avenue, in the city of New York, within thirty days from the time of the service of this notice upon you, or show cause at the Special Term of the FOBMS. 147 Supreme Court, to be held at Chambers, at the County Court House in the city of New York, on the 12th day of January, 1891, at 11 o'clock in the forenoon of that day, or as soon thereafter as coun- sel can be heard, why an order should not be made directing that the notice of lien filed by you on said 1st day of December, 1890, as aforesaid, should not be vacated and cancelled of record. Dated New York, December 5, 1890. Yours, &c., Henky HAWTHOEir, Owner. To Haevey Duff, Claimant. DISTRICT COURT FORMS. XXIII. Summons. State of New Yoek, City and Ooun'ty op New Yoek, ss. DISTEICT OOUET IN THE CITY OF NEW YOEK For the Eighth Judicial District. C. N. plaintiff, against )■ Summons. 0. W. defendant. To the defendant above-named : You ARE HEREBY SUMMONED, and required to appear in this action, before Frederick Gr. Gedney, Esquire, Justice of the Dis- trict Court in the city of New York for the Eighth Judicial District, in the Court, at the Court Eoom thereof, No. 200 West 22d street, in the city of New York, on the day of , 18 , at half-past nine o'clock in the forenoon [the return day should ie not less than twelve nor more than twenty days\ to answer the complaint of the plaintiff in this action, who will take judgment against you for the sum of dollars, with interest from the day of , one thousand eight hundred and eighty- , together with the costs of this action, if you then fail to appear and answer. Dated New York, , 18 . , Clerk. FOBMS. 149 XXIV. Complaint in District Court. Follow the preceding forms, omitting the allegation as to persons who have filed liens against the property, and who have subsequent liens or claims by judgment, mortgage or convey- ance. XXV. AfG.davit to obtain Order of Publication. DISTEIOT OOUET IN THE CITY OF NEW YOEK, For the Eighth Judicial District. 0. ]sr. Affidavit for order of publica- tion. against 0. W. City and County of New York, ss..\ , being duly sworn, says : I. That he is attorney for the plaintifE herein. II. That this is an action to enforce a mechanic's lien against certain premises situated in the Sixteenth Ward of the city of New York, and more particularly described in the complaint, on file in this court, of which 0. W., the defendant, is owner, and whose last place of residence was No. street, in the city of New York. III. That the summons herein was issued on the day of , 18 , returnable twenty days thereafter, and was on the day of its issuing delivered to James Boylan, marshal, for service. 160 FOEMS. IV. That said summons has||been returned by said officer, with a certificate thereon that he is unable to find the defendant, though he has made proper and diligent efEort so to do. V. That deponent is informed and believes that defendant, at the date of the issuing of said summons was, and stUl is, absent from the State, and that personal service of said summons cannot be had; the reason of deponent's belief is as follows: [State the facts upon which belief is based.] And deponent prays that an order be made for a service of the summons herein agreeably to the provisions of the statute. [Signed.] Sworn to before me, this day of , 18 notary Public. XXVL Order of Publication. DISTEICT COURT IN THE CITY OF NEW YOEK Foe the Eighth Judicial Disteict. C. N. against 0. W. Order of Publication. It appearing from the return of the ofiBcer to which the sum- mons herein was entrusted, and from the affidavit of the plaint- iff's attorney on file, that said summons cannot be served per- sonally on the defendant by reason of his absence from this State, F0BM8. • 151 It Is hereby ordered. That service of the summons in this case be made on 0. W., the defendant, by leaving a copy of such summons at the last place of residence of said 0. W., and it is further ordered, that a copy of said summons be published three weeks in succession in the New York Law Journal, a newspaper published in the city of New York. Dated New York, , 18 . , Judge. XXVII. Form for Transcript from Justice's Court to Discharge Xiieu. [Laws 1885, chap. 343, § 16, ante page 77.] [Section 16, of the Laws of 1 885, chap. 342, provides, that the person authorized to furnish transcripts in courts not of record, shall furnish same to the successful party, to be filed with the Clerk of the county with whoni the notice of lien is filed. Where the judgment is against the claimant the County Clerk shall enter the word " discharged " under the last head in his lien docket. In such case the Clerk will require a certificate endorsed upon said transcript showing that the action in which the judgment was obtained was brought to foreclose a mechanic's lien, names of claimant, &c. The following form will be found convenient : ] Action to foreclose mechanic's lien for $89.40, filed in the County Clerk's office December 10, 1890, by Bertha M. Sanford and John M. Grasper against John Standfast, premises 50x100, on west side of Columbus Avenue, 50 feet North of 87th Street in the city of New York. John Bird, Clerk. INDEX. ABANDONMENT of contract, recovery for materials left on premises, 33. when defeats rights of sub-contractor, 37. ABATEMENT, none in foreclosure proceedings under Act of 1885, 11. ACCEPTANCE of order, when deemed a payment, 43. of credit, when constitutes a waiver, 39. See, also, " Waivbk." ACTION to enforce lien, 61. against whom prosecuted, 61. to enforce lien against municipal property where brought, 93. to recover debt, not affected by foreclosure against municipal property, 95. to enforce lien against railroad, where brought, 98. to enforce lien against oil well, 105. form of notice to commence, 147. , to foreclose liens, proceedings in, 65-73. who proper parties to, 78-80. See, also, "Pabtihs." how consolidated, 80. as to municipal property, consolidation of, 94. ACTS repealed by Act of 1885, 87, 88. as to municipal contract, when takes effect, 95. in what cases to apply, 96. ADVANCE PAYMENTS, when prohibited, 41-43. lienor alone can question, 43. AFFIDAVIT to obtain continuance of lien, form of, 131. of deposit, prior to suit, form of, 185. to obtain order of publication in district and justices' courts, 149. AGENCY, when wife may call husband to disprove, 38. AGENT of lienor, when may file lien, 13. mu&t file in name of principal, 13. when husband acts for wife, 17. of owner, consenting to labor, 37. 11 154 INDEX. AGREEMENT to convey, 18, 26. to discharge lien, 18, 37. ALLOWANCE may be granted under Act of 1 885, 71. may be granted in foreclosure suits, 76. AMENDMENT, notice of claim cannot be amended, 53. to pleadings in foreclosure, 64. of judgment in foreclosure, 70. ANSWER, allegations in, 64, 65. APPEAL will not operate as a .stay without undertaking, 66. powers of appellate court, 67. from courts not of record, 74. in actions to enforce liens against municipal property, 94. in actions against oil wells, 107. ARBITRATION, when not binding on lienor, 34. when sub-contractor not bound by, 38. ARCHITECT who prepares plans or models entitled to lien, 19. ASSIGNEE can acquire no interest prior to filing notice of lien, 13. acquires interest after lien is filed, 12, 13. of contractor, rights of, 13. may enforce lien after filing by assignor, 71. ASSIGNEE FOR BENEFIT OF CREDITORS takes property unencum- bered, when, 47. when stands in place of contractor, 14. when he takes property free from liens, 14. when he takes subject to liens filed withm thirty days, 10, 41. liens authorized within thirty days prior to, 10. ASSIGNMENT of contract, as to rights of sub-contractor, 36. equitable, as to rights of sub-contractor, 36. prior to filing notice defeats lien, 63. after filing notice is valid, 53. ASSOCIATION may acquire lien, 15. ATTACHMENTS, priorities as to, 56. BILL OF ITEMS may be annexed to notice, 50. BILL OF PARTICULARS, form of annexed to notice of claim, 139. BOARDING-HOUSE KEEPER, lien of, reference to statute, 109. BOAT, .attached to wharf, lieu for, 33. BOILER, lien authorized for, 31. BONA FIDES of conveyance, may be tested in foreclosure, 47, 66. BOND to discharge lien, 84, 85. owner need not join in, 84. indemnity, liability of sureties, 85. must cover entire lien, 86. discharging lien, form of, 133. raDEX. 155 BBBWINQ APPARATUS, lien authorized for, 21. BRIDGE, lien authorized for, 9, railroad, lien for, 100. BlJILDINGr, removal of, does not defeat lien, 40. destruction of, defeats lien, 40. BUILDING CONTRACT, provisions as to, 55. BUILDING COMMITTEE, when consent of, binds corporation, 38. BULKHEAD, lien authorized for, 9. BURDEN OP PROOF, when borne by sub-contractor, 36. in foreclosure suits, 67. CERTIFICATE for re-payment of deposit before suit, form of, 136. of discharge of lien, form of, 136, CHAIRS in theatre, liea fer, 23. CITIES, liens against municipal property in, 90. CITY OF NEW YORK, form of notice of claim against, 138. form of complaint against, 140. CLAIM of lienor, against municipal property, what to contain, 91. for lien, form of notice, 111-113. form of notice, against city, 138, CLAIMANT must establish lien, 86. COLLUSION, when need not be shown when fund assigned, 36. payments by, prohibited, 41-43, what constitutes, 43, as to payments under oil well contracts, 103. COMPLAINT, allegaiions in, 61. form of, contractor against owner, 114, to foreclose lien against city, form of, 140. in justices' and district courts, form of, 149. COMPTROLLER in New York city, notice of claim must be filed with, 91, 93. form of notice to be filed with, 138. CONSENT, knowledge implies consent, 25. acquiescence implies, 35. when not inferred under Act of 1875, 35. evidenced by the contract, 36. may be express or implied, 25-28. implied by acts and declarations, 25. standing by, and taking benefit, 25. synonymous with " permission,'' 25. implied, when owner orders materials, 26, by advancing funds, 36, 37. of agent of owner, 27, of owner, through tenant making improvements, 37, 156 INDEX. GONSB^T— continued. of married woman by her husband, 37. of corporation through building committee, 38. how pleaded, 38, 63. capacity to confer, 38. must be alleged and proven, 50. CONSOLIDATION of actions, provisions as to, 80. of actions as to liens against municipal property, 94. CONSOLIDATION ACT, portions of, repealed by Act of 1885, 88. provisions of, as to liens against municipal property, 91-96. form of notice of lien under, 138. form of complaint under, 140. form oi lis pendens under, 146. CONSTRUCTION OF STATUTE, statute must be construed liberally, 11. CONTINUANCE of lien by order, 60. of lien against oil wells, 107. of lien, form of affidavit for, 130. form of order for, 183. CONTRACT made prior to enactment of lien law, may be enforced subsequently, 33. when evidence of consent, 36. ' of married woman by husband, 37. performance and waiver, 38-84. must be definite, 39. postscript, when forms part of, 39. within statute of frauds, 39. illegal, cannot be enforced, 39. of infant, when enforceable, 39. of married woman, 17, 39. substantial performance of, 80. excuse for non-performance of, 80. allowance for work not performed under, 30. waiver of performance of, 31. waiver of, from various causes, 31. after abandonment of, recovery for materials left on premi- ses, 33. forfeiture under, failure to complete, 33. money due under, constitutes lienor's fund, 33. what constitutes contract with owner, 88. clause in prohibiting sub-letting, 37. terms of, may be demanded of owner, 43. provisions as to building contract, 55, 56. how pleaded, 63. INDEX. 157 CONTH^CT— continued. meaning of term under municipal contract, 95. with ward trustees, deemed valid, as against city, 96. demand for terms of, form 130. CONTRACTpR, assignee of, rights of, 13, 14. receiver of, in supplementary rights of, 14. who subsequently acquires title, 34. notice may be filed after death of, 54. acquiring fee to land, 57. form of complaint of, against owner, 114. CORPORATION, when bound by act of building committee, 38. See, also, " Municipaij PBOpaBTY." COSTS, as against executor, 70. may be avoided by owner by discharging lien, 70. out of the fiind, 71. under prior laws, and Act of 1885, 71. awarded as in civil actions, 74, 75. how owner may protect himself as to, 75. out of the fund, 75. in suits begun under prior laws, 75. in actions to foreclose lien filed prior to Act of 1885, 89. in actions to enforce liens against municipal property discre- tionary, 95. in action to enforce lien against oil well, 105. See, also, "Extra Allowance." COUNTERCLAIM, how pleaded, 65. what may be set up as, 65. COUNTERS, when lien for not authorized, 23, COURTS NOT OP EECOED, proceedings in, to.enforce lien, 73, 83. CUMULATIVE, remedy under lien law is, 12. DAMAGES, lien for not' authorized, 20. when assessed by default, 30. liquidated, in contract, not recoverable by lienor, 38. DATE when debt accrued should appear in notice, 50. DAY'S WORK, eight hours to constitute, under municipal and State contracts, 108. DEATH of contractor, notice may be filed after, 54. DEBT constitutes foundation of every lien, 38. cancellation of, extinguishes lien, 36. for items not embraced in lien not allowed, 40. when accrued, should appear in notice, 50. action for may be enforced, notwithstanding lien against munic- ipal property, 95. 158 INDEX. DEFEISrSES, what may be set ap in foreclosure suits, 64^ 65. DEFICIENOY, judgment tor, 73, 83. DEFICIENCY JUDGMENT, provisions as to, 83. DEFINITION of term sub-contractor, 81. See, also, "Words and Phbases.'' DEMAND upon owner for terms of contract, 43. upon owner for terms of contract, form of, 130. DEPOSIT, amount of, to be fixed by the court, 86. when lien discharged by, lis pendens not necessary, 60. can be reached only in action to foreclose, 61. of money, after expiration of lien, 86. to discharge lien against oil well, 10& prior to suit, form of aflSdavit for, 135. form, of certificate for repayment of, before suit, 136, DESCRIPTION, how pleaded, 61. DESIGN OF THE STATUTE, to give security to lienor, 11. DISBURSEMENTS, allowed in foreclosure suits, 74. DISCHARGE of lien by deposit, when lis pendms not necessary, 60. of lien, form of judgment after, 68. mode of in lien cases, 83, 84. of lien must be according to the statute, 85. of lien against municipal property,. &5. of liens against railroad property, 99. of liens against oil well property, 108, of lien, form of bond, 133. of lien, form of, 136. form of endorsement on transcript from justice's court to dis- charge lien, 15. DISTRICT COURT OF NEW YORK CITY, jurisdiction c.f in Hem suits, 73, 75. pleadings in, 73. service of summons in, 73. forms of pleadings in, 148. DOWER, no lien upon inchoate right of, 34. EIGHT HOURS constitute day's work under municipal and State con- tracts, 108. ELECTRIC LIGHT FIXTURES, lien authorized for, 9. EQUITABLE ASSIGNMENT operates as an assignment of fund, pm tanto, 13. EQUITABLE OWNER, right and power to charge premises, 34. EQUITABLE TITLE, when person holding, held to be owner, 16. EQUITIES as between owner and contractor, 45. EQUITY, action to foreclose lien, when a proceeding in equity, 11. foreclosure proceedings, actions in, 65. INDEX. 159 ERRORS in notice of lien, 50, 51. ESTATE, what subject to lien, 10, 33. ESTOPPEL, when notice does not create, 51. EVIDENCE of consent by acquiescence, 35. of husband on behalf of wife to disprove agency, 38. EXECUTION against oil well property, form of, 106. in actions to enforce liens against municipal property, 94. EXECUTOR AND ADMINISTRATOR, costs against, 70. EXTRA ALLOWANCE may be granted under Act of 1885, 71, 76. EXTRA WORK, when lien may be had for, 30. FALSE STATEMENT by owner as to terms of contract, 44. in notice of lien, 50, 51. FENCES, lien authorized for, 9. FILING NOTICE, requisites of. 45, 47-55. FILING, time of, must be pleaded, 63. notice of claim against municipal property, 91. notice for school building, 93. notice for street improvement, 93. priority according to date of, against municipal property, 94. FINDINGS in foreclosure actions, 66. in referee's report, form of, 126. , FIRM NAME, how set forth in notice, 48. FISH PONDS, lien authorized for, 9. FIXTURES, lien attaches to, 31. gas, lien for, 31. FORECLOSURE, when a proceeding in, rem, 10. when a proceeding in equity, 10. FORECLOSURE ACTIONS, proceedings in, 60, 61, 65, 73. pleadings in, 61, 65. FOREIGN STATE, when no lien for materials purchased in, 23. when lien for materials purchased in, authorized, 23. FORFEITURE, of rights on failure to complete, 33. FORMS of execution agiiinst oil well property, 106. of notice of lien, 111-113. of verification of notice, 112. of pleadings, 114, et seq. of complaint, contractor against owner, 114. of complaint, sub-contractor against owner and contractor, 117. of complaint, against lessee and owner, 119. of complaint, material man against owner, 130. of complaint against municipal property, 140. of Us pendens, private property, 124. of lis pew^ens, municipal property, 144. 160 INDEX. FOWiS—continved. of order of reference, t35. of referee's report, 135. of findings, 136. of judgment on referee's report, 138. of demand for terms of contract, 130. of affidavit to obtain continuance of lien, 131. of order continuing lien, 133. of bond discharging lien, 183. of affidavit of deposit to discharge lien prior to commencement of action, 135. of discharge of lien, 136. of order discharging lien, 137. of notice of claim against city, 138. of complaint, in suit against city, 140. of bill of particulars, annexed to claim, 139. of Us pendens against city, 146. of notice to commence action, 147. of affidavit for order of publication in justices' and district courts, 149. of endorsement on transcript from justice's court, 151. of endorsement on transcript from justices' and dis.trict conrts, 150. FOUNTAINS, lien authorized for, 9. FRAUDULENT TRANSFER, must be pleaded, 64. may be litigated in foreclosure, 66. FRUIT TREES, lien for, 9. FUND, to -which lien against city attaches, 91. GAS FIXTURES, lien authorized for, 9. GRAVESTONES, liens for, reference to statute, 109. GUARDIAN, -when cannot encumber ward's property, 17. HEATING FURNACE, lien authorized for, 31. HOISTING, when lien for authorized, 19. when lien for apparatus, 33. HOMESTEAD, when subject to lien, 24. HUSBAND, when not entitled to lien on community property, 15. when agent of wife, an undisclosed principal, 17. when acts of bind his wife as owner, 37. when may be called to disprove his agency for wife, 38. HUSBAND AND WIFE, parties in foreclosure, 79. INDEX. 161 ILLEGAL STRUCTURE, when lien not authorized for, 23. INCORPORATED CITIES, liens against municipal property in, 90. INDEMNITY, liability of sureties on bond of, «5. See, also, " Bond." INFANT, when may subject property to lien, 17. when guardian of, cannot encumber property, 17. > when contract of, enforceable, 29. INJUNCTION, in foreclosure suits, 67. INTEREST, nature and extent of subject to lien, 10. JUDGMENT, form and provisions of, 68, 71. upon default, 68. when lien discharged, 68. provisions of, as to subsequent lienors, 69. as to prior lienors, 69. personal, when no lien established, 69. may be amended, 70. offer of, 70. for deficiency, 72, 83. form in courts not of record, 73, 74. personal, in lien suits, 76. personal, in absence of lien, 76. transcript of, to be furnished, 76. must provide as to priority of liens, 82. in actions to enforce liens against municipal property, 94. against oil well property, transcript, 106. form of prayer for, in complaint, 1 16, 119. on report of referee, form of, 128. form of endorsement on transcript of, from justices' and district courts, 151. of courts, not of l-ecord, to enforce lien, 72, 83. JURY, trial by, not matter of right in, 66. JUSTICES' COURTS, proceedings in, to enforce liens, 72, 83. pleadings in, 72. service of summons in, 72. action in, on lien against oil well, 105. form of pleadings in, 148. form of endorsement on transcript of judgment, 151. JUSTIFICATION of surety on bond, 134. KNOWLEDGE, implies consent, 25. LABOR, meaning of term, IS. eight hours constitute a day on State and municipal contracts, 108. ,162 INDEX. LEASE, with privilege to tenant to improve, when binds owner, 37. LEGAL TITLE, when person holding held to be owner, 16. LESSEE, form of complaint against by contractor, 119. LIABILITY, extent of, as against owner, 10. of sureties on indemnity bond, 85. of stockholders of railroad, how enforced, 99. of owner of oil well to sub-contractor, 103. LIEN, how and by whom acquired, 9, 13. for what lien allowed, 9. extent of interest covered by, 10. owner can acquire lien in his own behalf, 15. ■when husband cannot acquire on community property, 15. rights of voluntary aFsociation to acquire, 15. for preparing plans, 19. for time and skill, 19. for repairing machinery, 19. for paper hanging, 19. for painting, 19. for hoisting materials, 19. for transporting materials, 19. for cooking and ferriage excluded, 19. for varnishing, 30. for moving building, 20. articles to which lien attaches, 30, 31 . for boat attached to wharf, 33. for powder and fuses, 33. for hoisting apparatus, 33. for theatre chairs, 33. for theatre scenery, 33. not authorized for illegal structure, 23. for stoves, when not authorized, 23. for terracing and sodding, 32. , for saw mill and engine, 32. for mill stones, 33. for lightning rods, 22. for material purchased out of the State, 23. on the lot, 38. on several buildings, 33. on tenant's interest, 34. when title cured, 34. on house of foreign minister, 34. when failure to establish no bar to recovery, 3S. cannot exceed amount remaining unpaid, 33. how waived or defeated, 38. INDEX. LIES— continued. extraneous obligations must not be included in, 40. when not defeated by removal of building, 40. ■when destruction of building defeats, 40. when death of owner defeats, 40. right to, when lost, cannot be revived, 41. blanket lien on several buildings, 48. limitation and continuance of, 57. how continued by order, 60. rank and priority of, 81. on contiguous buildings, 83. enforced, where agreement was to pay in land, 83. how discharged, 83, 84. money deposit after expiration of, 86. must be established by claimant, 86. validity of liens filed prior to June 37, 1885, 89. against municipal property, who may acquire, 90. to what attaches, 90. on municipal property, how entered, 93. time within whicli must be foreclosed, 93. against municipal property, extent of, 93. against municipal property, how discharged, 95. against railroad property within the State, 97. when discharged by payments in good faith, 97. against property for oil wells, how enforced, 101, 106. by whom and how acquired, 101. against oil wall, how enforced, 105. against oil well, continuance of, 107. against oil well, priority of, 108. against oil well, discharge, 108. continuance of against oil well, 107. priority of against oil well, 108. discharge of, against oii well, 108. form of affidavit to obtain continuance of, 130. form of order for continuance of, 133. form of bond discharging, 133. form of discharge of, 186. form of order discharging, 137. of boarding house keepers, reference to statute, 109. of livery stable keepers, reference to statute, 109. on gravestones, reference to statute, 109. LIENOR, object of statute to provide security for, 11. alone can question payments, 43. may rely on terms of contract, 44. after lien filed may assign same, 71. 163 164 INDEX. LIGHTNINa RODS, Hen authorized for, 32. LIMITATION and continuance of lien, 57, 58. of lien against railroad, 98. LIS PENDENS, when to be filed, 57. failure to file, effect of, 58, 59. when must be filed, 58, 59. not necessary when lien discharged by deposit, 60. against municipal property where filed, 93. form of, against private property, 134. form of, against municipal property, 146. LIVERY STABLE KEEPER, lien of, reference to statute, 109. LOT, meaning of term, 33. MACHINERY, lien for repairing, 19, 21. MAILING notice of claim to owner of oil well, 104. MATERIALS, when not furnished for particular building, no lien for, 15. lien for transporting, 19. must be for the particular structure, 31. purchased out of the State, when no lien for, 33. purchased out of the State, when lien for authorized, 33. MATERIAL MAN, entitled to lien for materials furnished to credit of sub-contractor, 14, 15. form of notice of lien of, 113. form of complaint of against owner, 120. MARRIED WOMAN, when husband can charge separate estate of, 17. rights and liabilities of under Act of 1884, 17. may enforce contract as to her separate estate, 39. when bound by consent~of her husband, 37. when may call husband to disprove his agency, 38. See, also, "Husband and Wife." MAYOR, complaint against to foreclose lien, 140. claim against, form of, 140. form of lis pendens against, 146. MECHANICS' LIENS, general law applicable to, 9. against municipal property, 90. against railroad corporation, 97. against oil wells, 101. See, also, " Liens." MERGER, when does not destroy lien on leasehold, 17. MINISTER, house of foreign, when subject to lien, 24. MIRRORS, lien authorized for, 31. MISTAKE, in inserting improper items, 41. See, also, "Errors;" "Omissions." MONEY, deposit of, after expiration of lien, 86. INDEX. 165 MONEY DUE, constitutes fund for payment of liens, 33. after abandonment, 38. lien cannot exceed amount unpaid, 33. constitutes lienor's fund, and cannot be diverted, 35. as distinguished from money earned, 37. statement of must appear in notice, 49. MONUMENTS, liens for, reference to statute, 109. MORTGAGE, effect of accepting as security, 39. on premises may be contested by purchaser, 70. MORTGAGEE, when will be deemed owner, 17. rights and priorities of, 34. rights of in lien against oil well, 103. MUNICIPAL CONTRACT, meaning of term " contractor " under, 95. eight hours constitute legal day under, 108. form of notice of claim on, 138. form of complaint in suits on, 140. MUNICIPAL CORPORATION, right of to acquire lien, 15. MUNICIPAL PROPERTY, liens against, in incorporated cities, 90. fund to which lien attaches, 91. when liens against to be foreclosed, 93. actions to enforce liens as to, where brought, 93. parties to such actions, 93. priority of claims in, 93. priority as to successiye lions against, 94. consolidation of actions to enforce liens, as to, 94. costs in actions as to, discretionary, 95. action to recover debt, not affected by foreclosure of lien as to 95. lien against, how discharged, 95. NAME of firm, in notice, 48. of voluntary association, 48. of owner, 48. of claimants, 49. of joint contractors, 49. NATURE OP REMEDY, action to foreclose lien, a proceeding in rem, 10. NEW YORK CITY, portions of Consolidation Actjof, repealed 88. statutes applicable to, in force September 31 1883 89. form of notice of claim against. 138. form of complaint against, 140. district courts in, forms, 148. form of endorsement on transcript from justice's court in 151 NOTE, when acceptance of defeats lien, 39. ' 166 INDEX. NOTICE, contents and filing, 45. service of, upon owner, 45. voluntary association, how named in, 48. firm name in, 48. name of owner in, 48. name of claimants in, 49. sum due must appear in, 49. credits and offsets in, 49, in name of joint contractors, 49. false statements, errors and omissions in, 50, 51. name of employer in, 53. amount on each building shown in, 52. cannot be amended, 53. second notice, filing of, 53. may be filed after death of cpntractor, 54. time of filing of, 54. when time for filing cannot be extended, 54. service of, upon owner, 55. of order continuing lien, when not necessary, 60. against municipal property, what to contain, 91. when and how filed, 91, 93. how pleaded and proved, 63. against oil well property, 103. of lien, service of, on owner of oil well, 103. of lien, forms of, 111, 113. of lis pendens against private property, form of, 134. of claim upon municipal contract, form of, 138. of lis pendens against city, form of, 146. to commemce action, form of, 147. OFFER OP JUDGMENT, provisions as to, 80. must be accepted within ten days, 80. OIL WELLS, lien against, contents of notice, 103. lien against, how docketed, 102. liability of owner of, to sub-contractor, 103. collusive payment in contracts as to, 103. notice, how served on owner of, 103. liens against property, where situate, 101-106. torpedoing in, lien for, 103. lien against, how docketed, 103. OMISSIONS in notice of lien, 50, 51. ORDER of reference, form of, 125. discharging lien, fonn of, 187. of publication injustices' and district courts, form of, 150. INDEX. 167 OWNER liable only to amount of contract, 10. liable for value of labor at time of filing lien, 10. when cannot acquire lien in his own behalf, 15. meaning of term, 15, 16. definition ef, under prior statutes, 16. when holding legal title, 16. when holding equitable title, 16. when mortgagee will be regarded as, 17. until deed actually delivered, 18. who stipulates to discharge liens, 37. when husband of, binds, 37. when consent of, implied, 35-38. agent of, consenting to labor, 37. consent of, when tenant makes improvements, 37. when death of, defeats lien, 40. must furnish terms of contract, 43. penalty for making false statement in terms of contract, 44. service of notice on, 45. name of, may appear anywhere in notice, 48. service upon, object of, 55. contracting to sell, 56. should discharge lien to save costs, 70. how he may protect himself as to costs, 75. when liable for costs, 75. when need not join in bond to discharge lien, 85. when discharged by money deposit, 80. of oil well, liability of, to sub-contractor, 103. Of oil well, service of notice on, 1(:3. form of complaint, by contractor against, 114. demand on. for terms of contract, form of, 130. PAINTING, lien for, when authorized, 19. PAPER HANaiNG, lien for, when authorized, 19. P.iRTIES to foreclosure suits, 73, 80. assignee of contractor, 77. executor and administrator, 77, 78. contractor, 79. subsequent lienors, 79. husband and wife, 79. bringing in new, 80. to enforce lien under municipal contract, may adjudicate all rights in, 91. in actions to enforce liens against municipal property 93 PARTNER surviving, may execute bond,' 85. 168 INDEX. PAVING, lien authorized for, 9. PAYMENT, in specific property, 33. in advance or by collusion, 41-43. lienor alone can question, 43. when acceptance of order deemed, 43. before service of summons, 70. and offer of judgment in foreclosure suits, 80. provision to avoid donble-payment, 83. in specific property, provisions as to, 83, 83. in good faith, when defeats lien, 97. by collusion, under oil well contracts, 103, 104. PERFORMANCE, when substantial performance deemed sufficient, 30. excuse for non-performance, 30. bow pleaded, 62, 63. PERMISSION, synonymous with consent, 25. PERSONAL JUDGMENT, in lien suits, 76. in absence of lien, 76. See, also, " Judgment. " PIER, lien authorized for, 9. PLANS, lien for preparing, 19. PLEADINGS, consent bow pleaded, 38. in foreclosure actions, 61, 65. allegations in complaint, 61, 64. allegations in answer, 64, 65. as to counterclaim, 65. proof under general denial, 65. in courts not of record, 73. form of complaint, contractor against owner, 114. See, also, " Forms." POSTSCRIPT, when forms part of contract, 39. POWDER AND FUSES, lien authorized for, 33. PRIOR MORTGAGE, may be contested by purchaser, 70. PRIORITIES, rights of mortgagee, 34. when arbitration not binding, 34. of receiver in supplementary, 34. of liens, provisions as to, 55. of mortgage to secure loan over attachments, 56. as to various liens, 81. how determined. 83. must be provided for in the judgment, 83. of claims in actions as to municipal property, 94. of liens against railroads, 99. of liens against oil well property, 108. INDEX. 1^^ PROOF under general denial, 65. See, also, "Bukden of Proof." PUBLICATION of summons in courts not of record, 73. form of order for in district and justices' courts, 150. PURCHASER, takes fee subject to liens, 18. rights of, to contest prior mortgage, 70. QUANTUM MERUIT, when performance waived, recovery on quan- tum meruit, 31. RAILROAD CORPORATIONS, liens against property of, 97-100. who may acquire, 97. to what property to attach, 97. lien against entire road within the State, 97. notice of lien against, how filed, 98. evidence in lieu suits. 98. actions against, where brought, 98. limitation of liens against, 98. priority of liens against, 99. how liens against discharged, 99. personal liability of stockholders of, 99. lien against bridges of, 100. RECEIVER, rights of, as to funds due contractor, 14. in supplementary proceedings, rights of, 34. in foreclosure suits, 67. may be appointed in foreclosure against oil well, 103. REFERENCE, when proper in foreclosure, 66. to hear and determine, 66. form for order of, 135. SEM, action to foreclose lien a proceeding in rem, 10. REMEDY in lien cases a proceeding in rem, when, 10. in equity, when, 11. cumulative, 13. REPEALING CLAUSE in Act of 1885, 87, 88. in statute as to municipal contract, 95. REPORT of referee, form of, 135. REVIVAL, when right to lien lost, it cannot be revived, 41, SCENERY in theatre, lien for, 33. SCHOOL BUILDING, how notice of lien for filed, 93. SCHOOL BUILDINGS, lien for to be filed with Comptroller and Board of Education, 96. SEAL, when omission of immaterial, 86. 12 170 INDEX. SECURITY to lienor the object of the statute, 11, 13. when acceptance of defeats lien, 39. when does not defeat lien, 39. SERVICE of notice upon owner, 55. when all defendants must be served, 59. of notice on owner of oil well, 103. See, also, "Summons.'' SIDEWALKS, lien authorized for, 9. SODDING, lien authorized for, 22. SPECIFIC PERFORMANCE, when judgraeat cannot provide for, 68. distinguished from specific property, 82, 83. SPECIFIC PROPERTY, contract for payment in, 83. substituted property, 83. specific performance cannot be decreed, 83. STANDING BY AND TAKING BENEFIT implies consent, 35. STATE, eight hours constitute legal day under contracts by, 108. STATUTE must be construed liberally, 11, 87. repeal of by Act of 1885, 87, 88. list of repealed, 88. applicable to liens in New York city in force Sept. 31, 1883, 89. costs in actions to foreclose under statutes prior to Act of 1885, 89. STATUTE OF FRAUDS, as to contracts within, 29. verbal contract, when enforced, 53. STATUTE OF LIMITATIONS, as to contracts barred by, 29. STAY, on appeal, effected by filing undertaking, 66. STIPULATION, to discharge liens, effect of, 37. STOCKHOLDERS of railroad, personal liability as to, 99. STOVES, lien not authorized for, 23. STREET IMPROVEMENT, how notice of lien for filed, 93. SUB-CONTRACTOR, when lien claimed for material to, 14, 15. rights of, 85, 38. subrogation of, 35. rights to money due, 35. takes fund subject to equities, 35. rights of, to funds in owner's hands, 35. when he must bear the burden of proof, 36. when entitled to amount earned though not " due,'' 37. wheh rights of, defeated by abandonment, 37. when not bound by arbitration, 38. liability of owner of oil well as to, 103. form of complaint of, against owner, 117. SUB-LETTING, when prohibited by contract, 37. INDEX. 171 SUBROGATION, doctrine of, as applied to sub-contractor, 35. doctrine of, as between contractor and sub-contractor, 45. SUBSTANTIAL PERFORMANCE, when deemed sufficient, 30. SUCCESSIVE LIENS, as to municipal property, priority as to, 94. SUMMONS, when to be served within the year, 59. service of, by publication in courts not of record, 73. form of, it justices' and district courts, 148. SUPPLEMENTARY PROCEEDINGS, rights of receiver in, 34. SURETIES, liability of, on bond, 85. form of justification of, 134. SURVIVING PARTNER, bond may be executed by, 85. TACKING one lien on another cannot be resorted to to extend time of filing, 54. TENANT may charge his interest with lien, 18. interest of subject to lien, 34. when consent of, to improvements binds owner, 27. TERRACING, lien authorized fof, 33. THEATRE, lien for chairs in, 33. lien for scenery in, 33. TIME for filing notice, 54. runs from completion and acceptance, 54. when cannot be extended, 54. as to order of continuance, how computed, 60. within which defendants must be served, 59, 61. to begin suit, when money "due," 61 of filing notice must be pleaded, 63. within which liens against municipal property must be fore- closed, ,93. of filing priority as to municipal property, 94. TORPEDO, use of, in oil wells, lien for, 103. TRANSCRIPT of judgment, provisions as to, 77 in courts not of record, 77. of judgment against oil well property, 106. form of endorsement in justices' and district courts, 151. TREES, fruit and ornamental, lien authorized for, 9. TRIAL of issues in courts not of record, 74. TRUSTEES of ward, contract with deemed valid, 96. UNDERTAKING, must be filed to stay proceedings, pending appeal, 60. VARNISHING, lien, when authorized for, 30. 172 INDEX. VAULT, lien authorized for, 9. VERBAL CONTRACT may be enforced, when executed, 53. VERTPIOATIOlSr on notice of lien, 46, 53. on notice of lien, form of, 113. VOLUNTARY ASSOCIATION, rights ofmembers of to acquire lien, 15. how named in notice, 48. WAGrES two dollars a day for labor under State or municipal contracts, 108. WAIVER of performance, recovery on quantum meruit, 31. by arbitration, 81. by departure from plan, 31. as to time, 31. as to, in subsequent action, 81. by implication, 38. intent to waive must be clear, 40. of lien by extending credit, 39. WHARF, lien authorized for, 9. boat attached to, lien for, 33. WIFE, when husband agent for, 17, 28. WITNESS, when husband may be called as to disprove agency for wife, 38. WORDS AND PHRASES, term " owner," 15, 16. words " any labor," 18. meaning of term " lot, '' 23. consent symonymous with " permission," 35. words " liable to pay," 80. meaning of term " all excavating," 30. who deemed a " sub-contractor,'' 81. word "contractor" as used under municipal contract, 95, }1