Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUQLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wile and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS .1/,., -•; Cornell University Library KFN5229.H87 3 1924 022 801 462 Cornell University Library The original of tliis bool< 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/cu31924022801462 Mechanics' Liens/ HOW ACQUIRED AND ENFORCED. Mechanics' Liens, HOW ACQUIRED AND ENFORCED. A TREATISE Referring to and citing the latest statutes and decisions and designed for general circulation among Lawyers, Builders, Mechanics and Owners. TO WHICH IS ADDED AN Appendix of Forms, I3y JAIMCES T. HOYT, Of the New York Bar NEW YORK: P. F. McBBEBN, Law Peinter, 16 Bbekman St. 1881. Entered according to ^ct of Congress, in tlie year 1881, by JAMES T. HOTT and SAMUEL P. GEEGOET. In the office of the Librarian of Congress at Washington. / Of LATf there c^n be no less aeknowleaged, than that her seat is the bosom of God ; her voice the harmony of the 'world ; all things in heaven and earth do her homage; the yekt least; as PEELING HEB CABE ANll THE GEBATEST AS NOT EXEMPTED FEOM HEK POWEE. BISHOP HOOKEK. PREFACE. If "these acts of Parliament" pnzzle judges they; may well puzzle less learned men. If the courts have to "guess" at what the legislature meant, lawyers may be excused for guessing. In writing this work the author has, however, ' as far as possible, refrained from guessing. And it is not often necessary to discuss disputed questions, when so many are well settled. Since the work is designed .for general circula- tion among all persons interested in building and in real estate, as well as lawyers, words in com- mon use have been preferred to Latin phrases and purely legal terms. Some subjects are also more fully treated than they would have been in a work designed only for lawyers. Should it be asked why so small a work is written on so large and important a subject, it would perhaps be sufficient to say, that " to a merchant about to take ' a large order,' to a me- chanic about to secure ' a big job,' or to a lawyer VIU PREFACE. ' when a client is knocking at his door at the break of day,' or when retained at the last minute to file a lien, ' a big book is a big evil.' " But the number of subjects treated, and the , statutes and cases referred to and cited in this work, may suggest the fact, that no pains have been spared to make it as complete as possible. The general principles ' f all the present lein acts in this state are stated. The cases include all in this state and nearly all the more important cases in other states. The necessity of references by number is regretted, but it is believed that the plan adopted will not cause material inconven- ience. The number and importance of recent statutes and judicial decisions bearing on the subject of the lien laws, make necessary the pub- licatioh of a new work setting forth the law as it now is. The author trusts that this treatise may meet with approval, and help to make Mechanics' Liens a less ,unwelcome part of a lawyer's practice. JAMES T. HOYT, Times Building, New York, Nov., 1881. TABLE OF CONTENTS. PAQK Preface vii Intboduction. Deflnition of Lien. Vendors' Liens. Artisans' Liens. Me- chanics Liens purely statutory. Their general principles ■well settled. Examples. Statutes. Purpose of this ■work 1 List oi' Incokpokatbd Cities in the State of New York & The Cities' Act 6 CHAPTER L PERSONS ENTITLED TO A LIEN. Scope of the Xien La-ws. Contractors. Sub-contractors. Assignees. Personal representatives. Money loaned or advanced. Agents. Persons in general employment. Partners. Corporations. Married ■women. Minors. Trustees and guardians. Waiver^and estoppel. Merger. iZ CHAPTER IL THE CONTRACT. Necessity of Contract. Implied Contracts. Date of Con- tract. Must be Legal. Must be Definite. Mistake. Fraud. Mutual Contracts. Performance. Conditions Precedent. I. Mode. H. Time. III. Completion. IV. Certificate. Extra Work. "The Sub-contractor. Assignment. Set-off and Counterclaim 24 CONTENTS. CHAPTER III. THE OWNER. PAGE Definition of Owner. Legal Owner. Mortgagees. Lessees. Persons in Possession. Building Contracts. Married "Women. Agents, Husband and Wife. General Agents. Architects. Trustees. Minors. Dower. Curtesy. Transfer of Title. Fraudulent, Transfers. Payment. Application of Payments. Burden of Proof 55 CHAPTER IV. THE LABOR AND MATERIALS. Statutory Provisions. Incidental Work and Materials. Houses. Structures. Buildings. Improvements. Fix- tures. Appurtenances. Right to Old Materials. Ma- terials must be Sold for the Building. Materials must be Used in the Building. Public Buildings. The Public Work Act. Railroads. The Railroad" Act. The Oil Well Act , 80 CHAPTER V. THE LAND. Fundamental Principles. Statutory'Provisions. The Term " Lot." Other Terms. Appurtenances. Adjoining Buildings. Separate Buildings. Loss of Building. Effect of Lien on Insurance. The Public Work Act. The Railroad Act. The Oil Well Act 106 CONTENTS. CHAPTEB VI. FILING OF THE LIEN — TIME. TASK. Necessity of Filing. Statutory Provisions. "Completion of Building." "Completion of Contract." Other Terms, Meaning of " or." Computation of Time. Other Acts. The Public Work Act. The Railroad Act The Oil "Well Act n» CHAPTER VII. FILING OF THE LIEN — THE NOTICE. Statutory Provisions. Requisite Statements, I., II., III., IV., v., VI., VIL, VIII., IX., X. The Public Work Act. The Railroad Act. The Oil Well Act. Signing. Verificatiou. Place of Piling. Serving Notice on Owner 135 CHAPTER VIII. CONTINUANCE AND DISCHAHGE OF LIEN. I. — Continuance of Lien. Statutory Provisions. Suit, When Deemed Commenced. Personal Judgment, When. Lien Continues to Judgment, When. The Lis Pendens. Continuance by Order. Computation of Time. Sev- eral Lienors. I II. — Discharge of Lien. Statutory Provisions. Discharge by Certificate. Discharge by Deposit. Discharge by Bond. Discharge by Failure to Prosecute After Notice. Discharge by Lapse of Time. 16^ Xii CONTElirTS. CHAPTER IX. 1st FOKECLOSUKE. Mode. Time. Parties. Pleadings. Trial. Motions and- Orders. Judgment. Personal Judgment. Costs. Exe- cution, Appeal 185 CHAPTER X. STATUTES AND CONSTETICTION. X— Ne-w York City Acts. II.— Buffalo City Acta. III.— State Acts. IV.— The. Kinga and Queens Act. V. — The Onondaga Act. VI. — The Rensselaer Act. VII. — The Public? Work Act. VIII.— The Railroad Act. IX. —The Oil Well Act. C,onstruction of Statutes 225 Appendix op Forms 237 liEN Cases Cited 361 Cases NOT Lien Cases Cited 280 Index 291 KOTE. All the cases and nearly all the other author- ities in this work are numbered^ and are referred to by number. This method has been devised and adopted as well for the convenience of business men, as to economize space and make it possible to refer the professional reader to all authorities, bearing directly and even indirectly on the subjects treated. The Selection, Study and Classification of over one thousand legal authorities and the very numerous references made to them throughout the work, have required very great diligence, care and labor, which the author believes cannot fail to be appreciated. All Numbeks below 687 eefee to Lien Cases Cited. All Numbers above 687 eeeer to Cases WOT Lien Cases Cited. INTRODUCTION Definition of Lien. Vendors' Liens. Artisans^ Liens. Meclianics'' Liens purely statutory. TJieir general principles well settled. Ex- amples. Statutes. Purpose of tJiis work. The word lien in law signifies a legal claim, a charge npon real or personal property for the satisfaction of some debt or duty. > Thus at common law a vendor of land has a lien upon it until the purchase price is paid, ^ and artisans and others who have bestowed labor or services upon personal property have the right to possess or retain it until their claim is paid. ^ Mechanics' liens on real property have no foundation in common law, they rest entirely upon the Statutes authorizing them.* They exist by statute in each State. The several acts are often local and transitory, but the general principles upon which the lien ' 1014, 417, 716. ^ 796, 735. Meclianics' liens are subordinate to vendors liens, and to purchase money mortgages, 471, 398, 608, 19, 500. ' 898, 957. A lawyer lias a lien upon a judgment obtained by him, for the amount of his costs and agreed compensation, 1039. * U, 443. 2 MECHAWICS' LIENS. laws proceed have been well defined by the Courts and may be said to be now substantially uniform and permanent, i The following important principles of the lien laws, for example, are well settled : 1. Any person who contributes by his labor or by furnishing materials to a building or struc- ture erected by an owner upon his. premises, is entitled to a lien upon the property for his com- pensation. ^ 2. The lien laws are constitutional. ^ ■ They do not affect the validity of contracts, but merely provide a new remedy, ■*■ or create new rights. ^ 3. So far as the statutes are remedial only and are not in derogation of the common law, but aid and advance its principles, they must be liber- ally and beneficially construed." ' 4. So far as they create new rights and are an innovation upon the common law right of . prop- erty they must be strictly construed. ' 5. In all cases, persons seeking their protection must be careful to fully comply with their pro- visions. 8 6. Under any of their provisions except in case of fraud, the owner cannot be compelled to pay any greater sum than by his conti;act he has agreed to pay. ' ' 241. » 599. » 214, 41, 263, 602. » 602, 423, 263. <■ 97, 448. = 97, 239, 294, 142. ' 97, 443, 157. 8 443, 34, 41, 157, 184. » 120, 172, 130, 604. INTKODUCTION. 3 7. Their object and effect is simply to take from the owner money actually owing by him on his contract, and apply it in payment of labor- ers and others who have contributed to the performance of the same contract, i 8. If the contractor has been fxilly paid pur- suant to the terms of his contract with the owner, the sub-contractor cannot acquire a lien. ^ 9. A sale of the property in good faith or any iona fide transfer of the owner's "right, title and interest," either by .deed or by operation of law, as upon the death of the owner, prevents the acquiring of any lien. * In the State of JSTew York the " Qities' AcV'^ is the most imjjortant; it applies to all the cities except Buffalo. The " Buffalo Act" ^ applies to that city only. The " Kings and Queens Act," ^ the " Eensselaer Act,"'' and the " Onondaga Act,"^ apply respec- tively to those counties exclusive of cities. ' 173. = 359, 658, 120, 88. Otherwise, if payment was collusively made. 282. » 58, 418, 126, . 620, 338, 564, 519, 289, 300, 412, but see 374. ^ Laws 1880, chap. 486. ^ Laws 1862, chap. 478, as amended. Laws 1870, chap. 525, Laws 1873, chap. 669. ' Laws 1865, chap. 778, same, amendments. (This act is published with Laws 1866, page 1.) ' Laws 1884, chap. 366, as amended. Laws 1866, chap. 788, and same amendments. 4 MECHANICS' LIENS. The " State Act" ^ applies to all the rest of the State. A lien is also authorized by the " Public Work Act," 2 for labor or materials furnished towards the performing of any public work in cities. By the "Railroad Act," 3 for labor performed for a railroad corporation ; and by the ' ' Oil Well Act, ' ' * for labor or materials furnished in sink- ing, drilling or completing any oil wells within the State. The purpose of the following work is to set forth briefly but as clearly as possible the general principles of the lien laws. Prominence is given to the Statutes and judi- cial decisions of New York, and special reference is made to the Cities^ Act of that State. But it is written with the hope that it will prove usdful to persons in every State, who are interested in the subject of Mechanics' Liens, whether as lawyers, owners, contractors, or persons who do work or furnish materials. ' Laws 1854, ohap. 402^ as amended, Laws 1873, chap. 489, Laws 1874, chap. 551, Laws 1875, chap. 233. ' Laws 1878, chap. 315, as amended, Laws 1881, chap. 429. ' Laws 1875, chap. 893. * Laws 1880, chap. 440. A lien js authorized by Statute lor demands against ships and Tessels, Laws 1863, chap. 483. See also History of Statutes. MST OF INOORPOEATED CITIES XN THE STATE OF NEW YORK. Albant. Auburn. BiNGHAMPTON Beookltn. Buffalo. COHOES. Elmiea. HuDsoiir. Kingston. lockpoet. Long Island City. NEWBaEGH. New Yoek. Ogdensbuegh. Oswego. Poughkeepsib. Rochester. Rome. Schenectady. Syracuse. Troy. Utioa. Wateetown. Yonkers. THE CITIES' ACT, BBLATING TO All the Cities in the State of New York, (BUFFAIiO EXCEPTED.) LAWS 1880, Chap. 486. Aw Act to secure the ^payment of mecJianics, laborers and workmen who perform, work, also persons furnishing materials toward the erection, altering or repairing huild- ings, wharves, vaults or any other struc- ture in the cities of the State of New York. Passed May 38, 1880 ; three-fif t]is being present. The People of the State of New York, repre- sented in Senate and Assembly, do enact as fol- lows : Section 1. — Any person or persons who shall hereafter, either as contractor, sub-contractor, or ir any capacitj^, under or in pursuance of, or in conformity with any contract, agreement or employment by the owner, lessee or person in possession of any land in any of the cities of the State of New York, perform any work, labor or THE CITIES' ACT. 7 services, or furnish, any materials toward the erection, altering or repairing of any house, vault, vyharf, fence or any other structure, or in grading, filling in, excavating or laying vi^alks on any lots of land in the cities of the State of New- York, shall, upon filing the notice prescribed in the second section of this act, have a lien for the price or value of such work, labor, services and materials upon such house, vault, wharf, fence, or other structure, and appurtenances, and the, lot upon which said grading or excavating is done, or walk laid, to the extent of the right, title and ipterest of the said owner, lessee or per- son in possession of said house, vault, wharf, fence or other structure, and appurtenances and the land upon which the same stand, at. the time of the filing of the notice of claim in the second section of this act specified, or the successors in interest of such owner, lessee or person so in possession taking with notice of said lien. § 2. — At any time before or within thirty days after the completion of the erection, altering or repairing of any house, vault, wharf, fence or structure, or grading, filling in, excavating, or laying walks on any lot of land in the said cities of the State of New York, the persons so per- forming such work, labor or services, or furnish- ing such materials, may file with the Clerk of the County where the land or premises are situ- ated, a notice in writing stating his or their resi- dences, the amount of the claim, from whom due. 8 • mechanics' liens. and if not due, when it will be due, the person or persons against whom the claim is made, the name of the owner, lessee, or person in posses- sion of the building (against whose interest a lien is claimed), but the failure to state the name of the true owner, lessee or person in possession shall not impair the validity of the lien ; also a brief description of the buildings or premises suf- ficient to identify the lands or premises against which the lien is claimed. The said notice of lien shall be verified by the person or persons making the claim, or his or their agent, or any other person, to the effect that the statements therein contained are true, to the best cf his or their knowledge, information and belief. Suc- cessive .liens may be filed for work, labor, ser- vices and materials done and furnished, under one contract or employment, but the filing of any such lien or liens shall not entitle the person so fil- ing the same to recover judgment for the amount of such lien or liens unless he shall be entitled to receive payment by the terms of the contract, or agreement, or employment, and in case of sub- contractors or persons doing work or furnishing materials to contractors, no judgment shall be rendered for any greater amount than the amount which shall be due from the owner to the con- tractor at the time of the filing of the lien, or which may become due afterward, or which by the terms of the contract or agreement shall be due at the time of the rendering of such judg- ^aent. THE cities' act. 9 § 3. Where an owner of lands contracts with, a builder for the sale of lots and the erection of buildings thereon, and agrees to advance moneys toward the erection of such buildings, the lien hereinbefore authorized sha,ll have priority to all advances made after the filing of said notices of lien. And the lien shall attach to the right, title and interest of the owner in said building and land to the extent of all advances which shall have become due after the filing of such lien, and shall also attach to and be a lien on the right, title and interest of the person so agreeing to purchase said land at the time of the filing of said notices of lien. § 4. The county clerk shall enter in a lien docket the name and residence of the claimant, the person against whom claimed, the amount claimed, the date of filing, and a brief description of the premises affected. He shall be entitled to receive a fee of ten cents for each lien filed. § 5. Liens shall in all cases cease after one year from date of filing unless an action shall be commenced, and a notice of lis ' pendens filed with the clerk of the county wherein the prem- ises are situated, or an order made continuing the lien for another year ; in the latter case the county clerk shall, upon filing such order, make a new docket of such lien. Successive orders and new dockets may be made in the dis- cretion of the Court. 10 mechanics' liens. § 6. The lien may be discharged as follows : 1. By filing a certificate of the claimant or his successor in interest, acknowledged ot proved in the same manner as the satisfaction of a mort- gage, stating that the lien is discharged. 2. By depositing with the county clerk, if be- fore suit is commenced, a sum of money equal to the amount claimed ; and if suit shall have been commenced, a sum equal to the amount claimed ; and such sum in addition as shall be ordered by a judge of the court in which the action shall have been commenced, as security for the costs of the action ; such deposit, after suit brought, to be made on notice or on an order to show cause directed to the plaintiff in the action or his attorney. 3. By the expiration of one year after the filing of said lien without any order being made con- : tinning the same or notice of lis pendens filed as aforesaid. § 7." The liens provided under this act shall be enforced by civil action commenced in any court of record in said city, having equitable jurisdic- tion, by any persons claimant, the original or sub-contractor, or an assignee thereof, or con- tractor against any property affected thereby, at any time within one year from the filing of such lien. Such action shall be commenced, carried on and judgment entered and enforced as pro- vided in an action to foreclose a mortgage in the THE CITIES' ACT. 11 Code of Civil Procedure, and the plaintiff shall make all other parties who have filed subsequent liens under this act, or have any prior record, claims or liens upon said premises and their ap- purtenances, defendants in such action. And the court shall determine the priority of the liens, the amounts due thereon, and the rights of the respective parties, and render judgment accord- ingly. The court may also render personal judgment against or in favor of any party to the action. Costs for or against the parties litigant shall be in the discretion of the court, n § 8. When separate actions are brought to foreclose liens against the same property, the court may, on motion, consolidate them. § 9. Appeals in actions to enforce liens, pro- vided for in this act, may be taken in the same manner and within the time, and shall be gov- erned by the same rules and. practice as prevail in actions for the foreclosure of mortgages. § 10. Buildings and property used for public purposes are especially excepted from the opera- tion or effect of this act. § 11. This act shall not apply to the city of Buffalo. § 12. This act shall take effect immediately. CHAPTER I. Persons Entitled to a liien. Scope of the Lien Laws. Contractors. Sab-con- tractors. Assignees. Personal representa- tions.. Money loaned or advanced. Agents. Persons in^general employment. Partners. Corporations. Married women. Minors. Trustees and guardians. Waiver and es- toppel. Merger, Mechanics' lien acts were originally intended for the especial protection of laborers, those who work with their hands, but their scope has been greatly extended. Material men are now in- cluded and ail persons performing labor, whether manual or professional. The contractor and sub- contractor, the lumber dealer and hardware mer- chant, the person who furnishes the paints and oils, the workman who applies them, the artist who executes a mural painting, and the architect who makes the plans and supervises the erection of a building, are alike protected. ^ ' 599. A paper-hanger may acquire a lien. 196, 411. '- A "lawyer may be an employe. 806, see 814. An overseer of farm laborers is not entitled to a lien. 665. An owner cannot ac- quire a lien on bis own land to the prt'judice of others. 10. PERSONS ENTITLED. 1& The Statutes have no extra-territorial force, and no lien can be had for materials sold and de- livered in another State, though subsequently brought by the purchaser into this State, i The contractor is the person who contracts with the owner. He is also called the main or original contractor, and the contract is called the original contract. ^ The contractor may acquire a Men, although he has sub-let the entire contract and furnished all the work or materials by others; in that case the latter would be regarded in law as his agents. * The sub-contractor is the person who contracts with the contractor or with any person, however remote from the contractor who has agreed to furnish labor and materials called for by the origi- nal contract.* The sub-contractor may acquire a lien, provided there is money due or to become due to him and to all persons standing between him and the owner, but in no case unless there is.^ He is bound by the terms of the several contracts. « The lien law merely subrogates him, to the extent of his claim, to the rights of the ' 38, see 888. ^ See 130, Public Work Act, § 14, but see 589. 3 337, 3X9. * 326. The earlier Statutes did not give a lein to those em- ployed by sub-contractors. 191, 52, 678, 89, 375, 130. ' 130, 150, 658, 88, 116, 4, 369, 75. Except in case of assign- ment by the contractor for benefit of creditors, 461, 373, 407 371. » 359, 130, 137, 150, 53, 338, 643, 579. He is subject to all equities between the owner and contractor. 433. 14 mechanics' liens. contractor, and he can, except in case of fraud, collusion or intent to evade the act, have no other or greater rights. ^ Mechanics and material-men are generally sub- contractors. They are regarded with special favor by the courts and their equities, if they do not arise out of the contract, are held to be superior to those of the contractor or owner. ^ An assignee of the lien takes all the rights of the assignor, holding the same relative position as the assignee of a mortgage or other specilio interest in real property.* An assignee of the claim, or debt, cannot ac- quire a lien. The right is personal and cannot be assigned or transferred,* but the assignor may file the lien, notwithstanding the assignment, for the benefit of the assignee, and in case of Ms neglect to do so, his agent or attorney, or the as- signee, may file it in the name of the assignor. ^ The same rule would doubtless apply to an as- signee for the benefit of creditors. « If the assignment of the claim was made for the benefit of the assignor the lien may be up- held by the assignee as agent. '' The personal representatives of a deceased per- ' 274,. 561, 88, 383. » 141. ' 543, 54, 635. See 760. So a person who pays the claim may- enforce the lien -without any actual assignment. 313. * 540, 535, 295, 386, 178.' The Statutes recognize a transfer of the claim, but only at some period subsequent to the fllmg and creation of the lien. 535, and see each act for itself. ' 253, 350. 6 See 870. ' 540 PBESONS ENTITLED. 15 son are in many respects governed by the same rules as assignees. They may file a lien for labor or materials furnished by them in case they as- sume and complete the contract, but it is doubt- tul if they can acquire a lien for labor or mate- rials furnished by the decedent. The question as yet remains unsettled in this State. ^ Money loaned or advanced can in no case be secured by filing a mechanics' lien. The security is intended and provided only for those who per- form work or furnish materials. ^ An agent cannot acquire a lien. For labor or materials procured by an agent in the name and on the credit of his principal, the latter is re- sponsible directly to those who do the work or supply the materials. The agent cannot have a lien, even though he afterwards voluntarily jiays for the labor or materials himself. ^ It may be otherwise when an agent makes the contract in his own name without disclosing his principal.^ The rule that prevents an agent from acquiring a lien applies also to those who perform labor or furnish materials, intending to rely solely upon the personal responsibility of the person dealt with. Thus workmen in the general employ of the ■ ' See 457, 635. * 210, 217, 486, 674, but a lien may, of course, be had for money paid by the contractor to his workmen and sub-con- contractors. 261! = 319. See 699, 896, 1001. ' 385. See 767, 952, 1030, 722. 16 MEOHAKICS' IIEBTS. owner or contractor, as by the month or year,* and dealers who supply materials generally, with- out reference to any particular building, are not entitled to a lien;^ strictly speaking, the credit must be given to the property, not to the person, and the labor or materials must be furnished /o/-, as well as used in, the particular building sought to be charged, * Partners may perfect a lien in the namgs of the members of the firm;* one partner cannot create the lien exclusively for himself. ^ He probably may, however, if the others, by assignment, re- linquish and give up to him all their joint inter- est in the claim, ' or if he is the surviving partner of a firm. ' Where all but one of several joint contractors have abandoned the contract and he goes on and completes it under a new arrangement with th& owner, he may file a lien in his own name there- for, and the fact that the others subsequently give him an assignment does not prove that they were interested and were necessary parties. ^ A corporation may be regarded as a person within the meaning of the Statute, and is en- titled to a lien. » > 33, 355, 579. 2 83. 2 647. * 40. ' 395. « 295, 3t3. ' 67, 655, 295. » 294, 298. See 680, 534 ' 355. Provi'ded the contract is -within the scope of its au- thority. 131. A municipal corporation cannot acquire a lien unless authorized by Statute. 379. PERSONS ENTITLED. 17 A married woman may have a lien so far as re- lates to her separate property. ^ A minor may have a lien. The defence of in- fancy is personal to him, and cannot be inter- posed by those who have received his goods or services.^ A trustee or guardian, or any person with whom or in whose name a contract is made for the benefit of another, may also acquire a lien. * Waiver. A person may waive and so lose his right to a lien. ■* If the original contract expressly provides that no mechanics' lien shall be filed against the prop- erty, the contractor is of course deemed to hstve waived his right, and neither he, nor any sub-con- tractor, can acquire a lien. ^ If the original con- tract provides that the contractor shall not un- derlet any part of the work, without the written consent of the owner, sub-contractors cannot in the absence of such consent, acquire a lien, even though the owner has recognized them by ad- vancing money to. the contractor to be paid them ' 456. ^ 997, 817. ^ 739. * 933, 993. ' 45. Otlierwise if a lien is created tlirough. default of the owner. 164. In" Missouri a sub-contractor may in such case ■acquire a lien. 171. 18 mechanics' liens. on acicount. * But a waiver under the terms of the original contract must be clearly proved. Thus it seems that the contractor cannot iile a lien if he has agreed to pay and discharge all claims for labor and materials so that there shall be no liens upon the premises, but sub-contractors may, since the owner being secured will not suf- fer loss, ^ and on the other hand the contractor may file a personal lien, though there is a stipu- lation against liens by sub-contractors or others. * A sub-contractor may enforce a lien as against the owner although he induced the owner to em"- ploy a certain contractor to build, by his verbal statements that such contractor was responsible, and that if employed, he, the sub-contractor, would be responsible that no liens would be filed; such an agreement is merely a promise to answer f or^ the debt or default of another, and is void, be- cause not in writing, and there is nothing in it that operates by way of estoppel. * Note. — The principle of an estoppel, is wliere a person makes a statement, intended to influence the conduct of another with whom he is dealing, and thereby actually leads him into a' line of conduct which must be prejudicial to his interests, unless the per- son who makes such statement or admission is denied the power to retract or deny what he has said. 1. 771, 708, 896, 583. Thus if a person is induced to purchase certain premises by the state- ments of a lienor that the lien is paid, or that he has taken other security and does not look to the land for payment, 570. See 708, 793 or if the lienor unites with the owner in conveying the property charged with a lien, such lienor is said to have » 33. 2 440, 671, 18. ' 686. * 1. See 659, 499. Compare 702, 701, 793, 735. PERSONS ENTITLEB. 19 Mechanics' liens are said to be the same in principle as vendors' liens and generally speak- ing they may be waived in the same way.^ Thus a mechanics' lien may be waived by ex- press covenant, or a waiver may be implied from the conduct of the parties. It i's well settled that the taking of a note, bond, or other mere written obligation of the debtor is not a waiver, nor is a recovery of judgment for the debt, ^ and when a person took a mortgage upon other land to se- cure the contract price and upon completion of the work, filed a mechanics' lien, foreclosed the mortgage and entered a personal judgment for deficiency, it was held that he had not waived his right to the lien, that he was entitled to pursue all the remedies he had until he realized the amount of his claim. ^ Upon the same principle, a sub-contractor who has taken the owner's note, or the note of a third person as collateral security for the payment of work may maintain an action upon the note, simultaneously with an action or proceeding to > 631. « 610, 5, 423. See 796, 773, 1019, 839, 809, 850. ' 248. But giving a receipt in full is a waiver in the absence of mistake. 877. See also 548, 83, 385. The security agreed, to be taken as payment must be actually delivered. 362. The claimant may not be entitled to interest -while a note taken as'coUateral security is running to maturity. Id. waived his lien ; he is estopped from afterwards asserting it. 3. But one may acquire a lien, although he is surety on a bond given by the contractor to the owner, which provides that the building shall be delivered to the latter, free from liens. 256. 30 MECHANICS' LIENS. enforce the lien, but there can be but one .satis- faction. ^ But a note may so far extend the time of credit as to extinguisli the lien, unless under the stat- ute an order may be had extending it, for the lien cannot be foreclosed until the note is due. ^ If the note has been negotiated it must be re- gained by the claimant and produced on the trial.* If a judgment has been obtained on the note by a third person, the claimant must gain possession of the judgment, or he must give as- surance to the debtor that he will not be liable upon it, after he satisfies the lien. * A lien may be filed although, under the contract, payment is to be made otherwise than in money, as by giving a deed, or a mortgage, or merchan- dise, or personal services, but it can be enforced only in the event of the debtor's inability or refusal to perform after demand. He is then liable to pay in money and the court determines the amount to be paid in money and renders judgment therefor.^ ' 199. But see 464, 174, So a personal action against the contractor for the debt may be pending at the same time, with the foreclosure of the lien against the owner. 61, 234. See also 380. 2 423, 5, 182, 362, 895, 729, 839. ^ 96, 839. Or he must prove that it has been lost or de- stroyed. * 610. ' 151, 308, 363, 868. One who has agreed to take in payment the notes of a third person need not do so if such person has become Insolvent, 704. PERSONS ENTITLED. 21 It will not give judgment requiring the debtor to do the act specified. ^ Taking a mortgage on the same premises to se- cure the debt is said to be a waiver for the reason that subsequent lien holders or purchasers have the right to rely upon the public records and should be protected against secret liens. ^ It may also be said to be the general rule that a person who takes a distinct obligation or ex- press security of any kind and especially that of a third person, ^ or does any act which shows an intention not to rely upon the land for payment, is presumed to have waived his lien. * But this inference of a waiver may be rebutted by proof that a waiver was not intended and that the lien was to be retained. ^ A mere promise to waive a lien, if without con- sideration, is invalid. ^ One having a lien on several contiguous build- ings may release some of them and does not thereby waive his lien on the others. '' A lien which ceases to be operative for want of enforcement is no bar to the enforcement of one subsequently filed and in no way affects it, ^ and a person who has discharged a lien upon the promise of the owner or contractor to pay certain '. 151, otherwise under Buffalo act. See Mutual contracts. ^ 631, 649, compare 797. ^385, 749. * 13, 320, 17. See 783, 897. * 988, 749. « 984. '249. 8 350. 22 MECHAKICS' LIENS. notes that have been given in payment for work done, may file a new lien in case such promise is broken. ^ Merger. The lien is sometimes extinguished by merger. Where a greater estate and a less coincide and meet in the same person, the latter, if there is no intervening estate, is said to merge and become lost in the former. ^ If the lienor purchases the property or if it de- scends to him, the lien is merged and no longer exists. 3 On the same principle, where one, bound to pay the lien and to relieve the land of its pay- ment, becomes the owner, by assignment, of the debt, the lien is thereby satisfied and paid,* and this is so even if the assignment is taken in the name of a third person. ^ Merger is in many respects similar to waiver and governed by the same rules. A person may waive the security of the lien, by ;taking in payment a higher security as a deed or a mortgage ; that is, the deM to secure which ' 246. But when a lien is once extinguished at law it cannot he revived again, 837. See 603/ 571. ^ 484, 837, 714. But a greater estate cannot merge in a lesser one, 879. ' Unless the lienor has an interest in keeping the two distinct, 135. *878. '785, 989. PERSONS ENTITLED. 23 the lien was filed, becomes thereby merged and extinguished. And in the case just mentioned where a lienor had taken the contractor's note for the amount of the claim, and had passed it away for full value, and the endorsee had recovered Judgment on it against the contractor which was still un- satisfied, it was held, that the claimant could not enforce the lien until he had title to the- judg- ment; that the mere production of the note upon the trial was not sufficient ; that, since it was merged in the judgment it was mere waste paper, as between the parties. ^ A valid agreement to give a mortgage consti- tutes an equitable lien against the property. It is a general rule, that when an equitable and legal estate meet and vest in the same ownership, the former is merged in the latter, but if the owner, both of the legal .and equitable titles, has an interest in keeping them distinct, as where there is an intervening mechanics' Ken, the equi- table title will not be merged but will take pre- cedence over the lien. ^ ' 610. ' 484, compare 801. CHAPTER 11. Tbe Contract. Necessity of Contract. Implied Contracts. Date of Contract. . Must be Legal. Must he Definite. Mistalce. Fraud. Mutual Con- tracts. Performance. Conditions. Prece- dent. I. Mode. II. Time. HI Cornple- tion. lY. Certificate. Extra Work. The Sub-Contractor. Assignment. Set-Off and Counterclaim. We must first notice, a marked difference be- ':ween the statutes, f Under both the State Act and the Oil Well Act a lien is authorized where the work is done or the materials are furnished with the consent of the owner. 2 Under the T-ings and Queens Act liens are allowed for w'oi-k or materials for houses, &c., upon lands, "by virtue of ar.y contract with the owner thereof or his agent, * * * or (with) any person permitted by tlie owner of such lands to build," ^&.G. Tlie Rensselaer Act provides for a lien in favor of any person who performs labor or fur- nishes materials in erecting, altering, or repair- ing,* &c., while by the Railroad Act any, 1 64. ■>■ 298, 474. ' 474, 63, 64. See pages 195, 241, 251, 256. Compare page 129. * Without regard, it seems, to the person upon whose credit tbe work is done or the materials furnished. 88. THE OOWTEACT 25 person who performs labor for a railroad corpo- ration is entitled to a lien. Under these statutes no contract either express or implied with the owner is necessary, i and even the silence of the owner, the absence of objections on , his part to improvements, which he knows are being made upon his premises is equivalent to his permission or consent. ^ But under the Cities' Act, the Buffalo Act, the On'qndaga Act and the Public Work Act a valid contract is essential ; it is the foundation of every lien. * A contract is in law an agree- ment ;* and employment rests upon contract. ^ The words "contract, agreement or employ- ment" in the Cities'' Act. taken together, there- fore, mean a contract express or implied. ^ It, is the settled construction of statutes in which these or similar words are used, that "no lien can be created on the interest of any person as owner of the premises except such person shall, either by himself or agent, enter into aeon- tract for doing the work either express or im- plied, * * and no one is owner * * who is not contractor also for having the work or materials expended or performed upon his land.'" ' 63, 64, 474, 540, 243, 448, 88. « 298, 660, 661, but see 105, 118. 8 455, ■ " 706. 5 846, See 324. « 437, 324, 418. ' 437, 138, 334, 843. 26 mechanics' liens. Im/plied Contracts. An express contract is one made in formal terms ; an implied contract is one that may be proved by or inferred from facts and circum- stances — the word "implied," as opposed to the word "express," re'f erring to any contract other than that made in spoken or written words.'i Implied contracts are as good in law and are far more mimercas than express contracts. * Thus where one orders or directs work to be done upon his land, the law implies a contract on his part to pay for it. * Where goods are sold by sample, there is an implied contract that they will correspond with the sample. * One who takes the goods of another, with no agreement as to price, is under an implied agree- ment to pay their real value. ^ If a tenant remains in possession of premises after the expiration of his term, the law implies a contract on his part to remain another equal term and for the same rent. ® So also there is always an implied contract that the party who neglects or refuses to perform his part of a contract shall pay the other party the damages he may suffer by reason of such ne- glect or refusal. ' But under statutes which require a contract to • 831. »918. = 64, 707, but Bee 946. « 848, 806, 860. «707. «751. ' 707. THE COBTTEACT. 27 sustain a lien, such contract is not implied from the mere fact that labor or materials were fur- nished with the consent or permission of the owner. 1 Thus where the owner being, a married woman, was informed of the intended improve- ment and knew of the work while it^was in pro- gress, but made no objection, it was held that her consent was implied although she had made no contract f and where a lessee made the improvements, but with the knowledge and approval of the lessors, and by the terms of the lease, it was held that the permission of the lessors was manifested, not only by the terms of the lease, but by their ap- proval of the work while in progress, and by ab- staining from making any objection to it, but that no implication of a contract could be drawn from an owner' s ' ' merely permitting the work to be done by a lessee. ' * Substantially the same ruling has been made in other cases, 4 buc if the ' consent" or "per- mission" oi the owner is in effect a direction to do the work, a contract may be implied. The sub-contractor equally with the. contractor is governed by the foregoing rules, He may file a lien for work or materials fur- nished with the consent or permission of the owner, if the statute gives that right to the con- tractor. But if the statute requires a contract ' 643. = 398. i 63, 64. « 643, 43'?, 834 28 mechanics' liens. with the owner to sustain a contractor's lien, such contract, express or implied, is also essen- ' tial to sustain a lien in favor of the sub-con- tractor. By the law of Agency the owner may be made liable for labor or materials furnished with the consent or permission of the contractor ; but to" render the contractor personally liable there must doubtless be in all cases a valid con- tract, express or implied, between him and the sub-contractor. 1 Date of Contract. The time or date of the contract is important. The labor or materials must be furnished "under," "in pursuance of," "in conformity with," 2 or "by virtue of"^ the contract. The words used plainly show the necessity not only of a contract, but of a pre-existing one. The contract may be either express or implied, verbal or in writing, * buv in either case it must have been mutually made and understood before the performance. ' 643, 359, 537, 120, 243, 660, 88. But the law, under the Kmgs and Queens Act, would seem to be different. See Statute, arid see cases cited Ante, page 24. . • Cities' Act. ' Buffalo Act. Kings and Queens Act. * 590, 325, 412, 446. Note. — A written contract merges therein all prior and con- temporaneous promises in relation to the same subject. TOQ, 1032. Where a contract is partly printed and partly Sn writing, the written matter prevails over the printed in case of conflict between them. 836. But this is so only where there is au THE CONTBACT. 29 Thus, where one person takes the goods of another, the law implies a contract on his part to pay for them, but since the contract does not exist till the goods are taken, they were not fur- nished in pursuance of it — a personal action will lie to recover the vahxe of the goods, but no lien can be acquired. ^ Such cases are not frequent. A pre-exksting contract when not express may generally be im- plied from the words or conduct of the parties, it may be inferred from slight evidence of a request or direction to do the work. ^ Must he Legal. The contract must be legal and enforceable betwen the parties. * Thus a contract to build in > 65, 359. 5 Compare 137. 938. ■ ' 905. The law will not presume an agreement void as illegal or against public policy when it is capable of a construction that ■will make it valid, 765. A contract for the sale of property made upon Sunday is not for that reason void. 777. inconsistency or repugnancy between the written and the printed parts that is irreconcilable. 700. j Verbal evidence may be given to explain a written contract, but not to alter or change its plain terms or be inconsistent with it. 433, 446. But this rjile does not apply when the original contract was verbal and entire and a part only (as a memorandum -of the price) was reduced to writing; nor does it, apply to a collateral under- taking. 781, 854 30 mechanics' liens. a city with materials whicli are not fire-proof, contrary to the fire laws,i or with materials or in a manner contrary to the building laws is void, and the same rule applies where the contractor knows that the building is being erected for an unlawful purpose, 3 or where the contract is obtained through fraud, ^ or for an immoral or illegal consideration,* or in any unlawful manner. ^ So no lien can be acquired if the contract is void by the statute of frauds, ® or barred by the statute of limitations,'' or if the person when making the contract was doing business under a fictitious name, as using the designation "and company" or ""& Co.," without representing thereby an actual partner. » One dealing with a municipal body or with any corporation must see that its charter is fully complied with, and that the oflBicer or agent making the contract acts within the scope of his authority.' But where the resolution authoriz- ing the contract to be made was not published as required by law, the contractor having fully per- ' 703. Compare 910. ' As for a lottery office. See 778. ' As by a conspiracy to prevent competition in bidding for a public contract see 930. * One may not stipulate for the wages of iniquity, 974, 977. « Trades Unions are held to be lawful. 979, 978, 857. « 351, See 754. ' 684, Fraud may be replied to a plea of statute, 38. " 983, but see 1038. ' 971, 917, 354. THE CONTRACT. 31 formed the contract in good faitli, it was held that he was entitled to recover. ^ Must he Definite. The contract must be definite and certain. ^ It must designate the premises since it is essential that the goods be sold for as well as used in the particular structure, or building.^ The credit must be given to the premises,* but their exact location need not specified, or even known to the contractor, ^ and he does not lose his right to a lien from the mere fact that he has given per- sonal credit on his books of account. * The complaint in an action to foreclose the lien, which does not show that the goods were furnished for the structure or building, is demur- able, but by the rules of evidence if the goods were actually furnished and used in a certain building the law presumes that they were fur- nished under a contract that they should be so used. ' The price to be paid must be agreed upon, or else it must be capable of being correctly as- certained by computation. ' 886, compare 906. " 870, 509. Compare 736, 830, 839. » 647, 83, 33. * 463. Materials furnished upon the credit of buildings must not be more than can reasonably be used in their construction^ 46." ' 115. Even a misdescription of the premises is not fatal. 95. « 316, 510, last page of 484 and see 895. ' 647. 32 It is held in other States that a contract to do work in a building by days' work at a fixed rate per day, is too indefinite to sustain a lien, i But ■the contract is sufficient, if it provides for the erection or repair of any certain structure or building or portion thereof, for a price that may be accurately ascertained upon completion, and it may leave the price to be then computed by ac- tual measurement of the work, ^ or by allowing an agreed rate of compensation for each day' s labor actually performed. * Mistake. A mutual mistake of fact in one of the terms of a contract, prevents it from taking effect. * Poth parties must assent to the same terms in the same sense ; their minds must meet or there is no contract. ^ But proof of a mistake must be clear and positive, 6 and even then, either party may be precluded by his words or conduct from taking advantage of it. If, when making the contract, one party pre- tends to understand and assent and thereby induces the other party to make and perform the contract, the former is bound. > 673, 554 ' 756, 932, = 430. » 835. ^ ms, See 128, 579. • 825, 916, 766. THE COWTEAOT. 33 He cannot afterwards avoid the contract on the ground that he did not perfectly understand the English language and was misled by the inter- preter or translator. * The party who wishes to take advantage of a mistake must act promptly; he must give notice to the other party, as soon as he ascertains it. Thus, when too expensive materials are used by the contractor, through the owner's mistake, the latter must pay the difference between their value and the contract price, but if the contrac- tor discovers the mistake during the progress of the work, he should notify the owner at once, or th'e ownei may not be liable. * Before the owner can charge the contractor with his own expense in supplying defects in the work caused by the contractor's mistake,he must notify the contractor and give him an opportu- nity to supply or remedy the defects himself. * Fraud. A contract procured through fraud is not valid. It lacks the assent of the defrauded party. It is not absolutely void, it is voidable. The guilty party is bound ; he cannot take advantage of his own wrong. > 494. Compare 889, 720. ' 273. It is fraudulent to take advantage of a mistake, 800. « 872. 34 mechanics' liens. But the innocent party has the option, either to enforce the contract, or to rescind it, or to treat it as void. ^ Fraud is in general governed by the same rules as mistake. It may be waived by silence or by failure to act promptly upon discovering it. ^ When the contractor abandons the contract on account of fraud, the owner is liable for damages. The contractor may doubtless file a lien for the labor or materials already furnished, but no lien can be had for the damages.* The right either to rescind the contract or to waive the fraud is personal to the contractor ; sub-contractors cannot choose for him. If he abandons the contract, they have no claim for damages as against the owner. Nor can they acquire a lien for the work done. * Mutual Contracts. The contract is mutual if both parties are to perform at the same time. ' 723. Where one purcheses property upon credit knowing that he is insolvent, without disclosing that fact and with intent not to pay for the property, fraud may he affirmed. 1037. A suh-contractor may arrest the contractor for fraud. 61. See as to what does not constitute fraud in contract 867, 766, ■ 799. » 696, 810, 890 and cases cited. ' 137, 847, 426, 451. The suh-contractor cannot recover an additional sum, coming due to the contractor, under a valid promise made by the owner during the progress of the building to pay the contractor certain unf orseen damages, suffered in exe- cuting the contract. 451. ^ 347. But see 141. THE CONTKACT. 35 If the owner agrees to pay in instalments on certain fixed days, and the contractor agrees to have certain specified parts of the work completed on the several days of payment, either party on such days, is entitled to performance. *" The lien if filed can be enforced only upon the owner's default to pay either instalment. ^ But before one party can put the other in de- fault, or recover damages for a breach of the agreement, he must himself tender performance, or prove his readiness and willingness to per- forin. ' And in cases where the owner is to pay other- wise than in money as by giving a deed, or a mortgage, or goods, or services, &c., the claim- ant, before he can enforce the lien, must also prove the owner' s inability or refusal to perform after demand. He is then liable to pay in money.* Unless the statute so provides, specific per- = 734 Compare 818. See 734. <■ 308. 907, 798, 705. Otherwise if either party has noti- fied the other that he will not perform. Last page of 983. • * 151. This is so although proceedings to foreclose have been hastened by the owner's notice. Id. The Buffalo Act (§ 16) provides : Whenever, by the terms of his contract, the owner has stip- ulated for the delivery of bills, notes, or other obligations or se- curities, or of any other species of property in lieu of money, the judgment must direct that such substitute be delivered or depos- ited as the court may direct, and the property affected by the liens can only be directed to be sold in default of the owner to deliver such substitutes within such time as may be directed. 36 MECHANICS' LIENS. formance cannot be decreed in an action or pro- ceeding to foreclose a lien. * PerfoTTnance. By the earlier decisions in this State the con- tractor was held strictly to the terms of the con- tract. Full and exact performance of all the conditions was essential to his right to have pay- ment, unless the owner waived such a perform- ance or accepted the work as in full compliance with the contract. ^ But it is now the rule that there may be a re- covery without a literal or exact performance. " Where a builder has in good faith intended to comply with the contract, and has substan- tially complied with it, although there may be slight defects caused. by inadvertence or unin- tentional omissions, he may recover the contract price,' less the damage on account of such de- fects."* The courts do not favor the forfeiture of the contract, even though the contractor is at fault, as where he abandons the work. A waiver is readily implied. The owner is deemed to waive the forfeiture if he sues for damages, or does any act which ' Id. » 937, 970, 725, 579. ' 1036, 369, and cases cited. But a failure to perform in any particular, if wilful and without excuse, will prevent a recovery, for the work done. 759. Compare 408, 713, 128. THE CONTRACT. 37 shows an intention to consider tlie contract or some part of it as still in force. ^ Thus where the owner, on the default of the contractor, before the contract was nearly completed, elected to go ca and complete the work under a clause of the contract permitting him to do so, it was held that he thereby substituted himself in the place of the contractor. That he waived his right to insist upon a forfeiture, and that the plaintiff who had furnished materials to the contractor was entitled to enforce a lien \^ the same rule applies where the owner completes the work with the consent of the contractor. * But a waiver of forfeiture does not necessarily imply a waiver of damages.* The damages caused by defective performance or by the con'tractor's refusal or failure to per- form are not deemed to be waived, except from plain facts, and after breach of the contract they cannot as a general rule be waived except by a new agreement.^ The damages may be recovered in an action by the owner, or he may recoup them in the action brought by the contractor or the sub-contractor to foreclose the lien. ^ The proper measure of ■ 1006, 941, 915. = 442, 121, 186. * ' 660. So where the contract is cancelled by mutual consent. 793, 306, 955. li is held that in such cases the owner may waive his right to damages for delay. 131, 596. * 948, 1036, 443, 369, 494 s 963. Compare 758, 710. « 443, but see 121. 38 mechanics' liens. damages is in each case a question for the Court, but it is for the jury to determine their actual amount. The contract may itself fix a penalty or prescribe liquidated damages ; in which case the Court can only enforce its terms. ^ Conditions Precedent. Where by the terms of a contract the work is to be done according to the plan and within a certain time, and payment is to be made when the work is finished, and certified to be so, by the architect, there are four conditions precedent to payment. All conditions in a contract are governed by substantially the same rules, but the above^ four conditions — namely, mode, time, cotapletion and certificate — occur so often in building contracts, we may consider them more fully. I. The Mode of Performance. In the absence of express agreement, the law will presume that the work is to be done in a good and workmanlike manner. ^ If materials are sold for a certain purpose, there is an implied warranty that they are suitable for that pur- pose. * But with a view to certainty, especially in de- tails, plans and specifications usually accompany and are made a part of the contract. •963, 931, 186, 213, but see 121. ^ 859, 833. » Id. 847, 1018. THE CONTRACT. 39 These are useless if the contract is certain in itself in every particular, the words of the con- tract then govern instead of the plan, i But generally speaking the term " contract" also includes the plans and specilications-; all must be construed together.^ While it is now the rule that full and exact compliance with the terms of the contract is not required, it is equally true that to entitle the contractor or persons claiming under him, to re- cover anything, it must appear that there has been no wilful departure ; that there are no sub- stantial omissions or defects. The defects must not run through the whole work, or be so essen- tial as to defeat the object of the parties, in having a certain amount of work done in a par- ticular way. 3 An instance of what may be considered such defects is "where, in a contract to build a cob- ble-stone house, were walls so badly built that two-fifths needed to be taken down and re- built." * But where in another case the roof and chim- neys were not well supported ; folding doors were not well hung, or the casings thereto well fastened ; the tar-paper and clapboards, in some few instances, were not well put on. and one door and casings not so fitted that the door would ' 987, 752. = 998. 3 494, 1026. These are questions of fact. 494. ■• 937. See 128, 759. A voluntary payment on accpunt does not affect the rights of the parties. 138, 963. 40 MECHASriCS' LIENS. shut, it was held, in nearly these words, that "such defects did not pervade the whole work i they could be remedied, without disturbing the other parts of the house, or interrupting the use of it. The work needed to make them what they should be was no other in degree or difficulty, disturbance or inconvenience, than would be the ordinary repairs of buildings from year to year, made needful by wear and tear and decay." That an allowance out of the contract price would make to the owner full indemnity.^ In all cases the owner has the right to insist upon strict and literal performance or damages. A waiver by him of this right must be clearly proved. He does not waive his right, to damages by merely accepting inferior or different work than he contracted for, unless he also receives it as a full performance or upon new consideration. ^ An agreement to accept imperfect or incom- plete work, with deductions for defects, agreed upon, is binding, but a mere declaration of an in- tention or purpose to waive any right or damage already accrued is not. * But since the party causing the breach can- not complain of it,* the owner must not during the progress of the work prevent perform ance, neither directly by his acts or words, as by refusing or neglecting to perform on his ' 1036. See 314, 269, 793. * 954, compare 710. » 954. * 861. THE COKTEACT. 41 part, 1 nof must he intentionally mislead the con- tractor into believing that inferior or different work is or will be accepted as a full performance, and thus induce him to complete the work.^ The owner may not be bound to inspect the building or the plans, or to point out defects as they occur, and may not be liable for an errone- ous opinion if given by him honestly and mere- ly as an opinion. * But he must act in good faith. Before he can remedy defects himself and charge the cost to the contractor he must notify the latter of such . defects and give him an opportunity to remedy them.^ II. Time of Performance. It is provided by the Statute of Frauds that : Every agreement that by its terms is not to be performed within one year from the making thereof is void, unless such agreement, or some note or memorandum thereof, be in writing, and subscribed by the party to be charged therewith, or his law- ful agent ' It does not satisfy the Statute that the work is to be commenced within a year. ® If payment is to be made on a day more than one year from its date the agreement is void, '' and so, if it provides for a year's employment to commence on the next, or any future day. » Part performance ' 833, 851, as by failure to pay instalment when due, 71. Re- fusal to perform creates present, breach of contract. 1031, 976, 883. 2' 793, 773, 369, 660, 413. « 1013, 823. See 408. « 873. ' 944 6 963. . ' 869. See 730. « 863, 864 42 mechanics' lieks. within the yeai does not make such an agree- ment valid, but recovery may bo had for the work actually done. ^ But the agreement is good if it can possibly be performed within a year, ^ as where materials are to be furnished and a house built within fifteen months, ^ or where perf orn^ance depends on an un certain event, not within the control of the parties, as a person's death.* If the contract does not fix the time of per- formance the law will presume that the parties intended and agreed upon a reasonable time.^ What is a reasonble time is determined from the facts and circumstances of each case. * It is a question for the jury. ' But if the contract can be fairly construed to settle the time, that time is taken. ^ It is for the Court to determine whether or not the time is fixed by the contract. » . It has been held that a contract to do "when possible" 10 or "when convenient" ^ ^ means a reasonable time, but a promise to pay "when ' 865. = 885, 973, 999. " 934. * 849. " 983, 3d case. 985. la Illinois this is too indefinite to sus- tain a lien. 509. * Id. If no time of payment is mentioned it is due on de- livery of the property sold; 506. ■ 1003. 8 950. - ' Id. What the contract requires is in all cases a question of law for the Court, and a submission thereof to the jury is error. 214. Otherwise if it is not produced, and there is a question as to its terms. 753. '» 1003. " 834. THE CONTRACT. 43 able,i or "-when needed,"^ or "on demand,"' or ' ' when satisfied ' ' ^ that a certain tiling has occurred, means a time limited by the happen- ing of the event specified, and a contract to per- form by a day means on or before the day. ^ Time is usually computed by excluding the day of date and including the day of perform- ance.^, If, by accident or error, the day for ful- filling a contract falls on Sunday, performance may be deferred to the next day. ' Sickness or death may excuse delay, ^ and so may preven- tion by the owner or his agent, as where the mason delays the carpenter or the carpenter the mason, ' but the contractor is liable for the delay of his own sub-contractors or workmen. A contract for public work may be abandoned if the Statute authorizing it is repealed, i " or if a new act is passed, which puts an end to the con- tract. ^ Performance of the ■ contract within the pre- scribed time is not excused by fire, ^^ strikes** or other inevitable accidents, i* These should be provided against by the contract. * ^ But the time for performance may be verbally extended without new consideration, although the contract is in writing or under seal. * ® 1 958. ^ 876. 3 881. i 1033. » 755. ■ 240, 89:3. See 790. ' 951. " 781. ' 692, 564, 186, but see 963. »" 834. " 841. " 718, 996. " 838, 770. Reversed on other grounds, 769, which see. " 994, but see 1017, 564, 821, 813. '^ Id. " 786, 413 Pee 621. 44 mechanics' liens. An extension of time is not a waiver of other conditions^ Tlie owner is bound to act promptly and to ex- press his disapproval of the delay. He must not allow the contractor or sub-contractor to expend time and money in completing the work. ^ Nor must he have induced the delay by causing a change of, or an addition to the work, that re- quires more time to perform. ^ If the owner has reserved a right in the con- tract to have the house built a story higher, and the work is to be completed by a certain day^ he must give notice of his election within a reason- able time. * If the contract fixes the amount of damages as that the builder shall forfeit a certain sum per day for each day' s detention after tne time limi- ted has expired, the owner cannot recover a larger sum. ^ III. TTie Completion. The contract is either divisible or entire. It is divisible if it provides for successive acts, with separate payments for each. As where materials are sold to be paid for as delivered. * It is entire and indivisible if complete per- formance by one party is to precede payment by the other, as where one agrees to perform a cer- ' 780, 948. If the time is extended on conditeon, that condi- tion must be performed. 863, 1008. » 793, 772, 269, 660, 413, 186, 836. » 774. ' 855. » 968, 981, 463. See 569, 121, « 794, 983, 1038 THE OONTRAOT. 45 tain job of work, to be paid for when the work is done, or agrees to supply a certain amount of goods to be paid for when all are delivered.^ It is the general rule that, if the contract is en- tire and not performed, as the contract price is not divisible, no recovery can be had, for any portion of it. ^ The exception in favor of building contracts permits a lien to be filed and enforced in cases of substantial performance. * Such performance, however, is essential. If prevented by the owner, it is held that a lien can be acquired for the value of the labor or mater- ials performed or furnished to the time of such prevention.*. But the usUal and doubtless bet- ter remedy in such cases is an action to recover damages for a breach of the contract, and not tlie contract price. ^ IV. TTie Certificate. The -architect, so far as the contract commits p,ny matters to his judgment, is accepted as an umpire or referee, between the parties ; his best judgment is the test of performance j his decision is conclusive. ' 844, 728, 128, 246. 2 728, 983. But see 698. = 1026 and cases cited, 269. « 137, 67, 154, 446, 686, 427. 6 728, 990, 884. See 391, 654. TTo Hen can be acquired for damages, 347, 436, 451. But see 141. 46 mechanics' liens. The parties cannot litigate^ the matters so sub- mitted to him, until he is divested of his powers by death, incapacity, resignation or refusal to act.i His certificate is essential to recovery, unless withheld by fraud, collusion or in bad faith or unless its production is waived by the owner, by some definite and expressive act. ^ Payment of some instalments without requir- ing a certificate is not a waiver of the final cer- tificate on completion, ^ nor is a waiver created by the statements of the owner, that he is pleased with the work, or that he is dissatisfied with the architect, or that he wants the contractor to re- lease him from the payment of a certain loan, as a condition of paying the balance on the contract,* nor even by the fact that the owner accepted the work, unless he also accepted it as a full per- formance.^ Neither party can avoid the effect of tlie .architect's certificate, or his refusal to give a certificate by the mere allegation that such certificate or refusal is " unreasonable." ^ But the architect must act in good faith. . His acceptance of any substitute, for that which the contract ealls for, if substantially variant • 954, 1030. ° Id. Certificate is unnecessary where the owner completes the building, 313. 3 33. * 808. But see same case on appeal. The question of waiver under such circumstances should be submitted to the jury, 807. See 914. ' 954, compare 388, 710. « 954 THE CONTRACT. 47 from its terms, is not justified, except through authority of his employer ;i he must give the parties an opportunity to be heard, ^ his decision must be fairly and impartially made. His refu- sal to certify must be based upon and supported by some real and substantial failure on the part of the contractor, and such failure must be pointed out and protested against by the archi- tect. If it appears that the work was well and properly performed, according to the contract, his refusal to give the certificate does not aflfect the case, ^ if he acts in bad faith or refuses to act,* or if he is prevented from acting, as by operation of law, or by death, ^ the parties may bring their action at once. Extra WorJe. If the contract provides that " alterations, de- viations, additions or omissions" in the work^ requested by the owner, shall not affebt or make void the contract, but shall be added to or de- ducted from the contract by a fair and reason- able valuation, work and materials supplied to the bnilding will not be regarded as extra work, although not called for by the plans and specifi- cations. ® > 954. See ?38, 164. > 901. 3 774 4 986, ioo4. ' 717. So if performance of the contract is prevented by the owner's agents, 851. « 691, 631, 381, 186, 963, 561. 48 mechanics' liens. So if the contract provides that the contractor shall without extra compensation do other work than that called for in the specifications, if it is re- quired to be done to carry out the provisions of the agreement, the court can only enforce its terms. * Where extra work consists of and is a part of the original contract, any additional amount due from the owner to the contractor in consequence of the extra work may be reached by the sub- contractors, the same as if it became due under the terms of the original contract, even though they did not especially contribute towards it. * But the parties may by a new and independ- ent or even verbal agreement contract for work or materials other or different than as specified in their contract, and ordinarily such extra work is not affected by the conditions in the contract, to make it so requires an express agreement. The obligation cannot be implied. ^ Generally speaking, extra work is entirely distinct from the principal contract; money paid by the owner upon the principal contract goes to that alone, and damages from defects ia the work done under that contract cannot be set off or applied to the price dt value of the extra work.* The Sub-Contractor. The foregoing rules in this chapter (as in some instances we have noticed) apply not only to the » 1004, 631. » 433, 295. « 1036. See also 660, 185, 451, 995, THE CONTEAOT. 49 contractor, but to all persons claiming under him. The sub-contractor is bound by the terms of the original contract, ^ the lien acts merely subrogate him to the extent of his claim to the rights of the contractor under that contract. ^ If the latter fails to perform it, * or if he is paid in full according to its terms, there can be no lien.* ' A sub-contractor to a sub-contractor cannot acquire a lien if the latter has failed to perform his contract with the contractor, or if that was made in violation of the original contract, or if he has been paid in full according to the terms of his contract with the contractor, even though payments thereafter become due and are made by the owner to the contractor. * After the lien is filed, a sub-contractor is pro- tected; his contractor cannot then be paid. ^ But if at the time the lien is filed the contractor is unable to complete the work, and nothing is due or to become due to him, the lien will not pre- vent the owner from employing and paying third persons to complete it, even though there was no formal abandonment by the contractor. ' Payments made by the owner in good faith, in advance of the terms of the contract, are ' 130, 53, 643, 150, 338, 433. « 374, 579. 3 i38_ 347. ^ 150, 4, 374, 658, 88, 137, 583, 75, 451. ' 120, 359. * 561. The statute places such payments on the footing of a payment to the wrong person. 404 ' 538, 383, 583, 660, 186, 4. 3 50 ' mechanics' liens. allowed him^ (unless the statute otherwise pro- vides). 2 The contractor may also in good faith assign a payment due, or to grow due, to him on the con^ tract, and a subsequent lien of the sub-contractor cannot reach it, nor can judgment be had against the owner for it. ^ But since the equities of me- chanics and material-men are superior to those of the contractor or owner, * the court will allow them to recover "wherever ifc can be done with- out conflicting wi th well settled principles of law. ' Payments made by the owner in collusion, or fraud, with intent to defeat the rights of sub- contractors, are not allowed. ^ A finding of fraud may not be necessary in such a case. Thus where the contractor was in fact partly paid, but gave a receipt in full, count- ing in the amounts due the sub- contractors and others to make up the balance, with the secret understanding between himself and the owner that they should contest these claims, it was • held, that it was sufficient to sustain the lien, that there was in truth an amount due and un- '561, 508, 150, 364, 318, 124, 382, 4, 283, 618. Notes may be good payment, 584. So is credit on. a debt, 4. But a mere verbal guarantee is not, 235. ^ The King's and Queen's Act, § 1, and The Rennssalaer Act, § 3, do not permit payments "in advance of the terms of any contract." See, under former Act, 508, 507. See, under latter Act, 88. , ^687, 461, 117. Such assignment is not equivalent to transfer of the contractor's interest in the contract, 687. * 141. 6 328, 141. 6 383, 864, 423. THE OONTEAOT. I 61 paid, "that the fraud simply concealed the truth, and, being exposed, the fact was re- vealed."^ If the contract is itself coUusively made be- tween the owner and contractor as for a nominal sum only, or if, during the progress of the work, the contract is materially departed from by mu- tual consent, so that it is impossible to say what kind of a building was agreed upon, or to dis- tinguish between extra work and that specified in the contract, the sub- contractor may recover as under a general employment, for the fair value of his labor and materials. * The contractor may assign his contract with the siib-contractor to the owner, the owner as- suming and agreeing to perform the covenants of the contractor, and in that case the owner be- comes liable to the sub-contractor, as though the latter had contracted with him and not with the contractor. * Assignment. Upon the same principle, where the contractor fails and makes a general assignment for the benefit of creditors, his assignee, if he completes the work, is deemed to have assumed both the original contract and its covenants, and the con- tract with the sub-contractor and its coveaants.* > 122. See 578, 141, 154. = 579. But compare 654. 198, 393 note. ^ 151. " 407. 52 mechanics' liens. The sub-contractor is not bound to share with the ordinary creditors. He may file a lien after the assignment, although there is 'no money then due, or to become due, to the contractor, and he may satisfy it out of moneys to become due to the assignee, under the original contract, ^ but the assignee has the right to contest its validity, upon every ground available to the owner. ^ The death of the contractor does not prevent a sub-contractor from acquiring a valid lien. ^ Set-off and Counterclaim. As regards the question of set-off or counter- claim there is a possible distinction between the sub-contractor and the contractor. It is well settled that to reduce or defeat the claim of either, the owner may a^ail himself of all matters allowable by way of 'recoupment or counterclaim which arise out of the original con- tract — the rights of the parties being determined by the facts^as they exist at the time the lien is created. * As between the owner and the' contractor, or as between the contractor and the sub-contractor, any personal debt or claim, " any other cause of action on contract" between the respective par- 407, 576, 273, 461, 371. Otherwise in New Jersey, 117. Otherwise where the owner makes such assigamcnt, 519, 300. " 576. » 3 647, 613, otherwise death of the owner. 418, 338, 126, but see 374. *88, 436. 433, 150, 141, 234. See 403. THE CONTRACT. 53 ties is allowable by way of set-oflE or counter- claim 1 But as between the owner and the sub-con- tractor, !t is still a question as to whether or not ■ the former may avail himself of any set-off or counterclaim personal to the contractor, and which does not arise out of the original con- tract. ^ We are inclined to think that he may in all cases, as otherwise he might in effect be made to pay more than the contract price. ^ There is a difference between the statutes; some provide in effect that the owner may avail him- self in his answer of any set-off or counterclaim if he has any ;* and in a case that arose under such a statute, the Court of Appeals impliedly held thnt the term " set-off," as there used, was " suflBciently comprehensive to allow any debt or claim, which is "the matter of set-off, to be de- ducted in defeating or reducing the claimant's demand, and to authorize 3uch rJlowance, whether the debt or claim arises on matters existing be- tween the owner and his contractor, or between the claimant and the party on whose credit the debt claimed to be due to such claimant was con- tracted." ^ Other statutes do not contain such a provision, • 477, 236, 4. See 960. " 141, 88, 291, 569. ' Compare 4, 433. < State Act, § 7. Rensselaer Act, § 7. Buffalo Act, § 11. OU Well Act, § 5. Public Work Act,§ 2. ' Rensselaer Act, 88. Compare 324. S4 mechanics' liens. and under them tlie owner's rights to a set-off or counterclaim may be confined to such as arise out of the original contract or transaction. ^ And that is also in effect the ruling of several decisions in this State. ^ ' See 333. * 435, 141, 234. The contractor is not liable for negligent acts of a Sub-contractor. 968. CHAPTER III Tlie Owner. Deflnition of Owner. Legal Owner. Mortgagees. Lessees. Persons in Possession. Building Contracts. Married Women. Agents, Hus- band and Wife. General Agents, Archi- tects. Trustees. Minors. Dower. Curtesy. Transfer of Title. Fraudulent Transfers. Payment. Application of Payments. Bur- den of Proof. We use the word "owner" as the correlative ot "contractor," meaning thereby the person, corporation or city which employs the contractor or ior whom the work is done. ^ Ownership in land may be either legal or equit- able. The one who holds the deed has the legal title and is called the legal owner. A "lessee" owns a legal interest, ^ and "a per- son in possession" as under a contract to pur- chase owns an equitable interest. ^ The word "owner," therefore, as generally > 387, and see 468, 438, 431, #1, 63. See Public Work Act, § 14. ^ 697. See 139, 324. = .540, "80. 56 mechanics' liens. used in the lien acts, includes not only the legal owner, but also the lessee and person in posses- sion, and all persons who own in the property some right, title and interest, either legal or eq_uitablej capable of sale under execution. * Legal Owner. A person may be the legal owner within the meaning of the statute, although he bought the property with trust funds, ^ or has mortgaged it for its full value, ^ or has leased it for many years,* or though there is a vendor's lien upon it for the entire purchase money. ^ Mortgagees. A mortgagee or a person who holds the legal title merely as security and without possession, is not an owner ; his interest cannot be sold oh execution. * But if he obtains possession with the consent ot the mortgagor after the debt is due and pay- able, he may hold the property until the debt is ' 540, 881, 30, 285^ 628. Constructive possession may be suflBcient, 516. But transitory ownership, as for an instant only, is not sufficient to support a lien. 94, 399, 49:ii. 2 7. = 949. *64, o24, 213. See as to perpetual lease, 436. 6 444. « 634, 891, 949, 381, 116, 232. THE OWNER. 57 paid ;^ and while he may not in that case make costly improvements, he may make needful re- pairs and bind the property for their pay- ment. 8 Lessees. A lessee has a legal chattel interest in the premises which may be sold on execution, and to the extent of that interest he is an owner within the statute. 3 The question often arises as to whether the lessee or the landlord should be deemed the owner. This may sometimes depend upon their respect- ive duties and obligations under the landlord and tenant law. Thus in the absence of special agreement, a tenant is bound to make needful repairs,* he need not make substantial repairs as to -gut on a new roof, unless it it is necessary to do so, to preserve the property. ^ If the tenant has expressly agreed in the lease to keep the property in good condition, and a building is destroyed by fire, he miist rebuild it. 6 If the lease provides that the landlord shall » 1009. ^ 939. 3 697, 468. 313, 183. However temporary Ms interest in the land may be, 468. His ownership dates from the delivery of the lease to him.' 139. 4 1013, 981. ' 866. « 899, 816. 58 mechanics' liens. make repairs and lie neglects or refuses to do so, after being given a reasonable notice and oppor- tnnity, the tenant may make the repairs himself, and charge the landlord witli the expense. ^ But more often the question oE ownership, as between the lessee and his landlord, is deter- mined by the law of contracts. Under those lien acts which require a contract to sustain a lien, the tenant is not regarded as an agent or contractor so as to charge the landlord as owner, merely because ho is authorized, or re- quired, as such tenant and by tho terms of the lease, to make certain repairs or improvements, ^ even though the same are designed to be perma- nent and to revert to the landlord after the expi- ration of the lease. ^ Nor does the landlord make himself liable as owner by extending the lease on condition that the tenant shall make repairs or improvements,* nor by permitting or allowing a tenant to make them, ^ nor by supervising them while being made,® nor by partly paying for them,' nor by doing any other act except ' ' either by himself or agent enter into a contract for doing the work either express or implied."^ Under other lien acts, the landlord may, as we have seen, be rendered liable for repairs or im- 43'?. > 823, 753. « 324, 437. 3 324, 601. But see 17. * 311. ' 64. ' 601. 8 334, 437. But see 17. THE OWNEE. 59 provements made with his "permission" or "consent."^ One of several tenants holding in common is an owner to the extent of his interest in the property ; he cannot charge the interests of the others for improvements made without their re- quest or consent, but he may repair or preserve the property at the expense of all, without such request or consent, especially if it is unreasona- bly withheld. ^ One of two persoiir; in separate possession of land under a verbal contract of partition, may charge his separate interest, though the title to the whole lot is in the other, the latter in that case is not liable. * The same rules may be said to apply to all joint owners of, property or of any interest therein.'* The right, title and interest of the lessee con- sist not only of the lease, but of all such improvements upon the property as he may legally remove. ^ Things which a tenant may fix and attach to the premises and afterwards remove are called "tenant's fixtures," those which he must resign to the landlord are termed "landlord's fixtures,"* But we may treat of this subject more at length in the next chapter. 1 63, 64, 474. A written clause in the lease that the repairs shall not be at the expense of the owner is not consent. 377. 2 606, See 763, 413, but see 107. « 473. ^ See 415. ' 468, 145. A voluntary surrender of the premises to the owner, after the lien attaches, does not affect affect it. 145. 6 969, See Chap. IV. Title Fixtures. 60 MECHANICS' LIENS. Persons in Possession. A vendee under a contract to purcliase the property, has (unless he fails to fulfill the condi- tions of the contract on his part)^ an equitable interest in it, which may be sold. He is there- fore an owner to the extent of that interest.* He is in many respects governed by the same rules as a lessee, but there also attach to his interest many of the incidents to a legal title. * Unless the statute expressly authorizes it, a lien cannot be acquired for work or_materals furbished under a contract with, an equitable owner as against our holding the legal title,* although by the agreement of sale the title is not to be transferred to the vendee until the building is completed, ^ or although the agreement is itself illegal and void. ® But a vendee after he acquires the legal title is deemed to have been the legal owner since the date of the agseement, and he may then be charged as such owner, with all liens filed sub- sequent to that date, whether filed before or after the conveyance.' ' 283, 527, 714. 2 760, 105, 118. Sucli contract is not of Itself evidence of a permission to build, given by tlie legal to the equitable owner, so as to bind tbe former. Id. But see 205, 255. s 540, See 760. * 351, 63, 157, 540, 431, 351, 30. « 209, 351, 540, 116. « 350, 643. ' 391, 540. The rule is not invariable and cannot be applied where the intention of tbe parties is clearly adverse to such a precunp- - tion> 714. THE OWNER. 61 BuiMing Contracts. What are known as " building contracts " are now very common, especially in cities. Under a building contract, an owner of vacant lots may agreee witli a builder to,sell and con- vey them to him on a certain day, and for a cer- tain price, and meanwhile to advance moneys to aid him in erecting buildings on them, the builder agreeing to have the buildings completed within the time specified, and upon the conveyance to give back a mortgage for the amount of moneys so advanced.^ The more recent lien acts contain some provi- sions intended to especially protect laborers or material-men for labor or material furnished to a vendee who builds under such a contract. , The Cities' Act^ provides that the lien in such cases ' ' shall have priority to all advances made after the filing," that it shall attach to the right, title and interest of the owner in said building and land to the extent of all advances which shall have become due after the filing of such lien, and shall also attach to and be a lien on the right, title and interest of the person so agreeing to purchase said land at the time of the filing of said notices of lien." The Buffalo Act^ provides that "in cases in which the owner has made an agreement to sell and convey the premises to the contractor or other > Compare 840. = § 3. '§7. 63 person, such, owner shall be deemed to, be the owner, within the intent and meaning of this act, until a deed shall have been actually delivered conveying said premises in fee simple, pursuant to such agreement." The Kings'and Queens Act* also contains this latter provision, and it has often been construed by the courts. Thus in a case which arose under that act, the Court of Appeals held that "It was the design of the Statute to charge the land with debts con- tracted in improving it in case the owner per- mitted the work to be done, although under a contract made with the vendee," that "if no consent has been given the contract is not within the Statute. "2 And in a more recent case, under th.e Act of 1863, for the City of New York, which contained a similar provision, but which was an act requir- ing a contract to sustain a lien. The same Court held that "the law does not assume to change the actual relation of vendor and vendee, or vary their legal rights as between the^iselves or in respect to third persons^ except for the purposes of the lien authorized by it. The entire effect of the provision is to give to laborers and material- men a lien for work performed and materials fur- nished toward the erection of buildings upon the lands, as if the vendor were the absolute owner and the purobaser had contracted with him to ' 540. Compare 118, but see 205. THE OWNEE. 63 erect the buildings. The same result is accom- plished in other statutes by giving a lien wherever buildings are erected upon lands with the con- sent of the owner." 1 It will be noticed that the provision contained in the Cities' Act is quite different; under it the vendor can be deemed owner, and the vendee contractor only in respect and "to the extent of all advances which shall have become due after the filing" of the lien; in other respects, the vendee is to be deemed the owner. His equitable aight, title and interest can alone be charged with the lien. His contracts for labor or materials may not bind the owner, even though the same are fur- nished with the latter' s permission or consent. ^ Married Women, A married woman, as to the lands she owns, is in this State regarded as though unmarried.* Under the proper Statute she may, therefore, be made liable as owner for labor performed or ma- terials furnished, with her consent or permis- sion.'* And such consent or permission may be im- plied from her knowledge, in the absence of any objection, her silence may, as in other cases, be • deemed sufiicient evidence of assent. ^ » 569. See 243. « Compare 157. 8 298, 260. « 298, 63, 243. » Id. See 660, 118. 64 mechanics' liens. Under other statutes, she is liable as owner only when either by herself or agent, she enters into a contract for doing the work either express or im- plied. 1 Agents, Husband and Wife. A husband may be his wife' s agent and a wife her husband' s agent ; a son or other member of the family may act as agent. In short any per- son may contract as agent, and that too although he is under age, and unable to contract for him- self. Agency may be implied, from the relation of the parties or from the nature of the business transacted. ^ It will not be presumed from the marital or family relations alone, * nor from the mere fact that the owner knows the work to be in progress and does not object. Thus, where work wag done upon a wife' s prem- ises under a contract with her husband, he did not profess to act for her ; nor did she assume or promise to pay any of the charges. She did not intimate that he was her agent ; she did not give directions ; but when enquired of referred to Mm ; the account was charged to him and one of the plaintiffs testified that they looked to him for > 334, 843, 1031, 690, 4ia Compare W9, 761, 750, 874 709, 1034, 183. ^ See 653. » 433, 34, 935, 693. THE OWJSTEE. 65 payment. She resided -witli him and he maintained the family. It did not appear that the wife owned other property or any income or resources from which to keep the building in repair and for all the purposes of occupancy and enjoyment and keep- ing in repair the husband treated the house as his own. He had previously contracted with the plaintiff for labor and materials and had paid for them, and the latter knew these facts. The Court of Appeals held, that under the cir- cumstances, the facts did not prove agency on the part of the husband and that the wife was not liable as owner. ^ And in another case, where the contract was . made with the husband in his wife' s presence ; she did not disclose her ownership of the property, or deny his assertion that he owned it. While the work was in progress, she gave directions and re- quired many changes to be made, and stated that the property was hers, and frequently promised verbally to pay for the buildings, and she with her husband moved into them before they were completed. The General Term of the Supreme Court held, that neither the wife nor her estate was chargeable ; that her omission to disclose her ownership when the contract was being made was not fraudulent, and that she was not made liable by the fraud of her husband in holding himself out as owner, ^ If a person is in fact agent his contract, al- 1 843. See 433, 313, 903, 871. 2 690. See 400, 683, 337, but see & 66 mechanics' liens. thongh made with a person ignorant of that fact binds the principal. ^ Thus where the husband and his wife were each building houses, and he employed a foreman to work upon all of them ; the husband was general agent for his wife, and was especially authorized by her to employ the foreman upon her houses: The husband did not disclose his agency and the foreman did not know that the wife owned them. He worked Wherever he was directed and made no distinction in his charges as to the houses he worked upon. He made all his charges and kept his accounts against the husband. The Court of Appeals held, that the wife was liable, but only for the work and disbursements upon her own property; that it did not affect her liability that some of his houses were afterwards conveyed to her by her husband or that most of the materials for the houses were bought in his name, and that he kept no separate account of the money and materials so used.^ A person dealing with an agent, and knowing that the principal is bound, may discharge the principal, by taking the agent's notes. ^ But in a case where the husband had full and entire qontrol of his wife' s property, and as such agent bought lumber and materials for its improve- ment ; his wife knew the improvements were be- 837, 875. 909. Compare 836, 787, 9S6, 788, 737, 18, 260, 919, 843. THE OWNEE. 67 ing made ; the goods were sold to him as agent and upon the credit of the wife's estate, but were charged to him ; he gave his own notes which were used by the person who sold the goods, and taken up by him at maturity. The game Court held that the evidence was strong that the credit of the husband was taken, but that the explanation given tended to show that the wife authorized the purchases and that judg- ment against her was not error, i The title to the property being on record, a person is bound to know whether the one with whom he deals is the owner or not. He is also bound to ascertain the source and extent of an agent's authority. If the agent is employed for a special purpose as to take care of the property, he derives from this no general authority to make improvements ; nor is the mere fact that a person is in possession of the property, a proof either of ownership or of agency. ^ Oeneral Agents. Where a husband has the general care and management of his wife's property he becomes her general agent ; although he does not disclose the agency while making the contract, or though she did not specially authorize him to make it, or even know of its being made, she is bound by ' 795.' See 413, 413. Compare 787, 711, 789. ^ 24, 341, 628. No Hen can be had under a contract with a mere stranger. 465 68 MECHANICS' LIENS. his acts ;i she is affected and bound by his frauds and omissions in transacting business for her. ^ Architects. An architect employed to make the plans and* supervise the erection of a building, is a special agent for that purpose. ^ He may have a general authority to make con- tracts for labor or materials for that building, but in other respects he cannot be considered as the, owner's general agent. He cannot exceed the authority specially conferred upon him.* Trustees. An executor, guardian or other trustee cannot, unless authorized in the instrument creating the trust, ^ make large and extensive improvements, even though he has the possession, care and man- agement of the estate.* He cannot erect a new and much larger build- ing in place of the old one because its roof leaks and it otherwise needs repairing, although in so doing the old materials, are used as far as possi- ble.' And where a husband and wife owned a dwell- ing house, and she died, and he as sole owner ' 69S. ' 688. For summary of law on married •women, see 904, = 389. ■« Id. See 24, 435, 607, 1018. ■" 607. ' 374, 418, but see 874. ' 374 THE OWN BE. 69 and before the labor or materials were furnished, conveyed the same to his minor daughter who lived in the house with him, and the house was soon after burned ; it was held, that the father, as guardian could not without the authority of a competent court, erect a new house on the daughter's land and charge her' with the ex- pense. 1 And although a trustee has the authority of the court to build, he may not be justified in erecting a building on credit. ^ A trustee, who is so authorized, or who has the possession, control and management of the estate, and has no trust funds, may make repairs and incur other expenditures requisite for the protection of the property. He can employ others to do so, but in that case, to exempt himself from liability, he must make an express agreement, charging the expense upon the trust estate. It is not sufficient to show that the work was done upon the faith and credit of the Gstafco, or that there was a subsequent promise by the trustee to pay out of the estate. There must be an agreement based upon some new consideration, or else an assignment of the lien or claim which the trustee himself has upon the estate for the expenditure. * * 109, 108. ' 483. * 908. See 433 136, but see 607, 10 mechanics' liens. Minors. A minor catirfot bind himself by contract, i In some cases as where he lives apart from his father or guardian he may be required to pay for neces- saries such as food, lodging, clothing and medi- cine,® but it is held that he is not liable on a con- tract for repairs upon his house, although neces- sary to save it from decay. ^ If a minor obtains goods by false representa- tions that he is of full age, the seller may reclaim them, or he may recover damages for the fraud.* He may doubtless reclaim the goods if they were sold without such representations and with a knowledge of the infancy, provided they still re- main in the minor' s possession and he refuses to pay for them.^ If the goods have been actually used in the building, they become part of the realty, and cannot be removed. * A lien cannot be acquired in either case. ' But it is a general rule that the contract of a minor is not void, but voidable :« that is, the minor may ratify it on coming of age, either by expressly recognizing it as valid, or by part performance, or by retaining the benefit or proceeds of it. In that case a lien may be enforced although filed during the, minority. Ratification may be in- 1 513, 975, 980. « 845. ' 845. See 513. « 833 and oases cited. « 930. 6 593. ' 513. « 802. 732. THE OWNEE. 71 ferred from the words or conduct of a person im- mediately upon his coming of age. Any act of ownership may have this effect, but it must be unequivocal. It has been held in another state that the mere receipt of rent is not a ratification and a mechan- ic's lien cannot be enforced ou account of it. A person is not bound to choose either to abandon the building or permit its being charged with a lien under a contract he made when a minor, i A minor may disaffirm or rescind his contract at any time during minority, and is not liable for damages, but he cannot recover back the money he may have advanced upon it. ^ The party who makes the contract with a minor is bound by its terms, he is liable in dam- ages for non-performance.^ Dower. During the husband's life, no lien can be ac- quired against the wife's dower interest in the property. She cannot charge it herself by any contract for labor or materials. She cannot di- vest herself of it in any way, except by a release duly acknowledged.* But if the lien was filed before the marriage,* or before the purchase of the property by the ' 383. See 513. Compare 802. 2 931. See 820, Ibut see 975. 3 923, 556, 39. * 8. See 764. « Compare 498, 805, 1032, 852. 73 mechanics' LIETSrS. husband, ^ it may be enforced afterwards, and it then talies precedence of the dower right. ^ And upon the death of the husband, and es- pecially after the admeasurement of dower, ^ the widow may be deemed owner within the statute ; she may then charge her life interest in the prop- erty for repairs or improvements. * Curtesy. An estate by the curtesy, or the life interest which the husband may have in lands owned by the wife in her lifetime, ^ may be charged by him with a mechanic' s lien. ^ If after the contract is made a joint life estate is enlarged to an estate by the curtesy, the lien also extends to that.'' Transfer of Title. Any valid sale or transfer in good faith of the owner' s right, title and interest in the property, or of any part thereof, whether by deed, » lease, ' mortgage,!" assignment, ^ ^ or other conveyance, i* or by operation of law as upon the death of the '444. Compare 718. = Id., see 19, 500. 8 See- 168. " 8. » 858. * 383. The wife has no interest in such suit, 563. ' 331. « 620, 418, 116, 575. » See 188, 64, 324., See as to perpetual lease 436. " 484. " 519, 300, 459, 461. '' There can he no lien if the building has been destroyed, 564. THE OWNER. 73 owner, ^ prevents tlie acquiring of any lien •IS against, and to the extent of the right, title and interest so transferred. ^ There seem to be no exceptions to this rule. ^ The lien cannot be acquired against the interest of a succeeding owner even though he had no- tice when the transfer was made, that there were unpaid claims for labor or materials and that liens might be filed against the property for them; it cannot be acquired, although he assumed and agreed to pay such claims.* The general rule is well expressed in the Cities' Act, ^ which provides that the lien shall be had upon filing the notice "to the extent of the right, title and interest of the said owner, lessee or person in possession * * * * or the suc- cessors in interest * * * * taken with no- tice of said lien ;" — ^that is, the lien must be tiled before the transfer or it will not bind the ' ' suc- cessors in interest." ® And the courts hold that unless the lien Las already been imposed before the transfer, any proceedings • thereafter instituted under the act are entirely ineffectual, even to afford any right to a- personal judgment between any of the par- ties to the contract. '' ' 58, 418, 338, 136. = Id. ^ Except, 374. Lien may attacli if deed was intended as a mortgage, '881. See 415. * 575. = § 1. ^ 41. The same rule applies to subsequent liens, 313, 601. ' 418, 14. . 74 mechanics' liens. The rule is founded on the well-known princi- ple of law that a Judgment has no preference over prior, legal or equitable claims against the debtor's estate. A mechanic' s lien is not of as high a nature as a judgment.! A written instrument conveying an interest in real property as a deed, mortgage, lease, assign- ment, &c., takes effect from delivery, not from the date on which it purports to have been exe- cuted. ^ To take precedence of a lien it needs therefore only to have been delivered before the lien was filed. * All equities against the property have prefer- ence over subsequent liens; even a valid agree- ment to give a mortgage or a lease, or an undivided interest in the property, in short, any transfer of interest by the owner, previous to the filing of the lien has priority over it, and that too, although the claimant had no notice of such transfer.* An attempt to make a legal mortgage which fails for the want of some solemnity is valid in equity. Thus, where there was a building contract, and a sub-contractor furnished materials under a contract with both, the vendor and the vendee, ' It binds the same estate in land, as a judgment would if en- tered at the date of the lien, 516. See 348, 417. ^ 139, 519, 169. Unconditi6nal delivery to an agent is suffi- cient, 169. ' 484. 139. * Id., and see 500, 19, 608, 398, 760. THE OWNER. 75 they agreeing to give him for one-half the amount, a mortgage on one of the houses. After the materials were furnished and the houses built, the vendor delivered to him a mort- gage signed, but not acknowledged or attested. Soon after a lien was filed against the premises by another party. The mortgage was then acknowledged and re- corded and, later still because there was a ques- tion as to usury, the mortgagee caused another to be executed by the vendor. In an action to foreclose this mortgage by an assignee the Court of Appeals held : That the equitable mortgage had priority over the lien ; that such a mortgage may be constituted by any writing from which the intention so to do, may be gathered : that a designation of the' prop- erty to be charged, though indefinite to some de- gree, does not impair its effect ; that it is not waived by afterwards taking a legal and perfected mortgage to the same extent, and upon the same property, nor is it merged therein ; that it passes to an assignee oj;' the debt, it need not be ex- pressly assigned. ^ But in another case, where a mortgage was made and recorded, but without consideration and without delivery, and a lien was filed, and the mortgage was then assigned to an assignee, who, in good faith, paid the full consideration, the same court held that the lien was not defeated 1 484. See 519. 76 mechanics' liens. by the mortgage, although, as between the mort- gagor and the assignee, the mortgage was valid. ^ Fraudulent Transfers. The Revised Statutes declare that, Every conveyance of any estate or interest in lands, made with intent to hinder, delay or defraud cretitors or other persons, of their lawful suits, damages, debts or demands, shall, as against the persons so hindered, delayed or defrauded, be void.^ The transfer must be made in good faith, . A pretended conveyance for a pretended con- sideration is void as to creditors. ^ A fraudulent grantee is an incumbrancer within the lien acts.* The lien may be filed against the owner as if the transfer had not' been made, and, in the action or proceeding to enforce it, such grantee may be made a party, and a coErt having equit- able jurisdiction ma v inquire into the fraud, and,, if it is established, decree that the right, title and Interest of the owner should be sold to satisfy the claim. And this decree or judgment is binding and conclusive alike upon the owner and the fraudu- lent grantee. ^ But it is otherwise if the fraudulent grantee 1 557. Compare 760. » 943. = 239, 413, 519, 383. See 961, 748, 285. ■♦ 413, 339. « 339. THE OWNEB. 77 transfers his interest in the property to a honcu fide purchaser before the lien is filed, the lien will be invalid in that case. ^ Payment. The owner is not liable to sub-contractors in an action for work and materials claimed to have been furnished at his request, where, in a prior action against both the owner and contractor to foreclose a lien for the same work and materials, the sub-contractors pleaded that the same were furnished under a sub-contract with the con- tractor, and obtained a judgment declaring them to have been so furnished at the contractor' s re- quest. ^ The owner cannot, except in case of fraud,col- lusion, or attempt to evade the act, be made to pay any more than by his contract he has agreed to pay, ^ nor at a different time,* nor in a differ- ent manner. ^ Payment may be made to the creditor' s-agent ' 460, 557. = 626, but see 432, 123, 582, 380, 506, 602. * 120, 359. ' TMs is so, although the contract price is less than the value of the materials. 120. But he must pay the contract price, although he has required and accepted a less amount of work than that specified. 851. Or, although he has made voluntary payments to the contractor's workmen. 960. See 402. " 150, 124, 512, 621, 246, 264, 602, 487, 588. This is so, al- though the owner himself brings on the proceedings. See 487, 151, 423, 588. » 151, 584, 4 78 mechanics' liens. or attorney, ^ but not to his wife, unless she is also his agent, either expressly or by course of business. ^ Application of Payments. At the time of payment the owner may apply it to any claim or account he wishes to ;s he may do so either by express declaration or by any act which shows his intention or purpose.* If he makes no choice, then the creditor may apply the payment as he wishes to ;' he may apply it as well to an unsecured as to a secured claim, * or even to a debt barred by the Statute of Limitations.' But it is held that a mere entry in the books of either party, stating the payment to be on a particular account, is not conclusive ; the entry should be shown to the other party. ^ If the creditor does hot make his election within a reasonable time, the Court then applies the payment as the justice and equity of the case may require. ' One having several liens and receiving part payment, cannot after allowing some of them to expire through neglect, wait until the building on which he still has a lien has passed into the hands of an innocent third party and then seek ' 933, 819, but see 973. « 934, 693. s 935, 90. * 936. ' 935. « 811, 479. ' 936. * 937. ' 925, 201. Indiscriminate payments on ac- count of several claims do not affect the right to a lien. Id. THE OWNEK. 79 to enforce that lien, by applying such, payment upon the trial to the claims whose liens have expired. ^ Where the first items of the account are unse- cured, a lien being filed for the residue, and neither party applies the payment, the Court ap- plies it to those items, and the lien may be en- forced. 2 If a false or pretended lien is filed and the owner pays the lienor to discharge it, the money may doubtless be recovered back as paid under duress or compulsion. * Burden of Proof. When the work is shown to be done under the contract, and all the days of payment past, it is for the owner to prove payment or some valid . excuse for not paying.* He must prove ifc di- rectly, not inferentially, and as well in an action brought -by a sub-contractor as in an action brought by the contractor. ^ 1 353. Compare 1015. ^ 260. See 479, 143. ' 813, 721. So if payments were not credited by the claim- ant in taking judgment by default. 586. ^ 947, 404, 584, but see 116, compare 960. Giving credit on account of a debt due from tie contractor is good payment. 4. So are notes ■wMch have become due and taken up as pay- ments, although not charged up in account. 584. But a mere verbal guarantee is not . 235. But see 596. ' Id. A failure to recover against the owner does not deprive the claimant of his demand against the contractor. 602, 61. But a sub-contractor cannot foreclose his lien until payment be- comes due to the contractor. 511, 116. CHAPTER IV. Tlie I 848*. * " Id. See 964, 1035. ' State Act, § 1, Amendment, Laws 1875, chap. 333. See 519, 6 630 ' See 386. 96 MECHAKICS' LIEWS. sary to the enjoyment of the principal thing is an incident or appurtenance thereto. ^ Rigid to Old Materials. Where a written contract to erect a building upon premises already covered by houses, does not mention them, nor the use of the materials in them, the contractor becomes the 'owner npon taking possession and removing them, and he may use them whenever and wherever he chooses, either in the new building or elsewhere. ^ A lien may, of course, be filed for such old ma- terials when used in the new building. The only question the owner can raise is, whether they were of good quality and condition to fulfill the terms of the contract. Possibly the owner would be entitled to the old materials if he took pos- session of them before the contractor, or if the contract was not in writing, and it was the cus- tom or usage for the owner to have them. * Materials Must he Sold for tJie Building, The materials must, as we have seen, be fur- nished/or as well as used in the building.* The seller and the purchaser must both under- stand at the time of the delivery that the mate- rials are to be used upon the particular building which the purchaser intends to construct, alter 1 929. Compare 913. « 433. ' Id. See 968, 943, 719. * 647, 83, 33. THE LABOR AND MATERIALS. 97 or repair. ^ The credit must be given to the prop- erty.* It is held in another State that the mate- rials then belong' to the building, although not, in fact, used in it ; that they do not belong to the contractor, although furnished to him ; that they cannot be taken under an execution against him. * Materials Must he Used in tJie Building. ~ The courts of the several States do not agree as to whether the materials, if furnished, need also to be actually used in the building. In Iowa,* Ohio, ^ New Jersey,* Pennsylvania,'' and Wisconsin 8 the rule is, that the materials need only to be furnished for and delivered at the building. It is not essential that they be ac- tually used. They must not, however, be fur- nished through collusion between the material- man and the contractor,^ nor be in kind or quality entirely unsuited for the purposes in- tended. 1 " In Illinois, 11 Massachusetts, ^ * Maine, ^^ Mis- souri, i* Connecticut, 1 5 Calif ornia, ^ ^ and Greor- gia, 1 ■" the contrary rule prevails ; the courts holding that, to justify a lien, the materials, must not only be furnished for the building, but be actually used in it. ' Id. 2 463. s 667. ^ 446, but see 268. ^ 29. '« 434. ' 462. 8 170. » 435. 1" 462. " 297. " 541. " 493. » 565. " 83. " 290. See 20. " 355. 98 mechanics' liews. The question has not yet been lairly presented in this State. It did not arise in the case above referred to, where it was held that "the mater- ials must be furnished^or as well as used in the building," since in that case it was admitted that the materials were used. ^ But it may be suggestive that the courts so often employ the phrase "furnished and used" in speaking of the materials. The terms " ma- terials" "furnished and used" seem inseparably connected. And the General Term of the Superior Court has held that to create a lien in favor of those who furnish materials towards the building of a ship or vessel (under a statute authorizing such liens)^ it is not sufficient to prove that the ma- terials were furnished for the declared purpose of being used in the building of the vessel. Their positive application to iJie intended use must be shown. That if it appears that all the materials fur- nished were not applied to the building of the vessel, the burden of proving what portion of them were so applied rests upon the material- man. ^ This decision will doubtless be followed by the courts in respect to mechanics' liens. A substantial using of the materials may be ' 647. ' 2 R. S., part 3, chap. 8, title 8 ; and see Laws 1862, cliap." 483. »497. THE LABOR AND MATERIALS. 99 held sufficient, and the rule may be more strictly- applied, in cases where the materials were fur- nished to the contractor, than where they were furnished' directly to the owner. ^ It is the opinion of Mr. Kneeland, in his ■work on the subject of mechanics' liens, that the owner's building should in all cases be held liable for materials furnished directly to him for its use, although they were not in fact so used.^ Public Buildings. Private corporations may, as to the land they own, be regarded as persons within the meaning of the lien acts. ^ Bank buildings, private bridges, * wharfs, piers, bulkheads, canals, railroads,^ &c., may be chargeable with a lien, and so may be churches, ^ colleges, seminaries, academies and' normal schools, ' when private property. Municipal corporations, as the state, ^ counties, towns, cities and villages, are hot liable. * The property of a municipal corporation is ex- empt from seizure and sale under an execution upon grounds of public necessity. ^ " 1 See 170. 2 330. The Public "Work Act, 1 3, especially provides that the "work or materials must be actually performed or used. 3 Compare 855, 131, 379, 1018. . '- 409. "^ 281, 71. « 510, 27. •> 43. 8 616. 9 344, 677, 346. 1" 844, 51, 501. 100 MECHANies' LIENS. The lien does not attach, to public edifices or to their furniture or ornaments, nor to public parks or grounds, 1 to court-houses,^ public offices or jails, 3 to public school-houses,* tp public roads, railroads, ^ wharfs, piers, bulkheads, bridges" or canals,'' to cemeteries,^ to a "fire- bell tower,"' probably not to fire-engine houses. ^ "' It is said that even the property of a private corporation may be exempt in some cases upon grounds of public necessity, as when it was formed to supply a town with water, i ^ But the property of a municipal corporation, in order to be exempt from levy and sale under an execution, must be actually devoted to pub- lic use. 1^ , Where a house is erected by a minister pleni- potentiary of a foreigii government, for his resi- dence, it is exempt from sale ; but any house or building not u^ed as a mansion for purposes con- nected with his representative character, is not exempt, but is chargeable with a lien, i ^ The fact that a building is the property of a municipal corporation and used and designed for public iise, does not in New Jersey prevent a sub-contractor from acquiring a lien ; he cannot 1 51, 25. ^ 44 ; nor to property exempt by law from levy and sale under execution. Id. 3 677. ^ 51, 85, 675. « 160, 281, 549. « 353, 409. ' See 344, 281, 44, 616. « 36 » 844. " See 639. " 187. " 344, 51. See also 639. '^ 69. THE LABOE AND MATERIALS. 101 cause the property to be sold to satisfy it ; the liea merely works an assignment or transfer of so much of the debt as is due him by the con- tractor, and to that extent the contractor cannot then be paid. ^ The rule will doubtless be followed in this state, ■outside of the cities. In the cities the Public Work Act applies, and all proceedings must be had under it. The Public WorTc Act. The Public Work Act^ provides for a lien in iavor of sub-contractors only. Under it those only are entitled to a lien who as -.^ Laborer, mechanic, merchant or trader * * perform any labor or furnisH any material toward the performance or completion of any coniraet (made between a contractor and any incorporated city'). (The lien is) upon the moneys in the control ■of the said city, due'or to grow due under said contract (and for), the full and par value of all such work and materials, to the extent of the amount due or to grow due (under the contract between the sub-contractor and the contractor, or his sub-con- tractor, 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 materials furnished, when no specific contract is made in the performance of said work ]by the contractor.* ' 193. ^ Laws 1878, chap. 315, as amended Laws of 1881, chap. 439. ^ § 1. 4 Id. 102 mechanics' lieks. By the laws of 1881, chap. 429, a new section is added to this act which reads as follows : § 16. This act shall apply to and include all cases and contracts, under wliicli work and materials have heretofore been, or shall hereafter he done and furnished upon 'any land, the title of which was, at the time of the making of the contract, and now is in aay city, and for the performance of which appropriations have heen, or shall hereafter he 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. The lien attaches : — 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.' The lien may be enforced : — Against the said fund therein designated and against the per- son or persons liable for the debt by a civil action.'' The judgment rendered : — May be enforced by execution ^ : — But of course only as against such fund and persons liable. The act does not provide for the sale of any public property. It is very noticeable that in this act the lien is. to be filed as against the contract. A contract for merely personal property or for labor upon it, would doubtless be sufficient.* In this respect the statute is a wide departure from all other mechanics' lien acts in this state. ' § 5.' • i* § 6. * § 8. See on construction of this statute 70. Compare 97, 467. * I 8. But the work or materials must be actually performed or used in the execution and completion of said contract, § 3. THE LABOR AND MATERIALS. 103 Railroads. Railroads built and owned by municipal cor- porations and in public use are doubtless so excepted from the operation and effect of the lien laws, that they cannot be sold under execution. The general rules in respect to the exemption of public property apply to them, i But railroads, the property of private corpora- tions are, although under state control and used by the public, chargeable with a lien under sev- eral of the lien acts. Labor and materials fur- nished railroads in the construction of bridges, trestle-work and other structures connected therewith, are espepially within the provisions of the Kings and Queens Act, the Rensselaer Act, and the Onondaga Act.^ And the Railroad Act applies throughout the state. The Railroad Act. Under the Railroad Act, ^ any person who per- forms, Any labor for a railroad corporation (may) 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 oi the right, title and interest of such railroad corporation in the property existing at the time of filing the said notice. The act further provides* that for ninety days' personal services or less, performed for such cor- ' 160. See 549, 344, SI. ' Laws 1870, chap. 529. See 100, 641, 281, 551, 191, 549. 226, 567. - g 1. ^ 1, § 8. 104 mechanics' liens. poration, by any of its laborers or servants, other than contractors, each and all of the stockholders shall be jointly and severally liable in an action, provided an execution is first returned unsatis- fied in whole or in part against the corporation, and provided such laborer or servant gives no- tice in writing within twenty days after the per- lormance of such service, that he intends to so hold him liable, and shall commence such action within thirty days after the return of such exe- cution unsatisfied. Material-meni and contractors are not included in this act. The term "labor" means manual labor only. The terms "laborers or servants" do not include an agent, or a secretary of the cor- poration, 2 or a civil engineer. ^ TJie Oil Well Act. The Oil Well Act* provides for a lien in favor of any person who performs : 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 smking or drilling any water well, sunk or drilled for the pur- pose of drilling 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 f ur- ' Under amch a statute a lien cannot be filed for u, joint claim for labor and materials. See 654 and cases cited. « For definition of these words see 768, 838,, 806, 689, 745. s 489. See also 599, 814 and cases cited. 1000. *§1. THE LABOK AND MATERIALS. 105 nislied for any of the purposes aforesaid, or who shall perform any labor, or furnish any materials in or for the building or erect- ing^ of such tank or other such receptacle as aforesaid, or who shall furnish any materials for any of the purposes aforesaid, in- cluding tubing, casing, sucker-rods, packers or other appurte- nances or appliances to any such well as aforesaid, with the con- sent of the owner. This act in other respects contains provisions similar to those of the acts which create liens for improvements upon lands or appurtenances. It comes within the scope of the general lien law of the state. ^ > See 640. CHAPTER V. Tlie Iiand. Fwhdamental Principles. Statutory Provis- ions. The Term " Lof^ Other Terms. Appurtenances. Adjoining Buildings. Separate Buildings. Loss of Building. Effect of Lien on Insurance. The Public WorJc Act. The Railroad Act. TJie Oil Well Act. There are three old and well known legal max- ims that apply to land. The lirst is that the owner of land owns it to the clouds above and to the centre of the earth beneath. ^ The second is that whatever is affixed to the soil belongs to it. * The third is that with a transfer of the land all the means to attain it and all the fruits and ef- fects of it are transferred also. * The lien acts do not seek to change or affect these fundamental principles of the Jaw of land. Although they authorize the creation of anim- ' Cujus est solum ejus est usque ad coelum et ad inferos. ^ Quicquid plantatur solo solo cedit. Cuicunque aliquis quid coucedit concedere videtur et id sine quo res ipsa esse non potuit. 734. See also definition of "land " Laws 1881, Chap. 293. THE LAND. 107 portant lien upon land, and one that was entirely unknown to the common law, it is still only a lien, and it is given only to secure the payment of money. The statutes do not require that the ma- terials or the fruits of the labor shall be returned; on the contrary, it is only because they are deem- ed to have entered into and form pdrt of the land, that the lien is given. ^ These principles of law, and especially the two first mentioned, will help us in determining the amount of land that is subject to a lien. Statutory Provisions. The Cities' Act^ provides that the lien shall be: Upon such house, vault, wharf, fence, or other structure, and. appurtenances, and the lot upon which said grading or exca- vatiQg is done, or walk laid, * * * « and the land upon which the same stand. The Buffalo Act* and the Kings and QueenS' Act* employ the terms: Upon such house, building and appurtenances, and upon the lot of land upon which the same stand. The State Act^ has. Upon such house, building or appurtenances, and upon the^ lot, premises, parcel or farm of land upon which the same shall stand. The Rensselaer Act" has. Upon such house or building or additions and appurtenances, and upon the lot, parcel or farm of land upon which the same shall stand. ' See 593. » § 1. ' § 1. * § 1. '' § 1 Amendment Laws 1875, Chap. 233. « § 1. 108 mechanics' liejss. The Onondaga Act^ has, Upon such house or building or appurtenances, and the land "upon which the same may be situated. The lien is therefore given not only upon the Tiouse, building, structure, appurtenances, &c. {which we have considered in the preceding •chapter), but also upon the land. And it is held that the lien extends to the en- tire property, not merely to the ground covered Iby the building, but to the land about the build- ing, used with it and necessary or reasonably <5onvenient for its use. ^ The lien extends to the tract of land on which the house stands, or to so much of it as with the Jiouse would be required to discharge the lien.^ The Term ''LoV In cities, towns and villages land is usually •divided into "lots." And in the country a parcel of land may be called a lot, as a "mill lot," a " wood lot," &c. A city lot is usually small and well defined; it Is called a "building lot," and the question sel- dom arises under the lien acts, either as to its ■extent or connection with the building. Town and village lots are generally much larger. They may consist of one or more acres. ' § 1. "^ 16, 165, 140. Compare 713. * 643. Lien not defeated by homes<'ead exemption, 646; but jgee 633, 310, contra, 99. THE LAND. 10^ One acre in villages has been held to be not unreasonable for the proper enjoyment of the buildings upon it. ^ A mill lot or a wood lot may consist of many acres. The term " lot " is therefore very indefinite. Its proper meaning is a portion of land that has been set off or allotted, whether great or small, but in common use it means simply a piece, par- eel or tract of land, without regard to size. It may contain one acre, two acres, fifty acres, pos- sibly even one hundred acres, or more. The question is not so much the si^e of the lot as- Avhether it is one single parcel or tract, bought and sold as such, its metes and bounds gen- erally known as being the tract, lot or parcel of land, which the parties naturally understood, as those which would appertain to or be con- nected with the building or buildings after they should be erected. ^ Other Terms. The terms "premises, parcel or farm of land"' may also mean either a very small or a very large quantity. As commonly used, such terms are more gen- eral and comprehensive than the term "lot." They may embrace even more land than the- " curtilage," which is the legal term given to alL 16, 385. = 165. 110 mechanics' liens. the open space within a common enclosure be- longing to a dwelling house. ^ And under the lien acts a curtilage is held to mean the grounds which properly appertain to the buildings, whether the contents be two acres, ten acres, or one hundred acres. The question is not so much the size of the curtilage as wheth- •er it is and always has been considered, treated and known as one entire parcel, lying together, sold together, surveyed together, occupied to- .gether by its different owners, its metes and bounds known to all, and- always recognized and treated as connecting itself immediately with a farming establishment, a manufacturing estab- lishment, a pleasure or other establishment. ^ In filing a lien, therefore, it is proper to adopt the metes and bounds recognized by the owner, and those that have formerly been used to de- scribe the premises when sold or bought. After the lien is filed it cannot be legally ex- tended to any more laud than it describes. And care should be taken when filing it' to make it broad enough to cover enough land So satisfy the ■claim. ' Thus at public sale the word " parcel " means the piece or ■quantity of land put up and sold in one body, for one price and at one time, and may include several lots, 880. See also 839, 913. A lot of land under tide water is not a "lOt" or "curtil- age " within the meaning of the lien laws, 97. ^ 165. THE LAND. Ill The fact that the lien covers too much ground does not make it invalid. It does not need neces- sarily to be enforced on all the property it de- scribes. The Court will decree that only enough land be sold to satisfy the debt. A mechanic' s lien is like any other lien in this respect, and as in the case of a mortgage or a judgment, it is only necessary to sell enough land to pay the claim. ^ Appurtenances. We have seen that land is in law deemed to extend indefinitely both upwards and down- wards 1 That it includes all buildings, growing timber, water, &c., upon its surface, since everything af- fixed to the soil belongs to it. , It follows, therefore, that the improvement of one building is the improvement of all the build- ' ings upon the same land, and doubtless the lien would now be held to extend to the appurte- nances of the building and to the land, even though such a provision was not contained in the statutes. 2 The lien may extend even beyond the particu- lar lot known as the town plat the building is on. It may extend to two or more such lots, provided they lie together, without any actual divison, and • Id. See 1007. " See 939, but see 913. 388. 112 mechanics' liens. are used together for a common purpose. ^ And it is a general rule that the lien extends to all the buildings upon the same premises or within the same enclosure. A claimant may thus have a lien on buildings to which he has not directly contributed. ^ The lien for adding a new wing to an old build- ing extends to the whole. * The lien for erecting a new kitchen extends to the main building to which it is annexed. * A marble mason, who puts up the front with- out touching any of trie back buildings, may charge them with the lien ;^ and so where a xarge hotel extends through from one street to another, a lien upon a small rear building connected with the hotel, extends to the whole building. « • A lien for erecting a stack in one of several buildings used as a pork house and a distillery^ extends to both. ' And so It IS said to be in Holland and other countries where liens are given for the repair of dykes, to shut out the ocean and ditches to drain the country, the liens extend to all the proper- ties benefited, even though they do not adjoin the work. ^ And where a lien was filed for repairs and additions to a mill, and it designated the premi- ses as "all that tract of land known as the 414, 381, 373. 449. = 354; compare 340, 644. *376. 449. 6 175 ' 43. »449. THE LAND. 113 Phoenix Mill Property," and described it by- metes and bounds ; the tract consisted of fifty- three acres, and there were two dwelling houses on it besides the mill. Seven or eight acres of the land were en- closed with one of the houses; thetrest of the land was not enclosed. The whole, for thirty years had been known and conveyed as one property. It was held that the whole was liable to the lien^ But it is not always necessary that an entire tract of land should be charged with the im- provement of every sort of a building upon it. ^ That may become a question of fact for the jury to decide. * Thus the case last mentioned was appealed, and the Court, although it affirmed the Judgment, said that undoubtedly the land should have been limited to so much as was necessary for the con- venient and beneficial enjoyment of the mill.* And doubtless where there is a mill or one of several barns on a very large tract, or a factory or warehouse on one side of it, and each build- ing is entirely independent of the general pur- poses of the other buildings, and capable of com- plete separation without injury, the lien would be held to attach only to such building and to land sufiicient for its own purposes.^ ' 165. See 373. So in Illinois a lien for two buildings was extended to four hundred acres. 596. " 44e. ■' 140. ^ 140. See 302. Compare 918. ^ 449. See 488, 167. 114 MECHAWIOS' LIENS. Adjoining Buildings. Several contiguous buildings may be regarded as one, Where materials are furnished for and used indiscriminately in their erection, and but one lien need be filed covering all. ^ i Several adjoining buildings, all owned by the same person, may, as against the owner, be treated as one building. ^ Where two persons inake a joint contract with a builder for the erection of two houses, one to be built on the lot owned by one, and the other to be built on the lot owned bj'' the other, such persons become thereby jointly Jiable as owners.* A single action may be brought to enforce a lien filed against several buildings on adjoining lots, and the lienor is entitled to be paid out of any or all of them. * The court will not impair the security, or limit the operation of the judgment, or exempt from the lien any portion of the premises, unless it is highly equitable to do so.* One who has filed a lien against several adjoin- ing buildings, may release some of them upon be- ' 349, 479. One lien may be filed against two blocks, built under the same coiitract, divided not by a public street or alley, but by a private way, common to both. 179. Otherwise, two liens must be filed where there are two separate blocks. 46, 181. One lien may be filed against a double building. 399. ' ° 433. See 13. But where a building stands partly upon the owner's land and partly on land of a third person, there can be no lien. 599, 397, 91. ' 371. ^ 483, 349. » 479. THE lAKD. 115 ing paid in full for the materials used in the buildings so released, and the release does not affect his lien for the balance of his account against the remaining buildings. ^ But where a lien was filed against seven houses for materials furnished under a single contract, and one of them had been conveyed away by the owner before the lien was filed, the lien was held to be valid as a lien upon the remaining houses, only for their proportionate part of the whole claim (six-sevenths), although some payments had been made by the owner on general account^. Separate Buildings. Where several buildings are separate and dis- tinct, and the materials are furnished for each Ibuilding by itself, and a separate account is kept with each, a separate and distinct lien must be filed. 3 This was so held where there were three mills, two of them being on adjoining lots and the, other being some distance apart on a lot by itself. * So a single lien has been held not to extend to several buildings used as a factory \^ nor to two separate and distinctsections of a canal, although the same were so connected that each was neces- sary to the other. ^ > 249. ' 381. 2 83, 548, 181, 137, but see 596. 4 83, 543. * 131. « 71. 116 MECHANICS' LIENS. Loss of Building. The lien is given as we have seen upon the building and upon the lot " upon which the same shall standy It is held. in this state that no lien can be ac- quired after the building is blown down. The ruins left are not the building, the lien cannot attach to the lot, for it has no building upon it. i The same reasoning would seem to apply even to cases where the lien was filed before the build- ing was destroyed. It is held in Illinois, that the lien may in that case continue against the land.^ But it is held in Pennsylvania^ and it seems to be the law of New Jersey* that the lien is lost with the destruction of the building. Since a lienor has such an interest in the prop- erty that he may insure it, ^ if he fails to do so and the building is destroyed by fire, he would doubtless be made to bear the loss. Effect of Lien on. Insurance. The mere filing of a' mechanic' s lien, does not constitute a specific incumbrance upon the prop- erty. . Where a policy of insurance, provided that the company should not be liable "if, without written consent hereon, the property shall here- after become incumbered in anyway;" "nor, • 564. ^ 307, 593, see 587. » 67* « 97. ' 514, see 945. THE LAND. 117 if the interest of the insured therein be changed in any manner, whether by the act of the insured or by operation of law," and a lien was filed against the property, without the knowledge of the person insured; it was held that the filing of the lien did not create an incumbrance within the meaning of the condition and that the policy was not avoided thereby.^ \ The PubliG WorTt Act. The Public Work Act, does not provide for a lien upon lands or buildings. The lien is tiled against the contract and merely attaches to the f nnds in the control of the city, due or to grow due to the contractor. The Railroad Act. The Railroad Act, ^ provides that the lien shall be: Upon sucli railroad track, rolling stock and appurtenances, and upon the land upon which such railroad track and appurtenances ^re situated. Other acts* as we have seen, also extend the lien to bridges and trestle work erected for rail- roads and other structures connected therewith. But few cases under these statutes seem yet to have been passed upon by the courts. * ' 328. Compare 104. ^ g x. ^ Kings and Queens Act, Rensselaer Act, Onondaga Act, Amendment Laws, 1870, Chap. 539. " -70, 551, 191, see 549. . 118 mechanics' liens. It is held in another State, that a railroad from one end to the other is an entirety and only as a whole is subject to coercive sale ; and that the effect of such a law would be to parcel out the various bridges, &c., among the mechanics who furnished the material and erected them and re- tard or destroy the usefulness of these roads, sO' valuable to the public. ^ The Oil Well Act The Oil Well 'Act, so far as it relates to land,, may be construed by the general rules we have considered. It provides^ that the lien shall be: Upon such tank or other receptacle as aforesaid, and upon such well as aforesaid, and appurtenances, and upon the lot, premises, parce. or farm of land upon which the same shall be situated. > 236. See 381, 567. ^ § 1. Compare 640. CHAPTER VI. Filing of tlie Ijien— Time. Necessity of Filing. Statutory Provisions. ' ' Completion of Building. " " Completion of Contract.^' Other Terms. Meaning of '■'■or. ^^ Computation of Time. Other Acts. The Public WorJc Act. The Railroad Act. The Oil Well Act Of Law it was remarked many years before mechanics' liens were known: "The study is abstruse and difficult, the occasion sudden, the practice dangerous."^ How truly this may be said of the lien laws is known only to those who have had occasion to practice under them. Each statute contains some provisions quite "unlike those of any other, and it may often be said of a statute or amendment, that "its absurdities are so great that the framers themselves had no very distinct notion of its meaning." ^ The study is abstruse and difficult, and not only is this true of the statutes, but also of the judicial decisions. The latter are now very numerous. " They come not single spies, but in battalions,^ ^^ and ' 746, 1010. ^ 59. = See 1011. 120 mechanics' LIENS. the labors of the lawyer are much increased by the fact that they are made with reference to statutes, different in each State, or were perhaps made under acts long since repealed. The books abound in cases where liens have failed through some defects in filing them. The proper filing of the lien is of the utmost importance, and requires much care and study. The occasion is sudden. Clients are too apt to think that it is a very simple and easy matter to " file k lien." From fear of offending a customer, ' or from negligence or other causes, they often wait until the last day allowed by statute, and until late in that day. And then iipon requesting the lawyer to pre- pare the notice of claim, they may not be pre- pared to properly describe the premises or to furnish sufficient particulars of the claim and the necessary names, dates, &c. The practice is dangerous. If the lien when filed fails to comply in most respects fully, 2 in other respects substantially 3 with the provisions of the statute, it cannot be amended after the time limited for filing has ex- pired.* It is wholly void. It is worse than no » See 590. 2 125, 147, 157, 184, S95, 149, 658, 65. 3 37, 393, 293, 394, 93. ^ 106, 37, 470, contra 93, 573. Where in another State Dec. 9th was written by mistake for Dec. 17th, proof that the latter date was correct was allowed. 656. FILINCr OF THE LIEN— TIME. 121 lien, since there is danger that much, expense may be incurred in seeking to enforce it. Necessity of Filing. Under all the statutes of this State (except the Onondaga Act) the lien owes its existence to the tiling of the claim. The statutes expressly de- clare that the lien shall be had ' ' upon filing the notice'''' of claim. ^ Under the Onondaga Act the rule is diiferefnt. The lien takes effect as the materials are fur- nished and the work is done.* The original act^ provides that the claimant: — Shall until the end of three months after the performance of such labor or furnishing materials, he deemed to have an equit- able lien for the same. - As against the owner no filing is necessary, but filing is necessary as against third persons who have no actual notice of the lien. * Statutory Provisions. The Cities' J.c^ ^requires the notice of claim to be filed : — At any time before or within thirty days after the completion of the erection, altering or repairing of any house, 'vault, wharf, fence or structure, or grading, filling in, excavating, or laying walks. ' 461, 519. See 117. ' 41 , 41 3. A lien could doubtless be filed under such a statute after the death of the contracting owner, if filed within the pre- scribed time. 58. » § 1. ^ § 3. See 413, 584, 59 revs'd 58. ' § 3. 122 mechawicr' liews. The Buffalo Act^ requires it to be filed by : — Every original contractor within four months after mo com- pletion of his contract, (and by) any person, persons or firms, save the original contractor, * * * within sixty days after the performance of the work, or the furnishing the materials. The State Act^ requires it to be filed : — ' Within sixty days- after the performance and completion of such labor, or the final furnishing of 'sueh materials. The Kings and Queens Act^ requires it to be filed :— Within three months after the performance of such labor, or the furnishing of such materials. The Rensselaer Act* requires it to be filed :— - At the time of the commencement * of such labor or furnishing such materials, or at any time during the progress ;f such labor and furnishing such materials, or within thirty days after the performance and completion of such labor or the final furnish- ing such materials. The Onondaga Act does not require the notice to be filed as against the owner. It limits the time, however, by providing that the claimant shall be deemed to have an equitable lien : — Until the end of three months after the performance of such labor or furnishing materials ' (and that), as against all other per- sons who have eo actual notice thereof, the only evidence which shall be necessary for a party to signify that he claims such lien [hall be the filing of a notice * * * at any time while the business is progressing, or within the said period of three mouths. ' § 5- ' § 4. s § 3. » § 4. * The " commencement " of a building, under the lien .aws, is the flrst^labor done on the ground which is made the founda- tion of the building, and is to form, part of the work suitable and necessary for its construction. 107, 488, 303; but see 608. ^§ 1. FILING OF THE LIEN— TIME. 123'- Completion of Building. The same general rules may be said to apply in determining the completion of any erection, altering or repairing, or grading, filling in, exca- vating, &c. A building is said to be completed when it has been made to conform to and satisfy the original plan or design — when the plan of the builder has once been carried out. It may thus- be completed within the meaning of the statute, although subsequent changes, alterations or ad- ditions are made, provided they are merely use- ful or ornamental, and not absolutelyjessentiai to give the building completeness and render it. fit for the purpose for which ifc was, erected. Ordinarily a house may be said to be com- pleted when shingled and otherwise fully fin- ished, although a tin roof is afterwards laid over the shingles and the walls papered. But a house woiild not be regarded as completed if the walls were not plastered or the roof shingled, and if by the plan, or by a change in the plan, the- walls were also to be papered, or a tin roof was to be laid over the shingles, the house would not be completed until that was done.i TJie Cities'' Act is the only one which provides that the lien may, by any person, be filed within thirty days after the completion, altering or re- pairing, &c. So much time is given, the court® will hardly extend it by a liberal construction. 1 411. See 36, 20, 183, 555, 98, 596. 124 , mechanics'" liehs. In a recent case, where the statute required a sub-contractor to file his lien " within thirty days after the completion of any building, &c,, or the furnishing of the materials," it was held that a lien for materials must be filed within thirty days after they were furnished, and as an illustration that such a limitation was reasonable and proper it was said: "Suppose one furnishes stone to the original •contractor for the construction of the foundation ■of a building, which building is not to be, or <;annot be, completed for years. Has the claim- ant who furnishes the foundation stone until thirty days after the building is finished in wliich to file his lien, even if Ms claim against the con- tractor is outlawed by time ?" ^ Tlie Cities' Act does not require the lien to he ■filed " within thirty days after the furnishing of the materials.'" It would seem to include, there- fore, even such a case as the one supposed. But t would often be unwise to delay filing the lien until after the completion. It may be filed " at any time before " and thus anticipate pay- ments to the contractor or a transfer of interest Iby the owner. ^ Completion of Contract. The contract may be for the completion of the jbnilding or of any part of it. The contract is completed when all its teriys ' 304. « 74. See 313. FILIH-G- OF THE LIEN — TIME. 125^ and conditions have been complied with by the contractor, when the contract price is due and payable. It may not be completed until certified to be- so by the architect. ^ But ordinarily the completion would date from the deliv^ery of the last item. ^ If the owner denies that the contract is com- pleted, the claimant must prove performance. * An entire contract is completed only when alt the labor and materials are famished.'* Its com- pletion would not date from the payment of an instalment merely. ^ A contract is entire which provides for the de- livery of the materials called for by the plans and specifications, for a gross price or sum, pay- able when all are delivered,^ and so is a contract to deliver "-all the cut stone required" by the plans and specifications for the fair value of the same, although payments are to be made as tha work progresses. ' Where the contrafct is not entire there would, seem necessarily to be as many "completions" as there were distinct claims. Separate sales at different dates and upon, specified credits, constitute independent con- tracts.* 1 See 954, 1030, 808, 807, 914, S3. ' 279, 140, 572, 20, 650. » 264, 602, 144, 643. 4 86, 763. 5 650, but see 507. « 728^^ 346, 128, 844. ' 424. 8 1038, 983. 794. 126 mechanics' lieks. Where one agreed to deliver the materials, on .a running account, at agreed prices until naviga- tion closed, and after that at the market rates, the price of each article being fixed by the agree- ment of the parties, it was said that each article •constituted an entire claim for which a lien could be filed. ^ And it may be said to be the general rule that where there are several items of account for goods «old or work performed at different times, there must either be an express contract, or the cir- cumstances must be such as to raise an implied •contract embracing all the items, to make them a single or entire demand. ^ OtTier Terms. By the same rules we may determine the Taeaning of the terms, ' ' the performance of the -work or the furnishing of the materials." Under one of the earlier statutes,* which're- -quired the lien to be filed before the expiration , •of thirty days after the completion of the work, •or within sixty days after the materials are fur- nished," &c., the Court of Appeals, in the lead- ing case of Spencer agst. Barnett,* held 'that no lien could be acquired for materials not furnished ■within sixty days of the time of filing, although they were all furnished under one contract. » 590. See 346. » 959. See 84. ' Laws, 1853, chap. 335. ■■ 590. See 507. FILING OF THE LIEN — TIME. 127 But in that case the contract was not entire ; the goods were furnished on a running account, the materials wore to be delivered at agreed prices until navigation closed, and after that at the market lates. Each article delivered con- stituted a distinct claim for which a lien might have been filed. ^ The decision was followed by the Supreme Court, where it was held, that for work done by the day, a lion coiild be had for only the work done during tlie thirty days next preceding the time of filing if;,^ It was tollowcO. by the Supreme Court in a case arising under the State Act, where the con- tract '\,vas to furnish and put into a hotel, gas and water pipes, wash-bowls and marble that might be needed, and it was held that there could be no lien for materials furnished more than sixty days before the lien was filed. ^ It has also been followed by the Court of Com- mon Pleas, where it was held, that a mere general agreement "to pay for such materials as there- after should be furnished" is but the opening of a running accoiant, and the limitation applies to each item, as of the date of its delivery.* But the Court of Appeals has held in another case, that where there is an entire M'-ork, under one contract for all that is done, there is no fin- • I 246. ' 219. 3 620. * 295. But in some cases a personal judgment may perhaps Be rendered for the price. Id. 128 mechanics' liens. ishing of it, until all that was intended in the contract js performed. ^ And the Supreree Court has held that an agreement to plaster a building for an agreed price is entire, that it may also include extra work, consisting of distinct jobs bargained for at different times and that the lien covers the whole labor from the commencement, although nearly all of the items of extra work was done outside of the prescribed time. ^ And so in a recent case in the Court of Com- mon Pleas, where a large quantity of material was furnished to be paid for by a gross price or sum, it was held that the materials could not be deemed to have been "furnished" within the meaning of the act until all were delivered and that the limitation did not begin to run until that time. * The law therefore seems to be well settled that the lien acts do not contemplate the amount claimed being from time to time split up by sep- arate liens, nor a repetition of a lien for parts of the same thing and in the case of an entire con^ tract the limitation begins to run from the com- pletion of the work or the delivery of the last item of the, materials contracted for.* 1 392. ' 113. Sec 86, 381, 433. » 246. See 86, 140, 165, 415. 4 458, cited in 395. See also 128, 850. FILING OF THE LIEN— TIME. 129 Meaning of "O?'." There has been some uncertainty as to what meaning should be given to the word "or," as used in the terras, defining the limitations. Under the lien law of the city of Baltimore, where for work done or materials furnished, a lien was given upon the building until the expira- tion of six months "after the work shall be finished or materials furnished," it was held that the lienor had ihe benefit of two alternatives, i.e. that his lien was good either for six months after the materials were furnished, or for six months after the work, in the course of 'which the materials were supplied, was finished. ^ But the courts of this State do not give the claimant this choice. The Act of 1875,3 for the city of New York (in force when the present Cities' Act was passed) provided that : — Every original contractor, ■within sixty days after the comple- tion of his contract, and every person, save the original con- tractor, claiming the benefit of this act, must, within thirty days after the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof, or after the completion of the 'work or the furnishing of the materials for ■which the lien is claimed file, ■with the County Clerk, ^ &c. And in an action brought to foreclose a lien for materials, the Court of Common Pleas, Special Term, held, ' ' The language used does not leave the ques- ■ 466. ' Laws 1875, Chap. 379. » § 5. 130 mechanics' liens. tion free from doubt, but I deem the proper construction to require the lien of a person fur- nishing materials to be filed within thirty days after the materials' are supplied * * * The limitation of thirty days after the furnishing of the materials is special, as is the limitation as to other claims. The section provides for liens under eight different species of claims. 1. By the original contractor, who has sixty days after the completion of his contract, to file his notice. 2. By one claiming a lien for the completion of a building. 8. By one claiming a lien for the completion of an improvement. 4. One claiming for the completion of a struc- ture. 5. One claiming for the completion of altera- tions. 6. One claiming for the completion of repairs. . 7. One claiming for work completed by him (evidently intended to cover the claim of an in- dividual, mechanic, or laborer, who has not been paid for his work). 8. One claiming for materials furnished by him ; and in each of the last seven cases the lien must be filed within thirty days after the completion of the building, improvement, struc- ture, alteration, repair, work, or the furnishing of the materials, as the case may be." And, referring to the above Baltimore decision, the Court said : "I should have supposed, from FILIKG OF THE LIEK — TIME. 131 a reading of the Statute, that the Legislature intended to provide for two classes of debts — one for materials and one for work ; and to have designed that if the lien was for the former it was to continue for six months after the fur- nishing of the materials, and if the latter, then six months after the doing of the work." And referring to the above case of Spencer v. Barnett, the Court said : " Such is the interpre- tation which the language of a nearly similar provision in the Kings County, N. Y., Mechanics' Lien Act of 1853 (c. 335) has received from our Court of Appeals ***** "No suggestion was made that the material- man had any 'alternative' between the limita- tions in the Statute." ^ Computation of Time. By the mode of computing time, established by the Revised Statutes, a day commences and ends at midnight. But the law ordinarily takes no notice of portions or fractions of a day. It is only when the precise honr becomes ma- terial, as, for instance, in ascertaining the priority of liens, that a diiferent rule obtains. In computing the time, therefore, within which a lien may be filed, the first day is excluded and the last included. 2 Thus, under the Cities' Act, if the building is » 304, and see 37l. » 246, 893. 132 mechanics' lienc. completed on the first day of January, the lien may be filed on the thirty -first day of the same month. Or, nnder the BuA'alt) Act, if the contract is completed on the first day of June, the con- tractor's lien may be filed on the first day of Oc- tober, &c. If the last day falls on Sunday, or is a legal holiday, the filing may be deferred to the day following. 1 But it is "dangerous" to delay filing the lien until the last day allo\,od by law. It requires time to prepare tlie notice of claim. The lawj'er may be engaged at court. Essen- tial facts may need to be more accurately ob- tained. The County Clerk's Office closes early, generally at four o'clock. The lien is wholly void if not filed within the prescribed time. ^ Otlier Acts. It must also be noticed that the amendment* which extends the provisions of the Kings and Queens, Rensselaer and Onondaga Acts respec- tively. To bridges and trestle work erected for railroads and mate- rials furnished therefor, and Ubor performed in constructing ' 78. Contra, 485. The courts of the different States do not agree on this point. But the above is, doubtless, the law of this State. See also Code of Civil Procedure, § 788, § 3343, sub'd 21. = 147, 295, 150, 590, 362, 260, and see 658, 65, 418. 2 Laws 1870, chap. 529. PILING OF THE LIEN — TIME. 133 said bridges, trestle work and other structures connected there- ■with, Also extends the time within which such liens may be filed, To ninety days from the time when the ' last work shall have heen performed on said bridges, trestle work and structures con- nected therewith, or the time from which said materials shall have been delivered. The amendment! extending the provisions of the same acts, To wharves, piers, bulkheads and bridges and * * * other structures connected therewith, &c.. Provides that :— The time within which said liens may be filed shall be thirty days from the time when the last work shall have been per- formed on said wharves, piers, bulldieads and bridges, and struc- tures connected tlierewith, or the time from which said materials shall have been delivered. And the Court of Appeals has held that the term " other structures connected therewith," as used in the latter amendment, includes all struc- tures connected with a wharf, pier, &c., and ne- cessary for its proper use ; that a shed or other building must be deemed a structure, and that a lien for materials furnished for and used in erecting a shed, upon a pier, was invalid unless filed within thirty days, although filed within the time prescribed by the general lien law for materials furnished in erecting buildings. ^ ' Laws 1872,chap. 669. , = 100. 134 mechanics' liens. The Public WorTc Act. •The Public Work Act" requires the notices of claim to be filed, At any time before the ■whole work to be performed by the contractor for the city is completed or accepted by the c''y and "within thirty days after the same is so completed or accepted. The Railroad Act. The Railroad Act^ requires the lien to be filed, "Within thirty days after the performance' and completion of such labor. The Oil Well Act. The Oil Well Act^ requires the lien to be filed. Within sixty days after the performance and completion of such labor or the final furnishing of such materials. '§2. =§3. s§3. CHAPTER VII. Filing of thie Lien— Tbe Notice. Statutory Provisions. Requisite Slatements, I, II, III, IV, V, VI, VII, VIII, IX, X. The Public Worh Act. The Railroad Act. The Oil Well Act. Signing. Verification. Place of Filing. Serving Notice on Owner. The courts are inclined to construe the statutes somewhat more liberally in respect to the form of notice, than in respect to the time of filing it. The object and effect of filing the notice of claim, or of "filing the lien," as it is called, is to give notice to the owner and to the public that the property is sought to be charged ^ And it is held that no particular form of notice is necessary. 2 A substantial compliance with the terms of the statute is sufiicient. Mistakes or defects in one part of the notice may be cured by correct statements in another part of the same notice, or if merely trivial and immaterial, they may be disregarded. * But at the same time the courts, as we shall see, always insist upon a substantial compliance with every material provision. All important 1 295. = 37, « 394, 393, 93. 136 mechanics' liens. particulars, all matters of substance, required, by the statute, must be given. ^ Such statements are indispensable. Without them no lien is created and no court can acquire any jurisdiction to entertain any proceedings under it.* In preparing the notice, therefore, nothing is so important as to know precisely what state- ments are required by the particular statute under which the lien is sought. Statutory Provisions. The Cities'' Act^ provides that to create the lien the person or persons entitled may file : — A notice in writing stating liis or their residences, the amount of the claim, from whom due, and if not due, when it will be due, the person or persons against whom the claim is made, the name of the owner, lessee,' or person m possession of the build- ing (against whose interest a lieu is claimed), but the failure to state the name of the true owner, lessee or person in possession shall not impair the validity of the lien ; also a brief description of the buildings or premises sufficient to identify the lands or premises against which the lien is claimed. The Buffalo Act* requires the claim filed to contain : — The names and residence of the claimants, the nature and. amount of the work performed, or the materials furnished or to be furnished, with the name of the owner or reputed owner, if " 157, 184, 295, 149, 27. ^ Id. 125. Where it appears that no lieu ever existed, not even a personal judgment in favor of the claimant can be rendered. 658, 65, 519, 149. - § 2. ^ § 5. FILING OF THE LIEN— THE NOTICE. 137 known, the name of the person by whom he was employed, or to whom he furnished, or is about to furnish, such materials with a statement of the terms, time given, and conditions of his con- tract, and whether all the work for which the claim is made has been actually performed or furnished, and if not, how much of it, and also a description of the properly to be charged with a lien sufiicient for identification * * * *. If his or their con- tract, or any part thereof, be in writing, a copy of such writing must be filed with and made a part of his or their claim. The State Act^ requires the notice to specify: The amount of the claim and the person against whom the claim is made, the name of the owner, or the party in interest, as aforesaid, of the premises, and if in a * * * * village, the situation of the building by street and number, if the street or number be known. The Kings and Queens Act^ requires the notice to specify : The amount of the claim and the person against whom the claim is made, the name of the owner of the building, and the situation of the building by its street and number, if the number be known. The Rensselaer Act^ requires the notice to specify : The nature and amount of work performed, or the materials furnished or to be furnished, and the persons against whom the claim is made, the name of the owner or his agent of the build- ing; and if in * * * * any village in the county, the situation of the building by street and number, if the street be known. The Onondaga Act,^ requires the notice to state : — The nature of the claim, whether for labor or materials; the premises on which he claims the lien, and the lot or block of which they form a part ; the amount thereof, and the date from which he claims it to have commenced. » § 4. = § 3. ' § 4 4 § 3. 138 mechanics' liens. To create a valid lien therefore : — I. The notice must be in writing. Most of the statutes expressly require ," a no- tice in writing," but such a provision is unneces- sary, the fact that it is to be " filed " in a public ofiice indicates that something is to be done with it, that could not be done with a verbal notice. 11. The notice should distinctly claim a lien upon the premises. It is usually addressed to the County Clerk, by name, but it should rather be addressed to him and " to all others whom it may concern." No address is necessary. ^ III. Under most of the statutes it is essential and under the others it is desirable, that the notice state, the names and residence of the claimants.* If the claimants are a corporation, its name and place of business, are sufficient, but it is well to give also the place of residence of the president, secretary, or other officer. ' If the claimants are an unincorporated associa- tion, the names and residences of the persons com- ' See 666. A lien verified by an agent stating that the amount was "owing him," and that he claimed the lien was held suffi- cient, 336., » See 358. ' Compare 37. FILING OF THE LIEN— THE NOTICE. 139' posing it should be given. ^ (The lien could also- be filed in the name of its president,^ but the no- tice should, in that case, set forth all the facts, s). The same rule applies to partners. The notice need not state whether the claimants^ are partners or not.* If they are partners and claim as such it is- better to mention it. If the statute does not re- quire the residence of the claimants to be given,, the firm name may be used, ^ One partner (unless he is a surviving partner) ^ or one of several persons jointly interested in the- claim cannot create the lien alone. ' The notice is not rec[uired to state the charac- ter of the claimant as whether he claims as con- tractor or sub-contractor, but it is better to allege- the fact in that respect. ^ The initials of the Christian name of the claim- ant are doubtless sufficient, ^ but it is much bet- ter to give the full name. IV. The statutes unite in requiring the notice to- state the amount of the_claim (or the amount of the labor and materials furnished which is thfr same thing.) = 27. '' Code of Civil Procedure, § 1919. See 776. 3 See 39C. * 323. = 40 ' 67, 655, 680, 295, 584. ' 295. See 394, 298, 313. « 362. 9 311, 334. ' 140 mechanics' liens. Not the items of the account, but the "amount" is required to be stated. ^ The owner and third persons are entitled to know the extent of the lien or charge against the property. ^ If the claim is against several buildings the notice should, if possible, specify the amount claimed against each.^ if the claim is both for construction and repairs, the notice should dis- tinguish the amount of each.* The amount of the claim should be accurately ;given so that the owner may, if he desires, dis- charge the lien by depositing "the amount <;laimed" without thereby having to deposit more than the just amount. All just credits and offsets should be deducted, and the balance due, or to grow due, should be -claimed as the amount.^ Under the Cities^ Act, if the claim is not due, the time when it will be due must be stated. * ' 686, 134, but see 322, 681. Ordinary bookkeeping abbrevia- tions may be used, 568. ^ 452, 530, 77, 823. ' 615, 149, 488. So in tbe case of a double building, 367. But see 16, 593. Compare 654. ' 303. See 657, 550. But the contractor need not distinguish "between his own compensation or profits and the sums paid by him to employes, 7. A claim against the owner and a claim against the contractor, in favor of the same person, may be joined in one notice, if each claim is separately distinguished and correctly .states by whom the amount is due, 295. '■> 157. See 150. 487, 323, omission to do so indicates fraud, 111. See 586. « See also 562. FILING OF THE LIEN- THE NOTICE. 141 It is held that a notice which states that " the^ bill hereto annexed contains a correct statement of the work done and the moneys paid and the balance due," and having such bill annexed, sat- isfies a statutory requirement, that the notice shall contain " a statement of the demand after deducting all just credits and offsets." ^ A failure to state any amount in the notice- makes the lien invalid. ^ So also does a grossly exaggerated, ^ or fraudulent over-statement of the- amount.* But a mere over-statement honestly made does not affect the validity of the lien. ^ Judgment is given for only the amount found to be due. The judgment cannot exceed the amount claimed, with interest and costs, but it may be- for any less amount. ^ Where the amount is stated, the addition thereto of the words "with interest" does not ' 576. See 157. ^^ See 515. ' 323. ■" Id. See 530. It is also unauthorized to join -with the claim a promissory- note or other independent right of action, 658, 177, 566. ' 373, 288, 267, 67, 669, 585, contra 530. The Buffalo Act, § 1, provides that the liens in the aggregate shall not " exceed the amount -which the o-wuer -would be other-wise liable to pay at the time of the filing," &c. The -words " liable to pay at the time" do not necessarily mean a liability -which can then be enforced, but mean a liability to pay by virtue of and according to the terms. of the contract, either presently or infaturo. Their purpose is to limit tlie liability of the o-wner, in the aggregate, to the amount -which he had contracted to pay, after deducting such payments- as he had made, before the filing of the lien. See 269. « 515. , 142 mechanics' liens. -ritiate the notice ; such words may be treated as surplusage. ^ Ah account previously rendered to the debtor, but not assented to by him, does not preclude the creditor from claiming and recovering a larger ;sum. " V. A mechanic's lien upon a building covers only the materials and work employed on the build- ing referred to in the notice.* Such materials and work, therefore,- determine the extent of the lien, and their nature and :amount should be stated in the notice, 'both as an evidence of good .faith on the part of the •claimant, and to enable the owner, and third persons, to ascertain the correctness and reason- ableness of the demand.* The Buffalo Act and the Rensselaer Act, es- pecially require the notice to state the "nature :and amount of the work performed, and the materials furnished, or to be furnished." These are particulars which the claimant can ■easily give, and a failure to do so would be with- out excuse. ^ The "amount" of the labor and materials — that is, the quantity furnished, or to be fur- nished, and the money value of the same — should be stated. 1 404 ^ 599. See 804, 940, 967, but see 812. ' 381. * 453, 77, 530. ' 496. See 430. FILINa OF THE LIEN — THE NOTICE. 143 It is- not necessary to set forth the items of the account, ^ nor to say that the labor and ma- terials were famished within the prescribed time ;^ and a notice which states that the labor and materials were furnished, or are to be fur- nished, in pursuance of a written contract, would also cover extra work and materials madq necessary by defects in the specifications of the written contra.ct.^ It has been held under a similar statute in another State, that the particular kind of mate- rials need not be mentioned. A description of "so many feet of lumber, third common," is sufficient,* and so is a claim lor a certain number of feet of tin roofing and spouting at so much per foot. ^ A description of work done ' ' as plans, specifi- cations and superintending building," is suffi- cient. * A mis-statement as to the nature of the work and materials, or an over-statement of the amount,'' if honestly made, does not make the lien invalid ; it was so held where fences were included,^ when the statute did not provide for > G86, 134, but see 681, 322. ' 362, 621, but see 365, 681; see also 305. » 381, 621, 968, 691, 561, 186. - 173. . " 617. • ' 333. But the kind of work claimed as extra work should be set forth distinctly. 548. ' 373, 288, 367, 67, 669, 585; but see 657, 365, contra 530. " 16, but see 177, 654, and cases cited. 144 mechanics' liens. them ; also where the claim included the wages of journeymen.^ A notice which states that the claimants were to furViish, ready to be put up, certain portions of the trim, sash, doors and blinds, and that the terms of employment were "that the work and materials were to be paid for in cash as deliv- ered," and which also states that "all the work and materials for which said claim is made has been done," and that the claim is "for work, labor and materials done, performed and fur- nished," is a sufficient notice under that provision of the Buffalo Act which requires the notice to state "whether all the work for which the claim is made has been actually performed or fur- nished, and if not, how much of it."^ VI. Under statutes requiring a contract to sustain a lien, the notice must state that the labor and materials for which the lien is claimed were fur- nished under such a contract. * Under other statutes, it is sufficient to state 1 481. ^ 576. Compare 420, 157. The notice must allege that the work was done by claimant, 292; but an agent may aver that he performed the work; that the amount is " owing him," 336. It would seem that, under statutes that do not expressly provide that alien may be filed for materials " to be furnished," that the notice must state that the same were actually furnished, at or before the time, when the notice to create a lien was filed. 305. 8 106. 53. See 643, 150. FILING OF THE LIEN— THE NOTICE. 145 that such labor and materials were famished with the owner' s consent or permission. ^ Under the Buffalo Act, ^ it is essential to set forth the "terms, time given and conditions of the contract " and under that act "if the con- tract or any part thereof is in writing it must be filed with and made a part of the claim." It was held under another statute containing this latter provision, that, if no part of the con- tract is in writing, the notice need not contain any statement to that effect. ^ VII. The notice must state the name of the person or persons from whom the claim is due, i.e., against whom the claim is made. The statutes do not expressly require but plainly indicate, that the character of such person, as whether he is owner, contractor, or sub-contractor should also* be mentioned. * The Court of Appeals has held that it should be so stated, but that the defect is not a fatal one. ^ ■ If the notice is otherwise sufficient, such statement is unneces- sary. 63. ^ § 5. See 157. = 570. * It is held under the Kings and Queens Act, that the equita- ble owner under a building contract is neither contractor or sub- contractor. That the person against whom the claim is made and the owner are identical. 633. See 137. Same under BufEaio Act. ' 133, compare 157. 146 mechanics' liens. If the claimant was employed by an agent, the name of the principal should be given, and not the name of the agent. ^ The naming of but one of several Joint employ- ers, has been held suflScient.^ ^ ■ YIII. The notice must show that the work and ma- terials were furnished for as well as used in the building. ^ Where a notice stated that the claimants were to furnish, ready to put up, certain portions of the trim, sash, doors and blinds for the new house, then being erected by said B. and E. (the contractors) thereinafter described, under a con- tract between them" and the owner of said build- ing, to do all the carpenter work and furnish ma- terials therefor on said building, it was held to be a sufBcient statement that the materials were purchased to be used in the construction of the building. * IX. The act of 1875, ^ for the City of New York con- tained the same provision as the present Buffalo Act, in regard, to naming the owner, and under that statute when a notice of lien set forth that ' 260. ^ 56, 137, 619. See also 356, 163, 604, 81, 190. To establisli a joint liability it is unnecessary to prove partnersliip. 66, 25'?. ? 647, 83, 33. ■* 576. » Laws 1875, Chap. 379, § 5. FILING OF THE LIEN^THB NOTICE. 147 the labor was performed and materials furnished for S. , the contractor, at the instance of J. M. , the owner, but in the action to foreclose the lien, the complaint averred that the owner of the premises was B. M., that the name of J. M. was inserted in the notice because the claimant was informed and verily believed that he was the owner, that the name of the real owner was omitted by mis- take of the fact, &c., the Court of Common Pleas, Special Term, held, that "in order to perfect a lien under the act, the claim or notice filed with the County Clerk must contain certain state- ments, the truth of which must be positively sworn to by a person acquainted with the fact. Among these statements is that relating to the ownership of the premises. If the person veri- fying the notice knows the name of the owner, that name must be inserted ; if he only knows of a person reputed to be the owner, the name of such person, with the fact that he is so reputed to be the owner, must be inserted ; if he does not know the name of the owner or of the reputed owner, he may so state. One of these three state- ments must be made to comply with the act. In this case «■ * * the notice of lien * * "* is defective and forms no basis fOr the ac- tion." ^ All the statutes (except the Onondaga Act) re- quire the name of the owner to be inserted in the notice. Such a statement is material, without it, ' 390. 148 mechanics' liens. the owner is not informed that his property is sought to be charged, i Some statutes, however, require greater exact- ness in this respect than others. Thus the Cities^ Act provides that : — The failure to state the name of the true owner, lessee, or per- son in possession shall not impair the validity of the lien.' But under the State Act, the Kings and Queens Act, or the Rensselaer Act, an omission to state the name of' the true owner is fatal, except that under the Rensselaer Act the name of the own- er' s agent is sufficient. By the ' ' owner ' ' is meant the person against whose interest a lien is claimed. He may be the legal owner, or a lessee, or a per- son in possession, under a contract to purchase the property. ^ But as we have seen under some statutes an owner who has "made an agreement to sell and convey the premises to the contractor or other person " is to be deemed the owner.* Where the owners are a corporation the corpor- ate name must be given. ^ A slight variation from the words forming such ' 390. See 157, 296, 27, 144, 470, 419. See 296. s 387, 468 438, 431, 401, 63 334, 540. Constructive possession may be suflftcient, 516. Transitory seizin as for an instant only is not sufficient ; 94, 398, 493. - 533. See 139, 157, 438, 355, 44. ' 27. The lien is invalid if it improperly names the owner as contractor and mee versa, 421, 643, 264. TILING OF THE LIEN — THE NOTICE.' 149 name is not material. Thus a lien was sustained where "The Board of Education of the State of Illinois" was named in the notice as "The State Board of Education of Illinois." ^ But the corporation is not named by merely designating a building upon which the work was done as the " Jewish Synagogue." A building of that name may be owned by any person. ^ If the owners are not a corporation the notice may describe them, either by their associate or joint name or otherwise, so that they can be identified.^ If they are partners, the firm name is suffi- cient. * A mere error in spelling, that does not affect the sound or pi"onunciation of a name, ^ or a failure to insert the initials of a middle name, •does not affect the validity of the lien.^ The naming of one [^of several joint owners, is sufficient to charge the .interest of the one named. '" The notice is good, although it includes super- fluous names, such names may be treated as sur- plusage. * When the title to the property is changed dur- ' 43. = 37. ' 37. See as to liability of a social club, 776. « 40. See 333, 66. « 223. ■8 323, 379. Compare 757. •> 415, 395, 56, 157, 619, 27, 604, 81, 190, 356, 163. »260. 150 MECPIANICS' LIENS. ing the performance of the work, the persoa owning the property when the lien is tiled, is the proper one to be named. ^ A statement in the notice that the claim was made against a third person, and that the work and materials were furnished at his request, does not vitiate proceedings against the owner, when, the notice also states who is the owner, and it ap- pears that the contract was in fact made with him. 2 The notice must contain a brief description of the buildings or premises, .sufficient to identify the lands or premises against which the lien is claimed. This is required by all the statutes. The exact location of the buildings or premises must be shown. * The metes and boujids need not usually be given, •* but the property must be so defined and pointed out, that it can be identified by all per- sons acquainted with the locality, and without the need of any further description.^ Many buildings are so well known that merely naming them would be nearly or quite sufficient; thus describing a building as that "known as the 'Jewish Synagogue,' situated in Greene street,. " 537, 630. See also 374. See as to fraudulent transfers, 339, 418. ^ 433. See 123, 582, 380, 506, but see 296, 116, 135, 364. = 136. ■* 55. 6 See 495. FILLING OF THE LIEN — THE NOTICE. 151 between Houston and Bleecker streets in the city of New York," would be sufBcient. ^ And the same may be said of all prominent or public buildings, such as churches, ^ school-houses, pub- lic halls, ^ hotels, mills,* factories,^ gas-works, 8 &c. So where a residence or other building is well known as the property of a certain person merely naming it as such and giving its approximate location is sufficient, '' provided such person is known to have no other property to which the same description could in any way apply. « Even a mistake in naming the block or in other- wise describing such buildings, may be imma- terial. 9 Thus where a person owned but one house on a certain street in a city, and a building was de- scribed as belonging to him, situated on that street, between V and J streets, the description was held to be sufficient, although there was in fact another street between Y street and the building. ^ ° The premises may also be described by a refer- ence to prominent buildings or to the lands of other owners, or to a deed or to some well-known object. 1 1 1 27. See 231. » 37. ' 463. * 598. = 619. '55. ' 310. » 488, 350, 142. ' 142, or by clerical error in points of compass, using " north." for "south." S85. See 95. •» 593, contra 431. " 573, 323, 481, but see 279. 15S mechanics' liens. But in all cases the premises must be so de- scribed that they can be "identified;" that is, there must be such a description of the property that it can be ascertained or located by the owner, ^ by persons examining titles, ^ by the court in decreeing judgment, * by the sheriff when directed to sell under execution,* and by the purchaser upon such sale. ^ In all ordinary cases it requires some care to properly describe the premises. When buildings are known by their street and number, they must be so described. If the number is not known, that fact should be Stated. 6 A general statement that a building is situated on the west side of a street between two streets named, may be sufficient, provided the claimant does not know the number, but [in that case the complaint must enlarge the description in such a manner, that the sheriff may be able to determine by the judgment, beyond doubt, the premises to be sold.'' Such a notice, however, may not be sufficient as against an innocent purchaser.^ The safest and most convenient method of de- scription, and the one generally used, is to insert in the notice a diagram of the block, naming the streets on each side, and showing the relative size and shape and the dimensions of the lot, its distance from the street corner or other well- " 159. =■ See 838. ' fi33. " 159, 634 ^ 331 See 783. « 159. ' Id. and see 93. s gee 142. FILING OF THE LIEN — THE NOTICE. 153 known object, and also the street number of the building, if that is known. There must not be two different or conflicting descriptions in the same notice, ^ and where there are several buildings they must be distinguished, or else it must appear that they are treated as one building. 2 In the country, or where a large tract of land. is claimed, it may be desirable, or even neces- sary, to describe the premises by metes and bounds. • ■ Otherwise it may be impossible to determine the exact amount of land sought to be charged. ^ A failure to describe the premises,* or a failure to describe them with sufficient certainty, => makes the lien invalid. Thus, merely describing premises "as a double saw-mill in Clarion County, situate on the waters of the Clarion River and on the east side of said river," is not sufficient to sustain a lien.^ ' 149, but see 293, 294. ^ See 249, 432. Two liens must be filed against two separate blocks. 40. See 181. Otherwise, where buildings are sepa- rated, not by a public street or alley, but by a private way, com- mon to both. 179. ' See 136, 165. •« 149. = 547, 149, 181. 6 648. See 543, 218, 88, 136, 441, 682. Compare 838, 783. Where a notice, addressed to the ',' Clerk of the City and County of New York," stated that the building was situated "in 85^1 street, between 4th and 5th avenues," but did not-state the city and county where situated, it was held that judgment should not be refused, although the notice was framed loosely and without precision. 621. 7* 154 mechanics' LiEsrs. Fraudulently claiming too much land invali- dates the lien, i But a claim of too much land, honestly made, does not affect the validity of the lien,^ and since the lien, when filed, cannot be extended to any more land than it describes, care should be taken, when filing it, to describe enough land to satisfy the debt. * The Public WorTc Act. The Public Work Act* requires the notice of claim to state : The resfdence of the claimant * * * the amount claimed, from whom due, and if not due, when it will be due, giving the amount of the demand, after deducting all just credits and off- sets, with the name of the person by whom, employed, or to whom materials were furnished ; also a statement of the terms, time given, conditions of his contract, and also that the work was done or mateiials 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 aSect the validity of the said claim or lien. The Railroad Act. The Kailroad Act^ requires the notice to spe- cify : The amount of claim and the corporation against whom the claim is made. > See 543, 668, 473. 2 574. 3 165, 140. * § 3. 5 S 3. FILING or THE LIEN— THE NOTICE. 155" The 'Oil Well Act. The Oil Well Act^ requires the notice to spe- cify : The amount of the claim and the person against whom the claim is made, the name of the owner or of the party in .nterest as afore- said of the premises, lot, parcel or farm of land, Logetiier wim a,, description of said lot, parcel or farm of land. Signing. The Statutes do not expressly require the no- tice to be signed, but such a requirement is- clearly indicated. A mere written paper, otherwise sufBcient to sustain a lien, but not signed (that is subscribed by the claimant), could hardly be called a ' ' no- tice" or a "claim." 2 If the claimants are partners the firm name is- sufiicient. * The claimant's name may be signed by hi& agent, or attorney ; thus [it may be signed J. D. by R. R., attorney.* When the notice is. verified it is usual to sign both the notice and the verification, but the signature to the latter has been held sufficient. ^ >§s. ^ See 666, lut see 310. If the full name of the claimant is in the body of the notice and the imtial of the Chrisuan and full surname are signed at the end, it is sufficient. 310. " One partner may sign for the firm. 666. A lien, which, ran as follows; "We, B. "W. & Co., oo-p^rtners, undei- thename- of B. E. & Co.," whereas the true name wasB, W. & Co., signei by the latter name, was held valid. 574. * 146. '278. Contra 419. 156 mechanics' liews. Yeriflcation. The Cities' Act requires that : — The said notice of lien shall be verified by the person or per- ;sons making the claim, or his or their agent, or any other per- son, to the eflEect that the statements therein contained are true to the best of his or their knowledge, information, and belief. The Buffalo Act^ requires that the : — Claim must be verified by the oath of himself or one of several united in interest, or of some other person. The verification must be to the effect that the statements contained in the claim . are true to the knowledge of the person making the same. The Public Work Act^ requires the notice to be : — Verified by his (the claimant's) oath or aflarmation. These are the only statutes which -require the :notice to be verified. No particular form of verification is neces- :sary,3 but the terms of the statute must be strictly complied with.* Care must betaken that all the statements in the notice are sworn to. Thus merely alleging that "the statement of the balance due, as therein set forth, is true to deponent's knowledge," is not sufficient. ^ Under tha Cities' Act, the verification may be made upon information and belief, ° but under the Buffalo Act it must be to the effect that the «tat6ments contained in the claim are true to the knowledge of the deponent. > § 5. ^k. 3 See 257. * See 343. ^ -"OB. « See 233. PILING OF THE LIEN — THE "NOTICE. 15T Under the Public Work Act, " notices made out as against the contractor, containing the proper statements, sworn to by the claimant's, own oath, would be sufficient. ^ Where a statute requires the notice to be veri- fied, the want of a verification or of a suflicient. verification, is a defect which goes to the whole' claim and cannot be amended.^ Place of Filing. The notice, to be effectual, must be filed in the- proper office. * Under the Rensselaer Act,* it must be filed. " with the Town Clerk of the town * * * in. which the property is situated." Under the Public Work Act, ^ two notices are- required ; one must be filed " with the head of the department or bureau having charge of said work," and the other "with the financial officer of said city." All the other statutes require the notice to be=^^ filed with the clerk of the county where the land, or premises are situated. * The notice is not to be recorded, that is writ- ten out in full in the public records, but the offi- cer is required to make certain entries in a book- called the "lien docket." ' 148. ^ 106, 351. See 390, 186, 628. 3 663, 89. " § 1, 639. ' § 3. ' See as to difficulties of filing under Railroad Act. 549. 158 mechanics' liens. The entries usually required are " the name and residence of the claimant, the person against ■■, whom claimed, the amount claimed, the date of filing, and a brief description of the prettjises affected." Care should be taken by the claimant to see that the entries are accurately made, since a mis- take may be fatal to the lien. Serving Notice on Owner. Under the Buffalo Act, ^ in order to create a lien in favor of a sub-contractor, the claim must not only be filed, but a copy must within ten days be served personally on the owner ; or if he is absent from or cannot be found in the city, then on his authorized agent or attorney. If he has no authorized agent or attorney, service must then be made on a person in possession of the premises. Under that act, also,^ the owner cannot in any event be. made to pay more than by his contract he has agreed to pay, unless the sub-contractor, before the claim is filed, gives the owner notice, as therein provided, that such labor or materials have been or are being, or are thereafter to be, lurnished by him. He may also^ at the time of giving such notice •demand of the owner or of his authorized agent '§5. =§1. s§4 FILING OF THE LIEN — THE NOTICE. 159 the terms of the contract or agreement, and the amount due or unpaid the contractor ; and if such owner or agent neglects or refuses to give the information, or intentionally and knowingly giv^s it falsely, and the sub-contractor thereby sustains loss^ the owner is liable. The lien of a sub-contractor is made to extend to payments made by the owner after such notice, and to labor and materials furnished by the con- tractor after such neglect, refusal or false state- ment. ^ The Rensselaer Act^ also provides that : — No Ihn so filed and entered hy any jjerson other than the con- tractor, shall be effective unless a copy of such notice so filed and entered is served on such ovraer or his agent personally, or by leaving the same with some person of competen'. age at the place of residence of such owner or his agent withm five days after the filing and entry of said notice. Under the remaining statutes, service of no- tice of the lien upon the owner is not necessary to make the lien valid. But several statutes require that notice of the lien shall be given to the owner before he can be made liable for payments made by him, after the lien is filed, to the contractor. ^ Thus the Kings and Queens Act* provides that: — A copy of said notice shall be served on said owner by deliver- ing the same (to him) personally, or if he be out of this state, by delivering the same to his agent personally; and after such ser- vice such owner shall not be protected in any payments made by him to such contractor or other claimant. ' g 4. Compare 574. ^ § 4 2 349. « § 3. 160 mechanics' liens. Other statutes require that such notice be given only to prevent the owner from paying the contractor in good faith, that is without actual knowledge of the lien. Thus the Onondaga Act does not, as we have seen, require any lien to be filed as against the owner. The lien takes effect as the materials are furnished and the work is done, ^ but an amend- ment^ to this act provides. that :-^ When such lahor or material is performed or furnished to a contractor or sub-contractor, all payments made by the owner lo either, in good faith, to apply on his contract, shall operate ta extinguish the lien aforesaid, unless written notice of the lien ia served on the owner of the premises before such payment, Stating that the same is then, or immediately thereafter will be, claimed. The Oil Well Act^ also requires that in order to render the owner liable for payments made by him in good faith, to the contractor, a written notice specifying the amount of the claim, the name of the person against whom claimed, and for what labor or materials, shall be served on the owner personally or otherwise, as the statute directs. > 41, 413 58. " Laws 1866, chap . 788, § 1. Under this amendment proof of payment made by the owner to the contractor, defeats and avoids the lien Created by the first part of § 1, of the original act. Payment by giving, notes which became due and were taken up as payments before the Hen was filed, although not charged up in the account, is sufficient. 584. 8 §4. FILIWa OF THE LIEN — THE NOTICE. 161 Such, requirements as the above ^ are not found in either the Cities'' Act, the State Act, the Pub- lic Work Act or the Railroad Act. Service of the notice of the lien or claim upon the owner is unnecessary. The filing and docketing of the lien are deemed to be a sufficient notice. ' Under statutes requiring service of notice, service on one of two joint owners is perhaps sufficient. 371. Service held ex- cused if it cannot be made. 646. Service may be made on at- torney when, 568. CHAPTER VIII. Continuance and Discharge of Iiien. /. — Continuance of Lien. Statutory Provisions. Suit, When Deemed Commenced. Personal Judgment, When. Lien Continues to Judg- ment, When. The Lis Pendens. Continu- ance hy Order. Computation of Time. Sev- eral Lienors. II. — Discharge of Lien. Statutory Provisions. Discharge hy Certificate. Discharge ty Deposit. Discharge hy Bond. Discharge hy Failure to Prosecute after Notice. Dis- charge hy Lapse of Time. I. Continuance of Lien. The lien, when created, continues to be a charge against the property, only for a certain prescribed time. It is not intended as a specific or permanent incumbrance, but only as a temporary security. ^ The law expects, as an evidence of good faith on the part of the claimant in imposing it upon ■ The lien is not evidence of a debt, but merely of a claim, and the amount must be made out by proof, 136. CONTINUANCE AND DISCHAEGE. 163 the property, that he will proceed to enforce or foreclose Ifc as early as possible, ^ and requires that he shall in all cases commence an action or proceeding within the time allowed him for that purpose. If he fails. to do so, the lien is lost. 2 statutory Provisions. The several Acts provide for the continuance of the lien as follows: THE cities' act.* Liens shall in all cases cease after one year from date of filing, unless an action shall be commenced, and a notice of Ih pendens filed with, the Clerk of the county wherein the ijremises are situ- ated, or an order made continuing the lien for another year ; in the latter case the County Clerk shall, upon filing such order, make a new docket of such lien. Successive orders and new dockets may he made in the discretion of the Court. THE BUFFALO ACT.* ■ This Act contains substantially the same pro- visions as the Cities'' Act, except that it does not provide for an order continuing the lien another year. It also contains the following additional provisions: And when a claimant is made a party defendant to any action hrought to. enforce any other lien, such action shall be deemed ' The claimant can instantly, on filing his lien, commence pro- ceedings to foreclose, and if there be a sufficient fund in the hands of the owner, can compel payment, 313. But the lien can- not be enforced until payment is due under the contract, 511. ' ^ 34, 443, 463. = § 5. ' » 8 8. 164 mechanics' mens. an action to enforce the lien of sucli defendant, who is ? claimant within the provisions of this section. But the neglect to file such notice shall not abate any action which may be pending to enforce the lien, and such action may be prosecuted to judgment against the persons personally liable for the debt. THE STATE ICT. ^ Every lien created under the provisions of this Act shall con- tinue until the expiration of one year, unless sooner discharged by the Court, or some legal act of the claimant in the proceed- ings, but if, within such year, proceedings are commenced under this act to enforce or foreclose such lien, then such lion shall continue until judgment is rendered thereon, and for one year thereafter ; such lien shall also continue during the pendency of an appeal, and for one year after the determination thereof. THE KINGS AND QUEENS ACT. ^ Every lien created under this act shall continue until the ex- piration of one year from the creation thereof, and until judg- ment rendered in any proceedings for the enforcement thereof. THE RENSSELAEE ACT.* Every lien created under the provisions of this Act shall con- tinue until the expiration of five years, unless sooner discharged ' by the Court^or some legal act by the claimant in the proceed- ings. But when a judgment is rendered therein and docketed with, the County Clerk, it shall be a lien upon the real property of the person against whom it is obtained, to the extent that other judgments are now made a lien thereon. THE ONONDAGA ACT.* At any time within six months after the completion of the work or furnishing materials, or after the claim is due, if time is given,' the claimant or his assigns may institute proceedings for the foreclosure of said lien in the general manner now provided by the general lien law of the State. ' § 30. = §. 8. ' § 19, 34. * § A. CONTINUANCE AND DISCHAEGE. 165 THE PUBLIC WORK ACT. ^ No liea 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 jDen- dency of said action be filed with the financial oflBcer of the city. THE RAILROAD ACT. ^ This act contains the same provisions as the Hensselaer Act, except that the lien is made to oontimie only one . year, instead of five, and judgment is required to be entered therein, &c., within said year. THE OIL WELL ACT,* This act contains the same provisions as the State Act, except that the lien is made to con- tinue onjy six months, instead of one year. Suit wTien Deemed Commenced. The terms "action " and "proceeding," as used in the lien acts, are defined in the next chapter. They must be carefully distinguished here. * Thus so far as regards the time limited for the commencement of an "action." An action is commenced when the summons is served on the defendant, or on a co-defendant who is a joint contractor, or otherwise united in interest with him."" ' § 4. ■■' § 5, 34, 463, 247. § 10. " 743, 744 " 736, 793. 166 mechanics' liens. And an attempt to commence an " action" in a court of record is equivalent to the commenc- mt.nt thereof against each co-defendant, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or other- wise, as the law directs. ^ But quite different rules apply to the com- mencement of a ''proceeding." 2 Thus in a recent case, it was held : That the lien created by the notice continflies for one year thereafter ; that unless proceedings are commenced within that time the lien ceases. That leaving the process with the sheriff of the county within the year, with intent to have the same served, is not sufficient. That unless service is made within the year upon all the parties defendant, the lien ceases, and not even a personal judgment can be ren- dered in favor of the claimant. * Personal Judgment, when. After an action or proceeding to foreclose the lien has been duly commenced within the pre- scribed time the court acquires Jurisdiction, and if the lien is lost during the pendency of the suit, either by limitation of time, as under the Rens- selaer Act or the Railroad Act, or by a failure to procure an order continuing it, as under the Cities' Act, the court retains its jurisdiction and ' 737, ■' 738. » 317. See 61, 479, Compare 338, 250, 295, 680. CONTINUANCE AND DISCHARGE. 167 renders a personal judgment for the debt, as in an ordinary action upon contract. ^ Lien continues to Judgment, when. But with the exception of the Rensselaer Act and the Railroad Act, the continuancfe of the lien is not limited to any definite time from its creation, provided suit has been duly commenced, within the time limited and the other statutory requirements are complied with. Thus under the Kings and Queens Act the Court of Appeals has held, that the lien con- tinues for one year, and if proceedings to.enforce it are commenced within the year and pending at the end thereof then the lien continues until judgment. And, therefore, where judgment was first rendered for the defendant, but upon appeal that judgment was reversed, and judgment was given to the claimant for the foreclosure of the lien, it was held that the lien had not ceased to exist, although such judgment of foreclosure was not given until after the expiration of the year. ^ But the courts insist upon a strict compliance with all the statutory requirements. 1 133, 214, 391, 560, 21, See 293, 34. Compare 463, 368, 195, 227, 299. So, under Public Work Act, 70. The power to render a personal judgment is merely incidental to the main purpose, and where it appears that no lien ever_existed the whole proceeding fails, 658, 65, 418, 125; but see 61," 66. 2 192. See 180, 253, 463. 168 mechanics' liens. Under nearly all of the statutes, merely com- mencing suit within the prescribed time is not sufficient. Thus under the Cities' Act, a lis pendens must also be filed before the year expires, or if that is not done the claimant must, within the year, pro- cure and cause to be docketed, an order of the court, continuing the lien another year. ^ The Lis Pendens. The enforcement of a lien is said to be a proceeding in rem (against the property), as dis- tinguished from a proceeding in pdrsonam (against the person). ' And the following principles of law are well settled : 1. Where rights to real property are in dispute, the owner must not, jjending the action, transfer any of his righfs in the property, so as to preju- dice the other party. ^ 2. All persons are entitled to know, and there- fore pl^blic notice must be given, that such suit is pending. * 3. The filing of such a notice with the county clerk is constructive notice to, and binds by sub- sequent proceedings, all persons who deal with • 560, 653, 597, 347, 375, 505, 463. 2 564, 374, 65, 21, 505, 125. » 853. « 740. CONTINUANCE AND DISCHARGE. 169 the* owner the same as if they had been made parties to the suit.^ Nearly all the lien acts especially require a Us pendens (a written notice of "suit pending") to be filed with the county clerk, and it is his duty to record, that is, to write out the same in full, and to index it in the proper book. ^ TJfider several of the statutes, the proper filing of a Us pendens within the prescribed time is es- sential to the continuance of the lien. * Continuance ty Order. The OUies' Act makes it optional with the claimant either to file a Us pendens, or to procure and have docketed an order of the court continu- ing the lien another year. * This order should be made by the court where the action is pending,^ but it may doubtless be made.by any court having jurisdiction of liens. * The order creates no new liability and hence no notice to the owner is necessary, unless the court, to which the application for an order is made, requires it.' Notice to the owner is not necessary, although an action is commenced. ^ ' 741, 792, the property [is then, so to speak, in the custody of the law, 503. See 882. Such notice must describe the premises ■with sufficient certainty. 838. . » 743. ' Buffalo Act, § 5. Kings and Queens Act, see 5 7, subd. 3d. Public Work Act, § 4. * S 5 -compare 270; see 204. = 597. « 133. ' 183. 653. 8 653. 170 mechanics' liens. If the order to continue be inadvertently grant- ed, the party prejudiced can move for relief. ^ The statute does not specify what kind of an application is necessary, but it must, of course, be made upon an affidaTit or petition. A certified copy of the notice of lien should be annexed to the affidavit^ and all the material facts should be stated; the courts cannot exercise dis- cretion until they are furnished with something to form a foundation for its exercise. ^ If a lis pendens has been duly filed within the year, no order of continuance is necessary.* The statute is imperative and vests no discre- tion in the judge either to continue or to dis- charge the lien, if the year has expired. ^ But if an action has been commenced and good reasons are shown why the lien should be con- tinued, successive orders and new dockets may be made in the discretion of the court. " Merely obtaining an order continuing the lien is not enough, it must also be docketed with the county clerk before the year expires. ^ Should the county clerk neglect or refuse to docket the order, he can be compelled to do so.* ' Id. -^ 243 3 966. ■* Compare 270. ' 597. 6 § 5. ' 597, 246, 22. ' This was so held, where the clerk declined to docliet the order, because of some clerical mistake in it, and the agent of the lienor took the order away and failed to return it. 23. 8 479. CONTINUANCE AND DISCHARGE. 171 Computation of Time. In computing the time limited for the continn- ance of a lien, the same rule may be followed as. when filing it. The first day is excluded and the last included.. Thus under the Qities' Act, a lien filed on Jan- uary 9, 1881, may be duly continued, provided an action has been commenced, by an order and entry made on the docket on January 9,, 1882' 1 Several Leinors. Where several persons have each a lien against the property, and one of them commences the- foreclosure of his lien, making the others parties- thereto, the latter do not need to commence dis- tinct suits for the foreclosure of their own par- ticular liens. If they do, such suits will either be dismissed or consolidated with the one al- ready pending. By being made parties they ac- quire all the rights they would have if the suit brought was for the foreclosure of their own par- ticular lien. If the one who brought suit allows his lien to expire, or in any way becomes disentitled to con- tinue the suit, any othfer lienor who has appeared in the proceedings may continue them for the ' 246. The proVisioiis in respect to the continuance of liens apply to proceedings existing at the time the several statutes took effect. 639. Compare 180. 172 mechanics' liens. •enforcement of his own lien, provided, of course, that Ms lien has been duly continued. ^ The above is, doubtless, the law under all the .statutes. The Buffalo Act especially provides it. 3 - II. Discharge of Lien. A discharge of the lien does not necessarily •discharge the debt. It may, however, release the owner from liability, as where the claim is made against the contractor.* But a discharge of the debt necessarily releases the land from the lien. Payment to one of sev- «ral joint leinors is sufficient, and a release or ■satisfaction by one binds the others. * The lien is not necessarily discharged when" it -ceases to be a lien upon the land and buildings. Under the statutes which declare the lien to be discharged by lapse of time, the mere fact that no suit has been commenced, as shown by the lien 'dockets, is sufficient, but ordinarily some further ;act by the parties is necessary. Where a lien is void, because not filed or con- tinued within the prescribed time, it is at least doubtful if the owner can be relieved on motion; he should wait and set it up as a defence and avail himself of it as such at the trial. ^ ' 3, 406. Compare 433, 81, 335. His being made a party does -not relieve Mm from the necessity of continuing the lien. 460. » § 8. 8 559. See 61, 406, 66, 314. * 775. ■5 174, 597, 377, but see 79, 591, 363. CONTINUANCE AND DISCHAEGE. 173- But even if the court may, upon summary ap- plication, discharge such a lien, if the parties in- terested have joined issue and proceeded to trial in regular foreclosure proceedings, the court will then leave them to their remedy in such proceed- ings. ^ The statutes specify in what cases and in what manner liens may be discharged, and their pro- visions must be strictly complied with.^ Statutory Promsions. The several acts provide for the discharge of the lien as follows : THE CITIES ACT. § 6. The lien may be discharged as follows : 1. By filing a certificate of the claimant, or his successor ini interest, acknowledged or proved in the same manner as th&- satisfaction of a mortgage, stating that the lien is discharged. 2. By depositing with the county clerk, if before suit is com- tnenced, a sum of money equal to the amount claimed; and if suit shall have been commenced, a sum equal to the amount claimed; and such sum, in addition, as shall be ordered by a judge of the court in which the action shall have been commenced, as security for the costs of the action; such deposit, after suit brought, to be made on notice or on an order to show cause, directed to the plaintiff in the action, or his attorney. 3. By the expiration of one year after the filing of said lien, without any order being made continuing the same, or notice ofT lis pendens filed as aforesaid. ' 378, 394 2 174 gee 687. 174 mechanics' liens. THE BUFFALO ACT. § 18. The lien may be discharged as follows : 1. By filing a certificate of the claimant, or his successor in interest, acknowledged or proved in the same manner as the satis- faction of a mortgage, stating that the lien is satisfied and may he discharged. 3. By the deposit with the 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 an action, by the deposit with the clerk of the court, of such sum as in the judgment of the -court, after due notice to all claimants, parties to the action, will be sutBcient to pay any judgment which may be recovered against the property. 4. In lieu of such deposit, as prescribed in the last preceding •subdivision of this section, the court may require the execution .and delivery to the clerk of the court of a bond, in such penalty as the court may direct, executed by two sufficient sureties, con- ditioned for the payment of any judgment which may be ren- dered against the property in the action. The sureties inust justify in at least double the penalty named in the bond. A copy of the bond, with a notice that the sureties will ^attend and jus- tify before the court or a justice ■ thereof, at a time and place therein named, not less than five days thereafter, must be sei-ved on the claimant or his attorney. Upon the approval of such Tjond, the court may make an order discharging the lien. 5. By lapse of time, when one year has elapsed from the time of filing the claim, and no action has been commenced to enforce .such claim as provided in section eight of this act. 6. By order of the court, for neglect of the claimant to prose- cute the same, the owner of the property, or of any part thereof affected by any claim filed under this act, or the person against whom the claim 'is made, may, at any time after filing of any •claim, serve a notice in writing upon the claimant, or upon any one of the several united in interest, requiring such claimant to commence an action to enforce the claim within a time to be spe- cified in the notice, but not less than ten days from the time of such service, or to show cause at a special term of any court of COKTINUANCE AND DISCHAEGE. 175 record in said city, at a time to be siDecifled in such notice, why the claim so filed shoald not be vacated and canceled of record. Thereupon, upon due proof of the service of such notice that no action has been commenced to enforce the claim, the court may ,make an order that the claim be vacated and canceled of record. And it shall not be lawful to file a claim for the same cause against the same property or any part thereof. THE STATE ACT. § 33. All liens created by this act may be discharged as follows : First. By filing with the county clerk a certificate of the claim- ant, or his successor in interest, acknowledged or proved m the same manner as a conveyance of real estate, stating that the lien has been paid or discharged. Second. By depositing with £he Justice or Clerk of the court a sum of money equal to double ihe amount claimed, which money shall thereupon be held subject to the determination of the lien ; or. Third. By an entry of the County Clerk made in the Dook of liens that the proceedmgs on the part of the claimant have been dismissed by the court m which it is Drought, or a judgment rendered against the said claimant; or, Fourth. ByanaflBdavit of the service of a notice frcim the owner or party in interest, as aforesaid, or his or their agent, attorney, contractor or sub-contractor, to the claimant, re- quiring such claimant to commence an action for the enforcement of his lien, and the failure of said claimant to commence an ac- tion as provided * * THE KINGS AND QUEENS ACT. § 7, The lien may be discharged as follows : 1st. By filing a certificate of the claimant or his successor in in- terest, acknowledged or proved in the same manner as the satis- faction of a mortgage, stating that the hen is discharged. 2d. By the deposit with the clerk, if before suit, of a sum of money equal to the amount claimed, or, after suit, equal co such amount and the amount of costs .ncurred. which m.oney shall thereupon be held subject to the lien. 176 mechanics' liens. 3d. By an entry of the clerk made in the book of liens, after one year has elapsed since the filing of the claim, stating that no notice has been given to him of legal steps to enforce the lien. - 4th. By an affidavit of service of a notice from the owner to the claimant, requiring him to commence an action for the en- forcement of his lien, on or before a certain hour, a day specified in said notice, and the lapse of thirty days thereafter without any affidavit from the claimant being filed of the is^ing.or service of the summons and complaint in an action for an enforcement of such lien. 5th. By the satisfaction of ihe lien, or a final judgment in an iaction for the enforcement thereof. THE EENSSELAEE ACT. This act^ contains the same provisions as the State Act, except that "Town Clerk" must be read in the 'place of "County Clerk." THE ONONDAGA ACT. This act does not provide for the discharge of the lien, except that suit must be uommeiiced within six months, &c. ^ THE PUBLIC WOEK ACT. § 13. The lien may be discharged as follows :i First. By filing a certificate of the claimant, or his successor'in interest, duiy acknowledged and proved, stating that the lieu is discharged. Second. By lapse of time when ninety days have elapsed since the filing of the claim; and no action shall have been com- menced to enforce the claim. Third. By satisfaction of any judgment that may be rendered in actions to oreclose said Uens or claims. ■ 8 33. » § 4. CONTINUANCE AND DISCHARGE. 177 THE EAILKOAD ACT. This acti contains the same provisions as the State Act. THE OIL WELL ACT. § 13. All liens created by this Act may be discharged as fol- lows ■ First, by filing with the County Clerk a certificate of the claimant or his successor in iiiterest, acknowledged or proved in the same manner aa a conveyance of real estate, stating that the lien has been paid or discharged; second, by depositing with the Justice before whom, or the Clerk of the court in which, pro- ceedings shall be commenced to enfm-ce 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, tbird, 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 judgment rendered against the said claimant. The Court of Appeals has held that when the Act declares that the lien may be discharged in one of several methods, the happening of any of the events or the performance of any of the acts mentioned, operates, per se, as a discharge, with- out the necessity of further acts by any person. ^ By a discharge of the lien is not meant simply a waiver or merger of the lien. The lien is not necessarily discharged of record, although it is invalid or although the claimant may for any reason be unable to enforce it. '8 7. » 443. 178 mechanics' liens. Discharge hy Certificate. One of the -asual methods provided by statute, for the discharge of the lien, Is by filing in the proper public office a certificate of the claimant or his successor in interest, duly acknowledged or proved, stating that the lien is discharged. Either the owner or the claimant may file this certificate; the right is not limited to any person. It may also be filed a.t any time, either before pr after suit is commenced. But after suit has been commenced a claimant may not be able to withdraw his claim without pay- ment of costs. If for any cause a claiipant wishes to withdraw his claim after suit has been com- menced, he should apply to the Court, which has the power to relieve him without costs in a proper case. ^ If ' a claimant has voluntary discharged a lien, upon the promise of the owner to pay certain notes that have been given in payment for work done, he may file a new lien in case such prom- ise is broken. » DiscTiarge hy Deposit. This is' one of the usual methods provided for discharging a lien. ^ ' 433. '' 346, 350. But where a lien is once extinguished at law, it cannot be revived again, 827. See 603, 571. ' See 406, 66. It is a general rule that a tender of the amount of any debt, discharges any lien given as security for it, 993. The deposit of the money under the lien acts would seem to bo in the nature of a tender. CONTINUANCE AND DISCHAEGE. 179 Several of the statutes require the deposit of a sum of money eqiaal to double the amount claimed. .The Buffalo Act requires the deposit of a sum equal to the amount claimed, with interest to the time of such deposit. The Cities^ Act and the Kings and Queens Act req«uire the deposit of a sum of money equal to the amount claimed. The deposit may be made by the owner or by any person interested in the property. The sole purpose of allowing such a deposit to be made seems to be to remove the lien from the lands of the party and impose it upon the money, the object being to enable the owner, by substi- tuting money to the amount of the alleged lien, or to the amount required by law, to enjoy the power of disposing of his land relieved from the lien. The money takes the .place of the land to await the result of such proceedings as may be taken to establish a lien. The lienor must, however, establish iis lien be- fore he can receive the money, i The depositor, however, frequently permits the lienor to withdraw the money in order to save ' 490, 161. Such, deposit releases' the owner entirely, if he is not sought to be made personally liable. The action should be continued as against the contractor only. 660, 295. Otherwise, if the owner appears in the action and denies that there is any- •uhing due by him to the contractor or interposes any defence. Id. 353, 396, 81. 180 mechanics' liens. costs^ and to obtain the latter's certificate that the lien is discharged. In that case a written order, duly acknowl- edged or proved by the depositor, requiring' the clerk to pay the amount to the claimant, is sufficient. Under statutes 'requiring a deposit of double the amount claimed, that amount is sufficient in all cases. Other statutes require the deposit of an addi- tional amount if suit has been commenced. A discharge of the lien by a deposit of money can be effected only in the cases and in the man- ner prescribed by the statute. Thus, where a claimant obtained judgment, but for a less amount than he claimed, and therefore appealed from it, the owner then tendered to him the amount of the judgment and interest, and, upon his refusal to accept it, paid, the money into court and applied to have the property re- leased from the lien, it was held that such deposit was not sufficient. That the statute required a deposit with the County Clerk of the amount of the lien and in- terest, and such additional sum as security for costs as a judge of the court might order. ^ Discharge hy Bond. The Buffalo Act provides for a discharge of the lien by giving a sufficient bond. » Compare 676, 406. " 153. Compare 81. CONTINUANCE AND DISCHAEGE, 181 The lien cannot be so discharged under either of the other acts. ^ The bond should be made and delivered as re- quired by statute. But where a bond contains all that would be required under the statute in a bond, except the attachment of a seal, and has been approved by the court, and the owner has had the benefit of it, the lien thereby having been discharged, it is held that in such cases it does not lie with the parties who executed the bond to object when an action against them is brought upon it, that it is not a bond, because it has no seal, and because something was omitted in the form of it. 2 Discharge hy Failure to Prosecute after Notice. The Kings and Queens Act permits the owner to put the claimant in motion,to enforce his lien, by giving a notice specifying a time by which the action is required to be commenced. * And the Court of Appeals has held that " The action may perhaps be brought at any time during the continuance of the lien. But the claimant, to continue and preserve his lien be- yond thirty days after the time specified in the ' See i577. » 670. Compare 815. ^ 443. This right is personal to the owner. A contractor can- not, by giving such notice in his own name, require a sub-con- tractor to commence suit, 68, 76. But he may, perhaps, require the owner to^ive such notice. Id. 182 mechanics' liens. notice for the commencement of the action, must file an affidavit that an action has been com- menced ; and if such affidavit is not filed, the lien is absolutely discharged." ^ The State Act, as may be seen, contains nearly the same provisions in this respect as the Kings and Queens Act. Under the State Act, however, the lien is foreclosed by a special proceeding, for v?hich rules are especially provided, and the time to be specified in the notice for the commence- ment of suit, must be at least six weeks from the service or the first publication of said notice. ^ An effort was made during the last session of the Legislature (1881) to amend the State Act by inserting after the word " lien ' the following : "WitMn thirty days after service of said notice, in the manner now provided by law for the service of snmmons in the Supreme Court, &c. But the bill failed to become a law. ^ The Buffalo Act contains somewhat different provisions. The lien can only be discharged by an order*of the court, and the notice must require the claim- ant to either commence an action, within a time to be specified in the notice, but not less than ten days from the time of such service, or to show cause, &c., why the claim so filed should not be vacated and cancelled of record.* ' 443, 79, but see 479. ' § 20, see pages 165, 185. 3 9 * § 18, subd. 6. The contractor may also under this act serve such notice in his own name. Id. CONTINUANCE AND DISCHARGE. 183 Each act, it may be said, is explicit in its terms, and admits of but one interpretation. It is not allowable for the courts to interpret that which has no need of interpretation. ^ The remaining acts make no provision by which the owner may require the claimant to commence suit, but this does not necessarily pre- vent the owner from commencing a suit for the purpose of an interpleader if he sees fit.^ Discharge 'by Lapse of Time. The lien acts, so far as they relate to the crea- tion, continuance, and discharge of the lien, are for the most part strictly construed, as being in derogation of the common law. * They affect property and the rights of prop- erty, and authorize it to be encumbered without or against the consent of the owner, and without a resort to legal process or judicial action.* All the conditions of the statute must be com- plied with or the Jen will be lost. ^ When a lien ceases by lapse of time, it cannot be revived 5 ^t is wholly void ; and if suit is thereafter orought to foreclose it, not even a per- ' 443. » See 79, 591, but see 83. The same rule proba- bly applies to a contractor where aa unjust lien is filed by a sub- contractor. 76. ' 443, 157. Proceedings to impose and enforce mechanics' liens rest entirely upon statute, and the Court cannot supply supposed defects. 34. " 448. 6 84, 41, 463. 184 mechanics' liens. sonal judgment in favor of the claimant can be rendered. * No order directing the County Clerk to dis- charge it is necessary. Even if it were necessary the Court has no power to make snch an ord^er. « ' Id. So where it appears that no lien ever existed, 658, 65, 418, 519, 125, 149, but see 368. See 61, 66. 2 375, 394, 597, 505, 174, but see 637. CHAPTER IX. Tlie Foreclosure. Mode. Time. Parties. Pleadings. Trial. Motions and Orders. Judgment. Personal Judgment. Costs. Execution. Appeal. For the various statutory provisions relating to , the foreclosure of liens, reference must be made to the statutes, as published with the ses- sion laws of the State. Many of the rules relating to the subject may be learned also from the preceding chapters. The remedy provided is, under some statutes, an "action," under others, a "special proceed- ing,"! and the Code of Civil Procedure defines these terms as follows : — " § 3333. Definition of 'Action.' "The word 'action,' as used in the New Re- vision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another ' Tliis is so, althougli in the Statutes the term "action "is often designated as a "proceeding," and vice ixrsa. See 317, 295. See as to jurisdiction of courts, 459, 186, 609, 356, and see each act for itself. The Court of Common Pleas is a Court of general equity jurisdiction, 300, 305. The Marine Court has no equity jurisdiction, 519. 186 mechanics' LIEN'S. party, for the enforcement or protection, of a right, ihe redress or prevention of a wrong, or the punishment of a public offense." " § 3334. Definition of ' Special Proceeding .' " Every other prosecution by a party, for either of the purposes specified in the last sec- tion, is a special proceeding." The general rules of practice in "civil actions " are in this State defined by the Code of Civil Procedure. "Special Proceedings," as tlie term suggests, are such as are authorized by statute for some special purpose. The course of procedure as provided by the statute authorizing them must be followed. ^ Under the Cities' Act, ^ the Buffalo Act, ^ the Kings and Queens Act,* and the Public Work Act, 5 liens are enforced, not by a special pro- ceeding, but by a civil action, instituted and prosecuted in the same manner and form as in actions for the fdreclosure of a mortgage upon real property. And it is held that the provisions of the Code apply to such an action. "It is an action upon contract, that is, the contract of the claimant with the contractor, who is personally indebted to him for work or material ; in- the same sense that the action for the foreclosure of a mortgage upon real property is in one sense an ' 317. « § 7. ' §§ 9 and 10, except as otherwise provided by the statute. Id. ' § 3, subject, however, to certain provisions and restrictions. Id, « § 6. THE FOEECLOSTJKE. 18T action upon the bond of the mortgagor or other person liable for the debt, and virtually an ac- tion on contract." It seems that in such an action the creditor should have as against his debtor all the remedies allowed in civil actions by the Code, including the right to an order of arrest against such debtor, for fraud in contracting the- debt which is the basis of the action. ^ The Onondaga Act, ^ the Rensselaer Act, ^ the- Railroad Act, * and the Oil Well Act^ contain, provisions similar to those of the State Act. And under the State Act^ it is held, that "aa action to foreclose or enforce a mechanic's lien is not an action under the Code, and that the provisions of the Code are not applicable there- to, except so far as made applicable by the act itself, which, by section 14, is only after the ac- tion has been commenced, issue Joined, and the cause put upon the calendar. Thereafter, the- action shall be governed and tried in all respects, as. issues joined in actions upon contracts; and if judgment be for the claimant, it is to be en- forced as provided by this act, and if against him, it is to be enforced as in other actions. The- statute has its own limitation of time for retain- ing and enforcing the lien obtained, and its own- provisions for commencing proceedings, and. 1 61. ' § 4 Laws 1864, chap 366, ' § 6, et seq. * § 4. This act is quite difEerent from others; but the remedy- provided is, doubtless a special proceeding. ' gs^ 5 and 6 et aeg. ' Laws 1873, cliap. 489. 188 mechanics' liens. must be strictly followed, and the proceedings must rest entirely upon it." ^ So under one of the earlier New York City Acts. 2 The Court of Appeals held that the rem- edy provided was not an action within the mean- ing of the Code, but a special proceeding ; that the provision of the Code directing that " Every Taction must be prosecuted in the name of the real party in interest," &c., did not apply to such a proceeding, and that although a lienor had as- signed his lien before the commencement thereof, it could be prosecuted in his name for the benefit •of the assignee. * The same court held also under the New York City Act of 1863,* that the proceeding was not -an action within the meaning of the Code. ^ That the proceeding abated upon the death of the de- fendant, and could not be revived against his devisees or representatives.* All the statutes, however, seem designed to render the foreclosure of the lien simple and ac- companied with as little detail as may be con- ^sistent with protection to those affected by the incumbrance. ' ' 317, citing 350. Compare 604, 57, 150. ' Laws 1851, ohap. 513, as •vmended Laws 1855, chapi 404 2 250, § 111, Code of P'ocedure. See 739. * Laws 1863, clxap. 500. ' § 121, Code of Frocedure. See § 755 et seg., Code of Civil Procedure. " 338. Otherwise, perhaps, where testator has devised his real ■estate to his executors, 126. ' See 137. THE rOEECLOSTJEE. 189> They contemplate an action or proceeding in- stituted by the claimant, to which the owner mnst be a party defendant, and wherein the ex- tent of the lien, the amount due from the owner, the particulars of his payments, are to be in- quired into and Judgment rendered for the enforcement of the lien against the property. ^ Even under statutes where the remedy pro- vided is a special proceeding, there is held to be a close analogy between the foreclosure of a^ mortgage and the foreclosure of a lien. The foreclosure of any lien is an equitable as contra-distinguished from a legal remedy, and is a matter of equitable jurisdiction. The course of procedure as to pleadings, mode of trial, evi- dence, or the remedy, is in accordance with the- courts] of equity, except so far as modified by statute- Questions of fact or of law may arise in an equitable, as in a legal matter. In equitable mat- ters such issues are tried by the court, as an issue in the action. ^ , The foreclosure of a lien, as the foreclosure of a mortgage, is a proceeding "against the prop- erty." It is not an ordinary action for the col- lection of a debt.* ' 76. 2 295. See 528, 5, but see 525. The lien itself does not re- semble a mortgage. 417. There is also a diffierence between a. reference of the issues in the foreclosure of a mortgage and a. reference as to surplus moneys in the foreclosure of a Uen. 295. ' 528. Plaintiff may have a receiver of rents and profits ap- pointed pending the suit. 651, contra 417. 190 mechanics' liens. The section of the Code^ which authorizes the plaintiff to unite in his complaint several causes of action whether legal or equitable, by implica- tion prohibits the union of a cause of action for the enforcement of a lien with an action for the recovery of a debt,- except in the case of a mort- ,gage secured by a bond or other obligation of the mortgagor or of a third person. ^ Time. The lien, as we have seen, cannot be enforced if it never had validity as a lien, or if it has ■ceased to exist. * Nor can the foreclosure of a valid lien be com- menced until payment is due under the con- itract. ■* A lien may be filed by a sub-contractor in an- ticipation of payments subsequently to be made by the owner to the contractor ; but if in an ■action to enforce it the evidence shows clearly that at the- time of the commencement of the same the last payment by the owner to the con- tractor, if it is the only one upon which the plaintiff's lien can attach, is not due on account •of non-completion of the contract, the action can- mot be maintained. ^ > § 167, Code of Procedure. Compare §§ 483, 484, Code of Civil Procedure. ^ 65. 8 ggg Personal Judgment. ' See Payment. / 511. THE FOEECLOSUEE. 191 It is held, Tinder the Kings and Queens Act, that a lien may be filed after the death of the contracting owner, and that an action to enforce it will lie against his heirs or devisees. The court holding that where the owner has died before the completion of the contract, and before the filing of the lien, since his death does not re- lease the plaintiff from the obligation which he assumed when he entered into the contract, but he is bound to go on and perform it, he is for that reason, if he fulfills the contract on his part, entitled to all the privileges and securities which attached to the contract at the time he en- tered into it. 1 Service on the owner of the claimant's notice to appear and submit to an accounting, is in effect the commencement of a suit. ^ The provision of a statute, that persons made parties shall file a statement of their claim within ten days after the service of notice upon them, does not preclude the Court from excusing their neglect or allowing them further time to do so.^ Where a statute provides that a proceeding to enforce or foreclose the lien may be instituted " in ten days" after the filing, this does not mean " within" ten days, but after ten days.* 1 374, but see Transfer of Title => 57, 356. See 604. s 3 Laws 1868, chap. 500. « 133 ' " 193 mechanics' liens. Parties. The only proper parties to a bill of foreclosure of a mortgage, so far as mere legal rights are concerned, are the mortgagor, the mortgagee, and those who have acquired rights under them, subsequent to the mortgage. These parties only are affected by the Judg- ment. The plaintiff may make prior incumbrancers parties, for the purpose of having the amount as- certained and paid out of the proceeds. If no such purpose is indicated by the complaint, and no such provision is contained in the judgment, a prior lien is not cut off or affected. ^ Prior lienors are not necessary parties, unless the plaintiff seeks to impeach the Validity of their liens, or deny the amount thereof, or aver some higher equity. But unless made parties, prior lienors are en- titled to be first paid in 'full out of the fund in the owner's hands (due to the contractor), and in preference to subsequent lienors. Thfe whole amount of such prior liens will be allowed to the owner, as sums to be first paid out of the fund in his hands before he can be required to pay anything to subsequent plaintiffs, and the latter will not be permitted to contest their validity or amount. 2 If prior lienors are made parties, and" if upoii ' 166, and cases cited. See § 1637, Code of Civil Procedvire. " 313. THE FOKECLOSUEE. 193 the trial, the owner' s indebtedness to tlie con- tractor proves to be less than the whole amount of such prior liens, the judgment may be regu- lated with these facts in view, i Lienors who have claims adverse to the owner are proper parties defendant, in an action by the owner to foreclose the interest of a builder, who has failed to comply with the terms of the build- ing contract and hence is not entitled to the premises. ^ Unless such lienors have notice and are made parties, their liens are not affected. * A fraudulent grantee may be made a party de- fendant with the owner. This is so, although the complaint to foreclose the lien may also ask to have such conveyance declared void. There is only one cause of action, and there is no ground for demurrer.* Persons acquiring liens, other than ^nechanics' liens, after suit has been commenced, are not ne- cessary parties. ^ The lien cannot be enforced against a purchaser of the premises in good faith before the lien was filed. Although a vendee may have purchased prem- ises under such conditions and with such notice as would render him liable for labor or materials furnished by a claimant, under a contract with the original owner, such liability cannot be en- ' 81. = 283. s 253. * 623, 239. See Fraudulent Transfers. ^ ggs. 194 forced in the foreclosure of a lien where the lien was not filed before the purchase. '■ The Court has power to add parties if their presence is necessary to enable the court to do complete justice.^ It may, even after issue joined, make any person a party if necessary to a full determination o£ all the equities involved. ^ In many -instances it may perhaps be necessary to bring before the court all the parties inter-- ested in the distribution of the fund.* Where the sub-contractor is plaintiff, the con- tractor is a proper party, and will be ordered to be brought in on the owner's application, and upon proper notice. ^ It is unnecessary to delay making the applica- tion until issue is joiried between the owner and claimant. It may be made on the appearance of the par- ties in court pursuant to the notice to appear, and on due notice of an intention to apply for the order. » Possibly the lien acts might be held unconsti- tutional, as taking the property of contractors without due process of law, if the courts could not call in the contractors as parties. ' Pleadings. The complaint is governed by the same general rules applicable to pleadings in ordinary actions. ^ ' 575. See Transfer of Title. " 604. ' 518. .* 81. See 356. ' 604, 313. • 604 ' 313. 8 159. THE POEECLOSUKE. ' 195 It slioTild aver facts showing that the statutory xequirements to create a lien have been complied with, by the claimant, as well as the performance of the work or the furnishing the materials. ^ The complaint must allege that the labor and materials were furnished in conformity with the original contract. ^ It must allege indebtedn,ess. There can be no actual recovery of the money unless it appears that the debt has become pay- able. * Every fact necessary to constitue a cause of action must be alleged, unless the law intends it. The complaint must show that the materials were furnished /or as well as used in the build- ing. There is no legal intendment that the particu- lar building sought to be charged was in the mind of the merchant when he furnislied the materials. The pleading of mere matters of evidence is not sufficient, however strongly they may tend to prove the issue which the pleader is bound to maintain. Allegations of facts that will be offered in evidence, as that the materials were actually used in the building, are not a competent sub- stitute for the necessary averment that the mate- ■ ' 188. ^ 52, 523, 144, 309. Merely alleging that the work was per- formed "under and by virtue of" a contract, &c., is not suffi- cient. 180. Under proper statutes i^ermission or consent of the owner must be averred in the coinplaint. 63. 3 :irJ\ pns 196 mechanics' liens. rials were furnished to be used in the building in question. ^ It is not necessary to set put in the complaint a recital of all that is contained in the lien notice. Thus where a complaint first alleged that "the claim was filed in the manner and form required by the act of 1875," and then mentioned several essential statements it contained, but omitted to allege that the claim stated certain other essen- tial facts. The Court held: "If the complaint had proposed to set out all the claim contained, or if a copy of the claim, which appeared to be defective for want of essential statements, were attached to the complaint, there would, I think, have been good ground for a demurrer ; but it was sufficient to allege generally that the plain- tiff had filed the notice mentioned in the fifth section of the act, without specifying all the details which ought to have been stated in that notice."' The complaint must aver that the notice to create the lien was verified. * If for specific performance, the complaint must aver performance or readiness to perform by plaintiff.* A fatal defect in one separate cause of action cannot be remedied by allegations constituting another cause of action. ^ But a general demurrer going to the whole ' 647, but see 14. 2 647, but see 14, 159. ' 251. See Veriflcation. * 308. 5 305. THE FORECLOSURE. 197 cannot be sustained, where a complaint is good in part, although it is defective as to the main cause of action. Preliminary to statements of several causes of action, general averments may be made, appli- cable to all, so that each cause of action taken with such averments, may be perfect in itself.^ The complaint of a sub-contractor need not allege that money was due and payable by the owner to the contractor at the time the lien was filed, nor to allege negatively that the owner had not then paid the contractor. Since, if there were moneys to become du« thereafter, they may be reached by the claimant. ^ , The complaint must so describe the premises that the sheriff may be able to determine from the judgment the building intended. Where the street number of the building is omitted the complaint should show the reason for such omission;^ It is held, under the Kings and Queens Act, that although service of the notice of lien upon the owner is not necessary to make the lien valid, yet to enforce the lien such notice must be annexed to the complaint.* Where a statute requires that the notice to be given, in order to commence proceedings to fore- ' 575. " 1 50. See as to essentials of complaint, where owner makes assignment, &c. 519, 300 = 159. See 631. ■> 349. See 599. 198 mechanics' liens. close, shall state ' ' the liens and. times of filing, and be served upon all persons having filed notices of lien," &c. An omission to state such liens and times of filing is fatal, and the defect cannot be cured by amendment. The court does not acquire jurisdiction. The objection may be raised by any person on whom the notice is served, but he may waive the defect by a general appearance or proceeding, i But the proceedings cannot be dismissed on the ground that a defective bill of particulars was served. If such bill is not sufiiciently specific the defendant may, before answering, require a further and more particular bill.^ Under the State Act, a verification to a bill of particulars, which states that the same is "in all respects true to the best knowledge and belief" of the"person making it, is suflEicient.* The defendant may either deinur to, or answer the complaint ; the issues are not confined to facts oiily.* A defense that the lien has been released or re- moved must be pleaded, or it cannot be proved.^ Trial. Defendant's appearance in the action by attor- ney and upon the trial is a waiver of all defects in the service of the summons and notice, the same as in other actions. ® > 476. Laws 1863, chap. 500. * 57. s 233. « 100. ' « 253. " 436. THE FOEECLOSUEE. 199 The service of an answer is a waiver of defect in not serving bill of particulars. The question cannot be raised on the trial. ^ But the api)earance of defendant in the pro- ceedings is not a waiver of any defects in the previous steps taken to acquire a lien. 2 Where the contractor is plaintiff it is not neces- sary that the owner, in order to avail himself of his defence, should serve a notice of his claim bj^ a bill of particulars, or otherwise, before the time of appearance. * Where no issue is joined upon the pleadings, a proceeding to determine the amount of the plain- tiff' s recovery is not a trial.* But the denial of the owner of material allegations in the com- plaint creates an issue, which siispends all other inquiries until that is determined. ^ The provision of a statute that the form and manner of prosecuting the lien to judgment shall be the same as in actions for the foreclosure of mortgages upon real property does not prohibit a reference of all the issues. Where the trial will require the examination of a long account on either side the court may, upon application, or its own motion, direct a reference for the jjur- pose of a hearing and decision of the whole issues by a referee. So held where the items to be ex- amined m regard to the details of the work ex- ceeded three hundred. « 1 453. « 27. . = 234. * 525. « 295. 8 625. Laws 1875, chap. 379. 200 MECHANiCS' XIENS. " Courts of equity are not disposed, to withhold action because too many or too few parties appear upon the record. If there be too few, the absent persons will be brought in. If there be too many, the plaintiff may be subjected to the pay- ment of the costs of those who have been un- necessarily brought into court. But in either case the court will retain the case and do jus- tice." ^ The Court of Appeals held, under the New York City Act of 1863, that the power to amend pleadings is the same as under the Code ; that an amended or supplemental answer setting up alterations in the contract is allowable.^ A defect in not stating in the notice that the materials were furnished to a contractor with the owner is not a fatal one. If the complaint con- tains all the necessary allegations and the parties go to trial, 'Such defect may be disregarded or the proceedings amended.^ If the complaint fails to allege the fact that payment was made by the owner to the contrac- tor, by collusion, for the purpose of avoiding the provision of the statute, it may be amended upon the trial ; such amendment would even be allow- ed on appeal.* But issues to be tried are not matters of form but of substance. . The provision of a statute making matters of 1 56. ' 133. ^ 198, Laws 1863, chap. 500. ^ 283; THE FOEECLOSUEE. 201 form amendable at all times does not require the court to amend, as a matter of course, the plead- ings upon the trial. It has the discretion and may refuse an amendment which introduces an entirely new cause of action or defence, ^ or changes the form of tlie action. ^ Nor can the court disregard or amend any defect in the pre- vious steps taken to create the lien, which is by statute made a matter of substance. ^ Where there are several liens, each should be fully proved, because it may prejudice the rights of subsequent lienors. The owner and contrac- tor cannot -alone in such case admit the validity of tlie lien so as to affect otli^rs. * A copy of a notice of lien in which the signa- tures are not proved or acknowledged is not admissable as evidence of the due filing of a proper lien, though certified by the county clerk. It is a question whether a certified copy would be evidence, although the notice of lien was proved or acknowledged. ^ A copy of. the notice of claim certified by the deputy clerk under the county seal, may be used in the same way as if certified by the clerk him- self. It is in effect the act of the clerk by his deputy. 8 There is no necessity of proving the signature '391. 2 14 = 37, 476, 106, 351, 390, 186, 638, 157, 184, 395, 149. M33. ' 551. Followed but witli reluctance, 310. « 310. See § 933 Code of Civil Procedure. 203 mechanics' liens. of the claimant to the notice of lien, genuine, or that it was in fact tiled by him. It is enough that a notice in his name author- ized by law is found on file. By bringing an action founded upon it, he adopts it as his own. The identity of the person in the notice, with the claimant is presumed from t\e identity of the name. It is presumed to have been tiled by him, since it is one which he was authorized. to file and is found on file. ^ Priot liens must be taken into view in deter- mining how much the owner or the premises is liable for. It is a good defence to'the owner that there are such liens, exceeding in amount the sum due by him on his contract. ^ An objection that the notice of lien was not verified may be raised on the trial. It need not be raised upon return of notice to account nor in the answer to the complaint. * Where there is neither allegation nor proof that defendant is owner, the complainant cannot recover. * But in the justice's court the notice of claim is informally treated as the complaint, and if that avers ownership, and the defendant neither denies it by answer nor objects to a recovery for want of proof, the judgment will not be reversed, though no evidence was given on the trial. ^ It seems that the plaintiff may prove that the per- • 810. ' 134, 339, 81, 166, 313. » 106. * 144. See chaps, iii. and vii. » 144. THE F0KECL08TJRE. 20? son charged as owner is in fact the owner, how- ever numerous the record evidences are to the contrary ; provided those evidences were created, for the purpose of defrauding him, or of defeat- ing claims. ^ After the owner has entered on his defence and contested the claim upon the ground that nothing is due from him to the contractor, it is too late- f or him then to . object that the notice to bring the lien to a close served upon him, and in pur- suance of which he appears and contests the claim, did not contain the name of the con- tractor. 2 It is held that a sub-contractor miist prove affirmatively that money was due from the owner to the contractor when the lien was iiled or has become due subsequently ; that this is so, al- though the owner has himself compelled the claimant to bring on the proceedings •'' It is a question for the jury to decide whether the contract was cancelled in good faith, and if not, how much was due upon it. * A defence of defective performance, or of non- performance, or a claim for damages for defective work, is not an off-set.^ Recoupment and set-off are in their nature widely different. The term "off-set" does not include both. ^ Where a sub-contractor sues the contractor' • 14. ■ 2 383. 3 116, 588, 134, 150, 487. See 511. * 307. s 234. « Id. See 336, 436, 88, 569, 141, 4, 432. S04 mechanics' liens. and proves that he was employed, directed in the work, and partly paid by him, proof of declara-- tions by the plaintiff, that he looked to the owner and not to the contractor for payment, is not suffi- cient to relieve the latter from liability. ^ , It is competent for the plaintiflf to show that, before the lien was filed, both the owner and D., one of two joint contractors, stated to him that D. was sole contractor. ^ By the rules of evidence, where goods were actually furnished and used in the building, there will be a. presumption that they were fur- nished under a contract that they should be so used. ^ Motions and Orders. Where the complaint is limited to the ordinary iorm of a complaint for work and materials, it Tnay be set aside on motion. * Where the plaintiff fails to serve, with the no- tice, a bill of particulars, required' by statute, the defendant's remedy is to move before answer- ing, to set aside the proceedings, or to stay them until such service be made. ^ On a summary motion to strike out part of the complaint as irrelevant, the court will not con- sider the constitutionality of the statute. Such objection should be raised by answer or in some more formal manner. ^ 1 380. 2 56. " 647. ^ 188. ' 453. s 47. THE rORECLOSURB. 205- An order to substitute another person in place of the owner and discharge the latter, under § 122, Code of Procedure, was not granted, where the amount of the fund in the owner's hand, which was the object of the litigation, was not as- certained, and where the demands of the persons claiming the same were not for the same debt.^ Thp owner cannot demur or take any objectiona^ to the plaintiff's proceedings because the con- tractor was not made a party. The owner should apply to the court to have the contractor brought in. The proper remedy is by motion or petition, but the particular form of application is not ma- terial. 2 Even if it were not allowable for an assignor of the claim to file a lien, or for the assignee to file it, in the name of the assignor, the objection can- not be raised on the proceeding to enforce it^ where the answer does not take issue on that point, and the assignee is substituted as plaintiff by order of the court. * If a decree, settled by the court, is not in ac- cordance with the referee's report, it must be corrected on motion. * Where the report of the referee decrees a sale- of the premises, but a personal judgment against the owner is entered, the proper remedy for the irregularity is, by motion, to correct the judg- ment, not by appealing from it. " 1 81. See §§ 452, 820, Code of Civil Procedure. " 190. » 358. * 433. = 433^ :206 • mechanics' liens. The purchaser upon the sale may be put in possession by the equitable powers of the court, -or, for cause shown, may be relieved on motion from completing his purchase, as in other cases ■of J iidicial sales. ^ The general term, on reversing a special term order discharging a lien and vacating an order continuing it, may, in the order of reversal, re- -quire the county clerk to restore the lien and the -order continuing it to the record.* Judgment. Where there is a referee's report it is held that a decree in accordance with it ' ' must be drawn up, and should include all the separate judg- ments and costs and allowances, for and against the respective parties, and the practice is to have it settled by the referee who tried the issues, with or without notice, in his discretion, and his ap- proval thereof endorsed upon it, and then it is entered, by direction of a judge (who may then designate the person to sell) (citing 208), or by the clerk of the court, as provided by the Code of Civil Procedure, section 1228." "When the judgment gives special relief, it must be entered by direction of? Judge, the same as formerly. In all cases it should be entered in form as done by authoritj'- of the court, with the -usual caption in such cases." 1 605. s 394. THE FORKCLOSTJEE. 207 The decree may be settled by the court, and may be entered without notice. ^ The statutes do not in terms prescribe the Judg- ment which must be rendered; but the extent of the lien is confined to the right, title and inter- est of the owner existing at the time the lien was filed, and the form of judgment mast be adapted to this limitation. ^ A judgment which directs the sale of the right, title and interest of the owner in the premises at the time the lien was filed, and provides the manner in which the proceeds shall be' distrib- uted is in strict conformity with the statute.* The court can so adapt the Judgment and de- cree, and so control the proceedings that justice may be done to all the parties.* But the principle, that if the complaint shows any cause of action giving a different remedy from that asked for in the complaint, the court shall grant any relief which the facts warrant, does not apply to a proceeding under the lien law. s The proceeding is intended to foreclose a lien and cannot be used for any other purpose than such as the statute contemplates. ^ Where liens exist upon several parcels of land which have passed to several owners, the courts ■ 433. '- 150. ^ 413, 519, 5, 580. Eight, title and interest mean, it seems, a legal right, title and interest and not a mere equity. 519. * 150, 433. "■ 575. « Id. 188. 519. 208 MECHANICS' LIENS. may sometimes apportion them, but not unless it is highly equitable to do so. ^ Aprovision in a judgment, limiting an allowance to the owner, for payments made by him upon liens filed by sub-contractors to the plaintiff, to payments made within sixty days, is error. If the owner is not responsible for such liens he ought not to be harmed by them.'^ If the contractor pays the judgment obtained by sub-contractors against the owner, he may en^ force it against the owner for his own benelit. * If the judgment is not collected out of the prop- erty or from the owner, the contractor is liable for the amount (except costs of litigation on the part of the owner.)* If the lien ■ was filed for work done under a contract with the husband as agent for his wife, a judgment against both is erroneous. ^ It is not error for the referee in his report to separate the amount paid as wages to persons employed by plaintiff, from his own allowance or profits charged. It is not a departure from the bill of particulars. « A Judgment of nonsuit or a judgment dismiss- ing the proceedings on the trial, is a bar to a second proceeding to enforce the same lien. ' It is the duty of the court, upon a foreclosure of a mortgage, to provide for the sale of so much of the mortgaged premises, and in such manner > 137. » 494. 8 433. « Id. « 868. « 7. ' 60S. THE FORECLOSURE. 209 tha^ leinors shall not be prejudiced. Liens are entitled to such protection although not estab- lished by judgment. The court has this power, so long as the sub- ject-matter and the parties remain before it and under its jurisdiction as well after the sale as be- fore. It may for this purpose inquire so far as neces- sary to ascertain that the claim, for which the lien is filed, is not wholly groundless. It may make a supplementary order for a sale of more than enough to pay the mortgage, and to hold the surplus to abide the adjudication of the lien. 1 Personal Judgment:. While the lien is in force a proceeding to fore- 'close it is a proceeding in rem. The judgment should not be against the owner generally, but against his interest in the property. ^ A personal judgment against the owner and contractor jointly is erroneous. ^ But after the lien has ceased to be a lien under the statute, a judgment ordering the property to be sold is invalid, if rendered after that time. It will be reversed on appeal, although the objec- ■ 348. ' 135, 116, 5, 519; and tlie judgment must be against the own- er's interest, not against the entire premises, unless he is absolute owner, 580. But see as to judgment in justice's court, 310. ^ 137. But if the owner and contractor is one person there may be a personal judgment over for deficiency. Id. 210 MECHANICS' HENS. tion was not raised on the trial and no motion lias been made to vacate the judgment. It seems that the actual sale must occur, and the acquisition of a title by a purchaser be effected before the expiration of the lien. ^ The cessation or expiration of the lien is not a subject of defense to be set up and proved by the owner, but its continuance is the only basis of any judgment in rem of foreclosure and sale. 2 The court, however, as we have seen, retains the jurisdiction it has acquired by suit being brought within the prescribed time, and renders a personal judgment for the debt, as in an ordi- nary action on contract.* The amount of personal recovery is not neces- sarily confined to the sum enforceable against the property, or the sum properly enforceable under the lien* But where the contractor does not file a lien, but pleads in the nature of a cross-action against the owner, he cannot in that proceeding have a personal judgment against the owner for the excess over and above the valid liens. He must bring a separate action to determine the amount due him from the owner. ^ The power to render a personal judgment is merely incidental to the main purpose 5 and where no lien has ever existed, a mere personal ' 463, 166, 237, 247. ' - Id. ^ 133, 214, 391, and see chap. viii. ■• 61. 296. « 433. THE FOEECLOSUKE. 211 contract between parties to the suit cannot be enforced ; the whole proceeding fails. ^ This is so even under statutes providing for a foreclosure of the lien "by a civil action in a court of record," commenced by the service of a summons and governed by " the rules and prac- tice in ordinary actions."* There is some doubt as to whether, under the general lien law, any personal judgment can be rendered, except for a deficiency. * Costs. .From the report of the referee in a recent case in the Court of Common Pleas, we have as fol- lows: "Many of the claimants who are parties de- fendants and sub-contractors appeared at an early stage of this action and proved their claims, and then left the main contest of the issues which the owners set up as to payment, bad workmanship, defective materials, no extra work, and counter-claims for stipulated damages under the contract for delay, and the value of the mate- rials taken out of the old buildings, and that nothing was due the contractor, and other de- ductions, which if allowed against the contrac- tor, would defeat the lienors. A few of the lienors persevered in this action, and two of them were settled with (their claims being pur- » 65, 658. ^ 65, see 61. ^ 658. 312 MECHANICS' LIENS. chased by the owners), and withdrew just before the case was closed, aiid only two continued the contest until the end. The contractor did hot file any notice of lien, but appeared in aid of the claimants. All of those who, after appearance, allowed their liens to expire during the pendency of this action without an order of the court con- tinuing them, as provided by the statute (Act 1863, § 11), should De dismissed as to the owners with costs as for want of prosecution, they having actually abandoned their proceed- ings against the owners (citing 559, 299, 463). Such claimants are entitled to a judgment against the contractor, however, for the amount of their claim (citing 236) and costs as upon failure to an- swer, because the contractor did not object to their claims. The lienors did not contest among themselves. If for any cause a party wishes to withdraw his claim, he should apply to the court, which has the power to relieve him without costs in a proper case (citing 41 N. Y., 355). A referee has the same power as a court in allowing costs as between the parties, where all the issues are referred (citing 1 Abb., Ct. App., dec. 95 ; code, § 1022). Some claimants who did not appearand prove their claims should be dis- missed as to all parties without costs, because they took no part in the action, except nomi- nally ***** Claimants whose liens are established, should THE FOEECLOSURE. 213 have costs of this action against the owners, who alone contested them (citing 150. 161, 162), and costs as on failure to answer as against the con- tractor. The costs against an owner are charge- able against the property, and may constitute a specific lien thereon (citing Id. 5)." ^ In an action against the owner and contractor to enforce a lien for $527.63, the owner alone ap- peared and served an offer of judgment for $226.50. At Special Term the Court ordered judgment for $571 damages, and this was af- firmed by the General Term. But the Court of Appeals reduced the amount, holding that the claimant had a lien for only $202.16. The owner thus having secured a judgment more favorable than the offer, it was held that he was entitled to recover costs accruing after the offer ; that the facts that the claimant was entitled to recover the amount claimed, $527.63, as a personal judg- ment against other parties, that the offer did not ' appear in the appeal papers, and the judgment below as modified was afiirmed without costs, that the remittitur was'filed and made the judg- ment of the Court below, and a motion made to amend the remittitur was denied, did not affect the case. ^ where the labor and materials are in pursu- ance of the contract, but not in conformity to the contract with the owner, judgment is awarded in 433. Contractor is not liable for costs of litigation on the part of tlie owner. Id. = 361. See 835, and § 738 Code of Civil Procedure. 214 mechanics' liens. favor of the latter for Ms costs of suit, and in favor of the plaintiff against the contractor only, for the amount claimed, with interest, i The Kings and Queens Act, § 9, provides that upon a sale under the lien the proceeds of the sale "shall be applied to the payment of the costs of the action and proceedings, and of the amount found to be due, to such -claimant or plaintiff, and that the residue" be paid to the Clerk of the Court. Under this provision all costs before judgment must be paid out of the proceeds of the sale, and cannot properly be directed to be paid by the owner of the land. ^ Costs are in the discretion of the Court. ^ If the foreclosure is against an executor or ad- ministrator, and the claim has not been unrea- sonably resisted or neglected, the usiial taxable costs are denied. Proper disbursements, are al- lowed.* Separate bills of costs are not allowed . to several defendants who have appeared by the. same attorney, where the complaint was dis- missed on motion without any trial and it does not appear that the defences could not have been joined. ^ The owner is liable for costs of suit if he does not protect himself by depositing the amount with the County Clerk ;^ otherwise, it seems if ' 338. See 584. '' 193. 2 319, 374, and see each Act for itself. * 374. » 14. 6 57. See 676, 406, 490, 161. THE POEECLOSUKE. 215 fhe amount claimed in the lien was reduced on the trial, ^ or if the owner makes no defense. ^ The owner is not chargeable with the costs of litigation between the sub-contractor and con- tractor, to determine as between themselves the right to the money held by the owner. ^ A percentage by way of extra costs upon the recovery cannot be allowed where the damages, in default of the defendant to answer, have been assessed under a writ of inquiry. * Where neither the owner nor sub-contractor desires the contractor to be a party defendant, . it seems that the latter, in case of his insolvency, or the like, would be allowed to come in, on his application, only on condition that he file secur- ity for costs of the litigation. ^ Where the contractor makes an assignment for the benefit of creditors, the costs are payable out of the assigned estate, but not by the assignee personally. The Court intends that they shall be so paid, but cannot direct the assignee to pay them. " Execution. Under the New York City Act of 1863, a lien was filed against certain premises January 2d, a mortgage was executed and recorded February 4th, and another mortgage was recorded April 18th. Upon the foreclosure of the first mort- 1 57. '^ 163. See 252, 296, 81, 676, 406. 3 162. ^ 525. = 162. * 407. 216 mechanics' liens. gage, and in a contest between the lienor and. the second mortgagee for surplus moneys, arising out of a sale of the premises, the Court of Ap- peals held: — That any right the lienor might- have to the surplus was not affected by the fact that he had allowed his lien to expire. As a protection to those interested in the premises, or who might desire to become interested by way of purchase or incumbrance, the lien must be continued by the order provided, even though proceedings to foreclose have been commenced, or even a judgment obtained for a sale of the premises. This provision of the statute, how- ever, that in all cases the lien shall cease, re- fers to the lien Jon the premises, and has no refer- ence to a claim for surplus money after the lien has been foreclosed and the land sold. The claim of the lienor is then reduced to a right- to the avails. If that right existed at the time the sur- plus was.ascertained, and at the time the claim therefor was made, no further order of the Court was necessary. But in the present case, the Court held, the lienor was not entitled to the surplus. His lien was prior to the mortgage. The complaint did not ask to have the amount of the lien ascer- tained and paid out of the proceeds, nor did the judgment contain such a provision. The lien, therefore, was not affected by the judgment, and, if valid, could still be enforced against the prop- erty. The provision of the Revised Statutes (§ 158, 2 R. S., 192) which declares that the deed THE FOKECLOSUKE. 217 given upon foreclosure shall be an " entire bar" against all parties, refers to the rights and inter- ests', in the equity of redemption, and does not embrace interests which are paramount to the title ol both mortgagor and mortgagee. The lienor's appearance in the action and T^aiver of "service of a copy of all papers except notice of sale and application for surplus funds," was not a consent to come "in subsequent to the mortgage, nor did it estop him from asserting his lien, unless there vs^as proof that he consent- ed to be> satisfied with a claim upon the surplus, and that the premises were, with his knowledge and acqiescence, sold free from the lien. * The statutes, although they do not in terms prescribe the precise form of execution which must be issued, are not to be construed as con- ferring a right and failing to provide a sufficient remedy. 2 The sale under the foreclosure of a lien is like a sale under the foreclosure of a mortgage. It conveys all the right, title and interest of the owner existing when the lien was filed. ^ The Court has power to direct a sale by referee as on the foreclosure of a mortgage, and such referee may report any deficiency after the sale, and may in other respects perform the same office as sheriflf.* If no person is named as ref- eree to sell, an execution, directed to the sheriff ' 166. Compare 395, 137. « 150, 605. '■ 538, 417. * 308. 218 for that purpose, must be issued against the spe- cific property. ^ There must be as many sales of the owner's interest in the property as there are liens estab- lished, if they attached at different times. ^ Where it appears by affidavit that the prem- ises are included in one lease, and so situated that they cannot be sold in separate parcels, the sheriff is authorized to sell the whole.* Since the sale is only of the owner's interest, superior rights of other persons are preserved by operation of law, and the sale need not be in terms expressed to be subject to a mortgage or other incumbrances.* The purchaser upon the sale may set up as a defense to a prior mortgage, that it was without consideration, and that an assignment thereof to the plaintiff was invalid. ^ Where the purchaser upon the sale honestly supposed that the properly was an estate in fee, whereas it was, in fact, only a leasehold interest, the Court will relieve him from the purchase. ^ Where a transcript, docket and execution were in the form employed in ordinary personal ac- tions, they were vacated on motion, without pre- judice to the filing and issuing of a correct tran- script and execution. ' The sheriff is bound to execute to the pur ' 433, 605. = 483. 3 605. Compare 1007. * 580. 6 450. Compare 169, 537. ^ 605. ' 343. THE FOEECLOSURE. 219' chaser a deed of conveyance of the owner' s in- terest in the premises. * The sheriff is bound to execute the judgments- and decrees of the court and cannot refuse obedi- ence, because in his opinion such direction is erroneous. " So held where the sheriff refused to give a deed as required by the judgment.* A mere certificate of sale, as in cases of sales of interest in real estate to satisfy ordinary claims, with a view to redemption under the statute, is. not sufficient.* A judgment and sale had under the statute cut- oft all subsequent liens. This is so, although in- termediate the filing of the lien and the sale there was a foreclosure of a prior mortgage de- priving the lien or of any surplus moneys. ^ Where a creditor holds two securities, one- upon several parcels of land and the other upon one parcel thereof only and the latter is sold, he may apply the proceeds of such sale towards- the extinguishment of the lien upon that parcel alone, although the other security may hav&- been first created. * Where there is no evidence of any accounts or transactions between the parties, except what arose under the building contract, there can be- no question involving equitable considerations in^ the marshalling of payments. "^ ' 580, 538. 2 580. ' Id. * 528, 580. = 349. « 137. ' 382. ,220 mechanics' liens. The right of redemption given by the Revised ■Statutes to a debtor and to his heirs, devisees and grantees upon a sale of real estate under an -execution, does not apply to proceedings in rem. ^ The owner has no right of redemption and the offer to the purchaser of a certificate of sale, as in cases where a debtor' s interests in lands is sold under ordinary executions, is erroneous. ^ A purchaser upon a valid sale may, it seems, •compel the sheriff to give a deed ; otherwise, if the sale was irregular, as being a sale of the premises, instead of the defendant's interests ; a resale must in that case be had, pursuant to the judgment. ^ There may be separate executions upon separate judgments.* A personal judgment against the owner and ■contracting party may be enforced by execucion -as in other actions. ^ Appeal. No appeal lies from a judgment by default.* The amendment of a pleading at the trial is 'discretionary with the court and its decision is "not appealable. ' An appeal on the question as to whether or not the decree settled by the court is in accord- :ance with the referee' s report is not the proper ' 538. ^ 580. » Id. * 483. •* 253. « 368. ' 198, 14. THE POBECLOSUItE. 221- t remedy", until after hearing the parties on the motion to correct it. ^ Errors in the admission or exclusion of evi- dence on the trial are not regarded on appeal if the court is satisfied that no injustice has been, done. 2 Where the evidence on the question of permis- sion to build is conflicting it is properly submit- ted to the jury; but if there is no request to the court to instruct the jury to answer the question in the affirmative, or to give any specific instruc- tion and no exception to any portion of 'the charge which would present the question, it is not .properly before the court an appeal. * The issuing of an execution by the appellant upon the judgment rendered in his favor.andthe collection of the amount thereof, after the appeal is taken, is inconsistent with and a waiver of his- right to further prosecute it.^ The Court of Appeals held under the JSTew York City Act of 1863, that a judgment obtained under that act for less than $500 was not appeal- able to that court. ^ Where the defence that the lien filed, is against public buildings, for the public use, was not set up in the answer, or distinctly claimed at the trial, or passed upon by the referee, it is not available upon appeal.^ Where the defendant has tried his case on cer- • 403. 5 393. « 105. < 324. 5 660. ' « 639. ."222 mechanics' liens. tain points of fact, calling the attention of the -court to no other, admitting in fact that all others are proved, he cannot then appeal on a record not necessarily containing all the evidence, and take the point that the plaintiff's case vras not jnade out upon the merits upon, the trial. ^ Where, in the pleadings and at the trial, the contractor confines himself to the defence that the claimant failed to perform the contract, he ■will be limited to this objection on appeal, and the existence of a contract between the contractor and the owner will be presumed. ^ Questions as to substantial performance and vpilful jDr intentional departure from the contract, are questions of fact ; if the latter is not in terms iound, it may be presumed from a finding of the former. On appeal every intendment and pre- sumption is in favor of the findings and judg- ment ; and especially is this so when the evi- ■dence is not returned. The rule that a finding can be implied only when it would be justified by the evidence, is not applicable when none of the evidence appears in the case. The allowance by the referee of $75 damages for defects in a job of $800, does not authorize a holding, as a matter of law, that the contractwas not substantially performed. *~ Where the evidence is contradictory, and is such as to legally warrant a finding for either > 200. See 144, 599 2 137, s 494 THE FORECLOSURE. 223 party, the Court, on appeal, will be concluded by the referee's report upon the facts. ^ The fact that the objection that payment was collusively made by the owner to the contractor w^as not alleged in the complaint, is not avail- able on appeal, where the record does not show that it was taken at the trial. ^ Final judgment may be given on appeal even contrary to the finding of the jury, if the appellate court is satisfied that it will not work injustice. ^ Under the Code of Civil Procedure, § 1338, where an order of General Term reversing a judg- ment entered upon the report of a referee, does not state that it was made on questions of fact, it will be deemed to have been made on questions of law only. * Where the contract and the notices served are put in evidence on the trial, the same should be v annexed to the return sent to the General Term on appeal ; otherwise, the case will be remitted for a further return. ^ The plaintiff cannot avail himself, on appeal, of the mere omission of the Court or Judge to state in ILg decision findings on questions of con- troverted facts not requested on the trial. The presumption is .that all necessary facts necessary to sustain a conclusion, either of fact or of law, were found. The Judge need not state in his decision the finding of any fact other than that of the owner's indebtedness to the contractor, 1 362. « 383. ' 437. « 058. ^ 135. S24 mechanics' liens. when that is the issue and the owner' s liability depends entirely upon it. ^ An appeal alone does not bring up the question whether or not all the material facts necessary to sustain the legal conclusion are contained in the finding of the Judge. ^ The Court is not authorized to discharge a lien by marking a, judgment directing a sale, as " se- curM on apioeal."^ Ah appeal stays only so much of the proceed- ings'under the judgment as a Judge of the Court below or a Judge of the appellate court shall order to- be so stayed until the hearing of the ap- peal, and on such terms as to security or other- wise as such Court or Judge may order.* Where a judgment exempts the property, the lien may be discharged, although an appeal has been taken, unless the operation of the judgment has been stayed.^ Where most of the material allegations of the complaint are put in issue by the answer, it is error for the General Term, upon reversal of judgment in favor of the defendant, to give final judgment against him. A new trial should be granted.* An appeal to the County Court lies from the judgment of a Justice.' A re-hearing of an appeal will not be granted if no advantage can result from it.^ ' 578. ' Id. ^ 253. •» 637. « Id. « 193. ' 491. ' 609. CHAPTER X, Statutes and Construction. /. -New York City Acts. II.— Buffalo City Acts. Ill— State Acts. IV.— The Kings and Queens Act. V. — The Onondaga Act. VI.— The .Rensselaer Act. VII. — The Fuilic Work Act. VIII—The Railroad Act. IX. — T%e Oil Well Act. Construction of Statutes. Mechanics' lien acts in this State date from the year 1830. i The first act applied only to the city and county of New York, and was intended for the protec- tion of mechanics and workmen. It did not in- clude sub-contractors or material-men. Since that year the lien laws have been con- stantly growing in importance. Their scope has been greatly extended and the general principles upon which they proceed have been developed and established. ' The first Mechanic's Lien Act in the United States was passed by the State of Maryland, in the year 1791, and originated from a desire to build up and improve as speedily as possible the city of Washington, upon that city being made the seat of govern- ment. Thomas Jefferson and James Madison were both inter- ested lin securing its adoption. Laws of Md., 1791, chap. 45. 226 mechanics' liens. Wo better evidence is needed of the utility, popularity and justice of such laws, than the attention they have received both from the legis- lature and the courts. Yiewed as a whole, the ' ' lien law ' ' is now a system, forming a part of the law of every State, and so well established both in principle and in practice, that future important changes by statute are not to be anticipated.-^ The lie,n law, like many others founded upon statute, is now chiefly to be derived from the decisions of the courts, taken in connection with the statute or statutes, forming the basis of each particular decision. It is of course impossible to properly under- stand the decisions without referring to the statutes, and for that reason a complete list of the lien acts, showing also the progress or history of the legislation on the subject, in this State are here given. For convenience the statutes are so arranged as to illustrate the natural growth, from the first act of 1830 to the several acts now in force. ^ I. New Yorli City Acts. First Statute. Act of 1830. Laws of 1830, chap. 330. Amended by the Act of 1832. Laws of 1832, chap. 120. Repealed by the Act of 1844. ' 241, 599. See also Introduction. STATUTES AND CONSTKUCTION. 227 Second Statute. Act of 1844. Laws of 1844, chap. 220. Amended by the Act of 1845. Laws of 1845, chap. 235. Repealed by the Act of 1851. Third Statute. Act of 1851. Laws of 1851, chap. 513. Amended by the Act of 1855. Laws of 1855, chap. 404. Repealed by the Act of 1868. Fourth Statute. Act of 1863. Laws of 1863, chap. 500. Amended first by the Act of 1866. Laws of 1866, chap. 752. Amended second by the Act of 1868. Laws of 1868, chap. 79. Amended by general amendments. Laws of 1870, chap. 529. Laws of 1872, chap. 669. Repealed by the Act of 1875. Fifth Statute. Act of 1875. Laws of 1875, chap. 379. Amended by the Act of 1879. Laws of 1879, chap. 409. Repealed by the Act of 1880. Sixth Statute. The Cities' Act 0/I88O, apply- ing to all the cities of the state, except Buffalo. Laws of 1880, chap. 486. In force. 228 mechanics' liens. 11. Buffalo City Acts. First Statute. The Cities' Act of 1844. ^__ Laws of 1844, chap. 305. Amended by the Act of 1851. Laws of 1851, chap. 517. Repealed. Second Statute. Act of 1871. Laws of 1871, chap. 872. Repealed by the Act of 1880. Third Statute. Act of 1880. Laws of 1880, chap. 143. In force. III. State Acts. ■>■ First Statute. Act of 1854. Laws of 1854, chap. 402. Amended first by the Act of 1858. Laws of 1858, chap. 204. Amended second by the Act of 1869. Laws of 1869, chap. 558. Amended third by the Act of 1870. Laws of 1870, chap. 194. Amended by general amendment. Laws of 1870, chap. 529. Amended fourth by the Act of 1871. Laws of 1871, chap. 188. Amended fifth by the Act of 1872. Laws of 1872, chap. 691. ' See also Westchester County Acts : First Statute Act of 1851. Laws of 1851, chap. 169. Amended -hy the Act of 1853. Laws of 1853, chap, 108. Kopcalcd by the Act of 1852. Second Statute Act of 1853. Laws of 1853, chap. 384. Repealed by the State Act ot 1854. STATUTES AND COKTSTEUOTIOW. 229 Amended by general amendment. Laws of 1872, chap. 669. Amended sixth hy tlie Act of 1873. Laws of 1873, chap. 489. Amended seventh by the Act of. 1874. Laws of 1874, chap. 551. Amended eighth hy the Act of 1875. Laws of 1875, cJiap. 233. In force, as amended. IV, The Kings and Queens Act. ^ Laws of 1862, chap. 478. Amended by geh- •eral amendments. Laws of - 1870, chap. 529. Laws of 1872, chap. 669. In force, as amended. Y. The Onondaga Act. I, Laws of 1864, chap. 666. Amended by the Act of 1866. Laws of 1866, chap. 788. Amended by general amendments. Laws of 3870, chap. 529. Laws of 1872, chap. 669. In force, as amended. VI. The Rensselaer Act. Laws of 1865, chap. 778. Exempt from the Act of 1869. Laws of 1869, chap. 558, by the Act of 1870. Laws of 1870, chap. 194. Amended by general ■• See also the Kings County Act. Laws of 1853, chap. 858. Hepealed by the State Amendment Act of 1858, and specifically iDy the Kings and Queens Act of 1863. 230 mechanics' liens. amendments. Laws of 1870, chap. 629. Laws of 1872, chap. 669. In force, as amended. YII. Tlie Public WorTc Act. Laws of 1878, chap. 315. Amended by the Act of 1881. Laws of 1881, chap. 429. In force, as amended. YIII. TTie Railroad Act. Laws of 1875, chap. 393. In force. IX. The Oil Well Act. Laws of 1880, chap. 440. In force. Construction of Statutes, The law which governs any state or nation, is composed of unwritten or common and written or statute law. Unwritten or common law consists chiefly of customs, principles and rules of action, not de- clared to be law by the legislature, but which receive their binding power and the force of laws by universal and immemorial usage. Written or statute law is the express written will of the legislature, rendered authentic by cer- tain prescribed forms and solemnities. Statutes must be constitutional, that is, they must, in the first place conform to the constitu- STATUTES AND CONSTEUCTION. 231 tion of the United States, and then to the sub- ordinate constitution of the State. ^ Where the common law and a statute differ, the former gives place to the latter. An old statute also gives place to a new one, unless both acts are merely affirmative and their substance such that both may stand together. In that case the one does not generally repeal the other, but both have concurrent force." There is, however, an important exception to this rule. Thus the New York. City Act of 1863 was not in terms repealed by the act of 1875, but in a case arising under the latter statute, the Court of Appeals held : — " It is the undoubted rule that repeals by im- plication are not favored. Where there is no repealing clause in a later statute, and that and a former one can'stand together and both have effect, they will generally both be held to be in force. But where a later statute, not purporting to amend a former one, covers the whole subject, and was plainly intended to furnish the only law upon the subject, the former statute must be held repealed by necessary implication."* ' It is for the courts to determine whether a statute is or is not constitutional. Lien acts have been declared to he constitutional. 214, 41, 263, 60, compare 180. 2 Kent's Com. Part III. Bl. Com. In. § II. ' 269. See 370, 63. "We may, by this rule, determine the efEect of the present Oiites' Act. It does not purport to amend former statutes, and although it contains no repealing clause, it covers the whole subject and ia plainly intended to furnish all fhe law upon the subject, in the cities to which it applies. 232 mechanics' liens. Statutes ordinarily take effect from their date if no time is fixed but in this State, every law, unless a different time is prescribed therein, takes effect on and not before the ■20th day after the day of its final passage. ^ Statutes ordinarily have no retroactive effect, but the Court of Appeals has held, that where a statute amending a for- mer one sets forth the former one as amended retaining a part of it, omitting a part of it and incorporating new provisions ; the effect is not to repeal and re-enact the portion retained, but such part of the statute continues in force from the first enactment. The portions omitted are abro- gated and cease to form a part of the statute from the time the new act takes effect, and the new provisions become operative from that time. ^ The same court also, under the New York City Act of 1863, held, that, " The clear purpose of the act was to provide a new system as to these liens, and to repeal the old one as to all liens to be thereafter created, but to continue it in force as to all existing liens. This construction is sanctioned and required by the rule of law that every statute shall be construed as having pro- spective operation only, unless its express letter or clearly manifested intention requires that it should have retroactive effect ; and that, if all the language of the statute can be satisfied by giving it prospective operation it shall have such operation only." ' 1 R. S. 157, § 13. « 42a STATUTES AND COJ^STliUCTION. 233 The conrt held accordingly, that the provision of the act of 1863, that " liens shall, in all cases, cease after one year, unless, by order of court the lien is continued," &c., did not apply to a lien filed under a former act [(Act of 1851), but that such a lien continued until judgment, without continuance by order. ^ Statutes have no extra-territorial force and therefore no lien can be acquired for materials sold and delivered in another State, though sub- sequently brought by the purchaser into this State, s Statutes are either general or special, public or private. Although it is sometimes difficult to distin- guish between them, since they often relate to matters and things, partly public and partly private, it may be said generally,' that a general or public act is- one that relates to the whole community or to the public at large; while a spe- cial or private statute concerns the particular interest or benefit of certain individuals, or of particular classes of men. * It is the well settled rule that a special act will not be deemed repealed by implication in conse- quence of the passage of a general law containing a general repealing clause of inconsistent legis- lation. Thus the Court of Appeals held that the act of 1844, for cities and certain villages, was ' 180. See 352, 603, 47, 147, 360, 428. 2 Sk See 888. ' Kent's Com. Part ILL 234 mechanics' liens. not repealed or affected by the act of 1858, which extended the provisions of the original State Act of 1854, to all the counties of the State except lHew York and Erie ; that a claimant acquired no lien by filing a notice in the office of the town clerk as required by the act of 1854, which to be effectual under the act of 1844, was required to be filed in the office of the county clerk. ^ It is also a rule of construction that " a special statute providing for a particular case or ap- plicable to a partiisnlar locality is not repealed by a statute general in its terms and application, unless the intention of the Legislature to repeal or alter the special law is manifest, although the terms of the general act would be taken strictly, and but for the special law include the case or cases provided for by it." The Court of Appeals accordingly held that the special Rensselaer county act of 1865 was not re- pealed by the act of 1869, which amended the general state' act of 1854 by extending its pro- visions to all the counties in the state except Erie, "Kings, Queens, New York and Onondaga, and providing that the notice of lien should be filed in the office of the county clerk. The court held that the lien was properly filed in the office of the town clerk, not in the office of the county clerk. It is also a general rule of law that " when a repealing statute is itself repealed, the first ' 663. See 89. STATUTES AND CONSTKUCTION. 235" statute is revived, and. it matters not whether the- repeal in either case be by express language or by implication. * * * * When an act is^ repealed it must be considered (except as to transactions past and closed, and possibly as tO' some pending cases) as if it had never existed." The same court therefore held in the above- case that assuming that the law of 1869 did by implication repeal the law of 1865, it was re- stored by the act of 1870, which amended the- act of 1869 by excepting therefrom the county of Rensselaer ; that by such amendment the law of 1869 ceased operation in that county, and the law of 1865 again had vitality, i It is for the courts to determine the proper in- terpretation and construction of statutes ; and, to arrive at the intention of the Legislature, the- courts must look at all the language used, thes purposes to be accomplished, and other acts in pari materia (of like kind).^ They must sa "construe the statute as to meet the mischief and advance the remedy."* Where a power is conferred by statute there arises by implication, when the statute is silent on. the subject, the necessary authority to make it effectual.* Statutes in derogation of common right are to- be constraed strictly, that is the case in hand must be brought within the definition of the law, but not so strictly as to exclude a case which is. ' 639. ^ 369, 629. s 639. * 79, 150, 605. 3236 mechanics' liens. Avitliin its words taken in their opdinary accepta- tion. 1 Statutes not in derogation of the common law, but which are remedial only and designed to aid and advance the principles of the common law, are to be construed liberally and beneficially. ^ Mechanics' lien acts would seem properly to come under both classes. "A statute maybe regarded as penal and «:o be strictly construed in one aspect, but as remedial and to be liberally expounded in another aspect," ^ but in either case where no ambiguity exists courts cannot ■correct supposed defects.* When the intent is clear, rules of construction must give way. It is not allowable for the courts to interpret that which has no need of interpre- tation. 5 Proceedings to impose and enforce mechanics' liens have no foundation in common law, but rest and must find support entirely upon the statutes authorizing them. " ' Kent's Com. Part III. 443,97,157. = 97, 339, 294, 142, 629, 603, 433, 260. ' 629. < 34. ' 443, 180. « 34, 443, 41, 157, 184, 100. APPENDIX OF FOEMS. No. 1. Notice of Claim— Cities' Act. Notice Under Mbchanics' Lien La-vt. To , Esq., Clerk of the City and County of New- York, and to all others whom it may concern : Please to take notice, that , residing at No. street, in , have a claim against , (reputed) owner, the person to whom the work and, materials were furnished by amounting to the sum of dollars, after deducting all just credits andofE-ssts;. 'and that the claim is made for and on account of certain work_ and materials consisting of , fur- nished for and towards, and used in, the erection, construc- tion and completion of the building hereinafter more fully described, between the day of , 18 , and. the day of , 18 . That such work and ma- terials were performed, sold, and delivered by in pursuance of and in conformity with a certain contract or agreement pre- viously made and entered into by with said , (reputed) owner. That by the terms of said contract, said work, and materials were to be paid for (state terms of contract). All the work and materials ioj which this claim is made (or, state- amount), have been actually furnished, and the said contract price is due and payable. (If not due state when it will be due.)- Said building (reputed to be) owned by said , and situated in the Ward of the city of Note. — Since the proper filing of the lien is so important, and since numerous questions more or less difiicult, usually arise, different in each case and under each statute, care has been taken to secure forms that may be valuable to the profession. Several of those here given have been approved by the Court of Appeals. It is believed that by referring to each, and by reading also- the preceding chapters relating to the subject, rules applicable to> almost any case may be found. 238 mechanics' liens. on the JS"o. side of street, and known as The following is a diagram of said premises:- street. 125 ft. 3 100 ft. 5 in. Street. And that have and claim a lien upon said house or ■building and the appurtenances and lot on which the same shall stand, pursuant to the provisions of the Acts of the Legis- lature of the State of New York, regulating the liens of me- ■chanics, laborers and others, upon buildings, wharves, vaults or •other structures within the said State. Dated at this day of ,188 (Signed), •City of ■County of Claimant, . ' iss.: , being duly sworn, says that , the claimant mentioned in the forego- ing notice of lien; that has read the said notice and knows the contents thereof, and that the statements therein contained are true to the best of knowledge, information and belief. Sworn to before me, this day ) 188 . f of Note. — If there are several claimants, state the name and resi- dence of each. If the claim is against several contiguous build- ings, specify if possible the amount claimed against each. If a person other than the claimant signs and verifies the notice, state the capacity in which he does so, and that he has knowledge of ^e facts, &c. APPENDIX OP POEMS. 239 No. 2. Notice of Claim— Buffalo Act. Notice Under Mechanics' Lien Law. To , Esq., County Clerk of Erie County: Sir : Plense to take notice that I, , residing at No. street, in the city of Buffalo, County of Erie and State of New York, have a claim against , of said city and county, contractor of (reputed) owner, for the erection of the building hereinafter men- tioned. Said claim amounts to the sum of dollars, being for work, labor and services performed, and ma- ^terials, consistmg of lumber, furnished to said contractor, for and used in the construction of the dwelling-house known as No. street, in said city of Buffalo. A more detailed account of such labor performed and materials furnished is hereto annexed, marked "Schedule A,"' and made a part hereof. (Insert description of premises.) That said is the (reputed) owner of said dwell- ing-house, appurtenances, and the lot and premises upon which the samjE stand ; that said claimant performed said work and fur- nished said materials by virtue of and in conformity with a cer- tain verbal contract (if the contract, or any part of it, be in writing-, a copy must be filed with and made a part of the claim) previously made by and between claimant and said contractor; that the terms and conditions of said contract were, that said work and materials were to be paid for in cash when furnished; that all the work and materials for which this claim is made have been actually performed and furnished ; Clf not, state how much of them) ; that sixty days have not elapsed since the per- formance and completion of said work and labor and the final furnishing of said materials. Also take notice that I have and claim a lien upon satd build- ing and appurtenances, and the lot upon which the same stand, ' See form No. 11. 240 mechanics' liens. as security for the amount due me, as aforesaid, in pursuance of the statute in such case made and provided. Dated Buffalo, , 188 . (Signed), , Claimant. City of Buffalo, ) ^ . Erie County, ) , being duly sworn, says, she is the claimant named in and who signed the foregoing claim. ' That the statements therein contained are true to the knowledge of deponent. That said claim and the items and specifications thereto annexed are in all respects just and correct. (Signed), • Sworn to before me, this day ) of , 188 f Notary Public, Erie Co., N. Y. No. 3. Notice of Claim.— State" Act.' To Clerk of the County of Take notice that I, A. S., of the village of in said county, have a claim against Mrs. J. H., wife of B. H., of in said county, amount- ing to dollars for lumber furnished to and under an agreement with the said J. H., and used by her in making or constructing a new house, situated in the village of town and county aforesaid, designated on a map made by C. A., surveyor, dated entitled, map< of village lots laid out for X. Y. , situate near by the numbers one (1), two (3) and three (3), together bounded as follows : Beginning at the corner formed by the intersection } This was the form used in Court of Appeals case 29S. APPEKDIX OP rOKMS. 241 of the easterly line of street witli the northerly line of street, thence northerly along Avenue feet to the corner of a street leading out of the said Avenue, thence north-easterly along said street last mentioned feet and inches to the land now or late of A. B. , thence easterly along said A. B. 's land feet to lot No. on said map, thence southerly along the last mentioned lot feet to the northerly line of said » street as laid dowa on said map, thence westerly along said street feet to the place of heginning, heing the same premises conveyed to the said J. H. by by deed, dated That sixty days have not elapsed since the final furnishing of the said lumber aforesaid. And also take notice that I have and claim a lien upon the said dwelling house and appurtenances, and the lot upon which the same stand, as security for the amount due me as aforesaid, in pursuance of the statute in such case made and provided. No. 4. Notice of Claim.— Kings and Queens Act.' Tq Clerk of Queens County and E. S., of and G. A., of owners : and A. L. of owner and contractor: Please take notice. That I, A. A., of No. Street, New York City, have a claim against the above named A. L. of in the amount of dollars, due me on the day of 18 , for materials furnished and labor performed between the day of 18 , and the day of 18 , in pursuance of a cer- tain contract made by me with the said A. L., to construct a cer- tain building and appurtenances on the premises hereinafter de- scribed; which premises and building, upon information and belief, claimant states is owned by E. S. , of G. A., of _ and the said A. L., which said own- ' This WPS the form used in Court of Appeals case 63. 242 mechanics' liens. ers permitted claimant to furnish said materials and perform such labor, and which said premises are situated on Rociiaway Beach, in the County of Queens and State of New Tork, and hounded and described as follows: All that certain lot, piece or parcel of land commencing at a point on the ocean which is the south-easterly corner of land of J. B. ; thence running easterly along the ocean 135 feet, more or less; running thence northerly and parallel with said J. B.'s land to land of the Southern Railroad of Long Island; thence westerly along said land' of said railroad 123 feet more or less to the easterly side of said J. B.'s land; thence southerly along said easterly side of said J. B.'s land to the point or place of begin- ning. Said building has no street number and is situated upon no street haying a name, but is one of two buildings standing on the above described premises, and is the one further removed from the ocean. And you will further please take notice that this is served on you within three months after the said materials were furnished and said labor perfoiTaed, and that I have and claim a lien upon said building and appurtenances and upon the lot upon which the same stand in the amount above named pursuant to the provisions of an Act of the Legislature of the State of New York, entitled "An Act for the better security of mechanics, laborers and others who perform labor or furnish materials for Tjuildings and other improvements on land in the counties of Kings and Queens," passed AprU 34, 1863. Dated New York, , 188. (Signed), A. A. City and County of New York, ss.: A. A., being duly sworn says: I am the claimant above named; I have read the foregoing notice and know the contents thereof and the same is true to my own knowledge, except as to the mat- ters therein stated (to be alleged) on information and belief, and as to those matters I believe it to be true. A. A. Sworn to before me this } day of , 18 . f C. B. Hates, Notary Public, N. Y. City and Co. APPENDIX Off FORMS. 243 No. 5. Notice of Claim.— Onondaga Act.' To County Clerk of Onondaga County: Take notice that I, , residing m the County of Onondaga, N. Y., have a claim against (names of sub-contractors) who are the contractors with (name of original contractor) of said city for the erection of the huildings and appurtenances hereinafter mentioned to wit: a roimd house on which is erected for the Bailroad Co. amounting to the sum of for large quantities of furnished to the said and and for work and lahor done for them in putting a gravel roof upon said round house in pursuance of an agreement with them, which material and labor was furnished and done upon the said building or round house and appurtenances on in said county, situated on the west side of said railroad and contiguous therewith, which said contracted to build for said railroad company ; that tl;ey claim said lien from the day of , 18 ; that said mate- rials were furnished and labor performed between the day of , 18 , and the day of , 18 ; that three months have not elapsed since the furnishing of said materials and labor; that the said railroad company are the owners of the lot and buildings and the said is the contractor with them, and the said and the persons who are the contractors with said Also take notice tlAt I claim a lien and have a lien upon said building and appurtenances and the lot upon which the same stand as security for the amount due as aforesaid in pursuance of the Statute in such case made and provided. Dated , 18 (Signed), ' This was the form used in Court of Appeals case 359. 244 MECHABTICS' LIENS. No. 6. Notice of Claim.— Onondaga Act.' To , County Clerk of the County of Onondaga at Syracuse in said County : Tali:e notice that we, and , composing the firm of , residents of and doing business at the City of Syracuse, Onondaga County, New York, have a claim against who is or was a contractor with of the said city for the erection of the building and appurtenances, hereinafter mentioned amounting to the sum of dol- lars for large quantities of lumber furnished to and used by the said in erecting said building and appurtenances in pursuance of an agreement with him. That said materials were furnished and used in erecting said building and appurtenances - and that thirty days have not elapsed since said materials were furnished. That said is the owner of said building and appurte- ■ nances and the lot and premises upon which the same stand, which said lot and premises are situated in the the corner of and streets and are more particularly described in a deed of and his wife to dated and re- corded in the Clerk's office of the County of Onondaga on the same day in Liber of Deeds page and are the same premi- ses therein described. And take notice that we have and claim a lien upon said build- ing and appurtenances and the lot upon which the same stand, , as security for the amount due us as aforesaid in pursuance of the statute in such case made and provided. Dated , 18 Signed (by firm name). ^ This was the form used in Special Term case 584 'appendix of forms. 245 No. 7. Notice of Claira.— Rensselaer Act' To Esc[., County Clerk of Eensselaer County: Take notice that we, and , of in said County, have a claim against The Association, of , amounting to the sum of dollars and cents, for materials furnished The Association in pur- suance of an agreement with , the contractor, said materials consisting of , as specified in the annexed bill of items ;' that the said materials were furnished in erecting the building known as the , situated upon the lot bounded and described as follows: All that certain piece or par- cel of land situate on the side of street, in aforesaid, now or lately occupied by and , his wife, and described as follows : Beginning at a granite stone set in the ground at the corner of the lot hereby con- veyed, and runs thence on street, to the north line of land of , thence along said north line of land east feet, thence along said land south feet, thence east feet to the west line of lands of ' , and thence along said west line of said lands feet to a granite stone set m the ground at the corner of the lot hereby conveyed, and thence west along the north line of the lot hereby conveyed feet to the place of beginning, to be the same more or less, and thirty days have not elapsed since the furnishing of said materials. That the said Asso- ciation are the owners of the said building and the premises upon which the same stands. Also take notice that I have and claim a lien upon said build- ing and appurtenances, and the premises upon which the same stand, as security for the amount due me as aforesaid, in pur- suance of the statute in such case made and provided. Dated , 18 . (Signed) . Attorneys. ' This was the form used in Court of Appeals case 88. « See Form No. 11. 246 mechanics' Liens. » No. 8, Notices of Claim— Public "Work Act-' To Hon. , Commissioner of Public "Works: Please take notice that I, , residing at have a claim against & , contractors for (state nature of contract), , in the city of , and a lien upon the moneys now due or to become due hereafter upon the contract for (state nature of contract) in the city of , made between the Mayor, Aldermen and Common- alty of the city of and & , con- tractors, of the city of , bearing date , which contract is now in course of perforriiance. The said c^aim amounts to dollars, with interest from , after deducting all just credits and offsets against the same. Said claim arises from the following facts: That between and I furnished the materials set forth in the annexed bill of particulars to the said & , 'contractors for , under a verbal agreement whereby I agreed to furnish the materials at the times furnished, and whereby said contrac- • tors agreed to pay. the said sums herein mentioned for the separate materials, on demand, at the prices named herein, amounting, in the aggregate, to , specified in the annexed bill of particulars, = of which only has been paid; that the whole amount is due and has been demanded ; that said materials have been delivered and furnished to the afore- said contractors, & , and have been actually used toward the execution and completion of the aforesaid con- tract between the Mayor, Aldermen and Commonalty of the city of and the said & , and that this claim- ant is now entitled to receive the sum of dollars from the said & and the Mayor, Aldermen and Commonalty of the city of , And in order to more effectually secure payment for his ma- terials furnished, this claimant now claims this lien upon the ' This was the form used in Special Term case 70. ' See Form No. 11. APPENDIX OF FORMS., 247 moneys now due, or to liecome due, under the above said contract between the city of and said & in tbe sum of , with interest from , and makes it a personal claim against the said & , con- tractors, in the same amount. This claim is made and filed under and m pursuance of an Act entitled "An Act to secure the payment of laborers, mechanics, merchants, traders and persons furnishing materials toward the performing of any public work in the cities of the State of New York," passed May 23, 1878 (and the act amending the same). Dated , 18 .. (Signed) (The notices under the Public "Work Act must be verified. See Statute, §3.) No. 9. Notice of Claim.— Railroad Act. To , Clerk of the County of : Take notice that I, , residing at ' have a claim against the Eailroad Corporation, in the sum of , for labor performed by me for said Corporation, as follows ; . Also take notice that I have and claim a lien for the value of such labor upon the railroad track, rolling stock and appurte- nances of said corporation, and upon the land upon which such railroad track and appurtenances are situated, in pursuance of the statute in such case made and provided. (Signed) . No. 10. Notice of Claim.— Oil "Well Act. To Esq., Clerk of the County of , in the State of New York : Take notice that I, , a resident of the town of , in the County of , have a claim against , of the town of ', in the County of , amounting to 248 mechanics' liejsts. the sum of $ , for work, labor, skill and materials fur- nished and supplied by this claimant for the benefit of the said , in sinking, drOliug and completing an oil well (or furnishing materials, &c.), in pursuance of an agreement with the said , That the said work, labor, skill and materials were actually performed and used in sinking, drilling and com- pleting said oil well (or in furnishing materials, &c.), and consisted in . That the said oU well, is situated in the town of in the County of , in the State of New York. That sixty days have not elapsed since the final furnishing ef such labor, skill and materials. That the said is the owner of the said well and appurtenances, and the lot and premises upon which the same stand (or the leasehold interest therein). Also take notice that 1 have and claim a lien upon said well and appurtenances and upon the lot, premises, parcel or farm of land upon which the same are situated (or the leasehold interest therein), as security for the amount due me as aforesaid, in pur- suance of the statute in such case made and provided ; which said well and premises are situated in the town of County of , and are described substantially as fol- lows, to wit: (Here give a description of the well or the prem- ises upon which the same is located.) (Signed) . No. 11. Bill of Particulars. ' Seliedule A. " Referred to and made a part of the annexed notice. M. To Dr. 18 (Set forth dates, items, prices, &c., as m usual form of bill ren- dered.) APPENDIX OF FORMS. 249 The StTMMOws. Note. — Aa 'Action" to foreclose a lein ia commenced bjrthe service of a summons of the same form as in actious for the foreclosure of mortgages.' As to all persons against whom no personal claim istaiade, the plaintiff may, with the summons, serve a notice (in the usual form), briefly stating the object of the action, and that no personal claim is made against them. A " Special Proceeding" to foreclose a Fien miust be com- menced as prescribed by statute. Thus, under the "State Act, a " Notice" to foreclose the lien may be served on the owner or bis agent, other claimants, contractor, sub-contractor, and other persons interested, together with a bill of particulars, verified by the claimant or his attorney, to the effect that the same ia true. No. 13. Notice to Foreclose Lien. Court, County. Take notice, that I, , residing at on the day of , 18 , filed with the Clerk of the County of the notice required by law to effect a lien upon the house, building and appurtenances, and upon the lot, premises, parcel or farm of land upon which the same shall stand, situate in the town of , county of owned by , and described as follows : (Insert description suflloient for identification.) That said lien was fiied for the better security of a certain claim which I have against (insert statement of the facts consti- ' But see Buffalo Act; Kings and Queens Act. 250 mechanics' liens. tuting the claim and the amount thereof, and any other facts material to the case, as stated, for example, in preceding forms (Nos. 1 to 10). That a t)ill of particulars of the amount claimed to be due me from such persons, as aforesaid, is hereto annexed, marked ' ' Schedule A, " and is made a part of this notice. You are hereby required to appear, in person or by attorney, within twenty days after the service of this notice, and answer the same, and to serve a copy of such answer, together with a notice of any set-off or claim you may have, upon me or upon my attorney, , who has his office at , or in default thereof, I will take judgment against you for the said sum of , with interest' thereon and costs, and the enforcement of said lien. Claimant. by , Attorney. Dated , 18 . KoTE.— The bill of particulars, required by statute to be served at the time of the service of the preceding notice, may be of the same form as No. 11. It must be verified, aad the following form of verification has been held sufllcient: No. 13. Verification.— 'Bill of Particulars," Steuben County, ss. .• E. L. Q., above named claimant, being duly sworn, "says, that the bill of particulars above mentioned isin all respects' true, to the best of his knowledge and belief. E. L. G. Sworn to and subscribed before me, ) this day of , 18 . ) j J. H. C, Justice of tlie Peace. • See 333. APPENDIX OF FOEMS. , 251. No. 14 Notice of Lis Pendens. Court, — CouiJTY. against Notice is liereby given, that an action has been commenced and is pending in tliis court upon a complaint of the above named .plaintiff, against the above named defendants, for the foreclosure of a mechanic's lien, the notice of claim whereof was filed in th& office of the Clerk of the County of , on the day of 18 . That the premises affected by the said lien and by the proceed- ings in this action are described as follows: (Insert full description, if possible, by metes and bounds and. sign and append notice required by § 1673, Code of Civil Pro- cedure.) No. 15. Complaint.' SUPREME COUBT.— QUEENS COUNTY. A. A. against A. L., S. T., R. S., G. A., D. S., W. M., H. A., C. J., M. C. The plaintiff, A.' A., complaining of the defendants, respect- fully shows to the Court — This plaintiff alleges that on the , day of 18 , the defendant, A. L., and this plaintiff made, executed- * This was the form used in Court of Appeals case 63. :252 -and delivered a contract (in writing) dated on that day, wherein it was agreed that this i)laintifE should erect, finish and build for "the said A. L., the new building at Rockaway Beach, L. I. , on ground owned by said A. L. , in a good, workmanlike and substantial manner, to the satisfaction and direction of B. C, architect, to be testified by a writing or certificate under the hand of the said B. C, and should find and provide such good, proper and sufficient materials of all kinds whatsoever as .should be proper and sufficient for the completion and finishing -all the masons', carpenters' and other works of said building mentioned in certain specifications annexed to said contract, for the sum of , which said sum was to be paid by the .said A. L., to this plaintiff in times and manner following: — $ when frame is up and roof is on ; $ when piazza is up and plastering is done; $ when building is completed; all of which will more fully and at large appear, reference being had to said contract that is hereby made a part of this complaint. Said building has no street number, and is situated upon no ■street having a name, but is one of the two buildings standing in the following described premises : All that certain lot, piece or parcel of land commencing at a point on the ocean which is the southeasterly corner of land of J. B. ; thence running easterly along the ocean 135 feet, more or less.; running thence northerly and parallel with said J. B.'s land to land of the Southern Rail Road of Long Island; thence westerly along said land of said railroad 133 feet, more or less, to the east- erly side of said J. B.'s laud ; thence southerly along said easterly .side of J. B. 's land to the point or place of beginning. Said building is the one of two buildings standing on said premises, and is the one farther removed from the ocean. That between the day of , 18 , and the day of , in pursuance of said agreement entered into between the said A. L. , and this plaintiff and in accordance with the terms ■oi said agreement above set forth, this plaintiff performed certain work, labor and services, and furnished certain materials in and about the construction, erection, completion and finishing of said building to the value of dollars. This iPladntifE has performed all the conditions and agreements to be APPENDIX OP FORMS. 253- by him performed to entitle him to receive all the amounts that are agreed to he paid him by the said contract. That on the day of , 18 , the said building was fully completed and finished in accordance with said agreement,, and the terms thereof, and the specifications thereto anilexed, ex- cept so far as the same were modified by subsequent agreement with, and the directions of the said A. L. That this plaintiff erected and finished the said building in a good, workmanlike •and substantial manner, to the satisfaction and under the direc- tion of the said B. C, architect, and tha; on or about the day of , 18 , the said B. C. made a writing and certifi- cate under his hand, in which he stated that plaintiff was entitled to his pay, and had completed his work according to agreement, and therein requested the said A. L. to pay the amount without, further notice, and delivered the said certificate to plaintiff. That no part of the said sum of $ has been paid to this, plaintiff by the said A. L., except the sum of $ This plaintiff further alleges that at the time of the execution- of said contract the defendants R. S. and G. A., were, and ever since have been, the owners in fee of the ground on which said building was constructed. That the said A. L. at the time of making said contract was- not the owner of said ground, and that his only interest therein is under a lease thereof, executed and delivered to him by the said R. S. and Gr. A. That said lease is dated , 18 , between said R. S. and G. A. of the first part, and said A. L. of the second part,, and is recorded in the ofiice of the Clerk of Queens County, in Liber of Conveyances, at page . That in and by said lease said premises are rented for the term of eight years from the date- thereof, at an annual rental of $ for the first six years, ani $ for the last two years ; that as part of the consideration of the said letting the improvements built or to be built on the said premises are to revert to the said parties of the first part at, the expiration of the feaid lease, and to belong to them without further consideration therefor, and that at any time within three, years, the party of the second part, may purchase the said prem- ises for dollars, and receive a conveyance therefor ; all of which will more fully and at lai-ge appear, reference being: "254 mechanics' liens. made to said lease that is hereby made a part of this com- plaint. / That the defendants K. S. and G. A. permitted said A. Z.' to -erect, construct, build, finish and complete the said building, And to furnish the material therefor. That on or abbut the day of , 18 , this plaintiff was entitled by the terms of the said contract to the payment of f by the said A. L. That at that time the said A. L. had paid under said contract the sum of $ That on the day of , 18 , the said sum of $ -was still oving and unpaid by the said A. L. ' That on the day of ,18 , a notice in writing, specifying the amount of this plaintiff's claim, the person against whom the claim was made, the names of the owners and the situa- tion of the buildingr was duly served on the County Clerk of ■Queens County." That a copy of said notice is hereto annexed, marked "A," .and is hereby made part of this complaint. That on the day of , 18 , a copy of said notice was •duly served on the defendant, R. S. ; that on the same day another ■copy of said notice was duly served on the defendant, G. A., and on the day of ,18 , another copy of said notice was duly served on the defendant, A. L. This plaintiff further shows that the defendants S.T., ;D. S., "W. 31., H. A., have, or claim to have, some interest in or lien upon the said premises hereinbefore described, or some part thereof, which interest or lien, if any, accrued prior to the liens hereinbefore ■described for the foreclosure of which this action is brought. This plaintiff further shows that the defendants C. J. and M. C, have, or claim to have, some interest in or lien upon the said premises hereinbefore described, or some part thereof, whic^ interest or lien, if any, has accrued subsequently to the said liens hereinbefore described, and for the foreclosure of which this Taction is brought. Wherefore, this plaintiff demands an accounting and settle- ' This averment is sufficient. The complaint must show that -the owners permitted A. L. to build. See decision 63, and see meaning of " or," ante, page 139. ' See notice of claim. No. 4. APPENDIX or roEMS 255 ment in this Court of tlae amount due to tliis plaintifl for the labor performed and the materials furnished as hereinbefore set forth, and prays judgment directing the sale of the interest of A. L., R. S., G. A. in the premises hereinbefore described and in the buildings thereon situated, upon which said liens exist, to the extent of their right therein, at the several times the said liens thereon were acquired. And that the proceeds of such sale be applied to the payment of the costs of this action, and the proceedings connected therewith, and the amount found to be due to this plaintiff, and that the residue of such proceeds be paid to the Clerk of this Court, to abide the further order of the Court, and if the proceeds of the sale be not sufficient to pay the amount found to be due this plaintiff, together with the costs of this action and the proceed- ings connected therewith, that a judgment for any deficiency that may arise may be entered against the defendant A. L. indi- vidually, and that this plaintiff have such other- and further relief as in the premises may seem just and proper. Dated New York, , 18 FRED'K S. BUCKINGHAM, Plaintiff's Attorney, 39 Park Row (Times Building), New York City. City and County of New York, ss: A. A., being duly sworn, deposes and says, that he isthe plain- tifl in the above entitled action, and that he has heard read the foregoing complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to the^ matters therein stated (to be alleged), on information and belief and as to those matters he believes it to be true. A. A. Sworn to before me this ) day of 18 . S , Notary Public, W. T. City and Co. 266 mechanics' liens. No. 16. Answer.' SUPREME COURT.— QUEENS COUNTY. A. A. A. L., S. T., R. S., G. A., D. S., W. M.,| H. A., 0. J., M. C. The defendants, R. S. and G. A., impleaded with A. L. and others, answer : — They admit that on the day of 18 , the defendants R. S. and G. A. were, and ever since have heen, the owners in fee of the premises stated and described in the said complaint. That the said A. L. at the time aforesaid was not the owner of said ground, and that his only interest therein is under a lease thereof, executed and delivered to him by these defendants. That said lease is dated , 18 , and is recorded in the office of the Clerk of Queens County in Liber of Con- veyances, at page , and is in the words and figures to wit (setting forth lease m full) ; — These defendants, R. S. and G, A. deny that they permitted said A. L. to erect, construct, build, finish and complete the said building or to furnish the materials therefor. They a'dmit they were served with a copy of the notice marked " A," as stated in the complaint. And ri-i to all the other allegations contained in the said cause of action stated in the complaint, theSe defendants have no knowledge or information sufficient to form a belief in relation, thereto. ' This was the form used in Court of Appeals case 63. APPENDIX OF FORMS. 257 And these defendants ask judgment tliat the complaint herein be dismissed, with costs to the defendants, to he paid hy plaintiff; Attorney for -Defendants, State of Nb-w Tore, ) CiTT OF Brookltn, Cotjnty of Kings, j ' K. S., one of the defendants in this action, being duly sworn, doth depose and say, that he has heard read the foregoing answer, and knows the contents thereof ; that the same is true of his own knowledge except as to the matters therein stated (to be alleged), on information and belief, and as to those matters he believes the same to be true. Sworn to before me this ) day of 18 . ) Commissioner of Deeds. No. 17. Clause in Complamt. (Where lien has been discharged by deposit.) ~ The plaintiif further avers that on or about the day of 18 , the defendant caused said lien to be discharged as' to said premises, by depositing with the clerk of the county of the amount required, and in the manner and form prescribed by law, which money has since been held by him, subject to said lien. Wherefore, the plaintiff demands that an accounting be had between the respective parties hereto ; that the amount due each and from whom he ascertained; that a decree be made and en- tered herein directing the money so deposited, or so much thereof as may be found necessary to satisfy the plaintiff's claim be paid him by said clerk, and that plaintiff have judgriient against defendant for the costs and disbursements of this action and such other or further relief as to the court may seem just. 258 mechanics' liens No. 18. Owner's Notice to Foreclose Liea. To Claimant: Please take notice, that you are hereby required to commence an action for the enforcement of the mechanic's lien filed by you on or about the day of J.8 , in the clerk's office of the county of against the- building and appurtenances, and the lot upon which the same stand, owned by me and described in said notice of lien as fol- lows: (insert same description as in lien notice). Also take notice that you are hereby required to commence such action within (state statutory time), and upon your failure to do so said lien will be discharged. Dated, (Signed,) Owner. No. 19. Satisfaction of Lien. Do hereby certify, that a certain mechanic's lien, filed in the office of the Clerk of the , County of , the day of , one thousand eight hundred and , at o'clock in the noon, in favor of , claimant against the building and lot . situate side of . street, and known as No. in said street, owner, contractor is 'discharged. On the day of , one thousand eight hundred and , before me came to be the individual described in, and who executed the above certificate, and aclinowledged that executed the same. APPENDIX OP FORMS. 259 No. 20. Consent and Order of Discontinuance, and to Cancel Lis Pendens. At a Special Term of the Court, held at the Court House, in the of , County of , on the day'of , 188 . Present: The Hon. On reading and filing a consent signed by the attorney for herein, and on motion of , attorney lor herein. It is Ordered, That this action he and the same is hereby dis- continued "without costs to either party as against the other, and that the notice of pendency of this action filed in the oflBce of the Clerk of the , County of , on the day of , 188 , be marked "cancelled and discharged of record " by said clerk. (Signed) Judge. hereby consent to the entry of the foregoing order. Attorney for Note. — The County Clerk, before paying to the claimant, with the owner's consent, the money deposited by the latter to discharge a lien, usually requires a written order duly acknowl- edged or proved by the depositor, thus: 260 mechanics' liens. No. 31. ' Order on County Clerk. To _ Clerk of the county of Sir: — Pleasepay to attorney for claimant, the sum of $ being the same amount deposited by me in. your oflBce on the day of 18 , to discharge a mechanic's lien, filed by said claimant on the day of 18 » against premises No. Dated, (Signed), Owner. County of gg. • On this ' day of 18 , before me personally came to me known and known to me to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same. (With the above, the satisfaction of lien No. 19 should also be shown to the county clerk.^ LIEN CASES cited; 1 Abham v. Boyd, 7 Daly, 30. 2 5 Daly, 331. 3 Alexander v. Slavens, 7 B. Mon. (Ky.), 356. 4 Allen v. Carman, 1 E. D. S., 693. 5 Althouse v. "Warren, 3 E. D. S., 657. 6 Anderson v. Armstead, 69 111., 453. 7 " V. Dillaye, 47 N. Y., 678. 8 Atkin v. Merrill, 39 111., 63. 9 Assembly Bill No. 421, Feb. 18, 1881 B. 10 Babb V. Eeed, 5 Eawle (Penn.), 151. 11 .Babka v. Eldred, 47 "Wis., 189. 13 Bachelder v. Band, 117 Mass., 176. 18 Bailey v. Adams, 14 "Wend., 301. 14 " ■ Johnson, 1 Daly, 61. 15 Baldwin v. Merrick, 1 Mo. App., 381. 16 Bank of C. v. Curtiss, 18 Conn., 843. 17. Barclay v. Wainright, 86 Penn., 191. 18 Barker v. Berry, 4 Mo. App., 584. 19 Barnett v. Griffiths, 13 Green (N. J.), 301. SO Barrows v. Knight, 55 Cal., 155. 21 Barton v. Herman, 8 Daly, 320. 23 8Abb.,N. a, 399. 23 11 Abb., N. S., 378. 24 Baxter v. Hutchings, 49 111., 116. 25 B'd of Education v. Neidenberger, 78 111., 58. 26 Beam v. The Church, 3 Penn. L. J., 343. 37 Beals v. Cong. B. J., 1 E. D. S., 654. 262 mechanics' lieks. • 28 Beatty v. Nickerson, 73 111., 605. 39 Beckel v. Petigrew, 6 Ohio St., 247. 30 Belmont V. Smith, 1 Duer, 675. 31 Bendonv. Co. Judge, 13How., 898. 33 Benedict v. R R. Co., 24 Conn., 330. 38 Bennett v. Shackford, 11 Allen (Mass.), 444 84 Benton v. Wickwire, 54 N. Y.,,236. 85 Bernard v. McKenzie, 4 Col., 251. 36 Berry V. Turner, 45 Wis., 105. 87 "v. Weisse, 3 E. D. S., 663. Note. 88 Birm. I, F. v. Glen. &c. Co., 78 N. Y., 39. 39 Bishop V. Boyle, 9 Ind., 169. 40 Black's Appeal, 3 "Watts & Serg., 179. 41 Blauvelt v. Woodworth, 81 N. Y., 285. 43 B'd of Education v. Greenbaum, 39 111., 609. 43 Bodley v. Denmead, 1 W. Va., 249, 44 Bouton v. B'd Supervisors, 84 111., 384. 45 Bowen v. Aubrey, 23 Cal., 566. 46 Boyd v. Mole, 9 Phil., 118. 47 Brien v. Clay, 1 E. D. S., 649. 48 BrinkerhofE v. B'd of Education, 47 N. Y"., 668. 49 Afi'g, 37 How., 499. 50 3 Daly, 443. 51 6Abb.,N. S., 438. 53 Broderick v. Poillon, 2 E. D. S., 554. 53 " V. Boyle, 1 Abb., 319. 54 Brown v. Harper, 4 Oregon, 39. 55 " V. La Crosse, &c., Co., 16 Wis., 555. 56 " V. Welch, 5 Hun., 583. 57 " V. Wood, 3 Hilt., 579. 58 " V. Zeiss, 10 W. Dig., 50. 59 Rev'g, 59How., 345. 60 Bryan v. Whitford, 66 111., 33. 61 Burbridge v. Hart, 54 How., 455. 63 " V. Marcy, 54How., 446. 63 Burkitt v. Harper, 79 K. Y., 273. 64 AfE'g, 14 Hun., 581. 65 Burroughs V. Tostevan, 75 N. Y., 5671 66 Rev'g, 3 Abb., N. C, 333. LIEN CASES CITED. 263 67 Busfleld v. "Wheeler, 14 Allen (Mass.), 139. 68 Butler v. Magie, 3 E. D. S., 654. ~ 69 Byrne v. Herran, 1 Daly, 344. 70 Byron v. Mayor, 59 How., 455. c. 71 Canal Co. v. Gordon, 6 Wall, U. S., 561. 73 Canissius v. Merrill, 65 111., 67. 73 Cannon v. Van Wagner, 3 E. D. S., 590. 74 Carman v. Mclncrow, 2 E. D. S., 689. 75 13 N. Y., 70. 76 Carpenter v. Jacques, 3 E. D. S., 571. 77 Carson v. White, 6 Gill (Md.). 17. 78 Carothers v. Wheeler, 1 Oregon, 194. 79 Carroll t. Caughlin, 3 Daly, 179. 80 7 Abb., N. S., 73. 81 Chamberlain v. O'Connor, 1 E. D. S., 665. 83 8 How., 45. 83 Chapin v. Persse, 30 Conn., 461. 84 Chapman v. Wadleigh, 33 Wis., 367. 85 Charnock v. Dis't T. of C, 51 Iowa, 70. 86 Chase V. James, 10 Hun., 506. 87 16 Hun., 14, 7 W. Dig., 415, 88 Cheney v. T. H. A., 65 N. Y., 383. 89 " V. Wolf, 3Lans., 188. 90 Chicago L. Co. v. Woods, 53 Iowa, 553. 91 Childs V. Anderson, 138 Mass., 108. 93 Church v. Schreiner, 88 Penn, 134. 93 City of C. v. Barr, 55 Ind., 367. 94 Clark v. Butler, 5 Stewart (N. J.), 664. 95 " V. Manning, 90111., 380. 96 Clement v. Newton, 78 111., 437. 97 Coddington v. Dry Dock Co., 3 Vroom. (N. J.), 477. 08 Cole V. Uhl, 46 Conn., 296. 99 Coleman V. Ballandi, 33 Minn., 144. 100 Collins V. Drew, 67 N. Y., 149. 101 Afi'g, 50 How., 477. 103 6 Daly, 334. 103 " V. Ellis, 31 Wend., 397. 264 mechanics' liens. 104 Colt V. Ins. Co., 54 N. T. , 695. 105 Conklin v. Bauer, 62 N. Y., 620. 106 " V.Wood, 3 E.D. S., 662. 107 Conrad v. Starr, 50 Iowa, 470. 108 Copley v. O'Neill, 39 How., 41. 109 57 Barb., 299. 110 1 Lans., 314. 111 Corbett t. Greeneau, 117 Mass., 167. 112 Costello V. Dale, 1 Hun., 489. 113 8 T. & C, 493. 114 Noted 5, T. & C, iii. 115 Cotes V. Shorey, 8 Iowa, 416. 116 Cox V. Broderick, 4 E. D. S., 721 117 Craig v. Smith, 8 Vro9m (N J ) 549 118 " v. Swinerton, 8 Hun., 144. 119 AflE'd, see 16 Hun., iv. 120 Crane v. Genin, 60 N. Y., 127. 121 Crawford r. Becker, 13 Hun, 375. 122 Crawford v. O'Conner, 78 N. Y., 600. 123 Cremia v. Byrnes, 4 E. D. S., 756. 124 Cronk v. Whittaker, 1 E. D. S., 647. 125 Cronkright v. Thomson, 1 E. D. 'S,, 661. 126 Crystal .V. Elannelly, 3 E. D. S., 583. 127 Culver v. Elwell, 73 111., 536. 128 Cunningham v. Jones, 3 E. D. S., 650. 129 4 Abb., 433. 130 Cusack v. Tomlinson, 1 E. D. S., 715. D. 131 Dallas, &c., Co. v. "Wasco, &c., Co., 3 Oregon, 537, 133 Darf v. Anderson, 10 Vroom (N. J.), 199. 133 Darrow v. Morgan, 65 N. Y., 338. 134 Davis v. Hines, 6 Ohio St. , 473. 135 Del., &c., Co. v. R. R. Co., 46 Iowa, 466. 136 Denkels' Est. . In re. 1 Pearson (Penn.), 213. 137 Dennistoun v. McAllister, 4E. D. S., 729. 138 De Ronde v. Olmstead, 47 How., 175. 139 5 Daly, 398. 140 Derrickson v. Edwards, 5 Dutcher (N. J.), 468. LIEN OASES CITED. gQ^. 141 Develin v. Mack, 3 Daly, 94. 143 De Witt v. Smith," 63 Mo., 363. 143 Deyv. Anderson, 10 Vroom(N. J.), 199. 144 Dixon v. La Farge, 1 E. D. S., 733. 145 Dobschutz v. HoUiday, 83 111., 371. 146 Donahoo v. Scott, 13 Penn., 45. 147 Donaldson V. O'Conner, 1 E. D. S., 695. 148 " V. Wood, 33 Wend., 395. 149 Donnelly v. Libby, 1 Sweeny, 339. 150 Doughty v. Devlin, 1 E. D. S., 635. 151 Dowdney v. McCoUum, 59 N. Y., 367. 153 Aff'g, 48 How., 342. 153 5 Daly, 340. 154 Drake v. O'Donnell, 48 How., 35. 155 Dressel v. French, 7 How., 350. 156 Drew.v. Mason, 81 111., 498. 157 Dugan v. Brophy, 55 How., 131. 158 Duffy V. Brady, 4 Abb., 432. 159 " V. McManus, 3 E. D. S., 657. 160 Dunn v. R. E. Co., 34 Mo., 493. 161 i)unning v. Clark, 3 E. D. S., 535. E. 163 Eagleson v. Clark, 3 E. D. S.. 644. 163 3 Abb., 364. 164 Eberly V. Curtis, 5 Mo. App., 596. 165 Edwards v. Derrickson, 4 Dutcher (N. J.), 39. 166 Emigrant, &c., B'k.'v. Goldman, 75 N. Y., 137. 167 Equitable L. Ins. Co. v. Syle, 45 Iowa, 615. 168 Ermui v. Kulok, 3 Kansas, 499. 169 Ernst V. Reed, 49 Barb., 367. 170 Esslinger v. Heubner, 33 Wis., 633. F. 171 Fathman v, Phelan, 3 Mo. App., 605. 173 Ferguson v. Burk, 4 E. D. S., 760. 173 " V. Vollum, 1 Phil., 181. 174 Fettrioh v. Totten, 3 Abb., N. S., 364 175 Field v. Oberteuffer, 3 Phil.,^371. 266 mechanics' liens. 176 Fieldings v. Mills, 3 Bosw. 489. 177 First Kational B'k v. Redman, 57 Me., 405. 178 " V. Day Bros., 53 Iowa, 680. 179 Fitzpatrickv. Allen, 80 Penn., 393. 180 " V. Boylan, 57 N. Y., 433. 181 " V. Thomas, 7 Mo. App., 343. 183 Flannery v. Rohmeyer, 46 Conn., 558. 183. Flint V. Raymond, 41 Conn., 510. 184 Fogarty v. "Wick, 8 Daly, 166. 185 Foley V. Alger, 4E D. S., 719. 186 " V. Gough 4 E. D. S., 734. 187 Foster v. Fowler, 60 Penn., 27. 188 " V, Poillon, 3 E. D. S., 556. 189 1 Abb., 321. 190 " V. Skidmore, 1 E D. S. 719. 191 Fowler v. R.R. Co , 1 BuflEalo Sup'r Ct. (Sheldon), 535. 193 Foxv. Kidd, 77JSr. Y.,489. 193 Frank v. Freeholders, 10 Vroom (N. J.), 347. 194 Freeman v. Arment, 5 Leg. Ob., 881. 195 " V. Cram. 3 N. Y., 305. 196 " V Gilpin, 1 Phil., 28. G. 197 Galbreath v. Davidson, 25 Ark., 490. 198 Gambling v. Haight,' 58 N. Y., 633. 199 ' 59 N. Y., 354. AfE'g 14 Abb., N. S. 398. iVofe 300 Gallup V. Babsen 3 Hun, 598. 201 Gantner v. Kempner, 58 Mo. , 567i 303 Gaskillv. Dans., 61Ga., 644 208 Gates V. Buddensieck, 56 How., 198. 204 6 Abb., N. C, 367. 305 " V. Whitcomb, 4 Hun, 137, 306 6 T. & C, 341. 207 Gatey v. Casey, 15 111., 189. 208 Gauhn v. Mills, 3 Abb., N. C, 114. 309 Gay v. Brown, 1 E. D. S , 725. 310 Gaylord v. Loughridge, 50 Texas, 573. 211 Getchell v. Moran, 134 Mass., 404. LIEN CASES CITED. 267 212 Gillen v. Hubbard, 2 Hilt., 303. 213 Gilman v. Disbrow, 45 Conn. , 568. 214 Glaciusv. Black, 67 N.Y., 568. 215 Bev'g, 4 Hun, 91, 216 50 N. Y., 145. 217 GodafEroy y. Caliiwell, 2 Cal., 489. 218 Gogin v. "Walsh, 124 Mass , 516. 219 Goodale v. Walsb, 2 T. & C, 311. 220 Goodin v. E. H. Ass'n., 5 Mo., App., 289. 221 Gordon v. S. F. Canal Co., 1 McAllister (C. C), 513. 222 " V. Torrey, 2 McCarter, Cli. (N. J.), 112. 223 Gorman v. DierkeS, 37 Mo., 576. 224 Gourdier v. Tborp, 1 E. D. S., 697. 225 Graff v. Rosenbergh, 6 Abb., N. S., 428. Mie. 236 Graham v. B.B. Co., 39 Am. E. 412. 237 Grant v. Vandercook, 57 Barb. 165. . 228 Green V, H. F. Ins. Co., 82 N. Y., 543. 229 11 W. Dig., 175. 230 Afl'g. 17 Hun, 467. 232 Gregory v. Troy H. Ass'n. See Cheney v. Troy H. A., Ante. 233 Grey v. Voorhis, 8 Hun, 612. 234 Gridley V. Rowland, 1 E. D. S., 670. 235 i" "v. Sumner, 43 Conn., 14. 236 Grogan v. McMahon, 4 E. D. S., 754. 237 " V. Raphael, 6 Abb., 306. 238 " V. Mayor, 2 E. D. S., 693. 239 Gross v. Daly, 5 Daly, 540. 240 Grosz v. Jackson, 6 Daly, 463. 241 Guernsey on Liens, Preface IV. 242 " " " Page 55. H. 243 Hackett v. Badeau, 63-N. Y., 476. 344 Haden V. Buddensieck, 49 How., 341 245 4 Hun, 649. 246 6 Daly, 3. 247 Hall V. Lamb, 3 Lans., 134. 248 " V. Pettigrove, 10 Hun, 609. •268 mechanics' liens. :249 Hall v. Sheehan, 69 N. T., 618. 250 Hallahan v. Herbert, 57 N. Y., 409. ^51 AfE'g, 2 Daly, 253. .353 11 Abb. N. S., 326. 4 Daly, 209. .253 Harker v. Conrad, 13 S. & E., 301. .254 Harman V. Cummlngs, 48 Penn., 333. .255 Hart v. Wheeler. 1 T. & C, 403. -256 Hartman v. Berry, 56 Mo., 487. 257 Hassett v. Eust, 64 Mo., 325. 258 Haswell v. Goodchild, 13 Wend, 373. 259 Hatch v. Coleman, 39 Barb, 201. 260 Hauptman v. Catlin, 30 N, Y., 247. •261 AflE'g, IB. D. S.,739. 263 4 Abb., 472. 263 3 E. D. S., 666. :264 " V. Halsey, 1 E. D. S., 668: 265 Hazard P. Co. v. Byrnes, 13 Abb., 469. ■266» 21 How., 189. 267 Heaman v. Porter, 35 Mo., 137. S68 Heaton v. Horr, 43 Iowa, 187. .269 Heckman v. Pinckney, 81 N. Y., 211. 270 AfE'g, 8 Daly, 466. .371 6 Abb. N. C, 371. 273 10 W. Dig., 333. 273 Henderson v. Sturgis, 1 Daly, 336. 274 Herbert v. Herbert, 57 How., 333. 275 Heroy v. Hendricks, 4 E. D. S., 768. 376 Hershey V. Sbenk, 58 Penn., 383. ;277 Hervey v. Gay, 13 Vroom (N. J.), 168. 278 Hicks V. Murray, 43 Cal., 515. 279 Hill's, In re, 3 Penn., L. J.. 96 280 Hill V. Newman, 38 Penn., 151. 281 " V. K. R. Co., 11 Wis., 214. 282 Hofgesang v. Meyer, 2 Abb. N. C.,'lll. 288 HoUey v. Van Dolsen, 55 How., 333. 384 Holzhour v. Meer, 59 Mo., 434. 285 Hooker v. McGlone, 42 Conn., 95. -286 Hooper v. Sells, 58 Ga., 127. LIEN CASES CITED. 269? 287 Hope Co., In re, 1 Sawyer, TJ. 8., 710. 288 Hopkins t. Forrester, 39 Conn., 351. r- 289 Howett, In re, 10 Penn., 879. 290 Houghton v. Blake, 5 Cal., 240. 291 Hoyt V. Miner, 7 Hill, 525. 292 " T. Wright, 54 Ga., 571. 293 Hubbell v. Schreyer, :.^ N. Y., 604. 294 15 Abb., N. S., 300. 295 Rev'g, 14 Abb., N. S., 384. 296 4 Daly, 362. Note. 297 Hunter v. Blanchard, 18 111., 818. 298 Husted v. Mathes, 77 N. Y., 888. 299 Huxford v. Bogardus, 40Ho-S7., 84. 300 Jackson v. Sloan, 2 E. D. S., 616. 301 £ Abb., 104. 302 James v. Van Horn, 10 Vroom (N. J.), 358. 308 Jarechi v. Phil. Soc., 79 Penn., 403. 304 21 Am. R, 7a 305 Jaques v. Morris, 2 E. D. S., 639. 306 Jenks v. Brown, 6G N. Y., 629. 307 Aff'g, 4 Hun, 128. 308 " V. Parsons, % Hun, 667. 309 T. & C, 691. 310 Jennings v. Newman, 52 How., 283. 311 Johnson v. Dewey, 36 Cal., 633. 312 Jooea t. Huist, 67 Mo., 568. K. 813 Eaylorv. O'Connor, 1 E. D, S., 673 314 Kechler v. Stumme, ■: J. &. S., 837. 315 KeUey v. B. C. j£ills, 126 Mass., 48. 316 Keirj- v. Brown, 20 Penn., 446. 317 Kelsey v. Rourke, 50 How., vl5. 318 Kennedy v. Paine, 1 E. D. S., 65L 319 Kerby v. Daly, 45 K Y., 84. 330 Kinzey v. Thomas, 38 111., 503. 270 MECHANICS' LIENS. S21 Kisby v. Tead, 13 Met. (Mass.), 149. 323 Kling v. R. E. Co., 7 Mo. App., 410. 523 Kaapp's Appeal, 10 Penn., 186. 324 Knapp v. Brown, 45 N. Y., 207. •325 11 Abb., N. S., 118. 326 Kneeland on Liens, page 16. 327 " " " " 18. 328 '• " " " 74. 329 " " " " 87. 330 " " " " 107. 331 " " " " 108. 333 •' " " " 147. ' 333 Knight v. Norris, 13 Minn., 473. 334 Knox t. Starks, 4 Minn., 20. 335 La Crosse, &c., R. R. Co. v. Vanderpool, 11 Wis., 119. 386 Lamb v. Hanneman, 48 Iowa, 41. 337 Lauer v. Bandon, 43 Wis., 556. 338 Leavy v. Gardner, 63 N. Y., 624. 389 Lebretter v. Koffman, 1 E. D. S., 664. - 340 1 Code E. (N. S.), 384 341 Leismann v. Lovely, 45 Wis. , 420. 342 Leisse v. Schwartz, 6 Mo. App., 413. 343 Lennox v. Trustees, 2 E. D. S., 673. 344 Leonard v. City of B'klyn, 71 K. Y., 498 345 AfE'g, 7 Hun, 73. 346 Lewis v. Chicasaw Co., 50 Iowa, 234. 347 Linn v. O'Hara, 3 E. D. S., 560. 348 Livingston v. Mildrum, 19 N. Y , 440.y 349 " V. Miller, 16 Abb., 371. 350 Lombard v. Johnson, 76 111., 599. 351 Loonie v. Hogan, 9 N. Y., 435. 353 2E. D. S., 681 353 Loring v. Small, 50 Iowa, 271. 354 Lothian v. Wood, 55 Cal., 159. 355 Loudon v. Coleman, 59 Ga., 653. 356 Lowber v. Childs, 2 E. D. S., 577.. 357 1 Abb.. 415. LIEN CASES CITED. 371- 358 Lowis V. Cutter, 5 Mo. App., 54 359 Lumbard v. Syr., &c., R. R. Co., 55 N. Y., 49L 360 Rev'g, 64Barb., 609. 361 62 N. Y., 390. 363 Lutz V. Ey., 3 E. D. S., C21. 368 3 Abb., 475. 364 Lyncli v. Cashman, 3 E. D. S., 660. 365 " V. Eeigle, 11 Phil., 347. M. 366 Mahoney v. Troy H. A. See Cheney v. Troy R A. Ante. 367 Malone's Appeal, 80 Penn., 481. 368 Maltby v. Greene, 1 Keyes, 548. 369 3 Abb., Ct. App., 144. 370 Mancbester v. Searle, 121 Mass., 418. 371 Mandeville v. Reed, 13 Abb., 173. 373 Marston v. Kenyon, 44 Conn., 349. 373 Martine Vi Nelson, 51 111., 423. 374 Marryatt v. Riley, 3 Abb. N. C. 119. 375 Matthews v. Daley, 38 How., 383. 376 7 Abb., N. S., 379. 377 3 Daly, 214. 378 Matter of Lien on 740 B'way, 15 Abb. N. S., 335. 379 Mauch Chunk v. Shortz, 61 Penn., 399. 380 Maxey v. Larkin, 2 E. D. S., 540. 381 McAuley v. Mildrum, 1 Daly, 396. 382 McBride v. Crawford, 1 E. D. S., 658. S83 McCarty v. Carter, 49 111., 53. 384 McCormick v. Los Angeles, 40 Cal., 185 385 McCoy v. Quick, 30 Wis., 531. 386 McDermott v. Palmer, 8N. Y., 388. 387 Rev'g 11 Barb., 9. 388 . " 2E. D. S.,675 389 McDonnell v. Dodge, 10 Wis., 106. 390 McElwee v. Sandford, 53 How., 39. 391 McGraw v. Godfrey, 56 N. Y., 610. 393 16 Abb., N. S., 358. 393 AfE'g, 14 A}3b. N. S., 397, 272 MECHANICS' LIENS. 894 McGuckin v. Coulter, 1 J. & S., 324 395 ' 10 Abb. N. S., 128, 396 1 J.