ALLAN H. TREMAN ATTORNEY AT LAW Savingi Buk BUg^ ITHACA. NEW YORK. CJornpU Slam Bc^xtnl IGibraty Cornell University Library KFN5268.S67 1916 Lien Law of the State of New York :Cha pt 3 1924 022 797 033 Cornell University Library The original of tiiis 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/cu31924022797033 LIEN LAW OF THE STATE OF NEW YORK Chapter Thirty-three of the Consolidated Laws (An Act in Relatio^ to Liens, Constituting Chapter 33 of the Consolidated Laws, in efiEect Feb. 17, 1909, with all Amendments) INCLUDING THE PERSONAL PROPERTY LAW, RELATING TO CONDITIONAL SALES, and SALES OF GOODS LAW OF 19 H Embracing also EcLuitable Liens, Liens on Private Property, Municipal Liens and Liens Created by CHi?LTTEL ]MORTaiLGES ALSO Bules of U. S. Supreme Court as to Admiralty and Maritime liens With Comments and Authorities and Full Collection of Forms Bt WILLIAM L. JJfYDER OF THE NEW YOKE BAB SIXTH EDITION NEW YORK BAKER, VOORHIS & COMPANY .1916 Copyright, 1909 by WlLIiAM L. Snydeb Copyright, 1916, by WnxiAM L. Snydeb -WM. BOYD PEWTING CO. ALBANY, N. Y. aoHiQv 3HX za aaaiaosHi iiiaaxoaasaa KOIBSIKSaa SIH HXIM. SI ■SnOJA. SIHX •aeaar v sv oaioajsaa amy aaaoNOH iinvsaaAiNfl aom 'iXNnoo aaisHHOisaM ko ava anx ^o aaavaa aaziNOOoaa anx 'aaiA■?^ iviai t BY iiirnav sih aoa shoqomsmoo 'aivooAov nv sv maKiitoaj sra. 'HHOA Avajs lio axYxs anx ^o xanoo anaaans anx ao aoixsnr T SV EONaa aHx ox NOixvAaia sih ox aoiaj savax x.ktk aoj[ OHM. ox PREFACE TO SIXTH EDITION. All laws of the State of New York, enacted since 1778, which were in force on the I7th day of February, 1909, re- mained in force thereafter, hut their provisions were classi- fied, and rearranged, and re-enacted in sixty-one chapters, designated the Consolidated Laws. The Lien Law of the State of ISTew York, in force prior to February 17th, 1909 (Laws 1897, Chap. 418), was on that day re-enacted as Chapter 33 of the Consolidated Laws (Laws 1909, Chap. 38). The Lien Law of 1909 embraces eleven articles. Article II contains only the schedule of repealed laws. Article I contains " definitions." Article 2 includes general provisions relating to liens on real property. Article 3 relates to enforcement of liens on real property. Article 4 relates to liens on vessels, and their enforcement. Rules of the IT. S. Supreme Court, as to admiralty and mari- time liens are also given. Article 5 relates to liens on monu- ments, gravestones and cemetery structures. Article 6 re- lates to liens of quarrymen, and stone cutters. Article 7 re- lates to liens for services of stallions. Article 8 relates to liens on personal property. Article 9 relates to enforcement of liens on personal property. Article 10 relates to chattel mortgages. Article 8 of the Lien Law does not embrace every species of lien on personal property. Certain classes of liens on per- sonalty relating to contracts for the conditional sale of chat- tels ; liens of brokers, factors, warehousemen, merchants who deliver goods, wares and merchandise to agents and salesmen, and liens of carriers for unclaimed baggage are considered. They are embraced in the Personal Property Law, in the Factor's Act ; in the General Business Law, and in the Sales of Goods Law, enacted in 1911, known as Chap. 571, laws of that year. The provisions of these various statutes, with respect to liens, are embraced in this volume, together with (v) vi Peepace to Sixth Edition. the laws and authorities relating to liens of attorneys, for legal services. The method of enforcing liens upon surplus moneys in foreclosure actions, with form of notice of lien and authorities will be found in the collection of forms, at the end of the volume. With regard to the enforcement of lieas, the jurisdiction of the various Court of this State, of record and not of record, together with their territorial jurisdiction, is also given. The county of the Bronx was erected out. of the territory formerly comprised within the Borough of the Bronx, as authorized by Chapter 548, Laws 1912. The question as to whether such territory should be erected into a county, was submitted to the voters of the Borough at the election in ];^"ovember, 1912, and was decided in the affirmative. The county officers of the Bronx were elected in 1913, as provided by said act, and took office January 1st, 1914. The authorities cited in this edition embrace those reported in 215 New York; 167 Appellate Division; 81 Miscellaneous Keports and 149 N. Y, Supplement. WILLIAM L. SNYDER. Temple Court, New York, January, 1916. TABLE OF CONTENTS. PAGE. Preface to Sixth Edition v Table of cases cited xiii LIEN LAW— ARTICLE L Liens on Real Property. Section 1. Short title 1 2. Definitions 9 LIEN LAW— ARTICLE IL Section 3. Mechanic's lien on real property 27 4. Extent of lien 86 5. Liens under contracts for public improvements 138 6. Liens for labor on railroads 174 7. Liability of owner for advance payments, collusive mortgages and incumbrances 177 8. Terms of contract may be demanded 183 9. Contents of notice of line 185 10. Filing of notice 205 11. Service of copy of notice 210 12. Notice of lien on account of public improvements. . . . 213 13. Priority of lien 220 14. Assignment of lien 228 15. Assignment of contracts and orders to be filed 231 16. Assignments of contracts and orders for public im- provement to be filed 245 17. Duration of lien 250 18. Duration of lien on account of contract for a public improvement 264 19. Discharge of lien, generally 268 20. Discharge of lien by payment of money into court. . . . 289 21. Discharge of lien for public improvement 293 22. Building loan contracts 305 23. Construction of article 308 24. Enforcement of mechanics' liens 309 25. Priorities of liens for public improvements 314 (vii) viii Table of Contents. LIEN LAW— ARTICLE IIL Enforcement of Liens on Real Property. PAGE. Section 40. Construction of article 320 41. Enforcement of a mechanic's lien on real property. . . . 321 42. Enforcement of a lien under contracts for a public improvement 325 43. Action in a court of record ; consolidation of actions . . 343 44. Parties to action in a court of record 399 45. Equities of lienors to be determined 404 46. Action in a court not of record 405 47. How summons served, when personal service cannot be made 408 48. Proceedings on return of summons; answer; judgment by default 408 49. Issue; how tried ; judgment r 409 50. Execution 409 51. Appeals from judgments in courts not of record 409 52. Transcripts of judgment in courts not of record 409 53. Cost and disbursements 410 54. Judgment in case of failure to establish lien 421 55. Offer to pay money into court or to deposit securities, in discharge of lien 433 56. Preference over contractors 435 57. Judgment may direct delivery of property in lieu of money 438 58. Judgment for deficiency 493 59. Vacating of mechanics' lien by order of court 440 60. Judgments in actions to foreclose liens on account of public improvements 442 61. Judgment in action to foreclose a mechanic's lien on property of a railroad corporation 444 LIEN LAW— ARTICLE IV. Lions on Vessels and Enforcement Thereof. Section 80. Liens on vessels 446 81. Liens on vessels causing damage 455 82. Notice of lien, when to be filed 458 83. Duration of lien 457 84. Assignment of lien 45g 85. Enforcement of lien 458 86. Application for warrant 453 87. Undertaking to accompany application 459 88. Warrant; execution thtreof 459 R9. Order to show cause ; contents ; service 460 Table of Contents. ix Page Sechon 90. Notice of issuance of warrant to be published and served 461 91. Proceedings upon return of order to show cause; trial of issue 461 92. Order of sale; when made 462 93. Sale and proceeds 462 94. Notice of the distribution of the proceeds of sale... . . 463 95. Liens for which no warrants are issued 463 96. Contested claims 464 97. Trial of issues and appeal 464 98. Distribution of proceeds 465 99. Payment of uncontested claims 465 100. Distribution of surplus 465 101. Application for a. discharge of warrant 466 102. Undertaking to accompany application for discharge 466 103. Discharge of warrant 467 104. Action on undertaking 467 105. Costs of proceedings 468 106. Sheriff must return warrant 468 107. Discharge of lien before issue of warrant 469 LIEN LAW— ARTICLE V. Liens on Monuments, Gravestones and Cemetery Structnres. Section 120. Liens on monuments, gravestones and cemetery struc- tures 470 121. Notice of lien 470 122. Proceedings to enforce liens 472 123. Disposition of proceeds of sale 472 124. Duties of officers of cemetery associations 473 LIEN LAW— ARTICLE VI. Liens for Labor on Stone. Section 140. Lien for labor performed in quarrying, dressing and cutting stone , 474 141. Duration and effect of lien 475 142. Discharge of lien ' 475 LIEN LAW— ARTICLE VII. Liens for Service of Stallions. Section 160. Lien on mare and foal 477 161. Statement and certificate 477 162. Copy of statement and certificate to be posted 478 163. Penalty 478 X Table of Contents. LIEN LAW— ARTICLE VIII. Other Liens on Personal Property. Page Section 180. Artisans' lien on personal property 479 181. Liens of hotel, apartment hotel, inn, boarding and lodging house keepers 495 182. Factors' lien on merchandise *. 498 183. Lien of bailee of animals 516 184. Lien of bailee of motor vehicles 518 185. Lien of manufacturers and throwsters of silk goods. . 521 186. Lien of bailees for hire 521 LIEN LAW— ARTICLE IX. Enforcement of Liens on Personal Property. Section 200. Sale of personal property to satisfy lien 523 201. Notice of sale 524 202. Sale to be advertised 525 203. Redemption before sale i 526 204. Disposition of proceeds 526 205. Remedy not exclusive 527 206. Enforcement by action ; when and in what courts .... 533 207. Warrant to seize chattel; proceedings thereupon. . . . 534 208. Judgment • . . 534 209. Action in inferior court 534 210. Application 535 LIEN LAW— ARTICLE X. Chattel Mortgages. Section 230. Chattel mortgage to be filed 536 231. Corporate mortgages against real and personal prop- erty 576 232. Where filed 577 233. Filing and entry 578 234. Fees 579 235. Mortgage invalid after one year unless statement is filed ■. 580 236. Duration of lien of mortgage on canal craft 582 237. Copies to be evidence of certain facts 583 238. Mortgage, how discharged or record 583 Table of Contents. xl LAWS REPEALED — SCHEDULE. LIEN LAW— ARTICLE XI. Bepeals; Schedules of Laws Repealed. PAOE. Section 250. Laws repealed 585 251. When to take effect 585 PERSONAL PROPERTY LAW— ARTICLE IV. Contract for the Conditional Sale of Goods and Chattels. Section 60. Definitions 587 61. Conditional sale of railroad equipment and rolling stock 587 62. Conditions and reservations in contracts for the sale of goods and chattels 588 63. Where contract to be filed 620 64. Indorsement, entry, refiling and discharge of condi- tional contracts 621 65. Sale of property retaken by vendor 624 66. Notice of sale . . • 626 67. Disposition of proceeds 626 PERSONAL PROPERTY LAW— ARTICLE V. Vendors Lien for Purchase Price — Sales of Goods Law. Section 134. Eemedies of unpaid seller 528 135. When right of lien may be exercised 62!) 136. Lien after part delivery 629 137. When lien is lost 629 138. Seller may stop goods on buyer's insolvency 630 139. When goods are in transit 630 140. Ways of exercising the right to stop 631 141. When and how a resale may be made 632 142. When and how seller may rescind the sale 633 143. Effect of sale of goods subject to stoppage in transitu 633 PERSONAL PROPERTY LAW— ARTICLE VII. Lien of Carrier — Law Relative to Bills of Lading. Section 212. Negotiable bill must state charges for which lien is claimed 634 213. Effect of sale 635 228. Negotiation defeats vendor's lien 635 xii Table of Conten'ts. FAQE. Section 233. Negotiation of bill for mortgage goods 635 238. Interpretation shall give effect to purpose of uniform- ity 638 239. Definitions 638 CHAPTER OF FORMS. Forms 639 INDEX 749 TABLE OF CASES CITED. Page Abbott V. Easton 347, 348 366, 421, 422 Abelman v. Meyer 197 Abram v. Boyd 129 Ackerman v. Rubens 390, 606 Adams v. Lawson 365 Adler v. Lumley 209 Aeschliman v. Presbyterian Hospital 198, 285, 287 Aetna Elevator Co. v. Deeves. 64 Aex v. Allen 122, 430 Ainsworth v. Rhines 615 Albro V. Blume 259 Alexander v. Costello 430 Alexander v. Hollender. .193, 354 Alexander v. Kellner 595 Allen V. Corby 517 Alley V. Fruck 282 Althouse V. Warren 129 Altiera v. Lyon 430 Alyea v. Citizens' Savings Bank 400, 401 Amanna v. Carvel . . 388, 389, 397 American Exeh. Nat. Bank v. Casino Co 564 American Mtge. Co. v. Ameri- can Cons. Co 226 American Mtge. Co. y. Butler 198 Am. Radiator Co. v. City of N. Y 398 Amidown v. Benjamin 395 Anderson v. Dillaye 186 Anderson v. Petereit 120 Anisansel v. Coggeshall..l05, 364 Anot V. Nevins 373 Armstrong v. Borden Con- densed Milk Co 90, 223 Page Armstrong v. Chisholm . . 194, 240 Arnold v. Treviranus 244 Astor Mortgage Co. v. Milton Construction Co 606 Atkin V. Kansas 146 Atlantic Gulf & Pacific Co. v. Woodmere Realty Co... 14, 132 B. Bachmann v. Spinghel 191 Bader v. City of N. Y 112 Bailargeon v. Dumoulin .... 552 Baldinger v. Levine 91 Baley v. Adams 129 Ball V. Doherty 190, 435 Ball V. Loomis 543 Ball & Wood Co. v. Clark. . . 354 Banham v. Roberts 108 Barnard v. Adorjan 67 Barnett v. Walker 496 Barrett v. Schaeflfer 186, 229 Barrett Manufacturing Co. v. Van Rojik 319, 488, 489 518, 537 Bartholomevc v. Jackson 56 Barwick v. Youmans 287 Barwin Realty Co. v. Union Stove Works 605 Barry v. Hambury-Bremen Fire Ins. Co 547 Bassett v. Johnson 16 Bates V. Salt Springs Nat. Bank 2S2, 234, 249 Bauer v. Cohen 480 Eaumann v. JeflFerson 515 Baumann v. Post 515 Bdwy. Savings Bank v. Cum- mings 204 (xiii) XIT Table of Cases Cited. Page Seals V. Congregation 186 Beardsley v. Cook.. 117, 232, 377 Beatty v. Searls. . . .122, 198, 380 Beck V. Catholic University. . 68 Becker v. City of N. Y 168 Beckwith v. City of N. Y..76, 167 Beecher v. Schuback 136 Behrer v. McMillan 180, 181 Belfast the 451 Belhauer v. Gross .• 116 Bell V. Fox 351, 372 Bell V. The Mayor. .- 219 Bell V. Vanderbilt 219 Beman v. Todd . . . .257, 261, 273 Benton v. Wickwire 29 Berger Manf. Co. v. City of ISr. Y 257 Bernheimer, etc. Brewing Co. V. Koehler Co 563 Berry v. Garvin 197 Bertholf v. O'Eielly 4 Bevan v. Waters 490 Bieber v. Goldberg 291 Bierchenck v. King 396,401 Biershenk v. Stokes.. 32 Birmingham Iron Co. v. Glen Cove Mfg. Co 25, 38 Black V. Ellis 559 Blaireau the 454 Bloomingdale v. Braun 609 Bloomingdale v. Gaudio. .340, 545 Blumberg v. Marks 544 Blumberg Press v. Mutual Mere. Agency . . ..480, 484, 485 Boardman v. Hill 491 Bogopoler Realty Co. v. Schwartzman . ..339, 363, 366 Bohnen v. Metz 155 Booker v. Reiley 41 Booth V. Barrow 71 Borkstrum v. Ryan 132 Borough Cons. Co. v. City of N. Y. 76 Boshart v. Kirley 566 Bossert v. Fox 194 Bossert v. Hoppel 194 Page Bowen v. Dawley 603 Bowen v. Stilwell 201 Bowers v. N. Y. Christian Home 260 Boyd V. Bassett 201 Boyd V. Stewart 350 Boyd V. Wissner 625 Eoynton v. Squire 72 Boynton Furnace Co. v. Thorn 407 Brace v. City of Gloversville. 3 29, 139, 165, 245, 248, 308 Brackett v. Harvey 551, 552 555, 556 Brackett v. Pierson 481 Bradley Currier Co. v. Her- ter 7, 29 Bradley Currier Co. v. Ward. 238 Bradley & Currier Co. v. Pacheteau 192, 193, 194 Bradley & Son v. Huber Co.. 214 256 Brainard v. Co. of Kings. 112, 377 Brandt v. City of N. Y 360 Brandt v. Verdon 199 Breakstone v. Buffalo Found- ary Co 39, 591, 492, 593 600, 624, 626 Breen v. Lennon 255, 261 Breuchaud v. The Mayor 427 Brewster v. McLaughlin 282 Briggs V. Gelm 574 Brill v. Tuttle 232 Brown v. City of N. Y 170 Brown v. City Natl. Bank... 470 Brown v. Epstein 426 Brown v. Sullivan 518 Brown v. .Zeiss 35 Bryant v. Flight 56 Browning v. Belford 41 Brucker v. Carroll 608 Brunold v. Glasser 382 Bryson v. St. Helen 4, 32, 198 Bueb V. Geraty 562, 572 Buffalo Glass Co. v. Assets Realization Co 208 Buffalo Grain Co. v. Sowersby 516 Table of Cases Cited. XV Page Bulkeley v. Kimball 199 Burck V. Taylor 164 Burkitt V. Harper ,,.... 52 Burmeister v. Koster 555 Burroughs v. Tostevau 430 Burst V. Jackson 42, 43 Burton v. Eingrose 434 Butler V. Aquehonga Land Co 74 Butler V. Flynn 61 Button V. Rathbone 504, 572 Cagliostro v. City of N. Y. . . 347 350 Caldwell v. Glazier 11, 137 Callahan v. Levin Contracting Co 377 Callanan Road Improvement Co. V. Village of Oneonta.. 393 Camden Iron Works v. City of N. Y 168, 169 Campbell v. Coon 24, 38 Carlin v. City of New York. . 121 Carman v. Mclncrow 106 Carney V. Reilly 123 Carpenter v. City N. Y 98 Carter v. Byzantium 129 Cartier v. Pabst Brewing Co.. 574 Cartwright v. Wilmerding. . . 506 Casey v. Cavoroe 483 Casey v. Connors Cons. Co... 297 367 Cassani v. Dunn 543 Cassiday v. Fontham 383, 388 Cassidy v. McFarland 6, 396 Castelli v. Trahan 430 Castleman v. Mayer 569 Cehio V. Fisher 359 Central N. Y. Tel. Co. v. Averill 312 Central Union Gas Co. v. Browning 596 Chambers v. Vassar's Sons & Co. Ine 20, 21, 203, 230 Page Chatham Natl. Bank v. OBrien 550 Cheming Canal Bank v. Payne 551 Cheney v. Troy Hospital 29 106, 179 City Bank v. West 550 City of N. Y. V. Dowd Lum- ber Co 199 Clapper v. Strong 214, 427 Clark r. Mosher 336 Clarke v. Heylman 73, 74 186, 188, 208, 209, 357 Clarke v. Koppel 127 Clonin v. Lippe 265, 272, 354 Close V. Clark 198 Coates v. Village of Nyack.. 168 Cody V. Turn Verein 242 Cody V. White 431 Cbe V. Cassidy 542, 574 Coleman v. City of N. Y. . 167, 443 Coleman & Krause v. Board of Education 256 Coleman & Krause v. Security Bank 443 Colon V. East 189 St. Build- ing Co 285 Columbia Bank v. American Surety Co 572 Colwell Lead Co. v. Home Title Ins. Co 597 Concord Cons. Co. v. Plante.. 224 Condon v. Church of St. Au- gustine 58, 412 Conkling v. Shelley 550 Conkrite v. Thompson 30 Connelly v. Hyames 252, 253 254, 295 Conrow v. Little 486 Contractor's Supply Co. v. City of N. Y 247, 276 Cooper V. Payne 610 Cooper Co. v. Manhattan Bridge Three Cent Line. . . 8 350, 379, 391 Cornell v. Barney 32 XVI Table of Cases Cited. Page Costello V. Herbst 611 Cowen V. Paddock 53 Cox V. Broderiok 18 Craft T. Brandow 574 Craig V. Blake 106, 107 Crane v. Gennin 106, 184 Crane Co. v. Mutual Signal Co 224 Crane Co. v. Smythe 224 Cranford v. City of N. Y 171 Cranford v. City of Bldyn... 391 Cream City Furniture Co. v. Squier 202 Crocker Wheeler Co. v. Gen- nessee Recreation Co 599 Crouch V. Gutman 116, 120 Crouch V. Moll 430 Crowe V. Liquid Carbonic Co 39, 617, 625 Crump V. Wissner 607, 625 Crystal v. Flannelly 35 Cullen V. Gallagher 122 Cullin V. Ryder 558 Cunningham v. Doyle 201 Cunningham v. Hatch 288 Curtiss Bros Lumber Co. v. Madansky 197 Cutter V. Mayor 98 Cutter V. Morris 72 Dains Cons. Co. v. Union Free School Dist. No. 7 105 Dale V. Irwind 16 Daly V. O'Brien 166 D'Andre \. Zimmerman 275 287, 432 Dannalla v. Paradise 277 Dannat v. Fuller 393 Danziger v. Simonson ...253, 260 Darrow v. Morgan 199, 262 Davidson v. Fanlcuchen 481 Davies v. Davies 55 Davis V. Alvord 30 Davis V. Bliss ; 604 Page Davis V. City of New York . . 40 89, 351, 403 Davis V. Newkirk 543 Dean Steam Pump Co. v. Clark 359, 432 Decker v. O'Brien 136 Deegan v. Silpatriek 204 Deering v. City of N. Y 98 Deeves v. Manhattan Life. . . . 102 Deeves v. Metropolitan, etc. Co ; 6, 7, 29, 396 De Klyn v. Gould 62, 195 Delany v. Carpenter 206 Delaney v. Valentine. . . .545, 565 De Lorenzo v. Von Raitz. ... 108 180, 211 De LaVergne Machine Co. v. Brooklyn Brewing Co 33 Dennison Cons. Co. v. Man- nesehmedt 311 Dennistown v. McAllister. 43, 391 De Vinne v. Eyanhard 486 Dickinson v. Oliver 538, 549 Dinkel v. Roman Catholic Church of St. Theresa 397 Dinley v. MeOullough 336 Dixon V. La Farge 16 Dodge V. Manning 226 Dodge V. McKechnie 540 Doll V. Coogan 391 Dolson V. Saxton 550 Donaldson v. Wood 29 Donaldson v. O'Connor 209 Donnelly v. Libby 200 Donovan v. Frazier 128, 198 Dorrance v. Dean 508 Doughty V. Devlin 106 Dougherty v. Neville 618 Douglass v. Carlin Cons. Co. 353 Drake v. Bell 56 Drall V. Gordon 326, 339, 408 Dudley v. Congregation of St. Francis 345, 349, 356 424, 425, 430 D'Ugo V. Cirenza 124 Duhrkop v. White 171 Table of Cases Cited. xvn Page Dunn V. Morgenthau 394 Dunn V. Steubing 133 Dunn V. Uvalde Asphalt Pav- ing Co 371 Dunning v. Clark 290 Duntz v. Granger Brewing Co 593 Dustan v. McAndrew 006 Dwyer v. Tlie Mayor of N. Y. 135 130, 358 Dyett V. Hyman 543 E. Eadie v. Waldron 406 Eagle Iron Works v. Farey.. 133 Easthampton Co. v. Worth- ington 118 East N. Y. Eefrigerator Co. v. Halpern 602 Eckenroth v. Egan 350 Edelson v. Wagman 341, 626 Egan V. Laemmle 31 Eliott V. Tapscott .> 51 Ellis V. Solomon 263, 439 Elting V. Dayton 358 Emerson v. Knapp 547 Empire Iron Works v. Mar- golies 53, 60 English V. Sill 229 Entenman v. Anderson 351 Equitable Ins. Soc. v. Stev- ens 441 Erving v. The Mayor 165 Ewan V. Thompson Starrctt Co 149 Excelsior Terra Cotta Co. v. Hardy 98, 167 F. Fairbanks v. Nichols 591 Falvello v. City of N. Y 222 Fanning v. Belle Terre 191 Fargo V. Helmer 35, 421 Farmilo v. Styles 73 Farrell v. Levy 134 Page Fay V. Muhlker 390 Feeder v. Van Winkler 16 Felgenhauer v. Haas 188 Feldman v. Goldblat 135 Fenichel v. Zichermann. . .99, 361 421 Fennikoh v. Gunn 619 Fidelity Trust Co. v. Bell ... 545 546, 565, 566 Filbrick & Bro. v. Florio Co. Operative Assoc 253 Filey#v. Thousand Is. Hotel. 197 Finn v. Smith 192 Finucane Co. v. Board of Edu- cation 378, 379 First Nat. Bank v. Peck 614 First Natl. Bank of Toledo v. Shaw . . ,. 507 Firth V. Eehfeldt 110 Fish v. Anstui Cons. Co 195 Flynn v. Butler 290 Fogg V. Surburban Transit Co 127 Ford V. Cobb 593 Foreman v. Nordon Cons. Co. 597 599 Fortunato v. Patten 164, 248 Foster v. Schneider 198 Fox v. Davidson 376 Fox V. Davis 99 Fox V. Fox 102 Fox V. Powers 129 Fraenkel v. Friedman. . .102, 110 265, 362 Frederick v. Goodman Steel Homestead Assn 15 Freidenrich v. Condict . . 124, 359 Friedland v. Myers '. . 391 Friedman v. Phillips 612 Frooks Engine Co. v. Green- stein 526 Frost V. Warren 550 Frudenheim v. Gutter 507 508, 509 Fuchs V. Saladino 119, 135 Furze v. City of N. Y.. . .252, 250 XVlll Table of Cases Cited. G. Page Gallagher v. Baird 394 Gallagher v. Karns 49 Gallick V. Engelhardt 204 283, 285 Gandy v. Collins 637 Garber v. Spivak 62 Garden City Co. v. Schnugg. . 240 Gardner v. Town of Cameron. 592 Gass V. Souther 400 Gaskell v. Beard ;. 199 Gates V. De LaMare % 492 Gearty v. The Mayor 169 172, 387 Geiser Mfg. Co. v. Taylor 612 General Supply & Cons. Co. V. Goelet 98, 370, 394 Genung v. Hawkes 208 Gersmann v. Walpole ...114, 370 Ghiglione v. Friedman 209 Gibbon v. Hoare 354 Gibson v. Leanane 184 Gilmore v. Colcord. . . . .396, 425 427, 428 Glacius V. Black 117 Glen Falls Portland Cement Co. V. Schenectady Coal Co. 180 Gluckman v. Kleinman 484 Goddard v. Gould 593 Gompert v. Healy 116 Goodrich v. Board of Educa- tion 36, 312 Goodrich v. Gillies 427 Goodrich v. McDonald 492 Gourd V. Healy 539, 606 Gove V. Morton Trust Co 568 Graf V. Cunningham 109, 112 Goldstein v. Michelson 301 Goodrich v. Gillies 198 Grant v. Griffith 59? Grant v. Vandercook 30 Grassman Bros. v. Dunaf Building Co 376 Grave's Elevator Co. v. Calla- nan 593, 595 Gray v. Central R. E. of N. J. 98 Page Greenfield v. Brody 208 Grenell v. Cook 520 Gribben v. Hoare 354 Gridley v. Rowland 32 Griffin v. Ernst 94 Grippin v. , Weed 195 Groh's Sons v. Feldman 545 Gross V. Daly 396, 396 Grosz V. Jackson 16, 96 Gruenberg v. Schol 341 Gunther v. Darmstadt. 237 H. Hackett v. Badeau 52 Haden v. Buddensick 208, 209 Haefelein v. Jacob 593 Hafkar v. Henry 290 Hall V. City of N. Y....227, 249 Hall V. Dennerlein 434 , Hall V. French American Wine Co 503 Hall V. Long 117, 128, 130 Hall V. Pettigrew 32, 129 Hall V. Sheehan 204 Hall V. Thomas 196, 199, 200 Hallahan v. Herbert. .35, 200, 229 Hamilton & Dodge Lumber Co. v. Murray 61, 91 Hamilton Trust Co. v. Clemes 243 318 Hankinson v. Vantine 63 Harley v. Mapes-Reeva Constr. Co 172, 282 Harley v. Plant. 271, 296, 364, 401 Harmony v. Bingham 125 483, 614 Harrison v. Scott 553 Hartley v. Murtha 63 Hartness v. Thompson 38 Harvey v. Brewer 239, 240 Haskell v. Madison Univer- sity 16 Haasett v. Sanborn 518 Table of Cases Cited. XIX Page Hatch V. Coleman 43 Haswell v. Goodchild 377 Hauptman v. Catlin 26, 73 Hawkins v. Burrell 106, 112 Hawkins v. Mapes Eeeves Cons. Co 7, 29, 219, 296 297, 403 Hayes v. Gross 126, 614 flaywood v. Lockwood 549 Hazard v. Fiske 507 Hazard Powder Co. v. Byrnes. 48 49 Heagney v. Hopkins. 34, 281, 284 Heckman v. Pinkeney 106, 390 Heckla Powder Co. v. Signa Iron Co 391 Heela Iron Works v. Hull ... 358 Hedden Cons. Co. v. Proctor & G. Co 22, 98, 435, 437 Hedlund v. Payne 64 Held V. City of New York. . . 39 89, 95, 195, 281, 390 Hellwig V. Blumberg 387 Henderson v. Sturgis 127 Hennessy v. Ship Versailles.. 452 453 Henrickus v. Englert. . .285, 365 Herring v. Hoppocic 543 Herman & Grace v. City of New York 22, 106, 223 226, 436, 437 Herman & Grace v. Hillman. 444 Hess V. Hess 566 Hickok V. Cowperthwait.483, 484 Highton V. Dessau 136 Hildreth Granite Co. v. City of Watervliet 40, 88 Hill V. Flatbush Consumer's Ice Co 353 Hinton v. Locke 382 Hilton Bridge Co. v. N. Y. Central R. R. Co... 23, 179, 364 Hinkle v. Sullivan 364,375 Hitchings v. Teague 101 Hirsehfield v. Ludwig 237 Page Hochkind v. Jacobson 357 Hofgesang v. Meyer 178, 184 Hollins V. Hubbard 503 Hollister v. Mott 104 Homans v. Coombe 30 Hondorf v. Atwater 237 Horgan v. McKenzie. . . .391, 410 Horgan & Slattery v. City of New York 131 Horn V. Keteltas 547 Houlditch V. Milne 83 Howes V. Corti Building Co.. 283 Hoyt V. Miner 391 Hubbell V. Schreyer 186 Huber v. Ehlers 558 Hudson River Blue Stone Co. V. Huntingdon 181 Hunter v. Walter 123 Hurd V. Johnson Park Invest- ment Co 237 Hurley v. Allen Gas Engine Co 590, 610 Hurley v. Tucker 188, 200 Husted V. Matthews 52, 70 Hutton Bros. v. Gordon 390 Hyatt v. Swivel 201 Hyer v. Sutton 548 I. Ideal Cash Register Co. v. Zunino 607 Independent Brewing Co. v. Dursten 545, 548 Industrial Loan Assoc, v. Saul 515, 563 In re Adam Houston 224 In re Emslie 225 In re John P. Kape Co... 275, 301 In re Kelly 514 In re Pool 441, 442 Insurance Co. v. Dunham.... 449 Irving v. Campbell 222 Isaacs V. Dawson ....'... 132, 389 Israels v. McDonald 383 XX Table os Cases Cited. J. Page Jackson v. Bartholin ew 453 Jackson v. Cummins 520 Jackson v. Haven 441 Jacobs V. Feinstein 341, 536 James v. O'Driscoll 55 Jennings v. Newman 31 Jolinson V. Alexander 429 Johnson Service Co. v. Ililde- brand 107, 398 Johnston v. Dahlgren 26, 77 Jones V. Dodge 122, 124, 421 Jones V. Graham 572 Jones V. Menke 60 Jones V. Moore 128 Jones V. Walker 73 K. Kafka v. Levensohn 482 483, 615 Kalt Lumber Co. v. Dupignac 352 Kane v. Hutkoff 200, 203 359, 432 Kane Co. v. Kinney. ..89, 90, 179 223, 225, 235, 243 Karst V. Gane 560, 564, 565 Kausen v. Leonhardt Realty Co 114 Kealey v. Murray 201 Keating Co. v. City of N. Y.. 108 Keavey v. De Rago 106, 375 Kelly v. Bloomingdale 212 Kelly V. City of Syracuse. . . . 137 Kelly v. Highland Cons. Co.. 252 Kelly V. St. Michaels R. C. Church . . 133 Kennedy v. McKone 230, 292 434 Kenny v. Apgar 6, 30 Kenyon v. Walsh 238 Keogh Manf. Co. v. Eisen- berg 129 Kerley v. Clapp 91 Kerrigan v. Fielding 186, 196 208, 209, 281 Page Kertscher & Co. v. Green 208 Kerwin v. Post 56, 57 Kipwith V. Innlceeper 489 Kirk V. Crystal 502, 598 Kitchen v. Lowery 505 Klein v. Cohen CIS Knapp v. Brown 32 Knowles v. City of N. Y 330 Koeppel V. McBeth 426 Kohl V. Fleming 371 Kotzen v. Nathanson 406 Krausa v. Burnett lOO" Kruger v. Wilcox 503 Krugman v. Hanover Fire Ins. Co 336 Kunzweiler v. Lehman 285. L. La Chicott v. Richmond R. & L. Co 358 Landsberg &, Co. v. Hein Cons. Co 115, 128 Lang V. Everling 439 , Langley v. Rousa 133 La Pista v. Weil 106, 354 Larkin v. McMullin 104 Laudani v. Vulcan Engineer- ing Co 140 Lauer v. Dunn 208, 232, 236 Lawrence & Congregational Church HI, 242, 350, 370 377, 403 Lawrence v. Dawson ....181, 182 Lawrence v. Phipps 234, 236 Lawrence v. Lawrence 336 Lawson v. Reilly 410 Lawton v. Roseno 386 Lazari v. Havens 472 Leary v. Gardner 35 Leibowitz v. Thomson Real Estate Co 568 Leiegne v. Schwartzer 197 LekofF v. Bauch 341, 626 Lerabeck, etc.. Brewing Co. v. Sexton 549 Table of Cases Cited. Page Lemmer v. Morrison. 19, 53, 222 Lennon v. Smith 122, 380 Leonard v. City of Broolilyn. 13 173 Xieonard v. Harris 615 Leonard v. Montague 616 Leske v. Hoagland 493 Leske v. Wolf 361 Levin V. Hessberg 429 Levering, etc.. Century Hold- ing Co 99, 370 Levy V. Hamilton 557, 574 Levy V. Horn 561, 575, 602 Levy V. Levy 201 Levy V. Eeich 608 Lew Kowick v. Queen Aero- plane Co 311, 333 L'Hommedien v. Winthrop. . 136 Lind V. Breander 178 Lindblad v. Lynde 123, 358 Linneman v. Bieber 129, 377 395 Lippman v. Low 71 Livingston v. Miller 204 Lloyd v. Kilpatriek 520 Long Island Brewing Co. v. Fitzpatrick 485 Loonie v. Hogan 18 Lochner v. People of the State of N. Y 158, 159 Lowe V. Lehman 382 Lumbard v. Syracuse 184 Lurch V. Brown 498 Luscher v. Morris 186 Lutz V. Ey 199, 2C9 Lynch v. Ford 518 Lyungstrarh v. Williams Haaker Co 514 M. Mack V. Colleran 17, 181 MacKnight & Flintio Stone Co. V. Mayor 135 Madden v. Lennon 106, 257 Magida v. Wiesen 483 Mahley v. German Bank 192 308 Page Mahoney v. Oxford Realty Co. 134 Maisehe v. City of New York 26 310, 311, 326, 327, 328, 329, 330 Maltby & Sons v. Boland Co. 364 Maneely v. City of N. Y..400, 428 Manton v. Bklyn. & Flatbush Realty Co 252 Marine Bank v. Fisk 508 Marten v. Oberle 54 Martens v. O'Neill 273 Martin v. DeKoppet . 252, 256, 403 Martin v. Flahive 85, 362, 387 Martin v. Gavigan Co 187 Mason's Supply Co. v. Jones. 431 Mathiasen v. Shannon. . .276, 285 Matter of Bensel 495 Matter of Blumberg No. 1 . . . 270 Matter of Boland v. Sokol- skie 277 Matter of Bronitsky 270 Matter of Burnham 399, 439 Matter of Cattabery v. Knox 251 260, 441 Matter of Christie's Mfg. Co. 105 Matter of Co-operative Law Co 495 Matter of Dunn 494 Matter of Froment 447 Matter of Gabler 259 Matter of Goss v. Williams Engineering Co 216 Matter of Gould Coupler Co.. 32 262, 344, 356 Matter of Hasbrouck 494 Matter of Hay Foundry & Iron Works 288 Matter of Hedden Cons. Co. . . 277 Matter of Heinsheimer 493 Matter of Hopper 288 Matter of Hudson Water Works 300 Matter of Hurwitz 275 Mayer v. Killilea 237 Matter of Lancaster Malleable Iron Works 15 Matter of Mechanics' Lien. . 290 XXll Table of Cases Cited. Page Matter of Mechanics' Lien v. N. Y. Queens Electric Co.. 441 Matter of Eudinger 267 Matter of Schreier 492 Matter of Sheehan &, Co 215 596 Matter of Sheppard 288 Matter of Simmonds Furnace Co 37 Matter of Thirty-Fifth St. & Fifth Ave. Realty Co 265 272, 291 Matter of Thornton Apart- ment Co 271 Matter of Uris v. Brackett Realty Co 265, 272, 442 Matthews v. Victor Hotel Co. 497 Matter of Winkler 494 Matthews v. Daly 262 Mandeville v. Reed 204 Maxey v. Larkin 32 McAllister v. Case 260, 266 McAuley v. Mildram 204, 395 380 MoAveney v. Pasquini. . .123, 300 McCann v. Gerding 332 McCarthy v. Gallagher 391 McConologue v. Larkins 365 438 McCorkle v. Herrman 226 - 232 McDermott v. Palmer....... 18 McDonald v. The Mayor... 3, 29 202, 296, 421 McDonald v. Safe Deposit & Surety Co 571 McDonald v. Village of Ball- ston 226, 227, 236 McEchron v. Martine 576 McEntyre v. Tucker 358 McFarland v. Wheeler 520 McGrath v. Horgan 391 McKay v. The City of N. Y.. 138 139, 248, 308 McKee v. Eapp 391 McKeefry v. Cugley 280 Page McKellar v. Rogers 7, 30, 345 424 McKinney v. White 191 McLaughlin v. Mendelson . . . 410 McLean v. Baker 199 McLean v. Bloch 597 McLean v. Sexton 74 McMahon v. Cook 548 McMahon v. Hodge 209 McMillan v. Seneca 184 McNally v. Rowan 292 McNeely v. Welz 575 McNulty Bros. v. OfFermon . . 60 120, 378, 307 Meade v. Ballard 16 Meehan v. Williams 395 Mellen v. Athens Hotel Co. . . 364 369 Mendelson v. Irving 609 Merchants' & Traders' Bank V. Bergen Heights Realty Corp 605 Merritt v. Peirano 514 Merritt &. Chapman D. Co. v. Tics 454% Merz V. Mapes-Reeves Cons. Co 423 Mertz V. Press 27 Meyers v. Bennett 35 Middleton v. Whitridge 312 Midtown Contracting Co. v. Goldstickcr 8, 09, 391 Miller v. Mead 52 Miller v. McKeon 298 Miller v. Moore 129 Miller v. Sehmitt 276 Miller v. Smith 108, 128 178, 181 Millicie v. Parsons 618 Milliken Bros. v. City of N. Y 216, 295 Mitchell V. Dunmore Realty Co 65, 192, 312, 354, 425 Modern. Loan Co. v. Police Court 510 Table of Cases Cited. xxin Page Moneyweight Scale Co. v. Mehling 015 Moore v. Bloomingdale ul7 Moore v. McLaughlin 68, 201 203, 204 Moore v. JPotter 606 Moore v. Prentiss Tool & S. Co 575, 602 Moran v. Chase 197, 204 Moran v. The Mayor of N. Y 411, 444 Morey v. Schuster 493 Morgan v. Congdon 480 Morgan v. Taylor 199 391 Moriarity v. Board of Edu- cation 84, 132 Morton v. Tucker 276, 280 2.83, 287, 301 Mosher v. Lewis 15, 61 Mosler Safe Co. v. Maiden Lane Safe Deposit Co 394 Mowbray v. Levy 430, 431 Muggier Iron Co. v. City of N. y 361 Muldoon V. Pitt 18 Mull V. Jones 199 Mulligan v. Vreeland 399 Murdock v. Jones 137 Murphy v. Buckman 112 Murphy v. City of Water- town 85, 111, 112, 359 Murphy v. No. 1 Wall St... 352 388 Murphy v. Stickley Simonds Co 4 Murray v. Gerety 31 Murray v. Hayes 516 Mushlitt V. Silverman 29 Myers v. City of N. Y 143 156, 157 N. Nason Ice Machine Co. v. Upham 94 Nason Manf. Co. v. Adams.. 231 Page Nat. Bank of Deposit v. Rog- ers 350 Nat. Cash Register Co. v. South Bay Club House. . . 615 Nat. Union Bank v. Riger . . . 244 National Wall Paper Co. v. Sire 15, 52, 59 N. J. Steel & Iron Co. v. Rob- inson 89, 186, 192, 193 194, 198 Nellis V. Bellinger 52 Nelson v. Boynton 83 Nelson v. Gibson 603 Nesbit V. Braker 118, 137 Neuchatel Asphalt Co. v. The Mayor 24, 37, 38, 206 260, 267 New V. Carroll 52, 55 Newman v. Levy 180 Newman Lumber Co. v. Wimpler Ill, 124, 217 266, 267, 411 New York Metal Ceiling Co. V. City of N. Y 389 New York State Bank v. Whitehall Water Power Co. 390 New York Terra Cotta Co. v. Williams 124 Niblo V. Binsse 125, 126, 614 Nichols V. Potts 606 Nolan V. Gardener 391 Nolan V. Whitney 117 Norcross v. Wills 134 North American Wall Paper Co. V. Jackson Cons. Co... 119 Norton & G. Cons. Co. v. Unique Cons. Co 49, 190 Nussberger v. Wasserman . 34, 430 Nyboe V. Jacob Doll & Sons . . 617 N. y. Co. Nat. Bank v. Am. Surety Co 541, 573 N. Y. County Natl. Bank v. Wood 186, 205 N. Y. Investment Co. v. Cos- grove 593 N. Y. Lumber & Wood Work- XXIV Table of Oases Cited. Page ing Co. V. Seventy-third St. E. R. Co 395 N. Y. & N. H. Automatic Sprinkler v. Andrews 170 0. Oakland Manufacturing Co. V. Linde Co 507 O'Brien v. N. Y. Butcher's Dressed Meat Co 397 O'Connor v. City of N. Y 311 326, 328, 333, 335 O'Connor v. Schaeffel 439 O'Corr & Rugg Co. v. City of Little Falls 171, 172 O'Clair v. Hale 479, 481 Odgen V. Alexander 112 Ombony v. Jones 92 Oppenheimer v. Moore 548 O'Reilly v. Mahoney 392 O'Rourke Engineering Co. v. City of N. Y 381 Otis V. Dodd 52 Ottiwell V. Muxlow 52 Ottman v. Schnectady Co- operative Co 412 Packard v. Sugarman . . 196, 305 Paine v. Bonney 204 Palmer Lumber Co. v. Stern. 353 Paradine v. Jane 125, 614 Parsons v. Curran 229 Parsons v. Moses ..281, 283, 298 Patterson v. Patterson 55 Paturzo V. Shuldeler 351,381 Payne v. Wilson 243 Pearee v. Kenney ....31, 32, 52 Pease Piano Co. v. Fiske 590 Pell V. Bauer 30 Penn. Collieries Co. v. Mc- Keever 37 Penn. Steel Co. v. Title Guar- antee & T. Co.. 85, 261, 300, 307 Pack People V. Crane 145 People v. Orange County Road Cons. Co 143, 156, 158 People V. Statom 584 People ex rel. Burgard v. City of Buffalo 269 People ex rel. Cossey v. Grout 146, 147, 156, 157 People ex rel. Coughlin v. Gleason 166 People ex rel. Dowdney v. Thompson 165 People ex rel. Ins. Co. v. Nash 378 People ex rel. Lavier v. Hes- sler 80 People ex rel. Lentinhow v. Coler 143, 156, 157 People ex rel. North v. Featherstonebraugh . ..105, 172 People ex rel. Rogers v. Coler 143 150, 157 People ex rel. Simpson v. Kempner 510 People ex rel. TafFee v. Fitz- patrick 406 People ex rel. Treat v. Coler 25, 75, 143, 156, 157 People ex rel. Williams v. Metz 154 Perry v. Haines 451, 452 Perry v. Levenson 361 Person v. Stoll." 109, 393 Peterson v. City of N. Y 279 Pfeiffer v. Roe 554. Pfister V. Stumm 434 Phoenix Iron Co. v. Metro- pole Cons. Co 372 Phoenix Iron Co. v. Vessel. 24, 38 Phillips V. Wright 42, 43 Pickett V. Tollner 15 Pierce-Butler Mfg. Co. v. Wilson 276, 286, 301 Pierce v. Devlin 232 Pierson v. Jackman.296, 299, 300 Table of Cases Cited. XXV Page Piatt V. N. y. & Sea Beach E. R. Co 578 Plumiera v. Bricka 591, 017 Poerschke v. Horowitz 361 Poerschke v. Eedenburg 262 Pollock V. Ehle 32 Pope V. Heckscher 65 Post V. Banks . .' 33 Post V. Campbell 179 Post & McCord v. City of New York 50, 215 Posthoff V. Bauendahl 543 Powers V. Burdick 597 Powers V. Onward Cons. Co.. 32 33, 344, 345, 347, 355, 356 Presb. Church v. City of N. Y 75 Prior V. White 251 Putman v. Siravo 80 Quattrone v. Simon 607 Quimby v. Sloan 16, 30 B. Eaieh v. Arizona 146, 159 Rand v. Mather 83 Randall v. Van Wagcnen. . . . 494 Randolph v. Leavy 30 Ratehford v. Cayuga Co. Cold Storage Co 613 Raven v. Smith . . . .8, 31, 32, 310 311, 322, 328, 344, 356 Raymore Realty Co. v. Pfaten- hauer-Nesbit Co 33 Eeading Hardware Co. v. City of N. Y 90, 105, 223, 243 Reeves v. Seitz 211 Reilly v. Durfey 191 Reiser v. Commeau .... 18, 20, 96 100, 382 Rennie v. Bean 222 Rhinelander v. Haan 376 Rice V. Culver 02 Page Richardson & B. Co. v. Reid. . 54 Rich v. Greenwich Bank 374 Richman v. City of N. Y 369 Eiggs v. Shannon 6 Eightmeyer v. Doyle 49 Riley v. Kenney 115, 238 Ringle v. Wallis Iron Works. 4 29, 107, 117, 197, 199 Eingle v. Matthiessen ...271, 280 284, 298 Einn v. Electrical Power Co.. 23 Ritterband v. Raggett 319 Rivara v. Ghio 514 Roach V. Curtiss '610, 617 Robbins v. Arendt 108 Roberts v. Fowler 17, 229 Eobinson v. Chinese Charit- able Assn. . ..112, 113, 115, 358 Eobinson v. Fay 832, 344, 345, 356 Eobinson v. Walter 489 Eobinson v. Wappans 525 Eoca V. Byrne 502 Eockland Lake Co. v. Port- ehester 214, 411, 444 Roeblings Sons v. City of N. Y 167 Rollin V. Cross 17, 229 Rollins V. Barnes 292 Romanik v. Rapaport. . . .191, 282 Root V. N. Y. Central E. R. Co 363 Rose V. Oliver 543 Rosenblum v. Tilder Imp. Co. 306 Ross v. Simon 74 Ross V. Wigg 201 Eowe V. Gerry 121 Euge V. Gallagher 138 Eussel V. St. Mart 563 Eussel V. Winne 550, 551 Eussell & Edwin Mfg. Co. v. City of N. Y 300 Eyan v. City of New York. . . 143 156, 157 Eyder v. Coburn 244 Eyncs v. Dumant 319 XXVI Table of Cases Cited. Page S. Sage V. Stafford 203 Saith V. Kelley 590 Sanitary Carpet Cleaner v. Eeed Manf. Co 592 Sargent v. McLeod 493 Scarf V. Morgan 490 Screbo v. Smith .... 422, 423, 427 Schaghticoke Powder Co. v. Greenwich & J. R. E. Co. . . 48 Scherl v. Flara 594 Schermerhorn v. Gardenier... 316 317 Schillinger Cement Co. v. Ar- nott 7, 29, 133 Schillinger Fire Proof Co. v. Arnott 29 Schloss V. Trouman 395 Schmaltz V. Mead 52, 67 Schmidt v. Simpson 508 Schmoll V. O'Brien 115 Schnaier v. Nathan 358 Schnair v. Navarre Hotel Co. 75 78, 79 Schnair Co. v. Grigsby 81 Sehnauffer v. Ahr 58, 84, 100 Schnectady Contracting Co. v. Schenectady Ry. Co. ..200, 348 352, 366, 432 Schreiber v. Stern 397 Schultze V. Goodstein . . . 383, 386 Schulte V. Tcichman Engineer- ing Co 336 Schultz V. Querean 48 Schumer v. Clark 71 Schwab Manf. Co. v. Aizen- man 558 Schwartz v. Allen 16, 95, 201 Schwartz v. Klar 348, 353. Schwartz v. Kuhn 370 Schwartz v. Lewis 189 Scott Shoe Machinery v. Breaker 480 Seabott v. Wanamaker 626 Sears v. Wise 94 Page Seary v. Wegenaar 402 Seeley v. Prentiss Tool & Supply Co 626 Seigel V. Ershowsky 354 Shafarman v. Loman 611 Shall V. Old Forge Co 398 Sharett v. Vaughan 483 Shaw V. Touns 235 Shaw V. Wilke 348 Sheldon v. Palliser. . 263 Sherman v. Iroquois Hotel Co. 496 Sign-all V. Hatch 025 Silleck V. Robinson 130 Simon v. Aldine Pub. Co. . . . 288 Sisson V. Hibbard 593 SIdlton V. Coddington ...551, 556 S66, 567 Sloan V. Natl. Surety Co 543 544, 557, 570 Smack v. Cathedral of Incar- nation 182 Smith V. Bailey 84 Smith V. Brady 121 Smith V. Cary 351 Smith V. City of N. Y 430 Smith V. Emigrant Industrial Savings Bank 336 Smith V. Fleishmann 32, 344 347, 355 Smith V. Lange 114 Smith V. O'Brien 520 Smith V. O'Donnell 127 Smith V. Ruggiero 120, 122 Smith V. Smith 136 Smith V. State of New York. 140 Smith V. Silsbie 406 Smullen v. Hall 18 Smyth V. Marsich. . . 117, 234, 377 Snyder v. City of N. Y.. .109, 110 169, 170, 171, 249, 387 Snyder v. Monroe-Eckstein Brewing Co 211 Snyder v. Sloan 73 Solerno v. Vogt 434 Solomon v. Valette 133 Southard v. Benner 550, 566 Table of Cases Cited. xxvii Page Southard v. Pinkney 550 Spannhake, Inc. v. Mt. Cons. Co 24 Speneer v. Barnett 209 Spence v. Ham 117, 128 Spicer v. Snyder 237 Spring V. Collins Bldg. Co. . . . 8 jproessig v. Kentel 127 Spruck V. McRoberts .20, 53 382 Stapleton v. Mayer 432 Stallman v. Kemberly 514 Stanton v. Gohler 31 State Trust Co. v. Cassino Co 576, 578 Stalubsandt v. Lennon 201 Steamboat America 456 Steeves v. Sinclair 61 Steiger v. London 110 312, 324 Stephens v. Perrine..S61, 565, 569 Stern v. McKee 358 Stern v. Rosenthal 482 Stcnerwald v. Gill 422 Stevens v. Coolidge 319 Stevens Brevping Co. v. East- ern Brewing Co 563 Stiet V. Drumgold 489 Strauchen v. Pace ... 88, 195, 209 274 Strauss v. Hanover Realty & Cons. Co 135 Striker v. Cassidy 23 Stuart V. Palmer 510 Sullivan v. Brewster 107 Sullivan v. Goodwin 284 Supply Co. V. Sohirmer 595 Sunshine v. Morgan 54 Statzinger v. Chebra Chaii Odom Anshi Muinsk 194 Stevens v. Odgen 232 Swasey v. Granite Spring Water Co 24 Sweeney v. City of N. Y.. .98, 99 1G6, 167 Page Talkow V. Metropolitan Ins. Co: 230 Taylor v. Butcher. . 129, 263, 439 Taylor v. Dutelier 263, 439 Taylor v. Esselstyn 592 Taylor v. Goelet 76 Taylor v. Smith 42 Teaz V. Christie 129 Teeman v. Lustbader 32, 34 Tenick v. Lactor 16 Terwilliger v. Wheeler ..218, 422 431 Texas R. R. Co v. Marshall. 15 The Arctic 446 The Belfast 450 The Blaireau 453 The Catherine Whiting 446 The Elfreida 454 The Lottowanna : 446 The Pacific 447 The Robert W. Parsons 450 Thompson Starrett Co. v. Brooklyn Heights Realty Co 16, 23, 114, 429 Thomson Co. v. Vacheron . . . . 539 Thourot v. Delahaye Import Co 519 Tibbits V. Phipps 380 Tice V. Atlantic Cons. Co.... 141 Tidsdale v. Moore 395 Tidsdale Lumber Co. v. Drogue 376 Tidsdale Lumber Co. v. Read Realty Co 229 Tifft V. Horton 593 Tinley v. Van Wert 113 Tinsley v. Smith 60 Titusville Iron Co. v. City of N. Y 39, 41, 554 Toledo Computing Scales Co. V. Borak 341 Tommasi v. Archibald. . .181, 207 Tompkins v. Fonda Glove Lining Co 595 XXVIU Table of Cases Cited. Page Tompkins v. Hunter 540, 865 Tooker v. Rinaldo 6, 396 Tooker v. Seigel-Cooper Co... 561 Toop V. Smith 193, 396 Townsend v. Work 442 Trader's Natl. Bank v. Boldt. 429 Tremain v. Mortimer 565, 569 Troy Works Co. v. Yonkers. 48 Turbidy v. Wright 35 Twedie v. Clark 601, 613 u. Underhill v. Jordan 243, 317 Union Stove Works v. Kling- man 16, 95, 201, 202 Upson V. United Engineering Co 106, 295 Uvalde A. Paving Co. v. City of N. Y 194, 217, 241, 373 Vacuum Cleaner Co. v. Bdwy. Cortlandt Co 136 Valentine v. Applebee 72 Valett V. Baker 440 Van Brenner v. Cooper 38 Van Clief v. Van Veehten... 104 105, 112 Vandergrift v. Berton 81, 357 Van Dewater v. Gear 543 Van Kennel Revolving Door Co. V. Sloane . . . . ; 102, 238, 366 Van Zant v. Hanover Bank. . 319 Vincingnerra v. Japan 594 Vitelli V. May 188, 283, 286 298, 301 Vogel V. Ferrand 95 Vogel V. Lintweiler 199 Volckers v. Sturke 560 Von Den Dreisch v. Rohrig. . 400 Vossler v. Slater 68 Wagner v. Butler . 180 Page Wahle Phillips Co. v. 59 St. Madison Ave. Co H, 16 53, 97 Wahle Phillips v. German Theatre 97 Walker v. Brown 315 Walkman v. Henry 197 Walls v. Bailey 382 Walsh v. The Mayor 165 Ward V. Kilpatrick 17, 95 201, 257, 261 Waring v. Clark 456 Washington Trust Co. v. Morse Iron Works 576, 600 613 Water v. Gerard ...496, 615, 619 Waters v. Goldberg 189 Watrous v. Elmendorf < 427 Watson V. Dealy 571 Watson & Pittinger v. Hobo- ken Planing Mill Co 490 Watts-Campbell Co. v. Yueng- ling 16, 94 Webb V. Van Zandt 32 Webber Co. v. Hearn C, 99 109, 396 Weeks v. Little 127 Weeks v. O'Brien 135, 136 Weeks & Son v. Webb 389 Wehl V. Butler 543 Weinberg v. Schrank 316 Weisman v. City of Buffalo. 104 Wells V. Coin Exchange Bank 336 Welsh v. The Mayor 251 West V. Bacon 492 Westergern v. Pabat Brewing Co 194 Westgate v. Shirley 219 Westinghouse El. Co. v. New Paltz Traction Co 588 Weyer v. Beach 422, 423, 430 Wexler v. Rust 80 Wharton & Co. v. Winch 109 Wheeler v. Lawson 569 Whelan v. Ansonia Clock Co.. 126 614 Table of Cases Cited. XXIX Page Whisten v. Kellogg 402 White V. Gray's Sons 618 White V. Livingston 112, 113 122, 130, 131, 236 White V. Town of EUisburg. 382 Whippel V. Webb 72 Whitney v. Coleman 278 Wick V. Fort Plain & Rich- field Springs E. R. Co.. 175, 431 Willard V. City of N. Y.. .166, 257 Wild V. Porter 558, 571 Willard V. City of N. Y 205 Williams v. Daiker 108 Williams v. Edison Electric Co 232 Williams v. Edison Illumi- nating Co 403 Williams v. Leper 83 Williams v. London 96 Wilson V. Underbill 73 Wilson & Adams Co. v. Mack Paving Co 170, 216 Wing V. Corbin 130 Woarms v. Becker 128 Wolf V. Horn 127 Wolf V. Mendelsohn 181 WolflF V. Hoppell 502 Woolf V. Schaffer 302, 412 Wood V. GriflFenhagen 223 Wood Manf. Co. y. Johnstone. 107 Page Wood Manf. Co. v. Thompson. 73 Woolf V. Schaefer 129, 187 Woodvirard v. Fuller 117 Worthington v. London G. & H. Co 406 Wright v. Reusens 123 Wright V. Roberts 260 Wright V. Sehohairie Valley Co 438 Wuertz V. Braun 575, 620 Wyckoff v. Anthony 319 Wyckoff V. Taylor . . 122, 130, 380 Yellow Pine Co. v. Board of Education 219 Yorke v. Conde 234 Yorke v. Grenaugh 489 Z. Zack V. Gans 116 Zartman v. First Natl. Bank 41 318, 350, 554, 568 Zeigler v. Galvin 72 Zeitlan v. Arkaway 485 Zimmerman v. Jourgensen ... 112 115 Zimmerman iv. Loft 99, 112 THE LIEN LAW OF THE STATE OF NEW YORK [Cliapter 33 of the Consolidated law— laws 190», Chap. 38. Be-enactin^ Lien law of ]897, Chap. 418. In effect Feb. 17, 1909, with all amendments.] The People of the State of New York, represented in Senate and Assembly , do enact as follows: CHAPTER 83 OF THE CONSOLIDATED lAWS. LIEN LAW. Akticle 1. Short title; definitions (§§ 1, 2). 2. Mechanic's liens (§§ 3-25). 3. Enforcements of liens on real property (§§ 40-61). 4. Lien on vessels and enforcement thereof (§§ 80-107). 5. Lien on monuments, gravestone and cemetery structures (§§ 120-124). 6. Liens for labor on stone (§§ 140-142). 7. Liens for service of stallions (§§ 160-163). 8. Other liens on personal property (§§ 180-185). 9. Enforcement of liens on personal property (§§ 200-210). 10. Chattel mortgages (§§ 230-238). 11. Lavrs repealed; when to take effect (§§ 250, 251). AKTICLE I. Short Title — Definitions. Section 1. Short title. 2. Definitions. § 1. Short title. — This cliapter shall be known as the " Lien Law." Ee-enactment of § 1, Lien Law of 1897. 1. Scope and extent. — The legislature of 1909 re-enacted the provisions of the Lien Law of 1897, in force on Febru- ary 17, 1909. Its provisions are now embraced in chapter 33 of the Consolidated Laws, Laws 1909, ch. 38, and will 2 Lien Law — Aeticle I, Sec. 1. be referred to for convenience as Lien Law of 1909. The legislature in enacting a general Lien Law, applicable to the entire State, sought to create a harmonious statute and to assimilate its various provisions so as to embrace all prior legislation on the subject. The Lien Law of 1897 was sub- divided in ten separate articles, in which the various branchea of the subject are grouped, as follows: (1) Mechanics' liens, §§ 1-24; (2) Liens on vessels, §§ 30-35; (3) Liens on monu- ments, gravestones, and cemetery structures, §§ 40-44; (4) Liens for labor on stone, §§ 50-52 ; (5) Liens for services of stallion, §§ 60-63; (6) Other liens on personal property, §§ YO-74; (7) Enforcement of liens on personalty by sale, §§ 80-85; (8) Chattel mortgages, §§ 90-98; (9) Contracts for conditional sale of goods, §§ 110-118; (10) Kepealing clause, when act to take effect, §§ 120, 121. a. In February, 1909, the legislature, as has been ob- served in the Preface, re-enacted the Lien Law of 1897, as chapter 33 of the Consolidated Laws, and rearranged and reclassified its provisions as follows: Articles 1 and 2 (§§ 1-25) embrace the provisions of the Lien Law of 189^7, as to liens on real property and municipal liens; Article 3 (§§ 40-61) contains the law with regard to the enforcement of liens on real property which was formerly embraced in chapter 22 of the Code of Civil Procedure, sections 3398- 3341; Article 4 (§§ 80'-104) contains the law with regard, to liens on vessels and the enforcement thereof; Article 5i (§§ 120-124) contains the law with regard tO' liens on monu- ments, gravestones, and cemetery structures; Article 6: (§§ 140-142) contains the lav7 with regard to liens for labor on stone; Article 7 (§§ 160-163) contains the law with re- gard to liens for service of stallions; Article 8 (§§ 180-185) contains the law with regard to liens on personal property; Article 9 (§ 210) contains the law with regard to the en- forcement of liens on personal property; Article 10 (§§ 230- 23'8) contains the law with regard to chattel mortgages; Article 11 (§§ 250-251) contains a schedule of the repealed laws and when the Consolidated Laws take effect. The Lien Law of 1897, Article 9, containing the provision of the stat- ute with regard to Conditional Sales of goods (§§ 110-118) have been eliminated from the Lien Law and now form part of the Personal Property Law, chapter 41 of the Consolidated Extent and Scope. ' S Laws, and are classified in article 4, sections 60-67. As con- tracts of Conditional Sales create liens upon personal prop- erty, and form part of the substantive law of liens, the entire article will be found at pages 449-441, fost. In view of the fact that the Lien Law remains as it was immediately before the Consolidated Laws were passed, all decisions under the Lien Law of 1897 are applicable, and are cited under the respective sections as contained in the Consolidated Laws. 6. The legislature in 1911 added a new section to the Personal Property Law to secure the repayment of loans for advances upon merchandise. The act took effect June 13, 1911, and will be found post, page — . In 1911, by chapter 571 of the laws of that year, the leg- islature also amended the Personal Property Law in rela- tion to the sale of goods. This act took effect on the first day of September, 1911, and authorized a lien on behalf of the vendor for the purchase price of the goods sold after the delivery of the same. This law authorizes the seller not only to stop goods in transitu, but also upon a buyer's insolvency, and sets forth the rights and remedies of the vendor in detail. The provisions of this law will be found after the article on contracts for the conditional sale of goods and chattels, post, page — . c. The Court of Appeals, in construing the extent and scope of the Lien Law, has declared that the intent and de- sign of the legislature was to create and assimilate the vari- ous statutory regulations as to liens into one homogeneous enactment and that its provisions should be held to be ap- plicable to all liens, unless the language of a particular sec- tion evidences a different intent, or where, f;rom the nature of the subject, regulations as to one class are inapplicable to the other. Brace v. City of Gloversviille, 167 N. Y. 452. d. The act and all of its provisions should be construed as far as practical as a homogeneous whole to secure the benefi- cial interests and purposes thereof. McDonald v. The Mayor, 170 JST. Y. 409. e. It is expressly declared to be a remedial statute, to be construed liberally, to secure the beneficial purposes thereof, and that a substantial, not a literal, compliance shall be suf- ficient to support the lien, and the courts will use every effort 4: LiEif Law — Aeticle I, Sec. 1. in giving effect to its provisions to do substantial justice be- tween the parties. Single v. Wallis Iron Works, 149 N. Y. 4:39; Murphy v. SticMey Simonds Co., 82 Hun, 158 ; Bryson V. 8t. Helen, 79 Hun, 167; s. c, 61 St. Eep. 390, 29 N. Y. Supp. 524. Constitutionality of Lien Law. 2. Constitutionality. — The law creating a lien is remedial in its nature. It creates a remedy. It is designed primarily to secure the laborer, contractor, or materialman, by making his claim a lien upon the land or property upon which ht has labored, or for which he has furnished materials. It has been held that the legislature may not only invent remedies, but may also create rights. Bertholf v. O'Beilly, 74 jST. Y. 509. But whatever rights or remedies the legislature may see fit to enact must not conflict with the organic law. The sovereign people have set bounds to their power by adopting a Constitution. All power not hedged in or restricted hy that instrument inheres in the people and may be exercised by the legislature in what form soever it may deem proper. In enacting a Lien Law the legislature did not create a new cause of action, but invented a new remedy. The cause of action is the debt or contract obligation. The Lien Law se- cures the debt, even before it accrues, because a notice of lien may be filed after the commencement of the work at any time prior to its completion. By the Lien Law the legislature gives the creditor the right to make his debt a lien on the property of the debtor and to enforce this lien in a court of equity without a jury. a. The statute has even clothed inferior courts, not of record, with certain limited jurisdiction in this particular class of cases applicable ony to this exclusive statutory rem- edy. But these inferior courts cannot exercise equity juris- diction and are not authorized to foreclose the lien by direct- ing a sale of land and a distribution of the proceeds. Such courts can only award a money judgment, establishing the amount of the debt secured by the lien, and an execution upon such judgment may be issued, upon which the right, title, and interest which the judgment debtor had in the land when the lien was filed may be sold by virtue of an execution. Constitutionality of Lien Law. 5 i. In a court of record, however, having equity jurisdic- tion, the lien creditor, by virtue of the statute, may not only establish the amount of his debt and secure a decree authoriz- ing him to sell the property to which the lien attaches and devote the proceeds to its payment, but he may also have judgment in personam against the debtor, enforceable by exe- cution against any property belonging to him, as in an action at law. c. The apparent objections to the constitutionality of such a law are manifest. It creates a dual remedy, partaking of the nature of a proceeding in rem in an equity suit, as well an action in personam cognizable only in a court of law. d. The assaults which have been made to test the validity of the Lien Law have been the attempts to establish the doc- trine that the right to trial by jury guaranteed by the seventh amendment to the Federal Constitution has been impaired and destroyed by legislation of this character. But these attempts have thus far failed, and the courts have uiformly sustained the constitutionality of such legislation. In this connection it is interesting to note the skill and learning which have been employed to sustain the validity of these remedial statutes. 3. Constitutionality — Trial by jury. — The seventh amendment to the Constitution preserves to every suitor the right to trial by jury in a common-law action where the amount in dispute exceeds $20. It declares : a. " In suits at common law, where the value in contro- versy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be other- wise re-examined in any court of the United States than according to the rules of the common law." — U. S. Const., Seventh Amendment. h. The foundation of every lien is a debt created by con- tract, express or implied. The lienor, in order to succeed in his action, must allege and prove the debt. He must estab- lish the contract and its performance, or part performance, and ask for a sale of the right, title, and interest of the debtor in the land. The defendant must of necessity put the debt in issue, and he may invoke the constitutional provision giv- ■6 LiEif Law — Aeticle I, Sec. 1. ing him the right to try that issue before a jury. It has been, upon this ground that the constitutionality of the Lien Law has been chiefly assailed. c. The answer to the constitutional objection is two-fold: IFirst. The right to trial by jury exists upon the issue of any indebtedness, or as to whether there has or has not been a breach of contract, which authorizes a lien for work per- formed or materials furnished prior to the breach. This right is not taken away by the terms of the statute. If, how- ever, the right is not invoked, it is waived by the parties. Second. A compulsory accounting may be ordered in a suit to enforce a mechanic's lien in certain cases, d. If it be shown that a long account is involved, which requires the production of books of account and detailed items, the court has power to grant a compulsory reference. The Court of Appeals has held that in this class of cases a compulsory reference is proper. Deeves v. Metropolitan, etc., Co., 6 Misc. 91, affirmed, 141 K Y. 587. See also Gassidy V. McFarland, 139 N. Y. 201; TooTcer v. Rinaldo, 11 Hun, 154 ; Webler Co. v. Heam, 7 App. Div. 306. e. But it was questioned for a long time whether a defend-, ant was entitled as matter of right to a jury trial in a me- chanic's lien action. Kervny v. Apgar, 93 N. Y. 539 ; Biggs V. Shannon, 16 JST. Y. Supp. 939 ; s. c, 44 St. Rep. 365, 27 Abb. K C. 465, 21 Civ. Proc. E. 431. 'J /. This right, however, is clear, unless it has been waived by the parties. The courts, therefore, in order to sustain the law, invoked the provisions of the Code of Civil Pro- cedure embraced in sections 970 and 823, which relate to the mode of framing issues to be tried before a jury. It will be observed that there are two distinct sections of the Code ap- plicable to this subject. In an action cognizable only in a court of equity, a party is not entitled to trial by jury as matter of right. But the court may, if it sees fit, direct that any question of fact arising in an equity action may be tried by a jury pursuant to section 823 of the Code. But the find- ings of the jury are not conclusive, and they may be adopted or disregarded by the court. This proceeding is substituted for the former proceeding in chancery directing feigned issues. CONSTITUTIOWALITT OF LlEW^ LAW. 1 g. But wheie a party is entitled under tiie Constitution or by express provision of luw to a trial by jury on any issue of fact, the court must, upon proper application, direct the trial of such issues by a jury pursuant to section 970 of the Code, and the verdict of the jury is conclusive upon the court. h. A party, however, is not bound to go before a jury on issues framed for that purpose. He may waive such right expressly or by implication. Section 1009 of the Code pre- scribes when and under what circumstances a party will be deemed to have waived his right to a jury as follows : (1) By failure to appear; (2) by filing a written waiver; (3) by oral consent; (4) by moving the trial, or failing to demand a jury before evidence is offered. And these provisions as to waiver by implication of a constitutional right have been held to be valid. McKeUar v. Rogers, 109 IST. T. 468. i. With the aid of these provisions of the Code of Civil Procedure the courts have sustained the validity of the Lien Law, because the right of a party to a jury trial may be had if applied for in season. And the same rule applies where a defendant in an action to foreclose a lien sets up a coun- terclaim and demands damages in money from the plaintiff. He may have such countercalim tried before a jury by mov- ing for it before any evidence is offered at the trial pursuant to section 100'9 of the Code, or pursuant to the provisions of section 970. Beeves v. Metropolitan Co., 6 Misc. 91, af- firmed, 141 N. T. 587; Schillinger Cement Co. v. Arnoit, 152 N. Y. 584; Bradley Currier Co. v. Eerier, 23 Civ. Proc E. 408; Hawkins v. Mapes-Beeves Construction Co., 82 App. Div. 72, affirmed, 178 N. T. 236, /. This authority allowing a jury trial in this class of actions furnishes also a complete answer to the objection that a judgment in personam is also authorized in an action seek- ing a sale of the property to satisfy the judgment. A judg- ment in personam may be rendered after a jury trial, and a jury trial may be had by either party on proper applica- tion. There is no force in the argument that because the remedy afforded is a dual one, being in the nature of a pro- ceeding in rem, as well as an action in personam, it is, there- fore, unconstitutional. A party is entitled to all the remedies he can lawfully resort to — cumulative remedies, dual reme- 8 Lien Law — Article I, Sec. 2. dies, plural remedies. But he can Lave but one satisfaction. Robinson p. Fay, 19 K Y. Supp. 120; s. c, 46 St. Rep. 369. See also Baven v. Smith, 87 Hun, 90. k. This question has also heen discussed in the Supreme Court of the United States, and that tribunal has declared that the dual nature of the remedy provided for in actions sanctioned by this class of legislation does not render such legislation unconstitutional. Davis v. Alvord, 94 U. S. 545. 4. Must move for jury before production of any evidence. — ^A party, if he desires a jury trial in a mechanic's lien ac- tion, as has been observed supra, must demand it before the production of any evidence. Where at the close of plaintiff's case, defendant moved to dismiss the complaint, because plaintiff failed to establish a valid lien, and that the re- maining issues be tried by a jury, held, that the motion for a jury trial was made too late, and the question as to plaintiff's right to a personal judgment must be tried by the court, which gave judgment for plaintiff for the amount due. Spring v. Collins Building Co., 60 Misc. 239. See also " Personal Judgment, Trial by Jury," § 54 post, page 422. Damages. — The statute authorizes a mechanics' lien only for the value of labor performed and materials furnished. It does not authorize a claim for damages for breach against the ovraer for refusing to allow the work to be performed by the contractor. Such damages can be recovered only in an action at law. Midtown Contracting Co. v. Ooldsticker, 165 App. Div. 264. But where the plaintiff unites in his complaint a cause of action for anticipated profits arising, from the breach of contract upon which his lien is founded, although no recovery can be had upon the lien for such profits, yet a court of equity having jurisdiction to enforce the lien contract, may retain control of the entire controversy and award judgment thereon. In such an action plaintiff is entitled to an order directing the defendant to be examined before trial. Cooper, Etc., Go. v. Manhattan Bridge Three Cent Line, 164 App. Div. 64^ See also as to damages post, pages 379, 391. Defihitiobts. 9 § 2. Definitions. — Lienor. — The term "lienor," when used in this chapter, means any person having a lien upon property by virtue of its provisions,- and in- cludes his successor in interest. Real property. — The term " real property," when used in this chapter, includes real estate, lands, tene- ments and hereditaments, corporeal and incorporeal, fixtures, and all bridges and trestlework, and struc- tures connected therewith, erected for the use of rail- roads, and all oil or gas wells and structures and fix- tures connected therewith, and any lease of oil lands or other right to operate for the production of oil or gas upon such lands, and the right of franchise granted by a municipal corporation for the use of the streets or public places thereof, and all structures placed thereon for the use of such right or franchise. Owner. — The term " owner," when used in this chapter, includes the owner in fee of real property, or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of such real property, and all persons having any right, title or interest in such real property, which may be sold under an execution in pursuance of the provisions of statutes relating to the enforcement of liens of judgment, and all persons having any right or franchise granted by a municipal corporation to use the streets and public places thereof, and any right, title or interest in and to such franchise. The pur- chaser of real property at a statutory or judicial sale shall be deemed the owner thereof from the time of such sale. If the purchaser at such sale fails to com- plete the purchase, pursuant to the terms of the sale, all liens created by his consent after such sale shall be a lien on any deposit made by him and not on the real property sold. 10 Lien Law — Article I, Sec. 2. Improvement. — The term " improvement," when used in this chapter, includes the erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement, and shall also include any work done or materials furnished in equipping any such structure with any chandeliers, brackets or other fixtures or apparatus for supplying gas or electric light. Public improvement. — The term " public improve- ment," when used in this chapter, means an improve- ment upon any real estate belonging to the state or a municipal corporation. Contractor. — The term " contractor," when used in this chapter, means a person who enters into a contract with the owner of real property for the improvement thereof. Sub-contractor. — The term " sub-contractor," when used in this chapter, means a person who enters into a contract for the improvement of such real property with a contractor, or with a person who has contracted with or through such contractor for the performance of his contract or any part thereof. Laborer. — The term " laborer," when used in this chapter, means any person who performs labor or serv- ices upon such improvement. Material man. — The term " material man," when used in this chapter, means any person, other than a contractor, who furnishes material for such improve- ment. (As amd. Laws 1914, chap. 506, in effect April 23, 1914.) Lien Law of 1897, § 2, re-enacted by Laws 1909, chap. 38. Definitions. 11 1. Amendment of 1914. — The legislature by chapter 506 of the Laws of 1914, amended section 2 of the Lien Law, by adding to the definition of the term " improvement " words to include " work done or materials furnished in equipping any structure with chandeliers, brackets or other fixtures or apparatus for supplying gas or electric light." This amendment enacts as part of the statute, the principle de- clared in Wahle Phillips Co. v. 59th St. Madison Ave. Co., 153 App. Div. 17, where it was held that fixtures specially designed with reference to the general decorative scheme and architecture of a theater, was an improvement within the meaning of section 2 of the Lien Law. See authorities un- der section 4 of the Lien Law, post, page 86. Real property — Gas and electrical fixtures. — Prior to the amendment of 1914, to section 2 of the Lien Law, Mr. Justice Clarke, writing as to the question of whether gas and elec- trical fixtures were an " improvement " to real property within the meaning of the statute, held that they were in- cluded within the broad and general terms of the Lien Law of 1909, which was not intended to restrict or cut down, but to be more liberal than any prior statute on the subject. The majority of the Court, however, were of the opinion that such electrical fixtures and equipments of the value sued for, were not fixtures within the meaning of the Lien Law. In that case, however, the judgment below was reversed upon the ground of error as to the exclusion of evidence. Cald- well V. Glazier, 138 App. Div. 826. Mr. Justice Ingrahm, writing for the majority of the Court on this point, stated that the fixtures were for the tem- porary use of the occupant, subject to be removed by him when he vacated the premises and have no relation to the permanent improvements of the property or the enhancement of its value. lb. 2. Definitions — Legal effect of. — The legal effect of the various definitions embraced in this section is to extend the scope and meaning of the Lien Law of 1897, so as not only to cover everything embraced in the Lien Law of 1885, which was meant to embrace all prior legislation and decisions, but to broaden the law, in order to make its provisions as ex- tensive and liberal as may be consonant with constitutional authority. 12 Lien Law — Aeticle I, Seo. 2. a. The Law of 1885 (Laws 1885, chap. 342) was the first general Lien Law passed in this State. It superseded sev- enteen separate statutes, passed at divers times from 1846 to 1882, affecting liens in various localities, and was the first attempt to make a general Lien Law uniformly applicable throughout the State. But this law applied only to liens upon private property. Liens upon mitoicipal property, ex- cept in l^ew York city, were embraced in Laws 1878, chap. 315, which was made applicable to all cities in the State. Its provisions were in turn embraced in the Consolidation Act (Laws 1882, chap. 410) in order to make them appli- cable, as far as possible, to the city of ITew York. Liens upon railroad property were embraced in Laws 1875, chap. 392, and liens upon oil wells were covered by Laws 1880, chap. 440. The subjects covered by these various statutes, which were in force when the Lien Law of 1897 was passed, may be grouped as follows: 1. Liens on private property. S, Liens on municipal property. 3. Liens on railroads. 4. Liens on oil wells. In 1891 and 1892 the Lien Law of 1885 was amended to extend to property of " any municipal cor- poration, county, town, or village." &. The Lien Law of 1897, now embraced in chapter 33, Consolidated Laws 1909, wasi intended t<» cover the entire subject embraced in all prior legislation. This object is ac- complished in a measure by the use of the definitions con- tained in second section of the law. The importance of these definitions is apparent upon a closer scrutiny. 3. Public improvements — Municipal corporation. — It will be noticed that the term " public improvement " is de- clared to embrace " an improvement upon any real property belonging to the State or a municipal corporation." The words " municipal corporation " are defined by the general Corporation Law (Laws 1892, chap. 687, § 3) to include a county, town, school district, village, and city, and any other territorial division of the State established by law, with powers of local government. By these definitions, therefore, the Law of 1897 authorizes a lien for work upon the prop- erty of the State, as well as municipal corporations. The lien, in the absence of an express statutory provision, will not attach to the public lands or buildings, but is confined by the express provisions of the statute to the moneys of such Definitions. 13 corporation applicable to the construction of public improve- ments, and in this respect differs from liens for work upon priyate property, which attach to the freehold. Leonard v. City of Brooklyn, 71 N. Y. 498. a. The Law of 189Y is made broader than the Law of 1885, in this respect, in that it extends the lien to funds be- longing to the State applicable under a contract for a public improvement. 4. Real property — Improvement. — It will be observed that the law extends the lien to the real property improved or to be improved (§3), and the lien is authorized for labor, materials, or services furnished for the "improvement" of " real property." The words " real property " are made to embrace every species of real property, including corporeal and incorporeal hereditaments, fixtures, bridges, trestle work, railroads, oil and gas wells, right to operate gas and oil wells, and public franchises of every kind. Thus the objects covered by all prior lien laws are extended by the use of this definition of " real property." 5. Permanent. — In like manner also the word " improve- ment " is defined to mean a " permanent " improvement. The effect of this language is to broaden the scope of the act. Under the Law of 1885 the lien was given for "erecting, altering, or repairing " a house or structure. By amend- ment the statute was extended to include the claims of per- sons who furnished gas fixtures, chandeliers, and electric- light fixtures. The furnishing of these articles could not be construed as either " erecting, altering, or repairing " the building. A subsequent amendment extended the law to include claims for grading, terracing, and sodding, and sub- sequently to claims for dredging, filling in, grading, or im- proving swamp lands or marshes, meadows, or lands under water. a. It will be observed that the legislature extended the lien so as to embrace not only work in "erecting, altering, or re- pairing " a house or structure, and the lot on which it stood, but made it applicable to rural property, which was perma- nently improved, and extended it to embrace not only a house or structure, but any wharf, pier, bulkhead, bridge. 14 Lieu- Law — Aeticle I, Sec. 2. vault, building, or appurtenance. Under the definition given to the term " improvement of real property," the Lien Law of 1897 is made to cover the subjects to which all prior lien laws were made applicable, including public property, private property, railroads and bridges, oil wells, gas wells, and all iinds of public franchises, and structures connected there- with, leases and grants to operate leased lands by taking sub- stances therefrom. 6. Permanent improvement. — By discarding the words " erecting, altering, and repairing," and substituting lan- guage authorizing a lien for any work done on real property or materials furnished for its " permanent improvement," the scope of the statute is extended to its practical limit. If it can be shown that what was done was for the permanent improvement of any realty, it matters not whether the work was done upon a building or structure, a bridge, vault, rail- road, oil well, upon farm land, or upon urban property, upon a city lot, or upon suburban real estate. If the real prop- erty was thereby " permanently " improved the lien is authorized. a. A lien was sustained against an owner of 162 acres of meadow lands, along a creek, for excavating, dredging, en- larging and deepening the creek, by means of hydraulic dredges, constructing levees, and basins for yachts, and ex- cavating and filling in as required by the terms of the con- tract, Atlantic Gulf and Pacific Co. v. Wood-mere Realty Co., 156 App. Div. 351. b. In this connection the word " permanent " associated with the word " improvement " is important. In the ab- sence of this word any improvement upon realty might au- thorize a lien therefor. The hired man who mowed the lawn, the farm hand who ploughed the field, or sewed the grain, the gardener who trimmed the trees or cut the shrub- bery might file liens upon the property for his labor. Such services are, however, in their nature temporary, and must be repeated with the recurring seasons. Obviously, services, or labor of this character, do not constitute " permanent im- provement " of real property within the meaning of the statute. But the term " permanent improvement " was doubtless intended to include terracing, sodding, dredging. Definitions." 15 draining, filling, and grading, making or repairing side- walks, paper hanging, painting, and tlie like. Such work is permanent in its character and improves the land for all time, and liens have been sustained for such improvements. Pickett V. Tollner, 7 N. Y. Supp. 196 ; s. c, 26 St. Kep. 691, was for sodding and terracing. National Wall Paper Co. V. Sire, 163 IST. Y. 122, was for paper hanging and decorat" ing. Frederick v. Goodman Street Homestead Assn., 29 N. Y. Supp. 1041 ; s. c, 61 St. Kep. 650, was for grading road- ways through land to be cut into building plots. Mosher v. Lewis, 14 App. Div. 565, was for repairs to sidewalks. 7. Permanent improvement — Perishable fire brick. — It has been held that the word " permanent " as used in sec- tion 2 of the Lien Law' in connection with work done or materials furnished for the " permanent " improvement of real property, embraced fire brick and fire clay used in the lining of furnaces which constituted a permanent structure, built on stone foundations, and which had been for many years in operation. The clay and brick had been furnished by Hall & Sons, materialmen, to a contractor who subse- ■quently was adjudged bankrupt. The claimants filed a lien upon the real property which embraced the plant used by the bankrupt in the manufacture of malleable iron. The' fire brick and clay furnished were intended for immediate use. It was shown that the intense heat required in the manufacture rendered the brick and clay perishable, making it necessary to constantly repair the furnace lining. It was ripped out and replaced about every two months. The brick as well as the clay were of superior quality and used to pro- tect the outer walls of the furnaces. The life of the bricks in the arch or roof of the furnaces was much less than those in the side walls and base of the stacks which would appar- ently last several months. All the bricks and clay would, however, be destroyed in a relatively short time. Held, by the referee, that such brick and clay were furnished for the " permanent " improvement of the realty to which the lien of the materialmen attached. Matter of Lancaster Malleable Iron Works, U. S. District Court, Western District of New York (ISr. Y. Law Journal, Dec. 2, 1905). a. The referee in reaching his conclusion cited the follow- ing authorities: Texas R. R. Co. v. Marshall, 136 U. S. 16 Lien Law — Aeticie I, Sec. 2. 393-403; Haskell v. Madison University, 8 Barb. 174-185; Meade v. Ballard, 74 U. S. 290. He stated, also, that his conclusion was strengthened by such terms as " perma- nent abode," interpreted in Dale v. Irwind, 78 111. 170; " permanent injury," in Bassett v. Johnson, 2 JST. J. Eq. 154- 162. Some light is also thrown on the subject in Tenich V. Lacior, 69 Hun, 194, and Feeder v. Tan Winkler, 53 N. J. Eq. 370. ISTo appeal was taken from the decision of the referee, which seems to be in harmony with the liberal con- struction which the courts are enjoined to apply to the pro- visions of the Lien Law. 8. Permanent improvement — Destruction of buildings.— Where a contractor agreed to tear down old buildings on the ' land, and erect a new building in their place, the contractor cannot file a lien if he does not proceed with the erection of the new building, where it appears that in performing the services the plaintiff incurred no expense whatever and act- ually received $3,500 over and above the value of the labor, •Clearing the ground preparatory to the erection of a new building is not a " permanent improvement " within the meaning of the Lien Law. Thompson Starrett Co. v. Brook- lyn Heights Realty Co., Ill App. Div. 358. 9. Fixtures. — In this connection, what are or are not fix- tures is important. The statute provides for a lien for labor or services upon " any structure " upon, " connected with," or beneath the surface of any real property, or any work done upon such property, or materials furnished for its per- manent improvement. The courts have held that where the labor and services were connected with fixtures, or where fixtures are furnished, the lien will be sustained. The in- quiry is not only, can the articles be removed without injury to realty, but were the improvements requisite to complete the building and structure and were they intended for the uses and purposes for which it was designed, and in order to render it complete and to promote its profitable sale. Wahle Phillips Co. v. 59th St. Madison Ave. Co., 153 App. Div. 17; Union Stove Works v. KUngman, 20 App. Div. 449, affirmed, 164 N. Y. 689 ; Watts-Oamphell Co. v. Yueng- ling, 125 IST. Y. 1; Schwartz v. Allen, 7 IST. Y. Supp. 5; Dixon V. La Farge, 1 E. D. Smith, 722 ; Grosz v. Jackson, Definitions. 17 6 Daly, 463; Qwimby v. Sloan, 2 E, D. Smith, 594; Ward V. Kilpatrick, 85 IST. Y. 413. The principle involved in these decisions has been em- braced in the language of the amendment of 1914, to the definition of the term " improvement," which now expressly includes work done or materials furnished in equipping any structure with " chandeliers, brackets or other fixtures or apparatus for supplying gas or electric light." See also " Fixtures " under section 4 of the Lien Law, post, page 92. 10. Lienor. — By the term " lienor," as defined in the stat- ute, is included any person to whom a lien has been assigned, ' and the law expressly sanctions the assignment of any lien after the same has been properly filed. The language is that the term " lienor " shall include not only the person who filed the lien, but his " successor in interest." One who per- forms labor or furnishes material on the land is not neces- sarily a " lienor." Until he has secured the -benefits of the Lien Law by complying with its provisions and filing his lien, he is a creditor at large and is not entitled to the rights conferred by the statute. MacJc v. Colleran, 136 !N". Y. 617. And having no rights under the statute prior to filing his lien he can confer none by assignment. Ballin v. Cross, 45 K Y. 766; Roberts v. Fowler, 3 E. D. Smith, 632. But when his lien is filed he may assign it, and his assignee be- comes the " lienor " within the definition contained in this section, as the " successor in interest " of his assignor. 11. Owner. — The term "owner," as defined in section 2 of the Lien Law, is broader and more comprehensive than that contained in any previous statute. This definition em- braces more than was included by the term " owner " in the Lien Law of 1885 (Laws 1885, chap. 342, § 1), which was the first attempt to create a general law as to liens applicable throughout the. State, It not only includes all persons " hav- ing any right, title, or interest " in the real property which may be the subject of the lien, but embraces also, in con- templation of municipal contracts, for public improvements, all persons having easements in streets or public places, in- cluding franchises granted by municipal corporations. The term " owner " in this connection, it will be observed, ap- 2 18 Lien Law — Aetiole T, Seo. 2. plies to all persons having " any right or franchise granted by a municipal corporation to use the si roots and public places thereof, and any right, title, and Jntorest in and to such franchise." An " owner," as herein defined, includcH also a purchaser at a judicial sale; and if, before talcing title, labor or materials am furnished, at Ww. Request or by the con- s(!iit of such purchaser, in case of h'lH Failure to coinplete Iho purchase, a lien will attach to any deposit made hy him; but such lion will not bind the real estate. In view of this broad definition of the term " owner," the ancient authoritJ(!H construing the language of earlier statutes as to who shall be deemed an owner within the purview of the Lien Law are no longer pertinent. There are many such de- cisions construing the meager provisions of local and special acts. Smullen v. Hall, 13 Daly, ;U)2; Loonie v. Ilocjan, 9 N. Y, 435 ; McDermoti v. Palmer, 11 Barb. 9 ; Muldoon v. Pitt, 54 N. Y. 269; Ombony v. Jones, 19 N. Y. 2:54; Cox V. BrodericJc, 4 E, I). Smith, 721. 12. Owrner — Public library — Estoppel. — The New York Public Library, Astor, T.enox and Tilden Foundation, is a corporation organized for the purpose of carrying out the gifts of Andrew Carnegie, who sought to establish public libraries throughout the country. The corporation acquired various sites for library purposes, including what is known as Public Library, No. 12, at St. George, Staten Island. A lien was filed against the corporation, the New York Public Library, Astor, Lenox and Tilden Foundation, which (ex- ecuted a contract with the Vreeland Building Company for the building thereof. The latter made a contract with de- fendant Commeau for part of the work and Commeau sub- let part of the contract to plaintiff. The latter recovered judgment. The contractor, the Vreeland Company, alone appealed, and contended that the New York Public Library, Astor, Lenox and Tilden Foundation, had no interest in real property improved to which plaintiff's lien could attach. Held, in view of the fact that the Vreeland Company ex- ecuted its contract with the New York Public Library, aa owner, and that plaintiff testified that he made inquiries at Vreeland's office as to who the owner was and was told that the New York Public Library corporation was on the build- ing permit, that as between plaintiff and the contractor Definitions. 19 Vreeland Company, the latter is estopped from denying the ownership of the public library as against the plaintiff. Reiser v. Commeau, 129 App, Div. 490; affirmed 198 N. Y. 560. The owner will be deemed to be the owner until his deed conveying the property has been recorded. Indeed, section 13 of the Lien Law, re-enacting the provisions of the Lien Law of 1885 (Laws 1885, chap. 342, § 5), expressly de- clares that a lien shall have priority over an unrecorded con- veyance. In one case a conveyance was attempted to be re- corded, but the acknowledgment was defective. The defect was cured by a proper acknowledgment, and the conveyance was again recorded. The court held, under section 5 of the Act of 1885, which has been re-enacted by section 13 of the Lien Law of 1897, that the first conveyance was not recorded, and that a lien filed thereafter, before the conveyance was recorded, was entitled to priority. Lemmer v. Morrison, 89 Ilun, 277. 13. Contractor — Subcontractor. — The terms "contrac- tor " and " subcontractor," as defined in the statute, was in- tended to embrace all persons having contracts either with, the " owner " or with the person with whom the owner con- tracts. Within this definition only the person or persons who contract directly with the " owner " are contractors. If parties make contracts with any " contractor " they be- come within the above definition " subcontractors." It would seem to follow that one who claims a lien predicated on the consent of the owner, express or implied, independent of any contract with such owner, does not fall within the definition of a subcontractor. Persons claiming liens based upon the doctrine of consent usually perform work for a tenant who has no contract with his landlord ; and the claim is made that the work is done with the knowledge and acquiescence of the owner and not by virtue of any express contract with him, or with one with whom he has contracted. If however, work is done at the request of a person who has a contract with the owner, or at the request of one who haa contracted with the party who has contracted with the owner, he can claim a lien as a " subcontractor " and will not bo obliged to prove the consent of the owner, either express or implied. This conclusion seems to be justified by the lan- guage of the next section (Laws 1897, chap. 418, § 3), 20 Lien Law — Aeticle I, Sec. 2. which, gives a right to lien to one performing lahor or fur- nishing materials with the consent or at the request of the owner, or his agent, contractor, or suhcontractor. 14. Materialman. — A materialman is one who sells goods, wares, and merchandise for the improvement of real prop- erty, and performs no labor in connection therewith, except to deliver the goods. "They are," says Houston, J. (in 'Curlett V. Aaron, 6 Houst. [Del.] 477), " gentlemen in trade who do not follow the business of contracting to build homes for others, but who keep for sale some materials that enter largely into buildings." In this respect his rights differ from a contractor or subcontractor. Every materialman is a contractor, because every sale is a contract. If a material- man seeks to enforce a lien for materials sold to a contractor or subcontractor upon the ground of the owner's consent, such consent is based upon a contract within the meaning of the Lien Law, either express or implied. It is express when the owner, although he did not directly purchase the mater- ials, consents that they should be used to enhance the value Df his property by some affirmative act, showing his approval. It is implied, by such conduct on the part of the owner as in- dicates his willingness that the materials shall be used for the improvement of his property evidenced by his acquiesc- ence or tacit approval, whereby he secures a substantial bene- fit. He cannot knowingly take another man's property, val- uable to him, and from which he derives substantial pecu- niary gain, and avoid payment. But mere knowledge is not sufficient to establish consent, unless accompanied by acts and conduct which create an estoppel. Spruck v. McRoherts, 139 N. Y. 193 ; Reiser v. Commeau, 129 App. Div. 490 ; affirmed 198 N. Y. 560. a. " The term ' materialman,' as defined by the statute and limited by the decisions," says Page, J., after reviewing the authorities, " refers to those who are not engaged in the construction of buildings or improvements upon real estate, but in producing or selling to contractors, materials which are incorporated in, or attached to the realty, by the labor of others." It is not material, in this connection, whether the materials furnished were in stock, when ordered, or whether they were made after they were orderd by a contractor. Chambers v. Vassars' Sons & Co., Inc., 81 Misc. 562. Definitions. 21 h. A dealer in plumbing materials, who agreed -with the contractor to install such materials in the premises, became financially embarrassed. The materials were furnished by another corporation directly to the contractor, who charged the same on its books to such contractor. Held, that the con- tractor was primarily liable to the materialman who fur. nished the materials, and not as guarantor. Chambers v. Vassars' Sons & Co., Inc., 81 Misc. 562. c. The notion that a materialman, if he sells directly to the owner, becomes a " contractor," and that in order to come within the purview of the statute, he must sell directly to a ■contractor or subcontractor, is not tenable. The confusion on this point arises from the definition of the word " contrac- tor " which the statute defines as " a person who enters into & contract with the owner of real property for the improve- ment thereof." Then follows the brief definition of " ma- terialman " which the statute declares to be " any person other than a contractor, who furnishes material for such im- provement." This language, however, does not exclude from the statutory definition of " materialman " one who " enters into a contract with the owner " for the sale of materials for the improvement of his property. He is a contractor of •course. Every sale involves a contract. But a " material- man " is distinguished from a " contractor " within the mean- ing of the Lien Law, by reason of the fact that the latter per- forms an executory contract " for the improvementt " of the property, which involves work, labor, and services in its ex- «cution. The " materialman " simply executes a contract, for the sale and delivery of goods, or furnishes them with the implied consent of the owner. d. A materialman does not make any contract " for the im- provement of real property," within the meaning of the stat- ute. In this connection, Mr. Justice Blackmar, in award- ing a preference to a lumber company, who furnished ma- terials to a contractor upon the ground that it was a "ma- terialman " and not a subcontractor, observed, " that the con- tract to furnish lumber was not a contract for the improve- ment of real property, neither did the lumber company ob- ligate itself to complete any portion of the main contract between the contractor and the owner. The extent of the ■contractual obligation of the lumber company was to make 22 Lien Law — Article I, Sec. 2. delivery of certain lumber at a certain time and place for a specified price. In my opinion, the transaction was simply a sale and brought the lumber company within the definition of the term ' materialman.' It is doubtless true that the giving and aceptance of orders constituted a contract and it may, therefore, be said that the lumber company did contract with the general contractor. But every sale is the culmina- tion of a contract, express or implied; and if it can be suc- cessfully contended that a sale to a contractor makes the seller a subcontractor on the theory that a sale is a contract, it is difiicult to say what state of facts or what transaction would clothe a person with a character of a 'materialman.' '' Hedden Construction Co. v. Proctor & 0. Co., 62 Misc. 129. See also Herman & Grace v. City of New Yorh, 130 App. Div. 531; affirmed 199 N. Y. 600. 15. Laborer. — The term " laborer," as defined in the stat- ute, applies universally to " any person " who performs labor or services. This term, " any person," as we shall show presently, is not confined to those who toil or perform only manual labor, because it is used in connection not only with those who " labor," but also with those who " perform serv- ices," which term includes professional services. The stat- ute also distinguishes the " laborer " from the " material- man." The latter is not a contractor within the definition prescribed by the statute. a. But if materials are furnished without an express con- tract with either the owner, contractor, or subcontractor, the party furnishing would still be a "materialman," under the definition of section 2, when read in connection with section 3 of the Lien Law, if such materials were furnished at the request, or with the consent, of either. 16. Labor or services.— The term " laborer," however, was intended to include not only persons who toil or perform manual labor for daily or weekly wages, but those who " per- form services." The word " services " in this connection has wide and extensive application. The language of the Lien Law of 1885 (Laws 1885, chap, 342, § 1) conferred the benefits of the statute to those who performed " any labor or service " and is the first instance where the word " service " was imported into laws of this character. But courts have Definitions. 23 been liberal in construing the term " labor " in this connec- tion and have held the term to. apply to skilled as well as un- skilled labor, and professional services as v^ell, wben per- formed by engineers, architects, or draughtsmen. a. Under the Act of 1885 (Laws 1885, chap. 342, § 1) the court refused to allow a lien for legal " services " claimed by counsel who procured the right of way for a railroad com- pany, notwithstanding the claimants had the custody of the contracts, deeds, and other papers connected with the trans- action. Hilton Bridge Co. v. N. Y. Central B. B. Co., 145 N. Y. 390. b. Under the broad provisions of the Lien Law of 1897, which includes in the term " owner " all persons having any right or franchise granted by a municipal corporation to use the streets or public places thereof, it may be doubted whether the authority above cited is any longer applicable. There could be no doubt on this point were it not that section 6 of the act uses the term " any labor " in connection with work done for a railroad corporation. It is significant in this re- gard that the words " or services " employed in this connec- tion in section 2 is omitted from section 6 relating to rail- roads. c. But the courts, as has been observed, have sustained liens for the professional services of draughtsmen and archi- tects who have aided, by their services, in enhancing the value of the realty. Striker v. Gassidy, 76 N. Y. 50. d. But it must appear that the draughtsman or architect did more than merely prepare plans in his office. If he went upon the premises and rendered services on the land in supervising or superintending the work in accordance with the plans and specifications prepared by him, a lien will be sustained in his favor for such services and the disbursements incurred in connection therewith. Binn v. Electrical Power Co., 3 App. Div. 305 ; Thompson Starrett Co. v. Brooklyn Heights Bealty Co., Ill App. Div. 358. e. The rule is now well settled that an architect is not entitled to a lien for the value of plans prepared by him, when no other services are rendered. But an architect who draws the plans and also superintends the construction of the building is entitled to a lien for the value of the plans 2i LiEBT Law — Aeticle I, Sec. 2. and also for his services as superintendent. It is the pari) the architect takes during the construction that draws his services within the lien law. Spannhake, Inc., v. Mountain Construction Co., 159 App. Div. Y27. See also Swasey v. Granite Spring Water Co., 158 App. Div. 549. 17. "Any person " — Nonresident. — The statute in defin- ing the word " materialman " designates " any person " other than a contractor who furnishes material for the im- provement for which the lien is claimed. As has been shown, the " materialman " may be a subcontractor, as materials are usualy furnished at the request of a contractor or sub- contractor. There is no provision in the statute requiring that the benefits of the Lien Law shall extend only to persons who reside within the State. The language is broad and universal in its application. It declares that " any person," upon complying with the terms of the statute, may have a lien. The only restriction as to persons not residents doing business in this State seems to relate to foreign corporations, who are required by the Corporation Law (Laws 1892, chap. 687, § 15) to procure a certificate from the secretary of state authorizing such corporation to transact business here before it can maintain an action in the courts of this State. But this provision of the statute does not render a contract void which was executed here by a foreign corporation. And a lien filed by such corporation prior to procuring the certifi- cate may be enforced by it after the certificate has been granted. Neuchaiel Asphalt Co. v. The Mayor, 155 !N". Y. 373. a. A non-resident may make a contract in another State, and such contract may be performed here, and a lien filed for moneys due thereunder may be enforced. The statute contains no prohibition as to such a contract. Campbell v. Coon, 149 N. Y. 566. h. Where materials are purchased in another State, pur- suant to a contract executed here, and such materials are used in this State pursuant to such contract, a lien for the value of such materials may be enforced. Phoenix Iron Co v Vessell, 43 Hun, 429. c. It was held under a local statute relating to the counties Definitions. 25 of Kings and Queens (Laws 1862, chap. 478) that a non- resident residing in Connecticut could not come in to this State and enforce a lien under that act for materials sold by him to the defendant in Connecticut, who subsequently brought the materials into this State, as the materials were neither sold nor delivered in this State. Birmingham Iron Co. V. Glen Cove Mfg. Co., 78 K Y. 30. d. The legislature has no power to import into any statute a provision which violates any right secured by the Federal Constitution. The provisions of the Labor Law (Laws 1897, chap. 415, § 14), which provides that " all stone used in State or municipal work, except paving blocks or crushed stone, shall be worked, dressed, and carved within the State," relates to a regulation of commerce between the States, and is in violation of the Constitution of the United States and constitutes no defense to a lien for such stone. People ex rel. Treat v. Goler, 166 IST. Y. 144. 18. "Any person " — Municipal corporation a person. — An artificial person, as well as a natural person, may con- tract to furnish labor and materials for an improvement of real property or for a public improvement. A corporation is an artificial person within the meaning of the statute. A city, county, township, or village is likewise " a person " having a corporate existence and a residence within the mean- ing of the Lien Law. The State is a person notwithstanding the fact that it is the sovereign. The city of JSTew York is a domestic corporation and a resident of the county of New York, so far as residence controls the jurisdiction of County Courts, because its principal seat of municipal government is located in that county and is the place where its chief gov- ernmental functions are exercised. The legislature has power to create municipal corporations and confer upon them such power and attributes as it sees fit. It may confer upon a municipal corporation the attribute of residence in that county in which its principal place of business is located. It has power to enact that a city shall be deemed a resident of the county or one of the several counties within which its boundaries are located for the purposes of determining the question of jurisdiction, otherwise no city in the State could be sued in a County Court. But the Constitution (Art. 8, § 3), declares that " all corporations shall have the right to 26 Lien Law — Aeticle I, Sec. 2. sue and shall be subject to be sued in all courts in like man- ner as natural persons." Maische v. City of New York, 193 N. Y. 460. a. The words " any person," however, does not include a person who has performed an illegal contract. A plumber is forbidden to cary on business in the city of New York without having previously registered his name and address with the board of health pursuant to Laws 1892, chap. 602. Such a person who does plumbing work in violation of the statute cannot enforce a lien therefor, if defendant pleads as a defense the violation of the statute, Johnston v. Dahl- gren, 166 N. Y. 354. 6. If the contract is a legal one, it is not material that it was made prior to the passage of the Lien Law. The statute operates upon the contract when it has been executed. If the labor and materials were performed and furnished after the Lien Law was passed, it is wholy immaterial that the contract was prepared, signed, and delivered before the law was enacted. Hauptman v. Catlin, 20 "E, Y. 247. For other authorities as to illegality of contract, see sec- tion 3 of the Lien Law, post, page 27, et seq. LIEN LAW— AETICLE n. [Laws 1909, Chap. 38.] MECHANICS' LIENS. Section 3. Mechanic's lien on real property., 4. Extent of lien. 5. Liens under contracts for public improvements. 6. Liens for labor on railroads. 7. Liability of owner for advance payments, collusive mort- gages and incumbrances. 8. Terms of contract may be demanded. 9. Contents of notice of lien. 10. Filing of notice. 11. Service of copy of notice. 12. Notice of lien on account of public improvements. 13. Priority of liens. 14. Assignment of Hen. 15. Assignments of contracts and orders to be filed. 16. Assignment of contracts and orders for public improve- ments to be filed. 17. Duration of lien. 18. Duration of lien under contract for a public improvement. 19. Discharge of lien generally. 20. Discharge of lien by payment of money into court. 21. Discharge of lien for public . improvement. 22. Building loan contract. 23. Construction of article. 24. Enforcement of mechanic's lien. 25. Priority of liens for public improvements. § 3. Mechanics' lien on real property. — ^A contractor, sub-contractor, laborer or material man, who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-corx- tractor, shall have a lien for the principal and interest of the value, or the agreed price, of such labor or mate- rials upon the real property improved or to be im- proved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article. Lien Law of 1897, § 3, re-enacted Laws 1909, chap. 38. (27) 28 Lies Law — Abticie U, Sec, 3. Fnder section 3 of the Lien Law, which gives an additional remedy to those who perform labor and famish materials f«r the improvement of real profperty, the authorities are for conrenience grouped nnder general heads as follows: L Remedy — Scope and extent of. IL yHxo may acqnire lien. TTT. For what lien may be acquired. IV. Consent — Express and implied. V. Validity and lea^fy of lien contracts, VI. Statute of frauds. The authorities cited and referred to under this section are applicable to section 3 of the Lien Law of 1909. The stat- ute was not changed by the Board of Statutory Consolidation, which rearranged and reclassified but did not rerise the law. I. The Eemedt — Scope asi> Extent of. 1. The remedy — Nature of. — Liens upon real estate did not exist at common law. The creation of a lien upon lands in England, whereby the realty could be sold to satisfy the lien, was altogether repugnant to the fnedal system and mili- tary tenures which existed in England prior to the reign of the Stuarts, and was wholly inconsistent with the mode in which lands were held in England after tbe abolition of mili- tary tenures in the reign of Charles LL Lands held in free and common socage were feudal in their nature, and the la^rs of entailment and primogeniture were inconsistent witb the idea and spirit of allodial estates. In the TTnited States, as a rule, lands, except those entailed in some localities during the colonial period, are allodial, the title vests in the owner in fee-simple absolute, and the land can be sold to pay the debts of the owner. Tbe creation of a lien upon the land to secure the laborer and materialman wbo have improved it, i- a remedy new to jurisprudence. In the oiactment of the Lien Law, the legislature created a new reraedy by securing the debt of the Ll :rer and materialman before it accrued (for the notice of lien may be filed at any time after the commencement of the ^oTk[\ and ^ves him the ri^rt to make the debt or anticipated debt a lien on the land, which lien can be enforced in a court of equity. The l^islature also has clothed inferior courts with power to adjudicate the amount due and the ri^t to establish the lien debt. It has The Remedy. 29 conferred upon a court of equity power not only to decree a sale of the land, but to adjudicate upon a breach of the contract and the amount due upon it, where the parties waive their right to a jury trial on that issue. It gives to the lienor the right not only to sell the land and devote its proceeds to the payment of his debt, but also in the same action to secure a judgment in personam against the party liable on the contract, enforceable by execution against any property of the judgment debtor. A lien, therefore, is a right to retain property before judgment, or before the commencement of an action to satisfy the lien debt. It gives to the lienor not only security, but a preferential right over all subsequent creditors. Under the earlier statutes the courts were accus- tomed to construe lien laws strictly as in derogation of the common law. Donaldson v. Wood, 22 Wend. 395 ; Cheney V. Troy Hospital, 65 N. Y. 282 ; Benton v. Wickwire, 54 N. Y. 226 ; Mushlitt v. Silverman, 30 K Y. 360. a. The legislature, in view of these decisions, incorporated into the Lien Law a provision that it was a remedial statute and directed that it shall be " construed liberally to secure the beneficial interest and purposes thereof " (Laws 1897, chap. 418, § 22; Laws 1885, chap. 342, § 25.) h. In view of these provisions the courts have construed the law liberally to secure and preserve the benefits thereby conferred. McDonald v. The Mayor, 170 IST. Y. 409 ; Brace V. City of Gloversville, 167 N. Y. 452; Bingle v. Wallis Iron Works, 149 N. Y. 439. 2. The remedy constitutional. — In the discussion as to the constitutionality of the Lien Law, ante, pages 3-6, it was shown that the dual nature of the remedy, which created a lien which could be enforced in equity, and also authorized judg- ment in personam upon the debt which debtor had a right to claim should be established in a court of law before a jury, did not impair its validity, because the mode in which the jury trial could be had was not taken away by the statute and could be resorted to by the debtor, unless he saw fit to waive that right. Hawkins v. Mapes-Beeves Construction Co., 82 App. Div. 72, affirmed, 178 IST. Y. 236 ; Deeves v. Metropolitan Co., 6 Misc. 91, affirmed, 141 N. Y. 587; Schillinger Fire Proof Co. v. Arnott; SchilUnger Cement Co. V. Arnott, 152 N. Y. 584; Bradley Co. v. Herter, 23 30 Lien Law — Article II, Sec. 3. Civ. Proc. K. 408; s. c, 30 K Y. Supp. 270; McKellar.v. Rogers, 109 N. Y. 468. a. The argument that because the remedy is a dual one, being in the nature of a proceeding in rem {Conhriie v. Thompson, 1 E. D. Smith, 661; Grant v. Vandercooh, 57 Barb. 165; Quinby v. Sloan, 2 Abb, Pr. 93; Randolph v. Leavy, 3 E. D. Smith, 637; Davis v. Alvord, 94 U. S. 549 ; Homans v. Coombe, 3 Cranoh 0, C. 365), and also an action in personam, was, therefore, unconstitutional, is no longer tenable. 3. The remedy — In equity. — The remedy for the en- forcement of a mechanic's lien, however, to secure a judgment of foreclosure and sale, and distribution of proceeds, must be by a bill in equity or a suit in a court having equity jurisdic- tion. This is clear for the reason that the lienor must not only establish the debt, which is the basis of his lien, but the court must decree a sale of the real property to which the lien attaches, and distribute the proceeds among the various lien- ors, and must exercise exclusive equity jurisdiction in estab- lishing the priorities of the various claimants. Davis v. Alvord, 94 U. S. 545; Kenney v. Apgar, 93 N. Y. 54; Pell V. Bauer, 133 JST. Y. 377. The question of priority forms an important part of the statute (Laws 1897, chap. 418, § 13) and involves questions which fall within the exclusive juris- diction of a court of equity. All questions as to priorities, and all the equities of the parties must be determined by the court, whether raised by way of defense or by counterclaim. The remedy is not a special proceeding, but an action, and must be governed, as near as may be, by the provisions of the Code of Civil Procedure relating to actions for the fore- closure of mortgages upon real property, and sections 41-44 of the Lien Law (Laws 1909, chap. 38). See post, pages 321-403. 4. The remedy — At law. — Although a judgment of fore- closure and sale and distribution of the proceeds and adjust- ment of priorities can only be secured in a court of equity, nevertheless the statute contemplates a remedy which is ac- corded to the lienor in courts of law of inferior jurisdiction and in courts not of record having no equity powers. The statute declares that an action to. enforce a mechanic's lien Remedy Cumulative. 31 against real property may be brought in a court (whether of record or not of record) which has jurisdiction in an ac- tion on contract for the amount of the debt secured by the lien. See §§ 41-46 of the Lien Law (Law 1909, chap. 38). But as courts not of record have no equity powers, they can only render judgment for the sum due, and declare the amount to be a valid lien against the interest of the de- fendant in the property described in the complaint, but they can render no judgment for the foreclosure and sale of the property. The lien must be enforced by execution which must direct the officer to sell the right, title and interest of the owner of the premises upon which the lien set forth in the complaint existed at the time of filing the notice of lien. Lien Law of 1909, § 50. The same rule existed under the Lien Law of 1885 (Laws 1885, chap. 342, § 9). Stanton v. Gohler, 16 Misc. 383^ Egan v. Laemmle, 5 Misc. 224 ; s. c, 54 St. Eep. 789 ; Jen- nings V. Newman, 52 How. Pr. 282; Raven v. Smith, 148 IS. Y. 415 ; Murray v. Oerety, 11 N. Y. Supp. 205. See also Municipal Court Act of the city of New York (Laws 1902,. chap. 580, § 1, subd. 11, post, page 253). 5. The remedy cumulative. — The statute which creates a lien upon real property for the benefit of contractors and materialmen is a remedial statute. But the remedy which is thereby created is not exclusive and does not bar the lienor from pursuing any other or further remedy which he may have independent of the statute. The foundation of every lien is a contract indebtedness, express or implied, and the statute giving the right to file a lien to secure such indebted- ness, either due or to become due, is a cumulative and not an exclusive remedy. A creditor may always pursue as many remedies as he has, unless expressly forbidden by the statute. He may have dual or plural remedies, but he can have but on& satisfaction. An action, therefore, to enforce the lien is no bar to an action at law against the contractor or other party liable for the debt. The remedies are not only cumulative but concurrent, and may be pursued simultaneously. The right of a plaintiff to pursue his remedy for the debt and for the enforcement of his lien simultaneously by different actions- can no longer be questioned. Pearce v. Kenney, 152 App. Div. 638; Power v. Onward Constrtiction Co., 39 Misc. 708; 32 Lien Law — Aeticle II, Sec, 3. Wehh V. Van Zandt, 16 Abb. Pr. 190; Raven v. Smith, 71 Hun, 179; Matter of Gould Coupler Co., 79 Hun, 206; Raven v. Smith, 87 Hun, 90 ; Smith v. Fleischman, 23 App. Div. 358 ; Robinson v. Fay, 19 K Y. Supp. 120 ; s. c, 46 St. Eep. 369; Gridley v. Rowland, 1 E. D. Smitli, 670; Bryson v. St. Helen, 79 Hun, 167; s. c, 61 St. Rep. 390, 29 IST. Y. Supp. 524; Maxey v. Larkii% 2 E. D. Smith, 540; Pollock V. Ehle, 2 E. D. Smith, 541; Knapp v. Brown, 45 K Y. 207 ; Biershenh v. Stokes, 46 St. Eep. 179 ; s. c, 18 E". Y. Supp. 845 ; Cornell v. Barney, 94 N. Y. 394; Teeman V. Lustbader, 55 Misc. 535. a. As the remedy to enforce a mechanic's lien is cumula- tive, the recovery of a judgment upon the indebtedness to the lienor, which remains uncollected, is no bar to an action to foreclose the lien. Pearce v. Kenney, 152 App. Div. 638. b. In view of this principle which allows a party to pursue dual or plural remedies, he may take additional security on other property of the owner, and if he fails to realize on collateral he may proceed with the foreclosure of his lien to satisfy any deficiency remaining after exhausting other se- curity. Hall V. Pettigrew, 10 Hun, 609. c. While he is pursuing other remedies, he may keep his lien alive by procuring an order extending it, pending an ac- tion at law against the owner. Matter of Gould Coupler Co., 79 Hun, 206; s. c, 61 St. Eep. 164, 29 N. Y. Supp. 622. d. In Robinson v. Fay, 19 IST. Y. Supp. 120; s. c, 46 St. Hep. 369, the plaintiff worked upon a house belonging to the Hoboken Turtle Club. The law under which the club was in- corporated created a personal liability against the trustees who ordered the work done. (Laws 1865, chap. 368). The contractor brought suit against the trustees to enforce their personal liability under the statute and also filed a lien against the land belonging to the club. The court held in the action against the trustees, that the suit to foreclose the lien was no bar, as plaintiff could pursue his remedies simultaneously, but could have but one satisfaction of his claim. e. An action at law to recover the debt is not the same action as one in equity to foreclose the lien. In the action at Eemedt Cowctteeettt. 83 law no foreclosure can be had, but only a judgment in per- sonam.. A judgment in personam may also be had if a jury trial is_ waived in the foreclosure action ; and in the latter the plaintiff may resort to the proceeds of the specific prop- erty covered by his lien in satisfaction of his judgment Power V. Onward Construction Co., 39 Misc. 708. 6. The remedy concurrent — Stay. — Unless the decision in one action will determine all the rights set up in another and the judgment in the one dispose of the controversy in both, the court in the one action will not stay proceedings in the other. a. The rule in respect to postponing one cause until after the trial of another, is one of convenience and order in prac- tice (Post V. Banks, 67 App. Div. 187) and not always one of strict right as in the case in pleas of former adjudication. Accordingly held that an action to foreclose a mechanic's lien commenced after a prior action brought by the defendant in the lien suit, against the plaintiff to recover damages for breach of the building contract on which the lien was based, will be stayed pending the determination of the first action. The fact that in the lien suit plaintiflF brought in an addi- tional defendant, to wit, the mortgagee of the premises, and asked judgment that his lien be declared prior to such mort- gage, is not material. The issues in the two actions are the same, but in the first action the issues must be tried by a jury and its verdict will be controlling in both actions on the questions of fact. De La Vergne Machine Co. v. N. Y. & Brooklyn Brewing Co., 125 App. Div. 649. &. But where the trial of one action will not dispose of the issues in another action, although between the same parties, a stay will not be granted, to a plaintiff in the first action, against the plaintiff in the second action. A motion for a etay will not be granted until after the joinder of issue. A party to an action desiring a stay of proceedings, should move for it, in the action which he seeks to stay. Raymore Realty Co. V. Pfotenhauer-Nesbit Co., 139 App. Div. 126. c. Where a contractor was made defendant in an action in the Supreme Court brought by a subcontractor to foreclose a lien and such contractor was also sued at law in the City Court by the assignee in bankruptcy of other subcontractors 3 34 Lien Law — Article II, Sec. 3. wlio had never filed liens, the City Court action will not be stayed on motion of the contractor in the Supreme Court action, for the reason that the relief sought in the City Court action was a personal judgment and a jury trial. And although the plaintiffs in the City Court action were also de- fendants in the Supreme Court action, they could not get personal judgment against the contractor in the foreclosure suit, because they had never filed any lien, Nussberger v. Wasserman, 40 Misc. 120: d. If an appeal is taken by an owner from a judgment ob- tained by a sub-contractor against the owner and contractor, a bond given by the owner on appeal and an order staying proceedings on the judgment pending the appeal, will not operate to stay the remedy of the plaintiff subcontractor to enforce the judgment appealed from against the contractor and his sureties. Heagney v. Hopkins, 23 Misc. 608. e. The plaintiff sued in equity in the Supreme Court to foreclose a mechanic's lien and was sued at law in the City Court of the City of l^ew York upon the same contract upon which his lien was based for work, labor, and services. All the rights of the parties could be determined in whichever of said actions should be tried first. Plaintiff brought his ac- tions at about the same time in the year 1903, the foreclosure suit in the Supreme Court having been commenced first. In January, 1907, one of the defendants obtained his dis- charge in bankruptcy, and obtained leave to serve a supple- mental answer setting up such discharge upon payment of costs to date. Defendant then moved for a stay in the City Court action until after the action to forclose the lien could be tried in the Supreme Court. Held, Wadhams, J., that the Lien Law was a remedial statute, and did not preclude plain- tiff from pursuing any other or further remedy which he may have had independent of the statute, and these remedies might be pursued simultaneously. In view of the fact, how- ever, that the trial of the action in the Supreme Court would necessarily dispose of all the issues involved in the action in the City Court, a stay of the latter action under the circum- stances would be proper until defendant could serve a supple- mental answer setting up his discharge in bankruptcy. In case the defendant failed to serve such answer upon the terms imposed, the stay would be vacated and plaintiff migh pursue his dual remedy. Teeman v. Lustbarder, 55 Misc. 535. Kemedt — In Foece Time of Teial. 35 7. The remedy — Death does not abate. — The Lien Law of 1897 and 1909 protects the rights of the lienor in case of the death of the owner, and section 10 of the act expressly declares that the validity of the lien and "the right to file a notice thereof shall not be affected by the death of the owner before notice of the lien is filed." a. This provision was inserted in the law to cure the defect in that regard which existed under the Lien Law of 1885 and the earlier statutes. It was held, under the Lien Law of 1885, that if the owner died before tjie lien was filed, such death defeated the right to file the lien and that a lien filed thereafter was void. Turhidy v. Wright, 144 JST. Y. 519. See also Leary v. Gardner, 63 N. Y. 624 ; Hallahan v. Her- bert, 57 K Y. 409 ; Meyers v. Bennett, 7 Daly, 741 ; Brown V. Zeiss, 9 Daly, 396; Crystal v. Flannelly, 2 E. D. Smith, 583. The lien was void also as against the executors and ad- ministrators of the deceased owner, whatever other remedy might exist against them by virtue of any contract deceased may have executed. Ih. b. If, however, the lien was filed or acquired before the death of the owner it could be enforced thereafter, and his executors or administrators as well as his heirs are proper parties to the foreclosure suit. Under the Lien Law of 1897 and 1909, section 10 protects the rights of the lienor in case of the death, of the owner, whether his lien has or has not been filed. 8. Remedy — Law in force at time of trial. — The law ap- plicable to mechanics' liens is remedial in its nature. The law governing the remedy at the time of the trial must prevail and not the law in force when the lien was filed or when the action was begun. After a lien had been filed the Lien Law of 1885 was enacted and was in force at the time of the trial to foreclose the lien. It was held that the- Lien Law of 1885, in force at the time of the trial, governed the plaintiff's right to recover costs, and the cost authorized by section 14 of the Lien Law of 1885 governed, although the lien had been filed before the law was passed. Fargo v. TIelmer, 43 Hun, 17. 36 Lien Law — Aetiole II, Sec. 3. II. Who May Acquire Lieh". 1. Who may acquire lien. — The Act of 1885, with refer- ence to who was entitled to a lien, declared that "any person" who performed work or furnished materials, on complying with the provisions of statute, might have a lien. a. A "lienor," or one who is entitled to a lien, is defined in the Lien Law of 1897, which has been re-enacted in the Lien Law of 1909, as "any person" having a lien, including his successor in interest. The Act also declares that "a con- tractor, subcontractor, laborer, or materialman," who per- forms labor or furnishes materials "shall have a lien." It defines a laborer as "any person" who performs labor or ser- vices ; it defines a materialman as "any person" other than a contractor who furnishes materials, and the terms "eon- tractor" and "subcontractor" are defined as "a person." The word "person" is declared by the Statutory Construction Law to include a corporation and a joint-stock association. h. The provisions of the Lien Law, therefore, as to who shall be entitled to the benefit of its provisions is as broad as language can make it. It has been held that it includes not only a citizen of this State, but a citizen of any State, a foreigner, an alien, a corporation (foreign or domestic), or an infant, who has complied with its provisions. Indeed, it has been held under the early statutes, far less comprehensive in scope, that an infant could not be precluded form the benefits designed by the Lien Law. 2. Contractor for school, who subsequently becomes mem- ber of school board. — Where a contract was made' by the board of education for the erection of a school buildins:, the fact that one of the subcontractors subsequently became a member of the board, will not operate to invalidate his agree- ment for work, labor and services on the building, nor invali- date a lien filed by liim. Goodrich v. Board of Education, 137 App. Div. 499. !N"or will the fact that one of the members of the board of education was interested in a corporation, which corporation was also a sub-contractor, invalidate the lien filed bv the corporation, nor invalidate a payment made to such corpora- Who May Acquiee Lien. 37 tion, after the work had been fully performed and accepted. See also definitions, antej page 9, et seq. 3. Foreign corporation. — A foreign corporation, other than a moneyed corporation, doing business in this State, must procure from the secretary of state a certificate enabling it to do business, within the meaning of section 15 of the General Corporation Law, and cannot maintain an action upon contracts in this State unless prior to making the con- tract it shall have procured such certificate. In Neiu;ha,tel Asphalt Co. V. The Mayor (155 ]Sr. Y. 373, cited ante, page 19), the court permitted the action to be brought after the certificate had been obtained, although the lien was filed be- fore the issuing of such certificate. In order to bring a foreign corporation within the provisions of the statute, it must appear that the corporation was conducting a continu- ous business, such as might be evidenced by the investment of capital here, with the maintenance of an office for the transaction of its business, and those incidental circumstances which attest the corporate intent to avail itself of the privilege of carrying on a business. A foreign corporation engaged in dealing in coal which was sold by an agent in the city of New York had an office at which he made his headquarters, established solely for the agent's convenience. It appeared that the corporation had no books of account or bank account within the city of New York, and kept no coal within the State. Held, that the cor- poration could maintain an action for the coal sold by the agent in the absence of a certificate authorizing it to do busi- ness here. Perm. Collieries Co. v. McKeever, 183 N. Y. 98. a. It has been held, under the Lien Law of 1897, that where goods were sold by a foreign corporation to a domestic corporation and the latter delivered them to the ovmer, who used them in the improvement of the realty, the former was entitled to a lien as a materialman. Matter of Simonds Furnace Co., 30 Misc. 209. h. A contract made by a foreign corporation doing busi- ness in this State is not void because the corporation had failed to procure a certificate here pursuant to the Corpora- tion Law at the time of making the contract. Upon obtain- 38 Lien Law — Aeticlb II, Sec. 3. ing such certificate pursuant to the Corporation Law (Laws 1892, chap. 687, § 15), a notice of lien filed under the contract may be enforced and the lien foreclosed, as the ac- tion was permitted after the certificate had been obtained. Neuchatel Asphalt Co. v. The Mayor, 155 N. Y. 373. 4. Nonresident. — A person residing out of the State may make a contract out of the State for work and materials to be furnished in this State. Such foreign contract may be en- forced, and such nonresident may have a lien lander the Lien Laws of this State. Campbell v. Coon, 149 IST. Y. 556. a. And if the contract is made in this State with a material- man, who agrees to furnish materials to be brought from another State and used upon the structure, such materialman is entitled to a lien for the value of such materials and may enforce it in the courts of this State. Phoenix Iron Co. v. Yessell, etc., 43 Hun, 429. 6. A different rule seems to prevail in a case where a non- resident materialman sells and delivers machinery in his own State (Connecticut) to a Connecticut contractor. After such sale and delivery the machinery is again sold in Connecticut to defendant, who brings it into this State. In that case it was held that the first seller could not come here and file a lien for the value of the machinery, under the provisions of the Lien Law of 1862 (Laws 1862, chap. 478, relating to couties of Kings and Queens). The machinery did not be- come subject to a lien when it was sold in Connecticut, and the first seller could not thereafter assert a lien therefor. Birmingham Iron F. Co. v. Glen Cove S. Mfg. Co., 78 IST. Y. 30. See also definitions, ante, page 19, et seq. 5. Infant. — As a rule, the contract of an infant is void. But the law which forbids an infant to make a contract is designed for the exclusive benefit and protection of the in- fant. Where an infant contracts or is requested to perform work, labor, and services, and performs, the law will protect him; his executed contract will be enforced, and he will be entitled to a lien, and the ovsmer or contractor will not be permitted to raise the question of infancy for the purpose of defeating the infant's rights. Hartness v. Thompson, 5 Johns. 150; Van Brenner v. Cooper, 2 Johns. 279. Bankeuptcy. 30 6. Bankruptcy — Title of trustee. — A trustee in bank- ruptcy succeeds to the possession of the property of the bankrupt, but such possession is subject to all valid claims, liens, and equities affecting the same. Though vested by operation of law with the title of the bankrupt the trustee takes the assets, not as would an innocent purchaser, but as the bankrupt held them. Crowe v. Idqv\id Carbonic Co., 208 N. Y. 396. A trustee in bankruptcy who succeeds to the rights of an assignee of a contract of conditional sale for the purchase of articles on instalment, takes the property subject to the right of the vendor to retake it, in case of the default of the ven- dee in paying installments due. The vendor may hold the same subject to redemption, and if not redeemed he may sell it, pursuant to the statute, or he may elect not to retake, and in that case may file a claim in the bankruptcy proceedings for the amount unpaid. Breakstone v. Buffalo Foundary Co., 167 App. Div. 62, 152 IST. Y. Supp. 894. a. Plaintiff sold to one Hillman, a contractor employed by the Board of Education, certain boilers, castings and other parts of a heating apparatus. Thereafter Hillman was thrown into involuntary bankruptcy, and a receiver was appointed. The Board of Education declared Hillman's contract for- feited. The receiver sold his right, title and interest in the boilers to plaintiff, and the Board of Education made a new contract with defendant Olvany, who appropriated the boil- ers, and installed them in the school building on the authority in Hillman's contract. Held, that Hillman's title passed to his receiver before his contract was forfeited, and that the title of the trustee acting for Hillman's creditors was para- mount to that of the Board of Education or defendant Olvany. Titusville Iron Co. v. City of New Yorh, 207 IST. Y. 203. " 7. Bankruptcy — Trustee may be lienor. — If a contractor or subcontractor becomes insolvent and is adjudicated bank- rupt, the trustee of the bankrupt, by operation of law, oc- cupies precisely the same position as the bankrupt would have occupied had he not become insolvent. The trustee of a bankrupt contractor who has performed his contract prior to filing his petition in bankruptcy has the same right to file a lien as the contractor would have had if no trustee had been appointed. Held v. City of New Yorle, 83 App. Div. 509. 40 Lien Law — Article II, Sec. 3. a. If the contractor becomes insolvent during the progress of the work and is adjudged bankrupt, his trustee may obtain an order from the court in bankruptcy authorizing him to complete the contract of the bankrupt. Under such an order the trustee may complete and file a lien for all moneys due under the contract and enforce it for the benefit of the credi- tors. Davis V. City of New York, 75 App. Div. 518. h. The bankrupt contractor may, for the protection of his subcontractors and other creditors, file a lien for what has been done under the contract and assign if to the trustee, who may enforce it for the benefit of the bankrupt's estate and other subcontractors. Ih. 8. Bankruptcy — Priority of mechanic's lien over claim of trustee in bankruptcy. — Subdivision a of section 47 of the Bankruptcy Law, prior to the amendment of 1910, defined the duties of the trustee, and required him to account for all moneys received, and to collect and reduce to money the property of the estate, for which he was trustee under the direction of the court. In 1910 the act was amended by add- ing the following : " And such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the Bankruptcy Court, shall be deemed vested with all the rights, remedies, and powers of a judgment credi- tor holding an execution duly returned unsatisfied." (30 U. S. Stat, at Large, 557, Sec. 47, subd. a, as amd. by 36 id. 840, Sec. 8.) A mere right to recover moneys coming due on a building contract is not intended to be covered by the first provision of the amendment, to the Bankrupt Act, which covers all property not in possession of the Bankruptcy Court, upon which the trustee has only such a claim as a creditor would have with an execution returned unsatisfied. Such claim does not amount to a lien but only a right to establish an equitable lien. A subcontractor who has performed work or furnished materials has also an equitable lien for moneys due and to grow due the contractor, which the statute makes operative when the subcontractor files his lien, prior to the claim of the Caetmen Have Libit. 41 trustee in bankruptcy, who has begun an action to recover such moneys. Hildreth Granite Co. v. City of WatervUet, 161 App. Div. 420. 9. Bankruptcy — Trustee may attack validity of chattel mortgage. — A trustee in bankruptcy of an insolvent mort- gagor has the same right to attack the validity of a chattel mortgage made by the bankrupt on behalf of his unsecured creditors as a creditor armed with an attachment or execution and as such he may enforce the rights of the general creditors of the bankrupt, Zartman v. First National Bank, 189 ]Sr. Y. 267 ; Titusville Iron Co. v. City of New York, 207 N. Y. 203. 10. Cartmen in Greater New York. — In Greater New York an ordinance was enacted giving a lien to public cartmen for, legal compensation for carting, if asserted "immediately af- ter transportation and before actual delivery," authorizing the cartman to retain a load or part of a load sufficient to discharge his lien and to convey the same at once to the prop- erty clerk of the police department, or to a convenient storage warehouse, and to send notice in writing at once to the bureau of licenses. Held, no lien was created thereby, unless the provisions of the ordinance were fully complied with. Browning v. Belford, 83 App. Div. 144. The power to pass particular ordinances, given by charter, gives no authority to aldermen to pass general laws or to enact specific statutes. a. Where a public cartman claims a lien upon property under the ordinances of the city of New York, in the absence of an adjudication upon the question as to whether the board of aldermen have any statutory authority to pass a law or ordinance creating such lien, the court held that the cartman, or carrier, could not in any event assert such lien, unless he conveys the property either to the property clerk of the police department, or to a convenient storage warehouse. The car- rier can have no lien except for services rendered as a carrier, upon articles only, with respect to which he has rendered the services. If the carrier or expressman has a contract which is confined solely to loading cars,, it is doubtful if he can claim the lien at all. Booker v. Reilly, 85 App. Div. 614. And if a carrier obtains possession of goods upon which he" 42 Lien Law — Article II, Sec. 3. has no lien, he becomes liable in an action of conversion for failure to return the goods to the owner upon demand. Tay- lor V. Smithy 87 App. Div. 78. 11. Materials sold in the open market, without reference to any specific building. — The Lien Law confers the right to file a lien upon any person who performs labor or furnishes material for the improvement of real property, with one having contractual relations with the owner of the property, or with his agent, contractor, or subcontractor, with his or their consent, or at his or their request for their value or agreed price. The lien attaches to the real property im- proved. It follows that one who sells materials on credit, in the open market to a general contractor, who subsequently uses them in a particular structure not contemplated by the parties at the time of the sale, can acquire no lien upon the premises in which they are subsequently used. The statute confines the lien to the real property improved or to be im- proved, with the consent or at the request of the owner or his agent, where the improvements are made by a person having contractual relations with such ovnier, namely, "a contractor, subcontractor, laborer, or materialman." The words "or to be improved" are used to cover contracts, which have not been fully performed, as the lien may be filed in anticipation of the work, "at any time during the progress of the work." (Section 10.) But the lien can attach only to the realty which is subject of a contract, for every lien must be founded upon a contract either express or implied. It has always been held that in order to authorize the lien, it must also appear that the materials or labor are actually used, and expended upon the land so improved. Phillips v. Wright, 5 Sandf. 345. a. The law was settled in the early cases, that to enable the vendor to acquire a lien, the materials must be sold for use in a particular structure. Materials were sold in the open market, and the purchaser failed to pay. The vendor subsequently discovered that his materials had been used in a certain building, and sought to file a lien upon it for their value. It was held that the lien could not be sustained. Burst V. Jackson, 10 Barb. 219. h. A "materialman" is now defined in the Lien Law (sec- tion 2), as one "who furnishes materials for such improve- Material — What Constitutes. 43 ment," i. e., improvement of real property, pursuant to a contract express or implied, and who performs no labor in connection therewith. The consent of the owner under the Lien Law may be implied also from the circumstances of the particular case. c. Building materials are always intended for the im- provement of real property. But if sold without reference to a building contract, or when no contract exists with an owner of realty, they cannot be said to have been furnished for a particular improvement with the consent of the owner, or at the request of one who has contracted with such owner. Such sale cannot be said to have been made in contempla- tion of a lien upon specific realty to secure the purchase price. d. Under the earlier statutes this construction prevailed, and if it appeared that materials were sold when there was no previous contract and without any intention or under- standing that the materials were to be used in any particular building, the vendor was not a materialman within the stat- ute and could acquire no lien for the price or value of the materials so sold. Hatch v. Coleman, 29 Barb. 201 ; Burst V. Jackson, 10 Barb. 219; Phillips v. Wright, 5 Sandf. 343; Miner v. Hoyt, 4 Hill, 193 ; Dennistown v. McAllister, 4 E. D. Smith, 729. III. Foe What Lien May be Acquieed. The authorities under the above heading "Who may acquire a lien" relate to the personality of the lienor, which in- cludes "any person," nonresidents, or a foreign corporation which has complied with the statute and procured a proper certificate from the secretary of state. The nature and charac- ter of the services, for which a lien is authorized, remain to be considered. The statute gives the right to file a lien to any person "who performs labor or furnishes materials for the improvement of real property with the consent, or at the request of the owner thereof." What constitutes "material," within the meaning of the statute? If explosives are fur- nished or torpedoes used in blasting, does the party who fur- nishes them acquire the right to a lien, or does the ordinary relation of debtor and creditor exist between the parties? 44 Lien Law — Aetigle II, Sec, 3. If one performs work in blasting out an oil Well, can he ac- quire a lien on the well, or must he sue at law to recover for his labor and services ? The materials used perish with the using. Literally, they do not enter into the realty nor form part of any structure. The courts, however, under the Lien Law of 1897-1909, and even under earlier statutes, have ■construed the law as a remedial statu1;e, and have regarded those whose labor and services have improved the land and enhanced its value, as within its beneficial provisions, and embraced within the class of persons for whose protection the statute was passed. 1. Explosives — Regulations as to. —Dynamite, and explo- sives constitute " materials " for the improvement of real property, within the meaning of § 3 of the Lien Law, al- though such materials perish with lie using. They form no part of the structure, nor of the realty. Their use, ex- cept in the city of New York, is now regulated by chapter 234, Laws of 1915, which became a law on the 7th day of April of that year. The statute now forms part of the Labor Law and is designated Article 15-A. It defines "explosives." Also the terms "highway" which includes a public street, " railway " which includes any public steam, electric or other railroad ; " building " which includes only a building regularly occupied in whole or in part as a habi- tation, a church, school house, railway station, or other building where people are accustomed to assemble; "per- son " includes corporations and joint stock associations ; also the terms " factory building," " magazine " and " efficient artificial barricade." The quantity of explosives that may be kept in any factory or magazine, is set forth in the fol- lowing table. Explosive — Quantity. 45 Quality and Distance Table Column 1 Column 2 Column 3 Column 4 Quantity that may be kept or stored from nearest building, liighway or railroac Distance Distance Distance from nearest building from nearest railway from nearest highway Blasting and electric Other explosives blasting caps Number Number not Pounds Pounds not over over over over Feet Feet Feet 1,000 5,000 30 20 10 5,000 10,000 60 40 20 10,000 20,000 120 70 .35 20,000 25,000 50 145 90 45 25,000 50,000 50 100 240 140 70 50,000 100,000 100 200 360 220 110 100,000 150,000 200 300 520 310 150 150,000 200,000 300 400 640 380 190 200,000 250,000 400 500 720 430 220 250,000 300,000 500 600 800 480 240 300,000 350,000 600 700 860 620 260 350,000 400,000 700 800 920 550 280 400,000 450,000 800 900 980 590 300 450,000 600,000 900 1,000 1,020 610 310 500,000 750,000 1,000 1,500 1,060 640 320 750,000 1,000,000 1,500 2,000 1,200 720 360 1,000,000 1,500,000 2,000 3,000 1,300 780 390 1,500,000 2,000,000 3,000 4,000 1,420 850 420 2,000,000 2,500,000 4,000 5,000 1,500 900 450 2,500,000 3,000,000 5,000 6,000 1,560 940 470 3,000,000 3,500,000 6,000 7,000 1,610 970 490 3,500,000 4,000,000 7,000 8,000 1,660 1,000 500 4,000,000 4,500,000 8,000 9,000 1,700 1,020 510 4,500,000 5,000,000 9,000 10,000 1,740 1,040 620 6,000,000 7,500,000 10,000 15,000 1,780 1,070 630 7,500,000 10,000,000 15,000 20,000 1,950 1,170 680 10,000,000 12,500,000 20,000 25,000 2,110 1,270 630 12,500,000 15,000,000 25,000 30,000 2,260 1,360 680 15,000,000 17,500,000 30,000 35,000 2,410 1,450 720 17,500,000 20,000,000 35,000 40,000 2,550 1,530 760 40,000 45,000 50,000 55,000 60,000 65,000 70,000 75,000 80,000 85,000 90,000 95,000 100,000 125,000 150,000 175,000 200,000 225,000 250,000 275,000 45,000 50,000 65,000 60,000 65,000 70,000 75,000 80,000 85,000 90,000 95,000 100,000 125,000 150,000 175,000 200,000 225,000 250,000 276,000 300,000 2,680 2,800 2,920 3,030 3,130 3,220 3,310 3,390 3,460 3,520 3,580 3,630 3,670 3,800 3,930 4,060 4,190 4,310 4,430 4,550 1,610 1,680 1,750 1,820 1,880 1,940 1,990 2,040 2,080 2,120 2,150 ' 2,180 2,200 2,280 2,360 2,440 2,520 .2,590 2,660 2,730 800 •840 880 910 940 970 1,000 1,020 1,040 1,000 1,080 1,090 1,110 1,140 1,180 1,220 1,260 1,300 1,340 1,380 46 Lien Law — Aeticle II, Sec. 3, The statute also provides for reports to be made annually to the Commissioner of Labor on blanks to be furnished by him. Also for transportation of explosives, and for a record of sales. The provisions of the statute do not apply to cities iiaving more than one million inhabitants. Nor does the statute apply to explosives v^hile being transported " upon vessels or railroad cars in conformity with the regulations adopted by the Interstate Commerce Commission, nor to the transportation or use of blasting explosives for agricultural purposes, or in quantities not exceeding five pounds at one time." In any city to which the statute is applicable, having " a department of public safety and connected therewith a bu- reau of explosives or combustibles," the provisions of the act shall be enforced by such local authorities. 2. Explosives in New York City. — The law governing the use of explosives in the five boroughs of the city of New York is now governed by § 763 of ^Greater New York Char- ter, pursuant to an ordinance adopted by the Board of Al- derman May 13, 1902, approved by the Mayor May 19, 1902. The ordinance provides that the sale, use, and trans- portation of explosives shall be controlled by a Municipal Explosive Commission composed of the Fire Commissioner and four members appointed by the Mayor. The commis- sion is authorized to formulate rules and regulations to be approved by the Mayor. No person shall sell, use, give away or transport explosives in the city except upon receipt of a license issued by the Fire Commissioner, after the ap- plicant has filed a bond with such commissioner to be ap- proved by the Comptroller, conditioned for the payment of any loss, damage or injury to persons or property, resulting from explosions. For a violation of the provisions of the ordinance, even though no loss to persons or property be sus- tained, the licensee is liable to forfeit twenty per cent, of his bond, for the first infraction, and the whole amount for the second offense. By an amendment (Laws 1913, Ch. 695) the Fire Com- missioner shall enforce the rules and regulations of the In- dustrial Board of the Department of Labor, in respect of the storage, sale, transportation or use of combustibles, chemi- cals, or explosives. 3. Explosives — Transported from another State. — The Dynamite and Fuse. 4T law as to the transportation of explosives, by freight or express, from another State, must be in accordance with the rules prescribed by the Interstate Commerce Comiliission, which is given authority by the Act of March 4, 1909, U. S. Statutes, §§ 232, 233, and by § 15 of the Interstate Com- merce Act, as amended June 18, 1910. The Commission is authorized to prescribe rules, and regulate the classification and transportation of property in Interstate Commerce. The Commission has adopted rules, regulations and specifications for the transportation of explosives, and shipping containers for same, which became operative October 1, 1914. These regulations are contained in a pamphlet of 194 pages, is- sued by authority of the Commission. 1. Material — Dynamite, fuses, and explosives. — A me- chanic's lien may be acquired against a railway corporation for dynamite, fuses, caps, and explosives used in the construc- tion and improvement of defendant's roadbed. These articles were furnished and used for the improvement of real prop- erty, within the language and intent of the Lien Law. The court below found that the materials were furnished to the railroad company with its knowledge and consent and were actually used in breaking up frozen earth so that it could be handled by means of a steam shovel employed by the sub- contractors in the grading and building of the roadbed. The court, at Special Term, held, however, that these explosives were not materials used for the improvement of real prop- erty within the language and intent of the Lien Law. Held, reversing the court below, that the statute has been made so broad and comprehensive in its scope as to include every case where labor is performed or materials furnished for the per- manent improvement of real property. While it is true that explosives used in blasting do not technically enter into and remain part of the permanent structure which contributed to the improvement of real property, yet within the meaning of the statute, such explosives partake of the nature of both of materials and labor. "They can be regarded as materials in so far as they constitute physical substances which are furnished and used in the performance of the work for which they are designed. They might also be considered as substitutes for labor to the extent that they contained a potential energy which takes the place of manual labor or mechanical appli- ances." In any event, explosives used in doing work for the improvement of real property are materials within the mean- 48 Lien Law — Article II, Sec. 3. ing of tte statute. SchagMicoTce Powder Co. v. Greenwich & J. R. B. Co., 183 ]Sr. Y. 306. .See also Hazard Powder Co. V. Byrnes, 21 How. Pr. 189. 2. Coal consumed to generate steam. — The defendant had a contract for building a state highway and used coal pur- chased from plaintiff for generating steam for operating road rollers, and traction engines in building the highway. Plain- tiff filed a lien for the price of the coal claiming that the same was "materials" furnished for the construction of the highway within the meaning of Section 5 of the Lien Law. The Court below allowed the item for the coal so used. Held error. Referring to the Schaghticoke case above cited, where a lien was allowed for the value of dynamite, the Court ob- served that the dynamite was applied directly to the earth which had to be removed in order that a structure might be completed as planned, as the removal of such earth was an essential part of the construction. The dynamite was fur- nished and used to effect, in part, by its direct action, that construction and entered wholly into it. But such was not the case with a steam shovel which did not lose its identity, nor cease to exist as a separate article. So coal furnished to the contractor was burned in the engines used in the work to furnish power, and was not materials used in the construc- tion of the work itself. Schidtz v. Quereau Co., 210 IT. Y; 257. As well say that a grocer, who sold food, which was con- sumed by the men while employed on a structure in process of erection could file a lien for the price of the provisions so consumed. 3. Steam shovel. — Plaintiff filed a lien on moneys due un- der a municipal contract for the rental of a steam shovel leased by plaintiff to the contractor who used the shovel on the work. Held that the steam shovel was not "materials" within the meaning of section 5 of the Lien Law. The shovel is a tool or appliance, which although used in doing the work survives its performance, and remains the property of the owner. Troy Works Co. v. Yonkers, 207 App. Div. 81. See also 145 App. Div. 527. 4. Torpedoing. — Under theOil Wells Act (Laws i88o, chap. 440) the court laid dovm the same rule adopted by the Court of Appeals as to the Lien Law of 1897-1909, in the Mateeials — What Coitstitute. 4& Schaghticoke case cited. Although the use of torpedoes in oil wells does not primarily produce oil, such use serves to in- crease the flow of oil. One who, in the construction and operation of such well, exploded torpedoes therein in the usual and customary manner is entitled to a lien for the value of such labor and material, under the Act of 1880. Oallagher V. Earns, 27 Hun, 375. 5. Powder and fuses. — Under an early statute, the court sustained a lien for powder and fuses, which were furnished and actually used in the erection and construction of a build- ing on defendant's premises. The court held that they con- stituted materials within the meaning of the statute. Hazard Powder Co. v. Byrnes, 12 Abb. Pr. 469. 6. Excavating earth. — A lien is proper for services per- formed, by a subcontractor for excavating earth, under a contract for the erection of a bridge, although the earth so excavated was used by the contractor in the execution of another contract for. the construction of a highway. Bdght- myer v. Doyle, 152 App. Div. 539. ' 7. Tools destroyed by fire. — A lien is not authorized for the value of tools which had been leased by the contractor from the assignor of the lienor, unless it affirmatively ap- pears that the tools were used up or lost, prior to a direc- tion of the contractor to plaintiff's assignor to remove the tools, unless gross neglience of the contractor is affirmatively shown. Bightmyer v. Doyle, 152 App. Div. 539. 8. Nature of work — Moving building. — A lien will be sustained for labor performed and materials furnished in moving a building from one locality and placing it in another, where it appears that work was done for excavating and plac- ing the removed building in position, performing labor upon an extension to the building and removing debris from the premises. The work and materials thus performed and fur- nished are for the permanent improvement of real property within the meaning of section 2 of the Lien Law. Norton & G. Constructing Co. v. Unique Cons. Co., 195 IT. Y. 81. a. " The moving of a building to a vacant lot," says Edwaed T. Baetlett^ J., "is one thing. The placing of 50 LiBBT Law — Aeticle II, Sec. 3. that building in a permanent manner is something very different." Plaintiff did the work of excavating for the plac- ing of the building removed and for the extension of the building, and in removing the debris therefrom and clearing and completing the same as part of its employment. In its notice of lien, the plaintiff stated that "the labor performed and materials furnished was the moving of a building from the north side of Pacific street and placing the same upon the premises hereinafter described and designated and the agreed price thereof is $3,460." Held, reversing the Appel- late Division and sustaining the judgment at Special Term, that the notice of lien was sufficient, and the plaintiff was entitled to recover for the labor and services performed and materials furnished, as set forth in the notice of lien. Ih. 9. Lumber furnished for forms. — A lienor furnished lum- ber for forms, boarding and furring, to hold concrete until it hardened. The concrete was used in the construction of the building for a public improvement. After it had been used for this purpose it was broken up and. removed by Italians and used for firewood. Whether a lien for this material could be sustained, depends upon whether the material en- tered directly into the construction of the building, or was only used as an instrumentality of the construction. In view of the fact that the concrete, which was moulded in the forms for which the- lumber was used, and which by reason of such use became worthless, such lumber constituted materials used in the construction of the building, for the value of which a lien will be sustained in favor of the contractor. Post & McCord V. City of New York, 86 Misc. 300. IV. Consent, Express and Implied. 1. Consent — General principles as to. — One who per- forms labor or furnishes material for the permanent im- provement of the realty may have a lien therefor, in the ab- sence of an express contract with the owner, if the work is performed or the materials are furnished "with the consent or at the request of the owner or of his agent, contractor or subcontractor." The language of the Lien Law of 1885 and the Lien Law of 1897, so far as relates to the "consent" of the owner, are substantially the same, and the authorities, Consent — Expeess and Implied. 51 ■under the Act of 1885 (Laws of 1885, chap. 342, § 1), are applicable under the Lien Law of 1897. Judge Finch^ in the case of Pell v. Bauer, 133 E". Y., at page 382, in stating the principles of law which govern the doctrine of consent within the meaning of the Lien Law (Laws 1885, chap. 342, § 1), says that one who performs work or furnishes materials may sustain a lien therefor, in the absence of a contract be- tween owner, contractor, or subcontractor. The doctrine of consent, under the statute, "proceeds upon the idea," says Judge Finch, "that he who furnishes material for, or does labor upon, a building should be reimbursed to some just ex- tent out of the improvement of which the owner gets the bene- fit. All that the statute requires is that the labor shall be done upon, or the materials furnished for, the building in process of construction with the assent of the owner or of the contractors." a. It is not essential, therefore, to enable a materialman to enforce a lien for material furnished to a particular build- ing to show any contract at all between the owner and the materialman. If the contractor or subcontractor requested the materialman to furnish the materials it will be sufficient to bind the owner, but only to the extent of the fund in the hands of the owner unpaid to the contractor at the time of filing the lien. If a party invokes the doctrine of consent for work done at the request of a contractor or subcontractor, his lien will be limited to the funds due and unpaid by the owner upon his original contract. In such a case the provision of the statute applies, which declares that "in no case shall the owner be liable to pay, by reason of all liens created, a sum greater than the value or agreed price of the labor and ma- terials remaining unpaid at the time of filing the notice of such lien." 2. Consent when implied, must be clear and explicit. — In an action to foreclose a mechanic's lien, the Court below found that the husband, acted as agent of his wife E. Louise Tapscott, and that Lillian E. Tapscott was also liable on con- sent. On appeal the Court said that the evidence of consent as to the latter was limited to the statement " I also saw the other lady ; but Mrs. Tapscott gave me the orders." The wit- ness probably meant to imply that he saw her on the premises. Held, that the evidence was insufficient. Judgment was af- firmed as to E. Louise Tapscott, and reversed as to Lillian E. Tapscott. Elliott Co. v. Tanscott, 151 IST. Y. Supp. 1006. 52 Lien Law — Aeticle II, Sec. 3. a. The doctrine of implied consent usually rests upon the doctrine of estoppel and the rule which declares that he who is silent when equity requires him to speak will not be allowed to speak when equity requires he should be silent. In other words, if an owner of land out of possession stands by and allows the laborer and materialman to spend time and money on his property, and to enhance its value un- der a mistaken belief that they are doing the work and furnishing the materials at the request or with the appro- bation and approval of the true owner, who expects to reap the benefit he will be held to have consented thereto by implication. If the true owner, with knowledge of all the facts, looks on and allows an innocent party to make val- uable improvements, which will inure to his benefit, without objection, equity will estop him from questioning the lien of a party of whose labor and material he has had the benefit and who acted on the faith of his silence, upon an implied request to do the work and furnish the materials. He can- not knowingly take the benefit of the property and labor of another and avoid payment for them. He cannot stand by and take the benefit and then come in and defeat the lien. This is the underlying principle in tjjis class of cases. Nat. Wall Paper Co. v. Sire, 163 IST. Y. 122; Otis v. Dodd, 90 N. Y. ZZ%; Hackett v. Badeau, 63 N. Y. 476; Miller v. Mead, 127 N". Y. 544'; Schmaltz v. Mead, 125 K Y. 188; New V. Carroll, 73 Hun, 564; Burkitt v. Harper, 79 IST. Y. 273; Hellwig v. Blumherg, 7 E". Y. Supp. 746; Nellis v. Bellinger, 6 Hun, 560; Busted v. Matthews, 77 K Y. 389; Ottiwell V. Maxlow, 6 E". Y. Supp. 518. It is not necessary that the owner of the fee be personally liable for the indebtedness in order to give validity to a lien, or to an action for the foreclosure thereof. It is sufficient if the labor was performed and the materials furnished. Pearce V. Kenney, 152 App. Div. 638. 3. Consent of landlord — Improvements by tenant. — De- fendant's lease to one Quimby provided that the tenant should have a steam heating plant installed in the premises for which he was allowed the sum of $200 per month by way of deduction from the rent. The defendant owner sent the plaintiff to the tenant Quimby to make the contract for the heating plant. After the work was completed Quimby de- clined to pay and plaintiff filed a lien. Held, that the provis- Consent — Liability of Ownee. 53 ions of the lease as to the heating plant and the act of the de- fendant in directing the work, constituted consent within the meaning of the statute, which entitled the plaintiff to judg- ment. Meistrell v. Baldwin, 144 App. Div. 660; a. It is a well established equitable principle that one who knowingly takes the benefit of the property or labor of another in the form of improvements upon his lands, ought to have the land subjected to a lien for the value thereof. Empire Iron WorJcs v. Margolies, 85 Misc. 238 ; WaMe Phillips Co. V. Fitzgerald, 83 Misc. 636, and cases cited supra. h. Knowledge implies consent; acquiescence is consent. And if the owner knows that improvements are being made on his lands by those in possession which will inure to his benefit, it is his duty to notify the workmen and contractors, to whom they must look for payment. And if he discharges his duty in that regard his "consent" cannot be implied, in an action to enforce the lien. Cowen v. Paddock, 137 K". Y. 188; Spruck v. McRoherts, 139 N. Y. 193. 4. Consent — Liability of owner as to. — In considering the question of a right to a lien which rests upon the "con- sent or the request of the owner" the meaning of the word "owner" becomes important. The meaning of the word, as defined in section 2 of the Lien Law, has been discussed at page — ante. But the significance of the statutory defini- tion becomes apparent in connection with the doctrine of consent. The term includes not only the owner of the fee — it embraces also a lessee, a vendee in possession under an executory contract of sale, one having any right, title, or in- terest in land which can be sold on execution, one acquiring a franchise from a municipal corporation, and a purchase at a judicial sale. Ownership as between owner and lienor con- tinues, under section 13 of the Lien Law, not only until a conveyance or deed has been executed and delivered, but until the instrument has been actually recorded. So a lien filed for work and labor on the premises takes precedence and priority over an unrecorded deed. Lemmer v. Morrison, 89 Hun, 277. a. Under section 22 of the Lien Law, the rights of an owner who makes a building contract or an agreement to sell his land with a building loan will not be protected, unless 54 Lien Law — Article II, Sec. 3. the contract is filed in the office of the clerk of the county in which any part of the land is situated within ten days after its execution. h. The owner may be liable on the ground of consent where he makes no contract at all. This class of cases usually arises where premises are leased and the improvements are made by the tenant, or where the premises are in possession of a vendee under an executory contract of sale. c. The owner's consent will not be inferred by mere acqui- escence on his part. His consent must be evidenced by some affirmative act or approval, and it must appear that he de- rived some benefit from the work for which the lien is claimed. Sunshine v. Morgan, 39 Misc. 778. d. Consent may be either express or implied. Where there is an express request, or an absolute requirement by the owner that his tenant, or vendee, shall make the im- provements which inure to his benefit and from which the owner derives profit, he will be held liable. And if there be no express requirement on the part of the owner, but he ap- proves of the work and gets the benefit from it, his consent will be implied. With this general statement of the rules applicable to consent, in the absence of a contract directly with the owner, the numerous authorities may be harmonized. e. Plaintiff, a subcontractor in the execution of his con- tract did certain painting work which was not satisfactory to the architect. The defendant contractor was required to perform anew this defective work. Held, that the amount paid by the contractor should be allowed to him and deducted from the amount of plaintiff's lien. Marten v. Oberle, 85 Misc. 35. See also '•' Architect," post. Sec. 4', page 86 ; 'Complaint — Extra Work, Sec. 43, post, page 354; Counter- claim, Sec. 43, page 368. 5. Consent — Express request. — An express request by the ovTner, that a materialman shall furnish ranges for his building, of a specified style and size, where no contract was entered into between, the parties, will be sufficient to con- stitute consent within the statute, and such consent will au- thorize and support a lien on his premises for the value of the ranges. Richardson & B. Co. v. Beid, 3 JST. Y. Supp. 224. Consent — Voluntaey Services. 55i 6. Consent — Agent. — The law of agency in connection with the doctrine of consent will not be extended beyond the terms and provisions of the statute, and will be construed more strictly, in that regard, than in cases where it is sought to show that work has been performed by the agent of the con- tractor or materialman, as distinguished from the agent of the ovsTier. Where work has been performed and materials have been furnished, and the lien has been filed or verified by the agent of the party performing, the law will be con- strued liberally, so as to secure to such party the beneficial interests and purposes of the statute. a. But where it is sought to impose pecimiary liability upon an owner for work done or materials furnished, where there has been no direct connection between the owner, and the person who invokes the doctrine of the owner's consent through acts of his agent, the agnecy must be clearly estab- lished, and the authority of the agent must affirmatively ap- pear. 6. Where work was done under a contract with the con- tractor, and it was shown that the architect was employed directly by the owner, and the plaintiff established upon the evidence that his work was done under the direct supervision of the architect, and it was also shovra that the owner knew that plaintiff was doing the work and never objected, the evidence was held to be sufficient to sustain the lien. New V. Carroll, 73 Hun, 564. 7. Consent — Not implied for voluntary services. — There is no obligation to pay for services rendered voluntarily with- out request. If there be an express agreement to render services, which the contract declares shall be performed gra- tuitously, no obligation to pay arises for them. Such a con- tract is void for want of consideration, and want of mutual- ity, and neither party will be bound thereby. The party contracting under such an agreement is not bound to com- mence it. And if the understanding is that the services shall be gratuitous, when originally rendered, they cannot after- ward be made a charge. James v. O'DriscoU, 2 Bay 101 ; Davies v. DavieSj 9 C. & P. 87; Patterson v. Patterson, 13 Johns. 379. a. But if one enters into a contract of employment and agrees with his employer to leave the compensation he is to 56 Lien Law — Article II, Sec. 3. receive entirely to tie employer, the jury may give what the employer ought to give. Bryant v. Flight,. 5 M. & W. 114. &. The rule, however, has long been settled in the old " wheat stack ease " that labor and services voluntarily ren- dered by one for another, without his privity or consent, how- ever meritorious or beneficial they may be to him, as in sav- ing his property from destruction by fire, creates no obliga- tion, and no cause of action in favor of plaintiif arises there- from. Bartholomew v. Jackson,, 20 Johns. 28. c. No one is obliged to accept gratuitous and voluntary services. But if, after such services are rendered, the party chooses to avail himself of the benefits thereof by retaining articles which are the product of the services, he becomes liable as though they were furnished upon request. Drake V. Bell, 46 App. Div. 275. d. A carpenter did work on the wrong house, and furnished certain articles which were not attached to the freehold. The owner induced him to leave these articles upon the premises upon a promise to pay for them. Held, that the carpenter could enforce a lien therefor, the owner having ratified per- formance of the services and expressly promised to pay for them. lb- 8. Consent — Owner — Repairing chimney. — Where labor has been performed and materials furnished for the improvement of real property with the consent of the owner, a lien for such work will be sustained. The circumstances, however, must show that the owner consented to the im- provement in the expe&tation that he would reap a benefit therefrom. Under such circumstances, the law raises an im- plied promise to pay for the labor and materials. Eerwin V. Post, 120 App. Div. 179. a. The complaint alleged that plaintiff performed work, labor, and services and furnished materials for the repairing of the chimney breast and pier and wall of the building on defendant's premises, of a specified value with the consent of the owner. The court held that the term " contractor," " subcontractor," " laborer," and " materialman " refer pri- marily to the man who has a formal contract with the owner, or a subcontract with the contractor, or who performs man- ual labor or furnishes material. The court held further that Consent — Ownee. 57 these definitions embrace also one wlao buys the labor and materials which enter into the improvement. One who fur- nishes labor or materials for the improvement of real prop- erty upon the proper consent of the owner is entitled to file a lien for such improvement, as well as one who has entered into a formal contract with the owner therefor. The con- sent of the owner which thus binds him is one in which the circumstances show that he assented to the improvement of his real property in the expectation that he would reap the benefit of it. From such consent the law raises an implied promise to pay- lb. 9. Consent — Owner — Party wall. — Where rights un- der a party wall cease, one owner, if the other refuses to co- operate, cannot compel him to rebuild the wall and claim contribution. Where labor was performed and materials fur- nished for rebuilding a party wall, the consent of the owner will not be inferred from the mere fact that the structure was a party wall. In such a case the complaint must allege facts which raise an express or implied contract on the part of a defendant to contribute toward the restoration of the wall. The bare fact that a party wall existed which needed repair and that plaintiff repaired it is not enough to charge the adjoining owner with liability, because such a state of facts is not sufficient to create an implied contract with the owner. Every lien is based upon a contract, express or im- plied, and a merely passive attitude is not sufficient to charge an owner with liability for work done in rebuilding a party wall, and will not constitute consent within the meaning of the Lien Law. Kerwin v. Post, 120 App. Div. 179. 10. Consent — Owner — Forbearance to file lien. — The plaintiff was a materialman and furnished sand and other materials to one Nikiseh, a contractor. The latter aban- doned his contract and failed to complete. The owner who had received from Nikisch $100 on the latter's agreement to purchase the property, never having conveyed the premises to Nikisch, was still the owner. Plaintiff was about to file a lien when the defendant told him that if he would forbear and not file his lien, the defendant would pay him the money that Nikisch owed him. Defendant afterward used part of the materials furnished by plaintiff in the structure. Held, 58 Lien Law — Aeticle II, Sec. 3. that plaintiff could sustain his lien upon the ground of the owner's consent. Schnaujfer v. Alir, 53 Misc. 299. 11. Consent — Religious corporation. — It seems that a re- ligious corporation may be bound under the Lien Law as having consented to the improvement of its lands upon which were erected a church building and rectory. The church corporation made a contract for such improvements, purport- ing to be made between the plaintiff and the trustees of St. Augustine Roman Catholic Church, in the city of New York, signed by T. F. Gregg, Rector. A subsequent contract was made, signed by T. F. Gregg, Rector of St. Augustine's, N.Y. It was claimed that these contracts were not binding upon the church corporation, because not executed or authorized formally by the trustees of said corporation. The court, however, said that in view of the fact that Rev. Mr. Gregg was president of the board of trustees, and superintended the construction of the church building, and the rectory, on the lands of the corporation, and where all the facts and circumstances show that the rector was acting during the prorgess of the work as the agent of the church corporation, which kept its bank account in his name, and from which he paid to the plaintiff, as the work progressed, from time to time, moneys belonging to the church -in his hands, that the assent of the owner must be implied in favor of one who has performed work and furnished materials under such cir- cumstances. Condon v. Church of St. Augustine, 112 App. Div. 168. 12. Consent — Landlord and tenant. — The rules applic- able to the law of consent, above set forth, are illustrated in the late oases. In order to constitute consent on the part of the owner, where the work was done by the tenant, the plain- tiff must show either that the landlord was an affirmative factor in procuring the improvement; or that, having pos- session and control of the premises, he assents to the work in the expectation that he will reap the benefit. In other words, the landlord must either require the tenant to make the im- provement which will inure to his benefit, or assent thereto, either because it will revert to him at the expiration of the term, or because his rent proceeds from the use of the im- provement. If the landlord gets neither the improvements nor derives rent from their use, he cannot be held liable to a CoNSEiirT — Landlord -and Tenant. 59 laborer or materialman who made tie improvements at the tenant's request, in tlie absence of an express contract witb the landlord. 13. Consent — Landlord and tenant — Authorities for plaintiff. — The consent of an owner which will render him liable under the Lien Law (Laws 1885, chap. 34'2, § 1), Lien Law 1897-1909, may be express or implied. Such consent may be implied from a lease giving the tenant permission to make repairs at the cost and expense of the tenant, if it is shown that the owner, by his conduct and actions, indicated a willingness to have the improvements made or an acqui- escence in the means adopted for that purpose, and tacitly approves of what is being done by constantly expressing, admiration and satisfaction with the work as it progresses and makes no objection. Nat. Wall Paper Co. v. Sire, 163 K y. 122. a. The lease, among other things, contained the following clause : "And the said party of the second part (the tenant Smith) further covenants and agrees to use said rented premises only for lawful pur- poses and keep the premises in good order for the full term of this lease at his own cost and expense and also that he will keep during the term of this lease all 'the machinery and boilers in good working order at his own cost and expense and at the end of the term, lease the said machinery, boilers and building in as good condition as rea- sonable wear and tear will allow." h. It also contained a provision that no alterations of the premises should be made without the written consent of the owner. Plaintiff performed labor and furnished materials in the repair of an ice plant under a contract with the de- fendant Smith, the tenant, and filed a lien against the tenant and also the landlord, alleging that the materials were fur- nished with .consent of the landlord within the meanihg of section 3 of the Lien Law. It was claimed that the ma- chinery upon which the labor was performed and for which materials were furnished was not affixed to or became part of the realty., Held, after a careful review of all authorities, that the tenant was required to put the machinery and boilers in good working order and to keep them so during the term ; that the repairs were not such ordinary repairs as the tenant was obliged to make at common law, and the defendant was bound to assume that the repairs made were such as the land- 60 Lien Law — ■Article II, Sec. 3. lord required the tenant to make by the provisions of the lease, and that he must be deemed to have consented thereto. Tinslejf v. Smith, 115 App. Div. V08; affirmed, 194 N. Y. 681. c. The owner made a three-year lease of three private dwellings " to be occupied as stores and flats." The demised premises consisted of three old brown-stone dwellings, which could not be used for the purposes of the lease without being materially altered. The plans for such alterations, at a speci- fied cost of $10,000, were filed two weeks before the lease was signed. The tenant was required to surrender the prem- ises at the termination of the lease, with tbe appurtenances and fixtures, including all improvements upon and in addi- tion to the demised premises. Held, that the consent of the landlord to such improvements will be implied, and that the lien of plaintiff extended not only to the leasehold, but to the fee of the lands. Empire Iron Worhs v. MargoUes, 85 Misc. 238. d. The lease provided for certain repairs and alterations in the demised premises to cost about $60,000, of which im- provements of the value of $15,000 were to be paid for by the landlord. The premises were to be used and occupied as a department store, and the improvements and alterations were to belong to the landlord, when made. Held to con- stitute " consent " of the owner, as to improvements of the value of $15,000, within the meaning of section 3 of the Lien Law. McNulty Brothers v. Ojferman, 152 App. Div. 181. Held further that where the lease authorized that the ceil- ing be calsomined, the rule of consent could not be extended so as to bind the landlord to pay for the erection of an elab- orate ornamental plaster ceiling. lb. e. A requirement that a tenant shall make certain im- provements on the premises is a sufficient consent of the owner to charge his property with claims which accrue in making the improvements. A lease which required the ten- ant to fit up and complete the premises for liquor and restau- rant business within three months, or that the lease should be void for failure to do so, binds the land of the lessor and owner for the improvements to the amount specified in the contract. Jones v. MenJce, 168 N". Y. 61. Consent — Landloed and Tenant. 61 /. If a lease authorizes the tenant to erect buildings on the land to cost $5,000 and the landlord agrees to loan $3,500 of this amount and take back a purchase-money mortgage for the money so advanced, the consideration being that the buildings are to revert to the landlord at the expiration of the lease, the consent of the landlord to the improvements will be implied, and his liability will not be limited to the amount he agreed to loan on bond and mortgage. Sleeves v. Sinclair, 56 App. Div. 448. g. A tenant in possession under a yearly lease, renewed from year to year, made an oral agreement to purchase the land and made a contract to erect a building on the premises.. It was shown that the landlord was shown the plans and speci- fications and assented to the work. Held sufficient to estab- lish his consent to subject his premises to a lien for the work. Butler v. Flynn, 51 App. Div. 225. h. Buildings which have been erected on the premises by a tenant, under an agreement with the owner that the lessee shall have the right to remove them, are not chattels, but realty within the meaning of the Lien Law. One who ac- quires a lien for the construction or repair of such buildings, from the use of which rent is derived, may acquire a lien therefor against land and buildings. Hamilton & Dodge Lumber Co. v. Murray, 47 App. Div. 289. i. The lessees agreed that they would either improve the buildings then on the premises or erect new buildings thereon, and make all repairs at their own coct and expense, and would make no alteration without written consent of land- lord, and were further granted permission " to make suchi alterations in the buildings demised as they may elect," and subsequently the landlord consented in writing to allow the tenants "to alter and repair said premises." The improve- ments were of a substantial character, including vaults in cellar under sidewalk, and the owners would derive the ulti- mate benefit of the improvement. It was shown also thali one of the owners expressed approval and satisfaction as the work progressed. Held sufficient to sustain a lien for the improvements upon the owners' consent. Mosher v. Lewis, 14 App. Div. 565. /. The original lease containing the clause that the im- provements were to be made by the tenants at their own 62 Lien Law — Aeticle II, Sec. 3. expense was recorded. Held, tliat such record was not con- structive notice to the lienor that repairs were to be made at the tenant's expense, and such record would not defeat the right to the lien. Ih. k. Where at the time of the execution of the lease, the lessor must have known that the lessee intended to make al- terations on the premises, in order to use them for the pur- poses for which they were let, there was, in a certain sense, consent. But such consent without more, will not be con- strued to hind the lessor to pay for such improvements. The alterations consisted mainly in the removal of certain par- titions, for the purpose of converting a number of small rooms into larger meeting rooms, and painting and plaster- ing them. Held, under the circumstances, not to constitute consent of the owner within the meaning of the Lien Law. Garber v. Spivak, 65 Misc. 37. 14. Consent — Landlord and tenant — Authorities for de- fendant. — Grounds were leased for athletic sports at a fixed rental. The lease provided that all stnictures erected by the lessee were to belong to him, and he had the right to remove them. Held, that as the landlord neither got any benefit from the improvements, nor derived rent from their use, he could not be held liable for them, from mere knowl- edge that the work was being done. Express consent must be shown. Rice v. Culver, 172 IST. Y. 60. a. A provision in a lease that the tenant shall make certain alterations and repairs distinctly specified in the lease at his own cost and without any cost to the lessor binds the lessor only for such alterations and repairs specified in the lease, the lease operating as the owner's consent. But if the tenant makes other and additional repairs at a cost largely in excess of the amount contemplated when the lease was made, the landlord will not be liable for the additional repairs unless his consent is established afiirmatively. And in such a case mere knowledge of the fact that such additional work was being done and was not objected to by the landlord is not suf- ficient to establish his consent. De Klyn v. Gould, 165 N. Y, 282. I. The consent of a landlord will not be implied from a provision in the lease that the tenant shall not make anj Consent — Authorities foe Defendant. 63 alterations or repairs without the consent of the owner. Where such consent is given to make specific alterations, the owner will not be liable when the tenant makes alterations other than those specified and where it appears that the owner not only expressed no willingness to have the repairs made, but knew nothing about them. Hanhinson v. YanUnc, 152 N. Y. 20, reversing Hanhinson v. Biker, 10 Misc. 185. c. A lease which provides that the tenant shall put in the building a steam-heating and elevator plant and make other repairs at the expense of the. tenant, the improvements to belong to the landlord at expiration of lease, coupled with, the fact that the landlord's agent had notice of the contract with the tenant to make the improvements, is sufficient to infer the consent of the owner under the Lien Law (1897 [1909]). But the owner cannot be charged for these im- provements if they are left incomplete and fail to comply with the agreement for their construction upon the perform- ance of which the consent is based. N. Y. Elevator Supply Co. V. Bremer, 74 App. Div. 418. d. The ordinary stipulation in a lease that the tenant will make no alterations in the premises, without the written consent of the landlord, under penalty of forfeiture and dam- ages without more, is not sufficient to establish the consent of the landlord. Hartley v. Muriha, 36 App. Div. 196. e. A clause that substantial alterations shall be made with the consent and apporval of the landlord, the plans and speci- fications to be first submitted to her, the imiprovements to belong to her at expiration of lease, is not binding on the landlord unless she has knowledge that the work is being done and she has seen and approved the plans and specifica- tions. If the tenant makes the improvements without her knowledge, and without showing and submitting to her the plans and specifications her consent will not be inferred. lb. /, A general clause in a lease made by the landlord to the tenant whereby the former consents that the tenant may or shall, at his own expense, make alterations and repairs to the premises, does not constitute " consent " within the mean- ing of the Lien Law. To hold the landlord, plaintiff must show that he has specifically contracted for the improvements or has done some affirmative act respecting them from, which 64 Lien Law — Aeticle II, Sec. 3. his knowledge and consent may properly be inferred. Aetrui Elevator Co. v. Beeves, 125 App. Div. 482. g. The term " improvement " as defined in the Lien Law under section 2, includes the erection, alteration, or repair of any structure upon, connected with, or beneath the surface of any real property and any work done upon such property or materials furnished for its p'ermanent improvement. Under this definition, repairs, as well as improvements, are embraced within the statute. The lease given by the land- lord to the tenant contained the following provision : " The party of the second part (Brackett, the lessee) agrees to keep the premises in good order and repair during said term, and at his own cost and expense." Plaintiff repaired an ele- vator on the premises at the agreed price of $227.32. The repairs were necessary for the proper working of the eleva- tor. Plaintiff attempted to hold the owner on the ground that under his leiase, requiring the tenant to make repairs, he had consented thereto. Held, that in the absence of proof of any formal request made by defendant for the repair, or any formal consent from him, and where the plaintiff failed to show that defendant had any notice or knowledge of the repairs until the work was completed, he was not liable. Aetna Elevator Co. v. Beeves, 57 Misc. 632. h. The obligation to make repairs would have been on the lessee had the lease remained silent on the question of repairs. The presence of the covenant was not notice to the owners of the repairs in question, and the owner's consent to specific repairs within the meaning of the statute cannot be implied. An opposite construction would extend the rem- edy beyond the general scope intended. Ih. i. Consent will not be implied, where a landlord intro- duces to the contractor, his tenant, who has agreed to make certain repairs, in consideration that the landlord would re- duce the rent, and where the latter exercises no control or supervision over the work, although he may have expressed satisfaction at the way the work was done, and where it further appears that the cost of the work was largely in excess of the amount contemplated, and the tenant remained in the possession of the premises up to the time of the trial, Hedlund v. Payne, 60 Misc. 603. CoiTSENT — Vendok aitd Puechasee. 65 ;. If the plaintiff who made alterations at the request of the tenant seeks to hold the landlord upon the doctrine of consent, he must, if he relies upon the provisions of the lease, allege such provisions, and plead conformity therewith. Mitchell V. Dwmore Realty Co., 126 App. Div. 829. h. The lease provided that the tenant should be compen- eated for certain alterations to be made by him " according to plans and specifications to be approved " by the landlord. Where plaintiff seeks to hold the landlord under such a lease, he must allege in his complaint and prove at the trial that the plans and specifications were approved by the landlord before the work was begun. Otherwise no cause of action exists against the landlord. lb. I. In an action by a contractor to foreclose a mechanic's lien under a contract with the tenant where the plaintiff relies upon the consent of the owner, the refusal of the ten- ant to pay will not justify the plaintiff in abandoning the work, unless he was actually prevented from completing. In order to hold the owner under such circumstances, the con- tract must be substantially performed and where it appears upon the face of the complaint that over $1,200 worth of work was left undone when the plaintiff abandoned his con- tract, a demurrer thereto by the owner will be sustained. lb. 15. Consent — Vendor and purchaser — Authorities for plaintiff. — Where an owner of lands, during the erection of buildings thereon, conveys the property, and agrees with the vendee to complete them at his own expense, under a contract made with the builder before executing the contract of sale, the contractor may complete, after the delivery of the deed and file a lien which will bind the property after title vests in the grantee. Pcpe v. HecTcscher, 109 App. Div. 495. a. Perez M. Stewart owned certain premises and began the construction of a dwelling-house thereon. He made a contract with plaintiff's assignor to do certain work and fur- nish certain materials in the construction of the building. Before the building was complete, Stewart sold the premises to the defendant Heckscher. The contract of sale contained the following provision : "The premises being incomplete and in course of construction, the same shall be completed in a thoroughly first class workmanlike man- 66 Lien Law — Aeticle II, Sec. 3. ner by the party of the first part (Stewart) at his own cost and expense within 60 days of the date of the delivery of the deed, subiect, however to uncontrollable delays, such work to be in conformity with the specifi- cations and contracts made by the party of the first part with the various contractors and in accordance with the memoranda attached and signed by the respective parties hereto . . . It is understood that the premises are to be completed as per the blue prints drawn by the architect John H. Duncan and signed by the party of the first part for the dining room . . . the metal work to the vestibule and stair- case to correspond with the metal work now being put in 12 East 52nd Street." Held, reversing Special Term; that the completion of the building was with the consent and at the request of Heck- seher, as evidenced by his contract with Stewart, the owner. When Heckseher took title, and agreed with Stewart that the latter should complete the buildings according to exist- ing contracts, he in effect requested and consented that the contractors proceed with their contracts. The case is thus brought within the provisions of section 3 of the Lien Law, as to work done and materials furnished with the consent or at the request of the owner, and of the defendant Heckseher, who afterward became the owner, and that the lien filed by plaintiff's assignor could be enforced against the land afteu defendant Heckseher took title. Ih. b. The plaintiff made a contract to sell to the defendants Adorjan and De Tonneay certain lands. The contract pro- vided that the vendees were to build a hotel upon the prem- ises consisting of not less than 100 rooms and to have the building completed within one year from the execution o£ the contract. It was further agreed that they should have possession immediately upon its execution. Defendant Lan- try, under a contract with the defendant vendees, furnished labor and materials in constructing the foundation for the hotel at the agreed price of $1,250, and filed his lien therefor. Defendants made default under the contract and work on the hotel was suspended. Plaintiff then brought an action to foreclose the contract of sale. In this action the defendant Lantry asserted his lien upon the property upon the ground that the plaintiff consented to the improvements within sec- tion 3 of the Lien Law. The court at Special Term held that plaintiff did not consent within the meaning of the statute. Upon appeal this judgment was reversed. The Ap- pellate Division held that the work performed by Lantry was in furtherance of tbe plaintiff's contract with the ven- Consent — Authoeities foe Plaintiff. 67' dees. Had the project proved successful the plaintiffs would have received their expected benefits therefrom. As it proved a failure, equity requires that they should be subjected to- the corresponding burdens. From the evidence the court said it VFas clear that all parties intended that work on the hotel should begin immediately upon the execution of the contract, and this work was being performed before the time fixed for the payment of the purchase price and the delivery of the . deed and bond. Of these facts the plaintiffs were cognizant and made no protest or objection but permitted Lantry to continue the prosecution of the work from which they ex- pected to derive benefit. Barnard v. Adorjan, 116 App. Div. 535. c. The court in its opinion followed the ruling in Rice v.. Culver (172 N. Y. 65), and cited from the opinion in that case as follows : " There is a marked distinction between the passive acquiescence of an owner in that he knows the im- provements are being made, improvements which in any case he has no right to prevent, and his actual and express eon- sent or requirement that the improvement shall be made. It is the latter that constitutes the consent mentioned in the s-tatute." Ih. d. Under the Act of 1885 (Laws 1885, chap. 342, § 1), it was held that implied consent of a vendor to the erection of buildings arises where the owner contracts to sell the land to a builder, the latter agreeing to erect buildings thereon, the vendor to furnish the money to complete the structures, and when finished the vendor agreed to convey the premises to the builder, and receive a purchase-money mortgage for the money advanced. In such a case the vendor not only required the vendee to erect the buildings, but also agreed to furnish him the money to do so, and retained title to and control over the premises during the progress of the work. The court held that the liability of the owner was not lim-i ited to the amount to be advanced to the builder. Schmaltz V. Mead, 125 N. Y. 188. The principles on which the above case rests have now been fortified and strengthened under the provisions con? tained in the Lien Law of 1897, in connection with the defi- nition given to the term " owner " under section 2 of the act, and also in connection with the provisions contained in sec- tions 13 and 21 above referred to. fiS Lien Law — Aeticle II, Sec. 3. 16. Consent — Vendor and purchaser — Authorities for 'defendant. — The doctrine of the consent of an owner ot land which will render him liable in the absence of an ex- press contract with the laborer or materialman rests upon, the same principle, whether the land is in possession of a tenant under a lease, or of a vendee under a contract of sale. Knowledge alone will not constitute consent. To render an owner liable it must appear either that he was an affirmative factor in procuring the improvements and required the ven- dee expressly to make them, or having possession and control of the premises, assents to the improvement in the expecta- tion that he will derive a benefit therefrom. As between ven- dor and vendee, where the executory contract of sale con- tained a provision that " the vendee shall have the right to immediate possession of the property for the purpose of erect- ing buildings," such a clause does not constitute a require- ment that the vendee should erect the buildings, within the meaning of the statute, but is a mere permission, which, without more, is not sufficient to render the owner liable for work done on the buildings on the ground of consent. Bech V. Catholic University, 172 IST. Y. 387. a. A vendee in possession of a lot, under a verbal contract to purchase, built a house upon it, set upon blocks and posts. In an action to subject the land to a lien for work done upon the house, on the ground of consent, it was held that it could not be sustained, as the conduct of the parties and surround- ing circumstances were not sufficient to show the consent of the owner. Moore v. McLaughlin, 11 App. Div. 477. i. The term " with the consent of the owner," used in the Lien Law of 1885 (Laws 1885, chap. 34'2, § 1), implies that the owner has power to give or withhold his consent with respect to improving the estate. If an executory contract of sale merely permits the vendee to remove a building from ■one part of the premises to another if- he wishes, but does not require the vendee to make improvements, the owner's ■consent will not be implied simply because she knows that the vendee is making improvements on the building. Voss- ler V. Slater, 25 App. Div. 368, affirmed, 163 N. Y. 564. 17. Consent — Married woman. — The law with regard to -the rights and liabilities of married women has undergone a complete revolution, and the old common-law rules, which Consent — Maebied Woman. 69 proceeded, upon the idea that when a woman entered into a marriage contract her identity was ajhsorbed and lost and became merged in the person of the husband, has been abolished, and the early authorities as to the rights and lia- bilities of married women are no longer applicable. In the State of New York a number of statutes have been passed between 1848 and 1896. These statutory provisions finally resulted in placing a married woman upon the same plane commercially as if she were unmarried, and her rights and liabilities, so far as her contract relations are concerned, arc no longer affected by her marital obligations. 18. Consent — Married woman — Property rights, pow- ers and contracts of. — The powers and rights of a married woman have been amplified by statute, so that now she can hold property in her own right and can contract with her husband or any other person as if she were unmarried, and iher separate estate will be liable for her contracts, whether they relate to such estate, or otherwise. The provisions of the Married Woman's Act, as amended in 1896 (Laws 1896, chap. 272), in this regard, are now embraced in the Domestic Relations Law, which was re-enacted in 1909, and is now embraced in chapter 14, article 4, of the Consolidated Laws, as follows: § 50. Property of married woman. — Property, real or personal, now owned by a married woman, or hereafter owned by a woman at the time of her marriage, or acquired by her as prescribed in this chapter, and the rents, issues, proceeds and profits thereof, shall continue to be her sole and separate property as if she were unmarried, and shall not be subject to her husband's control or disposal nor liable for his debts. § 51. Powers of married woman. — A married woman has all the rights in respect to property, real or personal and the acquisition, use, en- joyment and disposition thereof, and to make contracts in respect thereto with any person, including her husband, and to carry on any business, trade or occupation, and to exercise all powers and enjoy all rights in respect thereto and in respect to her contracts, and be liable on such contracts, as if she were unmarried; but a husband and wife can not contract to alter or dissolve the marriage or to relieve the hus- band from his liability to support his wife. All sums that may be recovered in actions or special proceedings by a married woman to recover damages to her person, estate or character shall be the separate property of the wife. Judgment for or against a married woman, may be rendered and enforced, in a court of record, or not of record, as if she was single. A married woman may confess a judgment specified in section one thousand two hundred and seventy-three of the Code of Civil Procedure. 70 Lien Law — Article II, Sec. 3. [Code Civil Procedure, 450, 1206 and 1723, incorporated. For re- mainder of sections 450 and 1273 see Code of Civil Procedure, 450, 1273.] [Section 52 relates to insurance by wife, of husband's life.] - § 53. Contracts in contemplation of marriage. — ^A contract made betvpeen persons in contemplation of marriage, remains in full force after the marriage takes place. § 54. Liability of husband for ante-nuptial debts. — A husband who acquires property of his wife by ante-nuptial contract or otherwise, is liable for her debts contracted before marriage, but only to the ex- tent of the property so acquired. § 55. Contract of married woman not to bind husband. — A contract made by a married woman does not bind her husband or his property. § 56. Husband and wife may convey to each other or make parti- •tion.— Husband and wife may convey or transfer real or personal property directly, the one to the other, without the intervention of a third person; and may make partition or division of any real prop- erty held by them as tenant's in common, joint tenants or tenants by the entireties. If so expressed in the instrument of partition or divi- sion, such instrument bars the wife's right to dower in such property, and also, if so expressed, the husband's, tenancy by curtesy. § 57. Rights of action - or against married woman for torts. — A married woman has a right of action for an injury to her person, prop- erty or character or for an injury arising out of the marital relation, as if unmarried. She is liable for her wrongful or tortious acts; her husband is not liable for such acts unless they were done by his actual coercion or instigation and such coercion or instigation shall not be presumed, but must be proved. This section does not affect any right, cause of action or defense existing before the eighteenth day of March, eighteen hundred and ninety. a. A married woman cannot be held liable for her hus- band's acts, unless it shall be shown that he acted as her agent. Such agency will not be presumed from the naked fact of the marriage, nor will the law imply that the husband is the wife's agent, unless facts and circumstances are shown from which such agency may be legally inferred. h. Where the evidence is conflicting on the question of agency, and the facts disclosed that the work was being done on the wife's land, and that she interposed no objection, but allowed the work to proceed and where she testified on the trial that she made a verbal cantract for the work directly with her husband and paid him for it, the question as to whether the husband acted as agent for the wife is not a ques- tion of law for the court but is a question of fact for the jury. Rusted V. Matthews, Y7 N. Y. 389. c. A husband owned one lot and his wife owned two lots immediately adjoining on the north. Plaintiff made a con- tract with the husband to perform labor and furnish material? Consent — Maeeied Woman. 11 on the three lots. The husband did not disclose the fact that his wife owned the two north lots. Plaintiff, after all the work had been completed, discovered that the wife owned the two north lots. Held, that plaintiff might hold the husband liable or the wife as the undisclosed principal for whom the husband acted as agent. But he could not hold both liable as principals, nor could he hold one liable for part of the demand and the other for the remainder as principal debtor. Booth V. Barrow, 29 App. Div. 66. d. That plaintiff, with full knowledge of the facts, had elected to hold the husband as principal debtor, and was bound by his election, and was not entitled to personal judg- ment against the wife, the amount due on his lien on her lots, $1.40, having been paid. lb. e. A contractor performed work and furnished materials for the owner of the premises, who conveyed them during the progress of the work to a married woman. The wife never made any contract with plaintiff, and there was no evidence that she knew that the work was being done. Plaintiff com- pleted the work at the request of the husband, who said that he owned the house. Held, that the wife's consent was not shown, and that there was no evidence to show that the hus- band acted as her agent. Lippmcm v. Low, 69 App. Div. 24'. /. Where lands belonging to a married woman have been improved under a contract with her husband, the consent of the wife to such improvements, under section 3 of the Lien Law, may be inferred from surrounding facts and circum- stances. Schumer v. Glarh, 107 App. Div. 207. g. Plaintiff, a hardware dealer, at the request of the de^ fondant's husband, who was a carpenter and builder, who was engaged in erecting a dwelling-house on his wife's land, fur- nished a quantity of hardware for the house, did plumbing work, and installed a furnace therein, and filed a lien against the property. The wife of the defendant claimed that she did not consent to the improvements. When the work was be- ing performed she resided close by the dwelling. She was frequently at the house when the work was in progress and actually lived in it when the furnace was placed. Her hus- tand purchased the furnace and hardware which were charged to him. HUd, under the circumstances, that she con- Bented to the improvement of her property, that the materials 72 Lien Law — Aeticle II, Sec. 3. were obtained for the benefit of the wife and were necessary to the completion of her house, and presumably enhanced its vajue. It appeared further that she paid $20 on account of the husband's bill. There is no pretense that she did not know that the furnace and materials supplied by plaintiff went into the construction of the house. There was no proof to indicate that the husband was furnishing the money to erect this dwelling on his wife's land, or that she employed him as a contractor to perform those services. Both defend- ants were witnesses and gave no explanation of their relations nor any testimony to impugn the authority of the husband to act for the wife. The fact that the goods were charged to husband was not a controlling circumstance, where it ap- peared that the wife, and not the husband, owned the property to be charged with the improvements. Ih. 19. Consent — Married woman — Wife undisclosed prin- cipal. — In a recent decision with regard to the liability of the wife as an undisclosed principal, it appeared that build- ings were constructed upon two lots owned by the wife, Jen- nie Webb. Her husband, Charles E. Webb, made an agree- ment with one Whippel to put the fixtures and plumbing work into the buildings, at a price agreed upon between him and Whippel, the plaintiff. The husband told the plaintiff that the buildings were for sale, but the evidence did not show to whom the bill was to be sent or to whom the work should be charged, nor did the evidence show that the husband dis- closed the fact that the wife was the owner of the lots. The bill was sent to the husband, and part of the claim was paid. In an action against the wife, the evidence showed that after the work was completed, one of the houses was conveyed by the wife, who owned the fee of both lots. It appeared fur- ther that th6 wife knew that the work was being done ; that she frequently visited the houses when the plumbing was be- ing put in, and gave directions as to alterations. The court held that the only purpose for building the houses was to im- prove the property in order that it might be sold, and that the fair presumption was that the work was done at the request of the wife, and that she was the undisclosed principal for whom the husband acted. Whippel v. Webb, 44 Misc. 332. The court cited Cutter v. Morris, 116 E". Y. 310'; Boynton v. Sqmre, 85 Hun, 128, and distinguished Zeigler v. Oalvin, 45 Hun, 44; Valerdine v. Appelbee, 87 Hun, 1; Wilson v. Consent — Nothing Due. 73 TJnderhill, 83 Hun, 233 ; Snyder v. Sloan, 65 App. Div. 543, and Jones v. Walker, 63 N. T. 612. a. Prior to the amendment of the Married Woman's Aet, in 1892, a married woman was sued to enforce a lien for work done in the erection of a building on her land. Plain- tiffs did the work under a contract with defendant's husband, who represented himself as the owner. Defendant testified that she orally contracted with her husband for the erection of the house and had paid him in full. Held, that a nonsuit was error, and that the facts entitled plaintiffs to submit to the jury the question whether defendant's husband was or was not acting as her agent. Farmilo v. Styles, 5 IST. Y. Supp. 579 ; s. c, 52 Hun, 450, 24 K Y. St. Rep. 377. b. "Where the labor is performed at the instance of the husband, and with the knowledge of the wife, it will be suffi- cient to establish his agency and render her estate liable. Hauptman v. CatUn, 20 N. Y. 247. 20. Consent after abandonment. — The plaintiff a material- man, agreed to supply a contractor with materials, which de- fendant, the owner, guaranteed to pay. The contractor aban- doned the work, and the owner proceeded to complete the building himself, and continued to order materials from plain- tiff. Held, that defendant, the owner, was bound to pay for the materials delivered after the cancellation of the contract, ■and plaintiff was not limited as to such materials by the con- tract price. Wood Manufacturing Co. v. Thompson, 149 App. Div. 252. a. Where the original contractor abandoned the work, and subsequently agreed with his subcontractor to do the plumb- ing work on the premises; the owner chose to complete the contract after abandonment, and the subcontractor performed his work with the knowledge and consent of the owner. Held, that the subcontractor was entitled to enforce his lien for work done by consent of owner. Clarke v. Heylman, 80 App. Div. 572. 21. Consent — Nothing due. — In order to authorize the lien of a subcontractor, on the ground of consent, it is in- cumbent upon the plaintiff to show something more than mere knowledge on the part of the owner that the subcontractor worked on the building. He must show (citing La Pista V. 74: Lien Law — Aeticle II, Sec. 3. Wei], 20 Misc. 554) that at the time of filing his lien some- thing was due from tlie owner upon the contract, to which the lien of the latter can attach. And in the absence of such proof a lien is unauthorized. Butter v. Aquehonga Land Co., 86 App. Div. 439. 22. Consent, how pleaded. — It will be sufficient to plead the consent of the owner in the language of the statute. The complaint alleged that the work, labor, and services, and ma- terials were performed and furnished by the plaintiffs with the knowledge and consent of the defendant Heylman, who was and now is the owner of said premises, and that the con- tract was performed and completed at the special instance and request of the defendant Heylman, who promised and agreed to pay plaintiffs therefor. Held to be sufficient. Clarke v. Heylman, 80 App. Div. 572. See also Boss v. Simon, 9 N. Y. Supp. 356. The complaint alleged that the work was done and the ma- terials were furnished at the request of one Sexton, who was in possession of the premises; that at the time one Lydia A. Chapman was the owner; that Sexton was the lessee of the premises, and the undisclosed agent of Chapman ; that said owner consented to the work and that the work was performed and materials furnished with the knowledge and consent of the owner. Held, that the complaint was suJiEcient and stated a single cause of action. McLean v. Sexton, 44 App. Div. 520. V. Validity and Legality of Lien Contracts. 1. Validity — General principles governing. — If one promises to do that which he cannot lawfully do, the contract is illegal, 'and such illegality is a perfect defense. Where the act of God or a vis major renders the performance of a con- tract impossible, the promissor will be excused from perform- ance. Where a contract is illegal, its performance cannot he compelled, for' the law will not punish a man for not doing, and will not require him to do, that which the law forbids. " If one agrees," says Mr. Parsons, in hi§ work on Contracts, " to do a tiling which it is lawful for him to do, and becomes unlawful by an act of the legislature, the act avoids the prom- ise ; and if one agrees not to do that which he may lawfully abstain from doing, but a subsequent act requires him to do it, OoNTBACTS Undee Labok Law. 75 this act also provides the agreement." Citing Fresh. Church V. City of New York, 5 Cow. 5 38. a. But where one enters into contract which was unlawful when the contract was made, and the legislature afterward makes it lawful, such act cannot render the contract valid. The contract was void when made, and a subsequent statute cannot give it life, a^ it was void ah initio. h. The legislature, however, must act within the limitations prescribed by the Constitution. If it makes a law forbidding a man to do an act which impairs any right guaranteed by the Constitution, the act will have no binding force. Schnaier v. Navarre Hotel Co., 182 N. Y. 83. And if the State legis- lature assumes to legislate with respect to matters over which the Federal Constitution confers upon Congress exclusive power to legislate, the State law is not binding. The Federal Constitution gives Congress exclusive jurisdiction over inter: state commerce. Congress, however, has no power to legis- late as to commerce- wholly within the State. *If, therefore, the State legislature enacts a law affecting interstate com- merce, the act is void, and contracts which violate its pro- visions are binding. People ex rel. Treat v. Coler, 166 N". y. 144. c. One who contracts for public work is not bound to obey a statute which is unconstitutional. The city of New York refused to pay for work done under a contract for construct- ing a sewer on the ground that the contractor had violated the provisions of the Labor Law (Laws 1897, chap. 415, § 14), now embraced in chapter 31, Consolidated Laws, 1909, which provides that " all stone used in State or municipal work, ex- cept paving blocks or crushed stone, shall be worked, dressed, and carved within the State." Held, that the provision of the statutes relates to a regulation of commerce between the States which the State legislature had no power to make, and that the statute was, therefore, unconstitutional and void and fur- nished no defense to the contractor's claim. Ih. 2. Contracts under the Labor Law. — Constitutional ques- tions constantly larise as to the validity of municipal con* tracts under the Labor Law. Prior to the amendment of the State Constitution in 1905 a number of decisions with re- spect to this statute were rendered declaring the provisions 76 Lien Law — Aeticle II, Sec. 3, of the Labor Law relating to the validity of the " eight-hour day " and the provision compelling municipalities to pay the " prevailing rate of wages " were unconstitutional. These •decisions and the new constitutional amendment are fully dis- cussed under section 5 of the Lien Law, post, page 138, under the general heading " Validity of Municipal Contracts un- der the Labor Law." 3. Recovery for work not required by the contract. — Where a contractor is ordered by the representatives of a municipal corporation to furnish materials and perform labor, which the contractor thinks are not embraced within the terms of the contract, he may do as directed, under pro- test, and subsequently recover damages because he has done what was required of him. If it should turn out that the contractor was right, and the city officials had no author- ity to direct the labor to be performed or the materials furnished, the contractor is entitled to recover on the theory that he was required to furnish materials and do work not covered by the contract, and that the city committed a breach of contract, for which plaintiff was entitled to recover damages measured by the value of such extra work and ma- terials. Borough Construction Co. v. City of New York, 200 ]Sr. Y. 149. a. "Where the question is debatable whether the labor and materials required of a contractor, are covered by the con- tract, the contractor may perform the work and furnish the materials under protest, and subsequently recover damages for the work performed and the materials furnished. He is not obliged to do more than his contract clearly calls for, and may sue upon a quantum meruit for what he has already done. Beckwith v. City of New York, 148 App. Div. 558. 4. Contract — Time of performance not specified. — Defend- ants contracted to erect a building and on its completion lease it to plaintiff. The contract, however, did not specify the time when the contract was to be completed. Held, that where the time for performance in a contract is indefinite, or uncertain or is not specified, neither party can put the other in default without giving notice, specifying a reasonable time within which the contract must be performed. Taylor V. Goelet, 142 App. Div. 467. Plumbees Conteacts. 77 5. Plumbers — Regulation as to, in New York City. — In the city of New York, plnmbers must now register an- nually. On the 27th day'of May, 1913, section 415 of the Greater New York Charter was amended by adding thereto subdivisions a, b, and c; and to section 416 subdivisions a, b, c, d and e, relating to the registration and regulation of plumbers in the several boroughs of New York city. An employing or master plumber, must register his name and address at the office of the bureau of buildings in the borough in which he performs work, pursuant to the rules. and regulations prescribed by the bureau. He becomes en- titled to a certificate of registration, provided he holds also a certificate from the examining board of plumbers of the city, and is a citizen of the United States. Upon obtaining such certificate be may register with the bureau of buildings, within thirty days after the issuance of the certificate. The superintendent of buildings has power to .cancel such regis- tration for a violation of the rules and regulations relating to plumbing and drainage. He may cancel it also, when a plumber ceases to hold a certificate from the examining board of plumbers; or ceases to be engaged in the business of employing or master plumber. Such cancellation can bes made only after a hearing and upon notice of not less than ten days. If the person engaged in the plumbing trade, is a co-partnership each member must register. One who holds a certificate from the examining board of plumbers, is for- bidden to use it for the benefit of any plumber who is not registered, under penalty of fine or imprisonment or both, and forfeiture of any certificate of registration at the time of conviction. 6. Legality of plumber's contract. — A lien based upon in illegal contract cannot be enforced. Laws of 1892, chap. 902, makes it unlawful for a plumber to carry on business in the city of New York without having previously regis- tered his name and address with the board of health. A plumber, therefore, who fails to comply with the provisions of the statute cannot compel payment for work performed by him in violation of the statute. Johnston v. Dahlgren,- 166 N. Y. 354. a. After this decision was rendered, the legislature in 1'896 (Laws 1896, chap. 803) broadened the provisions of the stat* Y8 Lieu- Law — Aeticle II, Sec. 3. Tite so as to make it unlawful not only for any individual plumber to carry on business without first having registered iis name and address with the board of health, but made it unlawful for any copartnership to engage in the business of master plumber "in 'the city of ITew York unless the naraei -and residence of such person and of each and every member! 'of such copartnership shall have beeii registered as provided in the act." In 1900 the law was again amended (Laws 1900, chap. 327), codifying the provisions relating to plumb- age, drainage, and other matters making the law applicable generally to all cities throughout the State. Section 57 of the Laws of 1900, however, declares that nothing contained in article 3 thereof, relating to plumbage and drainage, shall supersede or affect any of the provisions of chapter 803 of the Laws of 1896. IJnder this statute, if a member of a copartnership engaged in the plumbing business was not a practical plumber he could not register as required by the ■statute, and the copartnership could not do business in thia State. The court held that this provision of the law ren- dered it unconstitutional. Schnaier v. Navarre Hotel Co., 182 K Y. 83. Milton Schnaier and Louis Schnaier engaged in the plumb- ing business in the city of New York under the firm name of Milton Schnaier & Company. Milton Schnaier was al practical plumber and registered as such and received a cer- tificate pursuant to the provisions of chapter 803 of the Lawa of 1896. His copartner, Louis Schnaier, was not a prac- tical plumber and attended exclusively to keeping books of the firm and carrying on and attending to its financial af- fairs. The firm brought an action against the defendant, the Navarre Hotel and Importation Co., to recover for plumb- ing work and materials ordered by defendant. The defense interposed was that every member of the copartnership, nnder the Act of 1896, was required to secure a certificate as a practical plumber and that as only one of the defendants had secured such certificate, the plaintiffs as copartners were not entitled to carry on business in the city of New York, and not entitled to recover. This defense involved solely the question as to the validity of chapter 803 of the Laws of 1896, requiring each member of the copartnership to register as a practical phimber. The Court of Appeals held, revers- ing the court below, that the act was invalid upon the ground Plumbees Contkacts. 79 that " a law which prevents or hinders a man from going into partnership with another for the purpose of carrying on tiie trade, business, or calling of employing or master plumb- ers, infringes his natural rights as secured by the Constitu- tion." Upon this point Judge O'Brien observes: " It cannot be denied that the statute in question operates to prohibit two persons, situated as the firm in this case was, to enter into partnership for conducting a legitimate busi- ness. " It prohibits a business man, with financial means and business ability, and a registered master plumber, with the requisite mechanical skill, from uniting the financial and business ability of the one with the energy and mechanical skill of the other in a partnership for conducting a legitimate business. The right to form partnerships for the conduct of business has existed from time immemorial and any inter- ference with that right must be regarded as an unwarranted interference with individual freedom condemned by the Con- stitution. The feature of the statute to which I have referred would deprive a firm engaged in the plumbing business, com- posed of half a dozen persons, from enforcing contracts and collecting their bills for work done unless they could show that each and every member of the firm was a registered plumber, and if, as in this case, it is impossible for one of them to become registered, the firm must dissolve. A law that produces such results in its operation cannot be valid." Schnaier v. Navarre Hotel Co., 182 IST. Y. 83. 7. Plumbers — Conduct of regulated. — The conduct of persons engaged in the plumbing trade, or intending to en- gage therein is now regulated by the General City Law (Laws 1909, chap. 26). The provisions of this law were examined and construed in People ex rel. Lavier v. Hessler, 152 App. Div. 839. In that case the court said that the policy of the legislature, apparently was to vest in the examining board of each city the exclusive authority to pass upon the qualifica- tions of an applicant, and to carry on the work of a master plumber in the city, and its certificate of competency is an essential prerequisite to registration. The presentation of this certificate entitles the applicant to registration, as the commissioner of public safety possesses no authority to refuse registration if the proper certificate is presented. 80 Lien Law — Aeticle II, Sec. 3. The examining board of eaeh city has exclusive authority to pass upon the qualifications of an applicant, who desires to carry on work as a master plumber in such city. A plumbier cannot register in one city upon presentation of a certificate of another city. The certificate of the examining board of the particular city is necessary to enable a plumber to register therein. People ex rel. Lavier v. Hhssler, 152 App. Div. 839. 8. Contractor may employ licensed plumber. — A con- tractor who is not a licensed plumber may employ one to perform plumbing work underthe contract. The complaint of the contractor alleged that plaintiff agreed with defendant Siravo, " to perform or procure to be performed all the labor, and furnish or procure to be furnished all the materials nec- essary " for the plumbing, heating, and electric lighting. It contained the further allegation that plaintiff entered into a contract with one Howorth, to do the plumbing work, who was a licensed and authorized plumber, and had complied with all the terms of the laws of the State of New York, the ordinances of the city of New York, and the rules estab- lished by the building department of said city relating to the licensing and registration of plumbers. Held that the complaint set forth a lawful contract and it was not neces- sary that plaintiff should allege that he himself was a duly licensed plumber. Putnam v. Siravo, 140 App. Div. 194. 9. Unlicensed Plumber cannot recover for vsrork per- formed. — The defendant Rust employed Mrs. August Ziemer who held herself out as a " Tinsmith and Plumber," to do certain plumbing work on plaintiff's premises. Held, that as she was not a " licensed plumber " she could not recover for the work done, if she had done it herself, or through her own employees, nor can she recover even though she per- formed the work through subcontractors who were licensed plumbers. "While one may contract for the erection of a building, including plumbing work for a gross sum, he would have the right to employ a licensed master plumber to do the plumbing work. In that case the contractor would not be conducting the " trade business or calling " of a master plumber. Mrs. Ziemer held herself out as a master plumber and comes within the prohibition of the statute. Wexler v. Bust, 144 App. Div. 296. Statute of Feauds. 81 10. Corporation. — Where a corporation is engaged in con- ducting a plumbing business and employs persons only -wba are licensed and registered plumbers pursuant to the statu- tory requirements, the corporation has complied with the pro- visions of law relating to licensed plumbers, and such cor- poration is not precluded from recovering for work, labor or services, performed in the execution of a building contract. Schnaier Co. v. Grigshy, 59 Misc. 595. 11. Illegality — Fictitious partnership name. — Section 924 of the Penal Law* (formerly § 363 of tbe Penal Code) makes it a misdemeanor, for a person to use the name of one as partner who is no partner, or using the designation " and Company," or " & Co.," when no actual partner is repre- sented. The lienor signed the contract " Vandergrift & Com- pany," in violation of the statute. Held, that a lien for labor and services under such a statute after the contract had been executed could not be defeated because the signature was in violation of the Penal Code. Vandergrift v. Berton, 83 App. Div. 548. VI. Statttte of Fbatjds. 1. Statute of Frauds — Verbal contracts. — Collateral promises. — The Statute of Frauds can have no bearing in actions to foreclose mechanics' liens, so far as oral contracts are concerned. The statute applies only to executory con- tracts. In order to succeed in an action to foreclose a me- chanic's lien,plaintiff must show that his contract has been executed and performed. It is incumbent on the plaintiff in such an action to show performance or substantial per- formance of his contract, or to show that performance was prevented by the owner or contractor, as the case may be, through no fault of plaintiff. The latter will then be per- mitted to recover under the broken contract upon a quantwm merwt for the value of the work actually performed or for the materials actually furnished, and will be excused from further performance of his promise or agreement. If, how- ever, a lienor under such circumstances seeks to recover dam- ages suffered by a breach of the contract, in a case where he •See also § 440, Penal Law (Laws 1909, Chap. 88); also Partner- Bhip Law, § 22 (Laws 1909, Chap. 44), where use of designation is forbidden, but no penalty is prescribed. 82 Lien Law — Aeticle II, Seo. 3. is excused from complete performance, he cannot do so in the lien suit, but must bring an action at law, setting forth the contract, its breach by defendant, and the damages sustained, and try the issue before a jury. a. In lien actions, therefore, only contracts which have been executed and performed are involved, and the Statute of Frauds can have no possible application. The only con- tract which the Lien Law requires to be in writing is a con- tract for a building loan, either with or without the sale of the land. Such agreements must be in writing, acknowl- edged, and filed in the county clerk's ofiice of the county where the land is situated, pursuant to section 22 of the Lien Law. Such contracts, however, relate only to the loan of money. They are not contracts for work, labor, and services or for the furnishing of materials for the permanent improve- ment of real property. So far, therefore, as the Statute of Frauds is concerned, which under certain conditions requires contracts to be in writing, it can have no application to suits to foreclose mechanics' liens. h. The only phase of the statute which can arise in lien actions is contained in the rule that no person shall be charged upon the promise to answer for the debt, default, or mis- carriage of another, unless the agreement or some note or memorandum thereof is in writing and signed by the party to be charged therewith. The purpose of the Statute of Frauds was not to permit a party to bind himself to pay another man's debt, except by a written promise signed by him. c. The first observation as to this rule applies to the dis- tinction between a collateral promise to pay another man's debt, in case the original debtor fails to do so, and a direct promise to pay such debt, which is an original promise. A direct promise to pay, founded on a good or valuable consid- eration, is a valid promise, not within the statute, and may be enforced without writing. There must be some one who owes the debt directly. There must exist an original liability as the foundation for the collateral promise. And the liabili- ties must be entirely distinct. " If, therefore," says Mr. Parsons in his work on Contracts, " the creditor trusted to one of the parties more than to the other, but did in fact trust to one together with the other, it is not within the stat- (Statute of Feattds. 83 Tite." Where tlie main object of the promisor, in making the promise to pay the debt of another, is not to answer for an- other but to subserve some purpose of his own, his promise is not within the statute, although it may be in form the promise to pay the debt of another. Nelson v. Boynion, 3 Met. 396. In the case of Williams v. Leper, 3 Burr. 1886, the plaintiff sought to distrain the goods of his tenant for nonpayment of rent. The property was about to be sold at auction by defendant, who was the auctioneer. Defend- ant then promised plaintiff that if the latter would desist or not distrain the property he Avould pay plaintiff the rent which the tenant owed him. Held, that defendant was liable without writing. That the promise was original and not collateral, and was made by defendant to subserve his own ends, in order that the sale of the chattels might proceed. Another illustration of the rule is the case of Hoiddiich v. Milne, 3 Esp. 86, where plaintiff had possession of carriages belonging to one Copey, upon which he had a lien for repairs. Defendant, in consideration that plaintiff would relinquish his lien and deliver the carriages to him, promised to pay Copey's debt. Lord Eldon held that defendant was liable on his promise without writing. The object of defendant in making his promise to pay the debt of Copey was to subserve his own purposes and get possession of the carriages. d. An interesting case bearing directly upon the liability of one who promises to pay the debt of a defaulting contractor, on an unfinished building, if plaintiff would proceed with his contract, is Band v. Mather (11 Cush. 1). Plaintiff was a subcontractor with one Whiston, who had agreed to build three .houses for defendant, "Whiston became insolvent and abandoned his contract. Piaintiff refused to finish his con- tract, Whiston having failed. The defendant owner then told plaintiff if he would finish his contract he would pay him not only what Whiston owed him for what he had done but that he would pay him for what he should do in finishing his contract. Defendant declined to pay when the work was finished, and as a defense to plaintiff's action for work, labor, and services, set up the. Statute of Frauds. Held, that the promise was direct and not collateral. That the agroement was executed and performed and that plaintiff was liable for the work done subsequent to the promise. Rand v. Mather, 11 Cush. 1. 84: Lien Law — Article II, Sec. 3. e. Under the Lien Law of New York, the defendant would have been liable not only for all work done subsequent to the promise, but for everything done under the contract with Whiston, not only because the promise to pay Whiston's debt was an original and not a collateral promise, and was made to subserve Ms own purposes and procure the work upon his land to be finished, but because there *was consent, clear and positive, on the owner's part. Schnauffer v. Ahr, 53 Misc. 299. /. Claims for work and labor must be executed in order to fall within the operation of the Lien Law. They may em- brace agreements which were either verbal or written. It is not even necessary that the notice of lien should state that the contract under which the work was performed was in, writing. Smith v. Bailey, 8 Daly, 128. g. A written contract by a lienor to perform work or fur- nish materials was not required under the Lien Law of 1885, which expressly authorized oral contracts, nor is such written contract required by the provisions of the Lien Law of 1897- 1909. Moriarty v. Board of Education, 112 App. Div. 837. 2. Statute of Frauds — Promise to pay the debt of an- other — Executed contract. — Plaintiff was a materialman and furnished sand and materials to the contractor, who aban- doned his contract before it was completed. A number of subcontractors filed liens. The owner of the premises stated to plaintiff that if he would forbear filing his lien that he, the owner, would pay him what the contractor owed him. Held, that the promise was not void under the Statute of Frauds as the promise to pay the debt of another ; that the contract was fully performed and executed and could be enforced although the agreement was not in writing. Held, further, that lie owner's promise to pay was not a collateral but a direct prom- ise, based upon a good consideration. That the promise of the plaintiff to refrain from filing his lien was a good con- sideration for the promise of the owner to pay the claim. Schnauffer v. Ahr, 53 Misc. 299. Held further, that the defendant was liable on the ground of consent, that while the work was being performed by the contractor, ISTikiseh, the latter was only a vendee in posses- sion, defendant never having conveyed to Nikisch, who, it Statute of Feauds. 85 appeared, had deposited $100 witli defendant on account of the purchase price. lb. Compare Martin v. Flahive, 112 App. Div. 347, 98 IST. Y. Supp. 577. a. Where the claim is made in an action to foreclose a me- chanic's lien, that the contractor promised to pay the indebt- edness of a subcontractor due from such subcontractor to his employees, it must be set forth in the pleadings, and the parties asserting it must show that it was based upon a valu- able consideration, otherwise such a promise by a contractor to pay a past indebtedness incurred by the subcontractor is void within the Statute of Frauds. Murphy v. City of Wwtertown, 112 App. Div. 670. 3. Statute of Frauds — Building loan contract. — The only contract which the Lien Law requires to be in writing is authorized by section 21, which relates to a building loan, either with or without the sale of the land. Such a contract and any modification thereof must be in writing and duly acknowledged and filed vsdthin ten days after its execution in the office of the clerk of the county, in which any part of the land is situate, and the same shall not be filed in the reg- ister's office of any county. If an oral modification is not material, it will not affect the contract. See Penn. Steel Co. v. Title Guarardee & T. Co., 193 N. Y. 37, post, page 307. 86 Lien Law — -Article II, Sec. 4. § 4. Extent of lien. — Such lien shall extend to the owner's right, title or interest in the real property and improvements, existing at the time of filing the notice of lien. If an owner assigns his interest in such real property by a general assignment for the benefit of creditors, within thirty days prior to such filing, the lien shall extend to the interest thus assigned. If any part of the real property subjected to such lien be re- moved by the owner or by any other person, at any time before the discharge thereof, such removal shall not affect the rights of the lienor, either in respect to the remaining real property, or the part so removed. If labor is performed for, or materials furnished to, a contractor or sub-contractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon. In no case shall the owner be liable to pay by reason of all liens created pursuant to this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notices of such liens, except as hereinafter pro- vided. Ee-enactment of § 4, Lien Law 1897. 1. Object and scope of section 4. — Section 4 of the Lien Law contains several important provisions which may be sub- divided as follows : 1. It defines what interests in the land may be reached by tbe lienor. In this regard it should be read in connection with section 2 and section 9 of the Lien Law. The law un- der this section extends the lien to fixtures or chattels on the " real property." 2. It provides for the protection of lien creditors, and creates an equitable lien in their favor against the general creditors of an insolvent owner, applicable also to an insolvent contractor. Extent of Lien. 87 3. It protects lien creditors as to property removed from the premises where they are performing work and furnishing materials. It prohibits an owner or any other person from removing any part of the real property subject to a lien, and declares that such removal shall not affect the rights of the lienor, " either in respect to the remaining real property or to the part so removed." 4. It protects the owner by limiting his liability to a sum which shall not exceed the amount earned and unpaid on the contract at the time the liens were filed, a,nd any sum subse- quently earned thereon. 2. Owner's right, title, and interest. — Whatever interest one who is named in the notice of lien has in the land, at the time the notice of lien is filed, may be sold under a judgment of foreclosure and sale to satisfy the lien debt, whether it be the fee or lesser estate. The term " owner " does not neces- sarily mean the owner of the fee. Although he may be a lessee or a life tenant, he will, nevertheless, be deemed an owner, within the meaning of section 2 of the Lien Law. Un- der that section, the term " owner " has been broadened so as to render it as comprehensive as language can make it. In order to ascertain what ths term " owner's right, title, and interest " means, as used in section 4, it should be read in con- nection vsdth sections 2 and 9 of the Lien Law. The law is important in tiiis regard, for although an unsuccessful at- tempt to. state the name of the owner will not invalidate the lien, yet as between two lien creditors, one of whom has cor- rectly designated the owner of the fee and the othei- who failed to do so, the lienor whose notice is correct will be en- titled to priority, a. Lands were owned by one Pace, which were in posses- sion of the Rochester Turkish Baths, a corporation of which Pace was president, and who as such signed the contracts un- der which liens were filed. Barr & Creelman filed liens designating the Turkish Baths as owner. Plaintiff, Strau- chen, filed a lien naming Pace as owner and the Tuikish Baths as having " some interest in the said property, either as purchaser by contract, lessee, licensee, or occupant of the said premises." An hour later Barr & Creelman filed a new lien naming Pace as owner and the Turkish Baths as " ven- dee, lessee, licensee, or occupant of said premises." Held, 8S Lien Law — Aeticle II, Sec. 4. that as between plaintiff and Barr & Creelman, the lien of the latter was not sufficient to hind the interest of Pace in the fee, as he was not named as owner in the first notice filed by Barr & Creelman. Strauchen v. Pace, 195 IST. Y. 167. 3. What interest lienor acquires. — ',' It was not the legis- lative intent," says Gray, J., " to give a lien upon the prop- erty through the filing of any notice describing it ; it was in- tended that such a lien should be acquired as against the title or interest of the person, party to, or assenting to the agreement under which the work was done ' against whose interest therein a lien is claimed ' in the notice. The pro- ceeding in foreclosure is authorized in order that the claim may be satisfied through a judicial sale of what title or inter- est the person named in the notice may have in the property. The object of the statute to bind the interest of the person against whom the notice of lien is filed, appears in the re- quirement in the tenth section that the county clerk in whose ofiice the notice is to be filed must enter in his docket inter alia the names of the owners stated in the notices in alpha* betical order. This provision is to enable a search to bring out the persons whose interests are affected by the notice, and the docket thus gives the notice the law intended it should give." Strauchen v. Pace, 195 IST. Y. 167. 4. Trustee in bankruptcy. — A contractor was adjudicated bankrupt. Two days after such adjudication a subcontractor filed a Htii on the property for the moneys due the contrac- tor. Held, that the lien of the subcontractor was entitled to priority over the claim of the trustee in bankruptcy, and that the amendment of 1910 to the Bankruptcy Act (Sec. 47a) did not operate to defeat the lien. Hildreth Granite Go. v. Gity of Watervliei, 161 App. Div. 420. See also ante, page 40. 5. Assignment for the benefit of creditors. — Section 4 of the Lien Law gives a lienor a right to file a lien at any time within thirty days after the owner of the land makes a gen- eral assignment for the benefit of creditors, and such lien will take priority over the title of the assignee, and the lat- ter will hold the land subject to the lien as if it had been filed prior to the assignment. Section 13 of the Lien Law gives to such liens specifically, priority over the conveyance made Insolvent Ownee oe Conteactoe. 89 by the owner to his trustee or assignee for the benefit of cred- itors. a. The Lien Law thus, in terms, protects the lienor against the general creditors of an insolvent owner. The couits in construing the statute have extended such protection to the lienor, as against the general creditors of an insolvent con- tractor and have invoked in their behalf the doctrine of an equitable lien. The Federal courts have in like manner de- clared that a mechanic's lien, under a State law, is not a lien " obtained through legal proceedings," and is not, therefore, discharged under section 67f of the Bankruptcy Act, if filed within four months of an adjudication in bankruptcy against an owner or contractor. See section 13 of the Lien Law, post, pages 164, 168, and authorities cited. 6. Assignment — Insolvent owner or contractor — Equit- able rights of lien creditors. — The legislature intended by section 4 of the Lien Law to grant protection to those who expend labor and furnish materials to enhance the land of an insolvent owner, as against the general creditors of such owner. This rule applies also to an insolvent contractor. Crane Co. v. Mntual Signal 06., 94 App. Div. 53. This protection exists for a period of ninety days within which time a lien may be asserted or lost. The right which a lien creditor has to perfect his lien by filing the notice required is " a statutory preferential right, in the nature of an unper- fected equitable lien in favor of the laborer, mechanic, ma- terialman, or subcontractor." Kane Co. v. Kinney, 174 N". Y. 69 ; New Jersey Steel & Iron Co. v. Eohinson, 92 App. Div. 4'36, affirmed, 178 IST. Y. 632 ; Held v. City of New York, 83 App. Div. 509 ; Davis v. City of New York, 75 App. Div. 518. a. If an insolvent owner assigns his interest in the land which is being improved, by a general assignment for the benefit of creditors, within thirty days prior to the filing by lien creditors of their respective liens, the liens when filed by virtue of the provisions of section 4 will extend to the in- terest assigned. And if an insolvent contractor makes such general assignment his subcontractor will be protected as if no assignment had been made. This provision of section 4 should be read in connection with section 13, which contains the general scheme of the nature and character of the priori- 90 Lien Law — Aeticle II, Sec. 4. ties given for the protection of laborers, contractors, and ma- terialmen under the statute. Section 13 declares inter alia that mechanics' liens shall have priority over claims of gen- eral creditors " who have not furnished materials or per- formed labor upon such property," if it has been assigned by the owner for the benefit of creditors within thirty days prior to the filing of tbe liens. b. The Court of Appeals, in the Kane case, thus clearly defines the rights of lien creditors as against those of general creditors of an insolvent owner or an insolvent contractor. " The object and purpose of the Mechanic's Lien Law," says O'Brien, J., " was to protect a person who, witli the consent of the owner of real property, enhanced its value by furnish' ing materials or performing labor in its improvement by giv- ing him an interest therein to the extent of the value of such materials or labor * * *. A certain time is allowed in which the lien may be asserted or lost. During that time there is a statutory preferential right in the nature of an un- perfected equitable lien in favor of the laborer, mechanic,' materialm'an, or subcontractor. And when a notice of lien is filed that right is perfected. But until the ninety days al- lowed by the statute vrithin which the lien may be filed have elapsed, the right cannot be defeated by the voluntary act of the party against whom it is asserted, such as a general as- signment for the benefit of creditors. If such were the effect of the assignment, no laborer or materialman's claim would be secure, and the beneficial purposes of the statute could be defeated unless a lien was filed at the time the work was com- menced, and from day to day thereafter. The statute is remedial and this construction must be liberal to secure its benefits." Kane Co. v. Kinney, 174 IST. Y. 69. c. Thus it will be seen that the Court of Appeals has ex- tended this rule so as to protect creditors of ^an insolvent con- tractor, upon the ground that, as against the general creditors of such contractor, those who furnish materials and perform labor for the insolvent contractor are given by the statute a period of ninety days within which to secure tbeir claims by filing liens against the property which is the subject of tbe contract. That within that time such laborers and material- men have an equitable lien upon the contract and the realty which will take priority over the title of the assignee of the insolvent contractor and over the claims of his general cred- Removal of Buildings. 91 itors. Kane Co. v. Kinney, 174 N. Y. 69; Armstrotig v. Borden Condensed Milk Co., 174 IST. Y. 510. d. The rule that an assignment by a contractor for the benefit of creditors will not defeat the right of a subcontractor to file a lien which will have priority over the title of an as- signee for the benefit of creditors applies to municipal con- tracts as well as contracts relating to private property. Read- ing Hardware Co. v. City of New York, 27 App. Div. 448. e. A purchaser of premises which were sold to satisfy a lien, under a building contract, must make inquiry as to these particular species of chattels. If they are the subject of a contract of conditional sale, the purchaser will not get title to them as fixtures. Baldinger v. Levine, 83 App. Div. 130 ; Kerley v. Clapp, 15 App. Div. 37. See also section 112 of the' Lien Law of 1897, now section 62 of the Personal Prop- erty Law, and authorities cited, post, page 450 et seq. 7. Removal of buildings. — The Lien Law also protects the lienor against the removal from the freehold, of build- ings erected upon it, to which his lien attaches. If labor has been performed and materials used upon a building, and a lien is filed, it cannot be defeated by the removal of the build- ing. The language of section 4 is : " If any part of the real property subject to such lien he removed by the owner, or by any other person, at 'any time before the discharge thereof, such removal shall not affect the rights of the lienor, either in respect to the remaining real property, or the part so re- moved." a. Buildings whch have been erected on lands by a tenant, under an agreement with the owner that the lessee shall have the right to remove them, are not chattels, but realty, within the meaning of the Lien Law, and one who acquires a lien upon such buildings may acquire a lien therefor, not only upon the buildings, but upon the land also, as the buildings form part of the realty. Hamilton & Dodge Lumber Co. v. Murray, 47 App. Div. 289. 6. A building is, in its very nature, an annexation to land, and it becomes a chattel only by the application of some ex- ceptional rule. If a tenant, having a right to remove build- ings during his term, renews his lease without removing them, he thereby loses the right to remove them. The mere right 92 Lien Law — Article II, Sec. 4. to remove bulidings does not make them chattels, and they must be considered real estate, regardless of any agreement with the landlord, to which a lien will attach. Ih. c. A tenant erected a ballroom on leased premises. The party who furnished labor and m'aterials on the buildings filed a lien. The lien was foreclosed^ judgment rendered for plaintiff, and the building was sold under execution. Held, that the tenant had a right to remove the building during his term, and the purchaser of the building succeeded to that right, and such right could not be defeated by a fraudulent surrender of the lease to the landlord. Ombony v. Jones, 19 IST. Y. 234. I. Law as to Fixtures. 1. General principles. — Whenever chattels are annexed to the realty with the intention that they shall form part of it, or of any structure upon it, adapted to the uses and purposes for which it is designed, such chattels become fixtures. They are no longer chattels, but realty to which the lien will at- tach. In construing the law as to what articles do or do not constitute fixtures, the authorities hold the term " fixtures " should be construed more strictly against a mortgagee and in favor of the mortgagor. So that as between mortgagor and mortgagee chattels might not be construed as fixtures, which clearly would be held to be fixtures as between an ovraer and a lienor, seeking to foreclose a mechanic's lien. In many cases, as between the owner and a lien creditor, the chattels need not ncessarily be attached to the freehold. Under the provisions of the Lien Law of 1897-1909, the term " fix- tures " embraces all materials furnished for the improve- ment of " real property." In ascertaining what constitutes " fixtures " within the meaning of the Lien Law, to which the lien will attach, it will be necessary to analyse the definition of the terms " real property," " improvement," and " public improvement " as defined in section 2. The term " real property," it will be observed, includes " fixtures," bridges and trestle work, structures connected therewith for the use of railroads, oil or gas wells and structures connected there- with, lease of oil lands, franchises and all structures placed to enable franchises to be operated. The term " improve- ment " includes erecting, altering, and repairing a structure, Law as to Fixtuees. 93 and material used for tbe " permanent improvement " of " real property." See ante, pages 10-13. a. The word " permanent," in this connection, has been discussed under section 2, at page 10, ante. Under these defi- nitions a lien is authorized under the Act of 1897-1909 for chattels placed upon land for its permanent improvement. If the chattels, or articles of personal property, or structures, or erections placed upon the land, are necessary, and were intended for the beneficial use and enjoyment of the property for the purposes to which it has been dedicated and adapted, and if they were placed upon it at the request of the owner, or of any contractor, or subcontractor, or with the knowledge or consent of the owner, a lien is authoried for the price of such labor and materials, with interest. 2. Improvement of real property — Second-hand machin- ery. — Plaintiff furnished certain second-hand machinery and an electric motor to defendant at his request. It was installed in a two-story frame structure 52 x 72, unsealed and unplastered, upon a lot belonging to defendant. The prior owner used the building as a sash factory. All the machinery had been removed when the defendant purchased it. He fitted up the building as a manufactory for general iron work for buildings. Being second-hand materials, it was not adapted exclusively for defendant's building and no extensive alterations were required for its installation, and nothing in the way of .permanent foundations, piers, or chimneys were required or constructed. It was attached to the floor and joists and to the beams of the ceiling by lag screws. Plaintiff filed a lien for the unpaid purchase price. In an action to foreclose it, the court below held that the materials were not furnished for the improvement of real property within the meaning of section 3 of the Lien Law, and dismissed the complaint. Held, error. Under a liberal construction of the Lien Law, the court is required to con- sider the character of the property and the purposes for which it was purchased. The fact that the machinery in question was procured for the purpose of improving the property by changing it from an empty frame building into an active going concern as a manufactory, and that the installation of this machinery actually brought about that transformation, it must be deemed to have been furnished for the improve- 94 LiEM' Law — Aeticle II, Sec. 4. ment of real property within the meaning of the statute. Oriffin V. Ernst, 124 App. Div. 279, 108 K Y. Supp, 816.' 3. Fixtures — Machinery not installed. — Under the Lien Law of 1897 it was held that a lien attached for machinery delivered on the premises, only a postion of which had been, installed in the building. a. Plaintiff agreed to sell to a firm certain milling ma- chinery, to be used as part of a plant for manufacturing brewers' grist and meals. The agreement provided that the vendee was to install the machinery, and the vendor agreed to supervise the starting and adjustment thereof. The ma- chinery was delivered, part of it was installed, but the in- stallment of the remainder was prevented, first by a fire, and second by the bankruptcy of the vendees. Held, that plaintiff's lien attached to all the machinery delivered, both tbe portions which had been installed as well as that which was not installed, as the installment was prevented through no act of the vendor. Sears v. Wise, 52 App. Div. 118. 4. Ice machine. — Under the Act of 1885, where the fix- tures are required to be put in, in connection with " erect- ing, altering or repairing " the structure, the court held thall plaintiff was entitled to a lien upon an ice machine which, was put into a building which was required to be altered for the purpose. It consisted of machinery and the plant for the manufacture of artificial ice, and it appeared that in plac- ing it in the building it became necessary to alter and repair the structure, and to attach portions of the plant to the fTee- hold. Nason Ice-Machine Co. v. Upham, 26 App. Div. 420. 5. Machinery for brewery. — The same rule was applied where the party claimed a lien for machinery placed in a' building, which formed part of the plant of a brewery, aa it was shown that in erecting the plant it became necessary to attach portions of it to the freehold. Watts-Campbell Co. V. Yuengling, 125 N. Y. 1. 6. Ranges and boilers. — A materialman furnished ranges and boilers, for flathouses, erected for purposes of sale, and intended to pass with the land. The ranges were so con- structed that they could be removed without difficulty, or Law as to Fixtuees. 95 •without injury to the freehold. They were held to be fix- tures. On the point of removal the court said: a. " While it is true that some portion of the material, for which recovery has been had, could have been removed with- out difficulty, notably the ranges, the object of the erection of the buildings and the circumstances surrounding their purchase, and their annexation to the freehold are sufficient to support the conclusion that it was the intent of the parties that they should be annexed to the realty and pass as fix- tures, whether they are actually or constructively annexed to the freehold. Union Stove Works v. Elingman, 20 App. IHv. 449, affirmed, 164 N. T. 589. 7. Furnace. — The same reasoning to sustain a lien for ranges and boilers was applied to sustain a lien for a furnace placed on a dwelling for the purpose of supplying heat throughout the building. It was intended to become a part of the structure and pass with the freehold. Schwartz v. Allen, 7 IST. Y. Supp. 5. 8. Mirrors. — Where mirrors are not set in the walls as part of the realty intended to pass with the freehold, but were slid into a frame and were put up after the building was erected, at the request of the tenant, and were so constructed that they could be easily removed without injury to tiie walls, they remain mere chattels, and are not subject to a lien as part of the freehold. Vogel v. Ferrand, 26 App. Div. 130. But where it appeared that the mirrors were permanently attached to the freehold, and were intended to complete the structure for occupancy for the uses and purposes to which it was adapted, and for which it was designed, the mirrors form part of the realty, to which the lien will attach. Ward v. Kilpatrich, 85 N. Y. 413. 9. Desks. — Desks and platforms designed for the use and equipment of a public school were held to be fixtures and sub- ject to mechanic's lien within the statute. Held v. City of New York, 83 App. Div. 510. 10. Library shelves and furniture. — Plaintiff, a subcon- tractor, furnished furniture for the equipment of a public library, consisting of library shelves, bulletin boards, parti- 96 Lien Law — Aeticlb II, Sec. 4. tions, exhibition cases, railings, cupboards, and platforms, •with the exception of one portable platform. All these ma- terials were actually attached to the walls or floors by means of holdfasts, angle-irons, screws, nails, brads, or scribes. The contract required that these furnishings should be fitted into the building and were specially adapted and designed for the use and purposes of the structure. Hild, that the labor per- ■ formed and materials furnished were for the purpose of making a permanent improvement and accession to the realty, and that a lien, therefore, was proper. Reiser v. Commeau, 129 App. Div. 490; affirmed 198 N. Y. 560. 11. Ice boxes. — Plaintiff furnished forty- two ice boxes from a design shown him for use in an apartment-house be- longing to the defendant. Plaintiff manufactured and de- livered the boxes upon the premises, placing one ice box or refrigerator in the kitchen of each apartment over a drain and sieve, which had been provided by the plumber so as to allow the water to drain into the sieve and to flow from the building. There were forty apartments and a box for each apartment. "While they were not physically attached to the walls or floors the circumstances attending their installation amounted to a constructive annexation to the realty, for the purposes for which the building was designed, and became fixtures within the meaning of the Lien Law. Williams v. London, 115 K Y. Supp. 547. 12. Theater chairs. — Where the land and structure were used for a theater, chairs designed especially for the building, and manufactured from designs in harmony with the sur- roundings in the auditorium, are intended for the beneficial use and enjoyment to which the premises were adapted and used, and a lien for the value was sustained. Grosz v. Jack- son, 6 Daly, 463. 13. Theater — Gas and electric fixtures.^— The word " im- provement " when used in the Lien Law includes fixtures specially designed with reference to the general decorative scheme and architecture of a building, to be used as a theatre, and to harmonize with one another, and which were specially manufactured for such designs. One of these electric chan- deliers was very ornate, and described as a " sun burst." A! Inteeest — When Kecoveeable. 97 lien for the value of such materials, and for lie labor per- formed in their installation will be sustained. Wahle Phil- lips Co. V. 59th Bt. Madison Ave. Co., 153 App. Div. 17, affirmed 214 N. Y. 684, svb nominee Wahle Phillips Co. v. German Theatre. a. Section 2 of the Lien Law was amended by Laws 1914, chap. 506, so as to specifically include " chandeliers, brackets and other fixtures." See § 2, ante, page 9. 14. Fire hose and racks. — Fire hose were attached to the standpipe by couplings, or by means of a loose coU-ar in which a thread is cut, which fitted to a corresponding thread on the plug of the standpipe. There was also a rack upon which the hose rests which was attached to the wall by screws. These make convenient, but not necessary accompaniments, to the fire extinguishing system. They are evidently easily detached. Held, that these attachments were not fixtures within the meaning of the Lien Law. Chambers v. Tassar's Sons & Co., Inc., 81 Misc. 562. Compare Wahle Phillips Co. V. 59th St. Madison Ave. Co., 153 App. Div. 17, supra, affirmed 214 N. Y. 684, sub nominee Wahle Phillips Co. v. German Theatre. IL Intebest — ^When Eecoveeable in Lien Actions. An important inquiry which frequently arises in actions to foreclose liens relates to the right to recover interest. It frequently happens that there has been no performance of the contract, but a recovery allowed upon a quantum meruit. In order to recover interest, however, the claim must as a rule be liquidated. The authorities governing the law as to in- terest are as follows: 1. Interest — Liability of owner for. — Interest due upon a contract, where there has been complete performance, runs from the date when the contract was finally completed. The provisions of section 4 of the Lien Law, limiting the owner's liability on all liens to the sum for which he would be liable under the original contract, was not intended to absolve the owner from paying interest upon a liquidated and valid debt. Where the evidence shows the date when the debt became due 7 98 XiEN Law — Aeticle II, Sec. 4. and payable interest must be computed from that date. If the testimony does not show sucb date interest will be com- puted from tbe time of tbe commencement of tbe action. Hedden Construction Co. v. Proctor & G. Co., 62 Misc. 129. 2. Interest — Unliquidated claim. — Where plaintiif claims to recover upon a qvantum meruit the amount to which he is entitled being unliquidated, and incapable of deternaina- tion by market values and an arithmetical calculation, he is not entitled to recover interest. General Supply & Construc- tion Co. V. Goelet, 149 App. Div. 80. a. Where the contract does not in express terms provide for interest, and a demand is necessary to set interest run- ning, the demand must be for the amount due, and if the demand includes any item not recoverable the demand is illegal and interest cannot be allowed. Cutter v. Mayor, 92 ]Sr. Y. 166 ; Deering v. City of New York, 51 App. Div. 402 ; Carpenter v. City of New York, 44 App. Div. 230. Where the contractor seeks to foreclose a mechanic's lien and it is established upon the trial that there was no substantial per- formance, but a failure to perform upward of 39 per cent, of the work contracted for, a court of equity will not per- mit a recovery for any sum. But where a recovery was had for what work was actually done, with, interest, on the sum found to be done, and no appeal was taken from any part of the judgment except that which allowed interest, the court held that the entire judgment was erroneous, but as no ap- peal had been taken, except as to the part of the judgment which awarded interest to plaintiff, that part of the judg- ment was reversed and the interest was stricken out. Excelsior Terra Cotta Co. v. Harde, 181 N. Y. 11, affirming 90 App. Div. 5 ; Sweeney v. City of New York, 173 N. Y. 414, distinguished. h. A party cannot be subjected to a liability for interest which depends upon a proper demand, because he does not accede to an improper demand. While the old common-law rule has been modified, which required that a demand should be liquidated, or its amount ascertained, before interest could be allowed (Gray v. Central Railroad of N. J., 157 N. Y. 483), the extent of its modification is that if the amount due is capable of being ascertained by mere computation the al- lowance of interest is proper. Ih. Interest — Liquidated Claims. 99 c. But see Fenichel v. Zicherman, 154 App. Div. 471^ where the court declined to allow interest for extra work because the amount of the claim was unliquidated. 3. Interest — None unless claim is liquidated. — Plaintiff claimed judgment for $7,355, principal and interest thereon. He recovered, among other things, upon the reasonable value , of certain work, laho'r, and materials embraced in the con- tract, but left unperformed by the contractor. This required proof both as to the items of work not done and the fair value of performing the same according to the contract. The precise amount due to the plaintiff was neither fixed, nor could it be ascertained by a mere mathematical calcuation. Under such circumstances it cannot be said that the claim was liquidated, and not being ascertained plaintiff is not entitled to interest thereon. Fox v. Davis, 111 App. Div. 174. a. As to payment of interest under a municipal contract payable to particular classes of labor, or for materials fur- nished, interest runs from the time when demand is made upon the city for payment. Sweeney v. City of New York, 173 N. T. 414'. See post, page 126. h. The rule seems well settled that interest cannot be al- lowed on an unliquidated claim, even on contract, unless the amount due thereon was or could be fixed with reason- able certainty. Interest can be awarded as damages against a debtor only when the amount of the indebtedness is fixed, or is susceptible of being definitely determined by reference to market values, or to other sources of information, Wehher Co. V. Heam, 49 Misc. 213. c. Where an amount claimed for extra work is unliqui- dated and concededly certain amounts had to be deducted from the contract price by reason of the failure to complete, the amount of these- deductions can only be ascertained by proof at the trial, and a recovery for such extra work will not entitle plaintiff to interest thereon. Zimmerman v. Loft, 125 App. Div. 725. ■ d. The jury rendered a verdict in favor of the plaintiff for a specified sum and interest. The amount of the interest was not stated nor the date from which it was to be com- puted. The evidence was not clear as to the date from which 100 LiEiq- Law — Article II, Sec. 4. it could be reckoned. Plaintiff moved to amend the verdict by adding interest, which motion was granted. The judg- ment was affirmed as to the verdict, but modified by deduct- ing $150.56, the interest added to the verdict by the court below, on the ground that the court had no power to correct the verdict by adding interest, unless the date from which it could be computed was clearly, established. Schnauffer v. Ahr, 53 Misc. 299. e. " While the old common-law rule," says Jenks, J., " has been modified which required that a demand should be liquidated or its amount ascertained before interest could be allowed, the extent of its modification is that if the amount due is capable of being ascertained by mere computation, the allowance of interest is proper." Where a sum due a subcontractor is capable of ascertainment by computation in- terest will be allowed. Reiser v. Commeau, 129 App. Div. 490; affirmed 198 K Y. 660. III. Eights and Liability of Owner and Conteactoes. 1. Owner — Liability for fraudulent representation as to cost of building. — Materialman may rely on terms of writ- ten contract shown to him. The owner, Frances Teague, and ber husband contracted with one Carman for the erection of & dwelling for $7,100. It turned out that the true price was $6,100, and was raised to $7,100, " for the secret, collusive, and fraudulent purpose of showing the same to the Brooklyn Trust Company for the purpose of obtaining a larger build- ing loan upon said property than would have been granted if the contract price had been $6,100." The plaintiff, a ma- terialman, had no knowledege of this fraudulent increase in the amount of the contract. He refused to furnish the lum- ber until the contract was shown to him, and was told by the contractor that $7,100 was the amount to be paid for the construction of the building. Plaintiff then inquired of the architect who was supervising the work and was told that $7,100 was the price. Eelying upon these representations be sold the contractor $1,131 worth of lumber which was delivered. The contractor assigned to him $1,119.13 of moneys due and to become due upon the contract, which he filed in the county clerk's office, pursuant to section 15 of Liability of Owitbe. 101 the Lien Law, a copy of whicli assignment was served on the owner, Teague. Defendants paid the contractor during the progress of the work $4,610, and he then abandoned the work which was completed by defendant, at a cost of $1,200, leav- ing a balance due of $1,290. Defendant contended that the contract price was $6,100, and that there was $290 remain- ing after the payment of the full contract price. Held, that plaintiff was entitled to recover the full amount due him, and that the defendant was not in a position as against one who had furnished materials upon the strength of the contract, which had been shown him, to claim that that was not the real contract between the parties. Such a claim would work a fraud upon an innocent third party, who furnished ma- terials in good faith, and toi permit a defendant owner to resort to such a device would operate to defeat the purpose of the Lien Law. Hitchings v. Teague, 113 App. Div. 670. 2. Owner — May pay moneys due to contractor after suit dismissed as to him and time to appeal expired. — Astor, the owner, owed Sloane, the contractor, a sum in excess of the claim of the plaintiff, who was a subcontractor. The owner in his answer said he could not safely pay the money until the rights of the parties had been adjudicated. At the trial the complaint was dismissed as to all the defendants upon the merits. Plaintiff, a subcontractor, appealed only as to de- fendant Sloane, the contractor. After the time within which an appeal against Astor could be taken he paid Sloane the amount due on the contract. The judgment dismissing the complaint as to Sloane was reversed and plaintiff made a mo- tion to be relieved from his stipulation and to compel Sloane to pay into court an amount sufficient to indemnify plaintiff for the amount of his lien. The court made an order direct- ing Sloane to pay into court $10,500, " said sum to take the place of the land covered by plaintiff's lien." Sloane ap- pealed from the order. Held, that the judgment dismissing the complaint as to the owner established that plaintiff had no valid lien on his land. He could not establish this Jien in an action against Sloane, or succeed in having the money paid by Astor to Sloane impressed with the trust for his benefit without showing facts from whidh the court could see that the money paid was impressed with such a trust. That ques- tion could only be determined upon the trial of an action, and the court could not in advance of such action summarily 102 Lien Law — Aeticle II, Sec. 4. direct Sloane to pay into court a sum suiBcient in case plain- tiff recovered to pay his claim with interest and costs. Order reversed. Van Kannel Revolving Door Co. v. Sloane, No. 1, 122 App. Div. 610. 3. Owner — Rights of under contract. — Where a build- ing contract provides that the materials shall be furnished and labor performed for a gross sum and by a day fixed in the contract for the full completion thereof, and the contractor fails to perform by the day so fixed, the owner may insist on his strict legal rights and put an end to the contract. Beeves V. Manhattan Life, 195 N. Y. 324'; Fraenhel v. Friedmann, 199 K Y. 351. In such a case where the day fixed by the contract for the full completion thereof is extended and there is a failure to perform by the day so fixed, the owner may insist upon the day fixed in the contract and put an end to the contract. Fraenhel v. Friedmann, 199 IST. Y. 351. 4. Owner's liability. — The liability which attaches to an owner for work done or materials furnished upon his land is the same under the Lien Law of 1897 as it was under the Lien Law of 1885 (Laws 1885, chap. 342, § 1). The lan- guage of the Act of 1885 limited the owner's liability by rea- son of all liens filed to " the price stipulated and agreed to be paid in such contract [contract with the owner] , and remain- ing unpaid at the time of filing such lien, or in case there is no contract, then the amount of the value of such labor and material then remaining unpaid. 5. Owner — When not liable for extra work. — Plaintiff sued to recover an alleged balance under a building contract for extra work. The contract provided for the alterations of a house. The contract was not performed. Plaintiff sought to recover for certain alterations independent of the contract. Held, that the extra work sued for, was performed as a modi- fication of the original plan of the work contracted for, and as the plaintiff was not authorized to recover upon his con- tract, he cannot sue for work done on the theory that it was extra work not embraced in the original contract. Fox v. Fox, 77 Misc. 100. 6. Moneys earned. — The Court of Appeals, in construing the language of the Act of 1885 as to rights of subcontractors Money Eaened. 103 who sought to reach moneys " remaining unpaid " on the ori- ginal contract at the time of filing their liens, held that the liability of the owner was not limited to what was actually due on the original contract when liens were filed, but ex- tended Jx> what had been earned under the contract at the date of filing, and which remained unpaid, although such sum though earned was not technically due. a. To illustrate: A contract provides that the contractor shall be entitled to a specified payment when the plastering is completed. The amount of this payment let us suppose is $2,000. Plastering usually consists of three coats, the " brown coat," the " scratch coat," and the " white coat." After two coats have been put on, and the last coat has been finished except in one or two rooms, which it would cost, per- haps, $50 to finish, the contractor abandons the work. Sub- contractors file liens as soon as the contractor defaults. But there is nothing " due " under the terms of the contract. The $2,000 payment is not due until the plastering is com- pleted. The plastering has not been completed, and it will cost $50 to finish it. But there has been a breach by the con- tractor before the $2,000 payment is due. There is nothing technically " remaining unpaid," because there is nothing " due." But there has been earned under the contract up to the time of the, breach $1,950, the full installment of $2,000 less the sum of $50 required to complete the plastering. The Court of Appeals has construed the words of the Lien Law of 1885 in such a case to mean that the owner shall be liable to pay by reason of subsequent liens filed the amount earned and unpaid on the original contract, thus limiting his lia- bility in the case above stated to $1,950. Under the construc- tion of the early Lien Laws, where the language would not bear out a broad construction, and the courts were in the habit of construing the Lien Law strictly, as in derogation of the common law, the courts have held that where there is nothing " due " under the contract, a subsequent lienor, or subcontractor, stood in no better position than the original contractor, and if nothing was " due " to him, the owner could not be held liable on claims of his subcontractors. If, however, the work was so nearly completed as to work great 'hardship upon those whose labor and materials remained in the structure, the courts applied, as far as possible, the doc- trine of substantia] performance. Under that rule, however, the element of a breach of contract was eliminated. 104 LiEW Law — Article II, Sec. 4. 6. Under the Lien Law of 1885, however, the earlier au' thorities are not harmonious as to whether a subcontractor can enforce his lien, as to sums earned, after the work has been abandoned by the contractor, and the subcontractor fails to complete. Larkin v. McMvUin, 120 JST. Y. 206 ; Hollisier V. Mott, 132 N. Y. 18 ; Weisman v. Cify of Buffalo, 10 'S. Y. Supp. 569. c. The Court of Appeals, however, in the case of Van Clief V. Van Vechten, 130 N". Y. 571, points out that there was no provision in the Lien Law which declared that a subcontrac- tor is obliged to perform the agreement of the original con- tractor to enable the subcontractor to sustain a lien for what he has done under his subcontract, where the contractor has been guilty of a breach. The statute does not make complete performance of the original contract a condition precedent to the right of a subcontractor who has performed, to file a lien, and enforce it to the extent of what has been " earned " upon the original contract to the time of the breach. And if the contract is subsequently completed by the owner, as agent of the contractor, in conformity with the terms of the con- tract, the lien of the subcontractor will attach to moneys which subsequently became due thereunder, over and above cost of completion. The court by Judge Vann, in the case of Van Clief v. Van Vechten, 130 !N", Y. 571, states the rule in this class of cases as follows : 1. If anything is due to the contractor pursuant to the terms of the contract when the lien is filed, it [the lien of the subcontractor] attaches to that extent, 2. If nothing is due to the contractor, according to the contract, when the lien is filed, but a certain amount subsequently becomes due there- under, the lien attaches to the extent of that sum. 3. If nothing is due to the contractor, pursuant to the contract, when the lien is filed, and he abandons the undertaking without just cause, but the owner completes the building according to the contract, and under a provision thereof permitting it, the lien attaches to the extent of the difference between the cost of completion and the amount unpaid when the lien was filed. d. In the Lien Law of 1897, the legislature recognizing the justice of the construction given by the courts to the Lien Law of 1885, and to obviate confusion, inserted in the Lien Law, in this connection, the word " earned." The statute now provides (§ 4) that the lien filed by ai contractor, sub- contractor, or materialman " shall not be for a sum greater than the sum ' earned ' and unpaid on the contract, at the Nothing Due Oonteactoe. 105 time of filing the notice of lien, and any sum subsequently ' earned ' thereon." Van Clief v. Van Vechten, 130 N. Y. 571. e. A lien of a subcontractor which attaches to an install- ment due from the owner to the contractor cannot be defeated or affected by a subsequent breach of the contract by the prin- cipal contractor. Anisansel v. Coggeshall, 83' App. Div. 491 ; FosTiay v. Robinson, 137 IST. Y. 134; Van Clief v. Van Vechten, 130 K Y. 571. /. The owner of the property, upon the filing of a lien by a subcontractor, become® responsible for the payment of the claim, although there is no privity of contract between him and the claimant, with the sole limitation that such liability shall not extend beyond the amount then due from him to the person with whom he has directly contracted. This neces- sarily involves the right of the owner, upon payment of any such lien, to charge his contractor with the amount thereof. g. The owner's right to credit such payment cannot be de- feated by a transfer of the debt by the principal contractor voluntarily, or by an assignment for the benefit of his cred- itors. Reading Hardware Co. v. City of New York, 27 App. Div. 448 ; Matter of Christie's Mfg. Co., 36 N. Y. Supp. 923. 7. Nothing due contractor. — Where a subcontractor seeks to enforce a mechanic's lien against the real property of the owner, he must show that there is a balance due from the owner to the original contractor, to which the lien may at- tach. "Where plumbing work was not done by a " lieeuBed plumber " nothing became due the contractor for the plumb- ing work and the mechanic's lien by a subcontractor must fail. Wexler v. Rust, 144 App. Div. 296. a. A materialman cannot recover for the value of work done and materials furnished to the contractor, if it appears that the latter is not entitled to recover anything from the owner, by reason of the fact that he has abandoned his con- tract. Ddins Construction Co. v. Union Free School Dis- trict No. 7, 83 Misc. 335. i. The lien of laborers or materialmen who have performed labor or furnished materials to a subcontractor, under a muni- 106 LiEH- Law — Aeticle II, Sec. 4. cipal contract, extends only to moneys due or to become due to the subcontractor. Such liens cannot attach to moneya which may be due from the State to the principal contractor, in a case where he is not indebted to the subcontractor. Upson V. United Engineering Co., 72 Misc. 541. c. Where the contract provides that in case of default of the contractor the owner can proceed to finish the work and furnish the materials, and that the costs and expenses thereof shall be charged against the contractor, who shall pay to the owner the excess thereof, if any, over and above any unpaid balance due the contractor and that the contractor in such case shall have no claim to such unpaid balance, the contrac- tor has no rights of any kind under the contract. Herman & Grace v. Hillman, 203 IST. Y, 435. 8. Nothing due or earned. — The liability of the owner, however, must be predicated upon a debt, due and owing by him to the contractor or subcontractor. If there is no debt of the owner, there can be no lien upon the owner's land. The statute authorizes the land to be sold, and the avails applied to satisfy the lien which the creditor has filed. If there ia nothing due from the owner, to which the lien can attach, his , lands cannot be sold to pay a debt which he does not owe, ajjid for which he is not liable. If the owner owes nothing when the lien is filed, and nothing thereafter becomes due from him, the lien must fail, and the lienor will be confined to a personal judgment against the party liable for the debt. Madden v. Lennon, 23 Misc. 704; Hawkins v. Burrell, 69 App. Div. 462 ; Craig v. Blake, 27 Misc. 546 ; La Pista v. Weil, 20 Misc. 555; Keavey v. Be Bago, 20 Misc. 105; Heckman v. Pinkney, 81 N. Y. 211 ; Crane v. Gennin, 60 K Y. 127; Cheney v. Troy Hospital, 65 K Y. 282; Car- man V. Mclncrow, 13 N. Y. 70; Doughty v. Devlin, 1 E. D. Smith, 625. a. The owner became directly responsible to the material- man, because the contractor was not able to get the materials for the work on credit. The owner wrote the materialman as follows : " I will be responsible for material delivered to Mr. Lind- say on my job, 142d St. and Lenox Ave., to the amount of $2,400. My contract is half cash and note, payment to be made as the work progresses. You can draw on me with Mr. Lindsay's order." Nothing Due When Suit Begun. 107 b. The owner paid the materialman the full $2,400 for the materials delivered, and liens were subsequently filed by subcontractors of Lindsay. Held^ that as the owner had paid the contract in full, nothing was due the contractor when the liens were filed, nothing thereafter became due to him, and the liens could not be sustained. Craig v. Blake, 27 Misc. 546. c. It is not essential, however, that there must be some- thing due from the owner at the time of filina; the lien, be- cause a lien may be filed in anticipation of labor to be per- formed or materials to be furnished. It may be filed when the contract is made, and prior to its completion. It may be filed when nothing is due from the owner. d. In such cases the lien will attach to what may subse- quently become due, or to what may be subsequently earned under the contract, intermediate the filing of the lien and the commencement of the action to enforce it. And if something was due when the action was begun, the lien may be enforced as to whatever may become due up to the time of the trial. Ringle v. Wallis Iron Works, 85 Hun, 279 ; s. c, 149 N. Y. 439 ; Sullivan v. Brewster, 1 E. D. Smith, 681. e. But if nothing becomes due from the owner after the lien is filed and before the action to foreclose is begun, the lien must fail, and plaintiil can recover, if at all, only a per- sonal judgment against the party liable for the debt, if he be a person other than the owner. See Code Civ. Proc., § 3412, now § 54 of the Lien Law, post, page 316, and authorities there cited. 9. Nothing due when suit begun.— While it is not essen- tial that there should be anything due to the contractor or subcontractor when the lien is filed, because a lienor may file a lien in anticipation of work to be performed, but at the time of the commencement of the action, it must appear affirmatively that something is then due the contractor or subcontractor. Otherwise the action will be dismissed as premature. Johnson Service Co. v. Hildehrand, 149 App. Div. 680 ; Wood Manufacturing Co. v. Johnstone, 148 App. Div. 747. a. A contract executed by defendant, the City of New York, provided that in case defendant was obliged to com- 108 Lien Law — Article II, Sec. 4. plete the work " the expense so charged shall be deducted and paid hj the city out of such moneys as may be due, or may at any time thereafter become due to the contractor, and in ■case such expenses shall exceed the said sum * * * then the contractor shall pay the amount of such excess to the ■city." The contractor was adjudicated bankrupt. The city notified the contractor " to discontinue work and that the city would proceed to complete the work." The city completed for $2,575 less than the contract price. Held, that this bal- ance could be reached by the subcontractor under his lien, as the notice from the defendant was not a cancellation of the contract, but a termination of the contractor's employment. Seating Co. v. City of New York, 84 Misc. 561. 10. Payments in good faith. — The owner, however, cannot escape liability upon the ground that there was nothing due, or to become due, under the contract when the lien was filed, unless the payments made by him upon the contract were made in good faith, in conformity with the terms of the contract, and were not made by collusion or with intent to avoid the provisions of the Lien Law. If the owner, without knowl- edge that any liens have been filed, pays the contractor in good faith, as provided by the terms of his contract, he will be protected. With this object in view, section 11 of the Lien Law declares that when a notice of lien has been filed, a copy of it may be served upon the owner, at any time within ten days thereafter. The failure to serve the notice will not de- feat the lien, but if the owner, having no knowledge of the fact of the filing of the lien, pays money in good faith " to any contractor or any person claiming a lien," he will be protected in such payments. a. It has been held that in the absence of fraud or collu- sion, where the owner paid the principal contractor the full amount due upon the contract, a subcontractor, who, after such payment, proceeded with his work, cannot hoM the owner for moneys due to him from the contractor, on the theory of consent, as such owner could not be held liable to pay a greater sum than the amount he agreed to pay, and which remained unpaid at the time of the filing of the lien. De Lorenzo v. Von Baitz, 4:4: App. Div. 329. See also Mil- ler V. Smith, 20 App. Div. 507 ; Banham v. Boherts, 78 Hun, 246 ; Bobbins v. Arendt, 148 N. Y. 617; and §§ 7 and 11 of OwNEK^s Default. 10& the Lien Law, post, pages 134, 158, and authorities there cited. 11. Option as to discharge of liens. — A contract may be so drawn by the owner as to make the discharge of liens on the premises a condition precedent to the right of the contrac- tor to receive payment under it. A contract contained the following provision : " It shall be the owner's option whether to make or not to make any payment or payments during the continuance of any lien or liens," filed in the county clerk's ofiSce. Held, that under such a contract the owner could waive his option or not at his pleasure. But if he intended to avail himself of it, he must base his refusal to pay upon the ground that unsatisfied liens remained of record. Where,, at the time of the trial, it appeared that all liens of sitbcon- traotors had been discharged and that the owner's refusal to pay was based on the ground that nothing was due, the con- ' tractor was entitled to judgment. Weher & Co. v. Hearn, 4& App. Div. 214. 12. Owner's default. — Where the owner makes default and refuses to pay the contractor ' an installment due under the contract, the latter may rescind, and the owner becomes liable to the subcontractor and materialmen to the extent of the sums remaining due and unpaid at the time of the breach. The owner himself being in default cannot thereafter put the contractor and subcontractors in default. Person v. Stoll, 72 App. Div. 141, affirmed, 174 IST. Y. 548 ; Graf v. Cun- ningham, 109 K Y. 369; Snyder v. City of New York, 7^ App. Div. 421. a. In such case the contractor may elect to rescind, and the subcontractor can then recover upon a quantum meruit the reasonable value of the work done and materials fur- nished ; or he may proceed with the performance of the con- tract, and bring an action to recover the contract price and foreclose his lien therefor. Person v. Sioll, 72 App. Div. 141, affirmed, 174 K Y. 548 ; Wharton & Co. v. Winch, 140 K Y. 287. 6. The city made default upon a municipal contract by refusing to pay the contractor an installment when it became due and refused to deliver a certificate as to an installment of finished work. Held, that the city thereby lost the right 110 Lien Law — Aeticle II, Sec. 4. to declare the contract canceled, and cannot put the contrac- tor in default by such declaration if the contractor is not guilty of any breach. To permit the city to do so would be to allow it to take advantage of its own wrong. Snyder v. City of New York, 74 App.Div. 421. * c. A contractor agreed that he should be paid for his work as soon after completion thereof as the owner could raise a mortgage for an amount sufficient to pay tlie existing mort- gage and cost of the improvements to be made by the con- tractor. Upon substantial performance the contractor may file a lien, but he cannot enforce it until the owner is in de- fault for failing to secure the mortgage out of the proceeds of which to pay the contractor. Firth v. Rehfeldt, 30 App. Div. 326. d. And if the contractor offers to loan the owner the money to take up the existing mortgage and to accept from her a mortgage for the amount of his claim, and the owner refuses ' the offer, she is in default upon her contract, and the lienor may proceed to foreclose. Ih. 13. Contractor's default. — Where the right of the owner to terminate the employment of a contractor is permissive, it is for the benefit of the owner and not for the benefit of the contractor. Where the contract provides that " the owner shall be at liberty " as provided in the contract to tenninate it, he is not compelled to do so. The owner gave notice to the contractor setting forth his reasons for teiTninating the contract and stated: " I shall enter upon said premises and take possession for the purpose of completing the work in- clvded in the contract, myself." Held, that the notice did not terminate the contract, but terminated only plaintiff's em- ployment; and that the contractor was entitled to recover the contract price less the amount due to complete the building. Franhel v. Friedman, 199 'N. Y. 351. See also Steiger v. London, 141 App. Div. 382, infra. The contract provided that the contractor should receive payments in installments as the work progressed. He de- manded the paym,ent of a future installment, which was liot paid and the contractor abandoned the work. The abandon- ment was without justification. The owner then notified the contractor that he would employ other persons and finish the "work himself. Held, that the notice operated to terminate Abandonment. Ill the employment of the contractor, hut did not operate to ter- minate the contract, and that the contractor could recover the amount due, after deducting what he had received and the cost of completing the building. Steiger v. London, 141 App. Biv. 382. 14. Abandonment by mutual consent. — Where a contract is suspended or abandoned by mutual consent on account of street-opening proceedings, the contractor is entitled to re- cover what had been earned on the contract to the time of its abandonment. Lawrence v. Congregational Church, 164 N. Y. 115. 15. Abandonment by subcontractor. — Empoyees who performed work at the instance and request of the subcon- tractor who abandons his contract before completion are en- titled to file liens for work and labor performed by them, which liens will attach to any excess of the amount unpaid to such subcontractor, if any excess there be over and above the cost of completing the building. Murphy v. City of Watertown, 112 App. Div. 670. 16. Contract unlawfully canceled — Quantum meruit — Amount earned.^ Where a contract with the State was can- celed on behalf of the State and the evidence showed that such cancellation was unauthorized and unlawful, the con- tractor, subcontractors, materialmen, and laborers are enti- tled to recover the amount actually earned under their con- tract to the time of such unlawful cancellation. Newman Lumber Co. v. Wemple, 56 Misc. 182. 17. Liability of contractor — Accepted contract. — Where a written proposal by a subcontractor to a contractor to do certain work and furnish material at a specified price was not accepted, but an agreement to do the work for a lower price was afterward entered into between the parties, the work to be done according to plans and specifications, a sub- contractor cannot enforce a mechanic's lien for work done under the unaccepted contract without proof showing sub- stantial performance of the accepted contract. Performance of a contract which had not been accepted will not render the contractor liable. His obligation, in the absence of a reformation of the contract, must rest upon the contract 112 Libit Law — Article II, Sec. 4. whicli had been accepted by him. Zimmerman v. Loft, 125 ;App, Div. 725. 18. Lien of subcontractor after default by contractor.— Where the contractor abandoned a municipal contract with the city, who thereafter completed the work for less than the contract price, the lien of a subcontractor will attach to such balance over and above the cost of completion. Bader V. City of New York, 51 Misc. 358. 19. Abandonment by contractor. — The rule is well settled that where work has been abandoned by the contractor and the contract contains a clause whereby the owner reserves the right to complete after a breach by the contractor, after his failure to do so, upon notice, the owner may elect either to declare a forfeiture or complete the work himself. If he elects to complete he waives the right to declare a forfeiture and the contractor is entitled to receive any balance of the contract price remaining over and above the cost of com- pletion. White V. Livingston, 69 App. Div. 361; Van Clief V. Van Vechten, 130 IT. Y. 571; Graf v. Cunningham, 109' ]Sr. Y. 369; Murphy v. Buckman, 66 JST. Y. 297; Ogden v. Alexander, 140 !N". Y. 356; Robinson v. Chinese Charitable Assn., 35 App. Div. 439 ; Zimmerman v. Jourgensen, 14 N. Y. Supp. 548. a. Where a subcontractor voluntarily abandons his contract and requests the contractor to complete it for the account of the subcontractor, for one-half the profits, a lien for labor and materials furnished by the subcontractor will not attach to an unpaid installmeut of the contract price which it was ex- pressly agreed should not be due till the completion of the work, nor to an installment not due at the time of the breach. The burden of proof is on plaintiff to show that there was a surplus after completion, and the court will not presume that there was such a surplus, but plaintiif must show it. Brain- ard V. County of Kings, 155 IS. Y. 538. 6. A subcontractor can acquire no lien upon premises after the contractor has abandoned the work, if it clearly appears that a sum equal to 20 per cent, of the contract price, which the owner was authorized to retain until the work was com- pleted and accepted by the architect, never became due under the contract. Hawkins v. Burrell, 69 App. Div. 462. ■Quantum Meeuit. 113 c. If the owner, after the contractor has abandoned the work, does not choose to declare a forfeiture, but completes the contract under a provision contained therein, giving him the right to do so, the contractor may file a lien for the amount due under the contract after deducting the cost of completion. Bohinson v. Chinese Charitable Asm.^ 35 App. Div. 439. 20. Nonperformance — Quantum meruit. — Where the plaintiff seeks to recover for work done and materials fur- nished upon a contract under which he was to be paid when the work was completed and where the plaintiff pleads per- formance of his contract, he cannot recover anything unless he shows performance. Tinley v. Van Wert, 119 App. Div. 738. Upon the trial of the action, the court, for his own infor- mation, put certain questions to the jury, which they an- swered. These answers were embodied in his decision. From these questions and answers, it appeared that the de- fendant was toi pay for the work done and materials fur- nished on her premises upon the completion of the contract. That plaintiff did not substantially comply with his agree- ment and did not substantially perform his contract. In reply to a question by the court, what was the reasonable worth and value of the work done and materials furnished over and above the sum of $80, admitted by the pleadings to have been paid, the jury said $117, for which amount the court gave judgment. Held, error. That the action was not brought upon a quantum meruit, but upon a contract which plaintiff claimed to have fully performed. On failure to show performance, therefore, he was not entitled to, recover anything, and a judgment for the reasonable worth and value of the materials actually furnished was error. Ih. It is only in a case where plaintiff alleges that he was prevented from performing his contract by the defendant and where the plaintiff sets up nonperformance and pleads a good and valid excuse for nonperformance that he can re- cover upon a quantum meruit. White v. Livingston, 69 App. Div. 631; Wright v. Beusens, 133 JST. Y. 298. 21. Quantum meruit. — A plaintiff in an action to enforce a mechanic's lien, cannot recover upon a quantum meruit, without proof either of substantial performance, or of excuse 8 114: Lien Law — Abticle II, Sec. 4. for nonperformance. Failure to perform, or excuse for non- performance, must be clearly pleaded. Excuses are not a substitute for substantial performance. iConclusions as to performance are not proof thereof. In such an action proof of substantial defects, omissions and variations, will defeat a recovery upon a qvantum meruit. » Gersmann v. Walpole, 79 Misc. 49. See also " Specific Provisions of Contract," post, page 130. a. Plaintiff sued on a quantum meruit. The evidence was overwhelming against plaintiff, who did not even call his workmen to support his testimony, and did not prove that the work was either completed or properly done. Plaintiff procured a certificate from the architect, on plaintiff's state^ ment that he had finished the work, which certificate was subsequently revoked by the architect. Held, that a judg- ment under such circumstances should be reversed. Kausen V. Leonhcurdi Realty Co., 79 Misc. 621. 22. Quantum meruit — None where plaintiff has no lien. — If upon the trial of an action to foreclose a mechanic's lien it appears that the plaintiff has no lien and never had any lien, the complaint must be dismissed. In such an action he cannot recover upon a quanium meruit because in the absence of the lien, such an action must be brought in a court of law, and tried before a jury. Thompson-Starrett Co, v. Brooklyn Heights Realty Co., Ill App. Div. 358. 23. Completion by surety. — The contractor, White, after part performance, abandoned the work when nothing was due him. Thereafter his surety, Smith, took an assignment of tlie uncompleted contract and finished it under an agreement between himself, the owner, Schile, and the defaulting con- tractor, and filed a lien. Subcontractors of White filed liens fo- work done prior to the abandonment. Held, that the com- pletion by the surety was not done under a new and inde- pendent contract, but under the original contract, and was completed subject to the liens of the subcontractors. Smith V. Lange, 81 App. Div. 192. 24. Cost of comoletion after abandonment. — Where the contractor makes default and abandons the work, and the owner completes the contract as agent of the defaulting con- Pebfoemance. 115 tractor, and the contract provides that the expense of com- pletion shall be deducted from the contract, the owner is entitled to charge the defaulting contractor, in a suit to en- force the lien by the latter, the sum aictually expended by the ewner to complete. Expert testimony as to what the contract eould be completed for is wholly immaterial. Biley v. Ken- ney, 33 .Misc. 384 ; Robinson v. Chinese Charitable Assn., 35 App. Div. 439; Schmoll v. O'Brien, 25 Misc. 699; Zimmer- man V. Jourgensen, 14 N. Y. Supp. 548. a. This rule prevails unless the contractor is able to estab- lish that there had been negligence in the manner in which the defendant had proceeded to complete the contract, no matter how many theorists might say that it could have been done for much less. lb. As to mode of proving cost of completion and disqualifica- tion of experts to testify, see post, page 383. III. Peeformance — Excuse fob Nonpeefoemance. The most important issue, usuaWy presented in an action to foreclose a mechanic's lien, is whether plaintiff has performed his contract or substantially performed it. If not, ^s his excuse for nonperformance sufficient in law to entitle his recovery upon a quantum meruit the amoimt due or earned at the time of the breach ? 1. Performance — Delivery of lumber used by owner. — Plaintiff, a materialman, furnished lumber which defendant used in constructing certain buildings. It appeared that the sizes of some of the lumber delivered in the last installment were smaller than those mentioned in the specifications, but the material, to wit, yellow pine, and the quality and price were in accordance with the terms of the contract. " It would be a refinement," says Woodwaed, J., " not justified in a tribunal which seeks to do justice to hold that this latest delivery was not made as had those which had preceded it, in a fulfillment of the respondent's proposal." Accordingly held, that as the lumber was used in the buildings, the de- livery was in conformity with the contract." Landsberg & Co. V. Hein Construction Co., 135 App. Div. 819. ■ 116 LiEW Law — ^Aeticle II, Sec. 4. 2. Substantial performance — What constitutes. — The word performance in an action to foreclose a meclianic's lien, means that the contract has been fully and completely per- formed. Substantial performance is not complete perform- ance. The terms are inconsistent, and findings of complete performance and substantial perfcffmance cannot be sus- tained. A contract required that a foundation should be put under the building four feet below the ground. The grade was sloping, being higher in the front than in the rear. The rear foundation was upon the surface and plaintiff filled in and increased the level of the ground two feet above the bottom of the foundation. Held not substantial perform- ance. That defendant was entitled to have the foundation four feet below the surface in order to protect it from frost. Belhauer v. Gross, 138 App. Div. 10. a. Substantial performance is performance where the deviations permitted are minor, unimportant, inadvertent and unintentional. In a case where the jury found that the omissions on the part of the contractor were sufficient to de- prive him of a right to recover nearly twenty-five per cent, of the contract price, the claim of substantial performance cannot be sustained. Oompert v. Healy, 149 App. Div. 198. h. The contract contained a clause that "substantial per- formance " shall be satisfactory to the owner if satisfactory to the " department and architect." It was shown that when the contract was made defendants stated they would be sat- isfied to have the plans amended in certain particulars, if the tenement-house department approved. The architect se- cured the approval of the department to an amended plan, and plaintiff performed the contract in accordance therewith. Held that this testimony did not vary the terms of the con- tract, but showed the architect's authority to amend the plans, and thereby waive strict performance. Zach v. Gans, 75 Misc. 117. c. If plaintiff claims that he has performed his contract he must prove complete performance. But if he relies upon a substantial performance, the owner becomes liable, after deducting from the contract price trifling omissions which it has been shovra were not supplied under the contract during the progress of the work. I SuBSTAIfTIAL PeEFOEMANCE. 117 d. ^ In this class of cases, for labor performed and materials furnished tinder a building contract, the injustice of allowing an honest contractor to forfeit hundreds, perhaps thousands, of dollars, which would enhance the property of the owner, because of some trifling or unimportant omission, which could be readily supplied, is apparent. e. The strict rule of complete performance of a building contract has been relaxed by the courts in so far as to allow a recovery where substantial performance has been shown. Crouch V. Gutman, 134 IST. Y. 45; Nolan v. Whitney, 88 ISr. Y. 648; Woodward v. Fuller, 80^ IST. Y. 312; Hall v. Long, 34 Misc. 1 ; Glacius v. Black, 50' IST, Y. 145 ; Ringle v. Wallis Iron Works, 149 IST. Y. 439. /. As to what constitutes a substantial performance, where that is the issue, is a question of fact, and the burden of proof is on the plaintiff. Taylor v. Baldwin, 10 Barb. 626 ; Smyth V. Marsich, 4 App. Div. 171 ; Beardsley v. Cook, 143 K Y. 143. g. As to what constitutes substantial performance; each case must depend upon the facts and circumstances under which the claim is made. The claim must be an honest one, and the failure to complete must be unintentional and not due to bad faith, or a willful departure from the plans and specifications. 3. Elements of substantial performance. — The elements which must appear to support a claim for substantial per- formance are well defined by Mr. Justice Vann in Spence V. Ham., 163 W. Y. 220. In this connection the court said: " Substantial performance as defined by the authorities •permits only such omissions or deviations from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, are remediable without doing material damage tO' other parts of the building in tearing down and reconstructing, and may without injus- tice be compensated for by deductions from the contract price. So much is allowed in building contracts because of the hardship to the contractor if slight unintentional devia- tions should bar his recovery." Spence v. Ham, 27 App. Div. 379, 118 Lien Law — ' AETifcLE II, Sec. 4. a. Substantial performance is performance, except as to ■unsubstantial omissions. Unsubstantial defects may be cured but at tbe expense of the contractor and not of the owner. This rule is liberal to the contractor for it allows him to recover when he has not fully peTformed and it can- not be extended without danger to the integrity of the con- tract. Othei-wise the owner could say, "Am I to pay accord- ing to my promise, when the contractor does not perform according to his ? " Nesbit v. Broker, 104 App. I>iv. 393. h. Plaintiff pleaded performance. Upon the trial he at- tempted to show substantial performance. Plaintiff's evi- dence showed that it would entail a cost of $3,500 to furnish proper and suitable doors under the contract. The evidence of the defendant was that it would cost something over $7,000 to furnish these doors. Held, that defects in work cannot be called inadvertence, which requires such a sum to make it good, and the disparity was so great as to show that the contract was not substantially performed. It. 4. Substantial performance — Substitution of material and workmanship " just as good " not permissible. — There is no substantial performance when no attempt is made to comply with certain express requirements of the specifications and no excuse or explanation is given for the failure. A contract is not substantially performed by substituting for that which is expressly required materials, methods of workmanship which, in the opinion of the contractor and his experts, are " just as good," unless the substitution relates to a matter of minor importance, is made in good faith and for sufficient reasons, and there is an adequate allowance for the differ- ence. The owner has a right to what the contractor agreed to give him, and unless he has it or when the failure is neither willfiil nor substantial, is fully compensated for the omission, there is no substantial performance and there can be no recovery. It is not sufficient for the contractor to build a house, but he must build the house contracted for and substantially comply with the specifications as to the method of construction, materials, and workmanship before he is en- titled to payment. Easthampton Co. v. Worthington, 186 :N", Y. 407. a. The evidence is not sufficient to support a finding of the trial court that there was a substantial perfonnance of a build- Substantial Peefoemance. 119 ing contract where it appears from tie record that the con- tractor willfullj failed to comply with twenty or more of the express requirements of the specifications, and that no ade- quate excuse or explanation has been given for such fail- ure, lb. 5. What is not substantial performance. — There is a limit to the application of the rule as to substantial perform- ance, and a party who knowingly and willfully fails to per- form his contract in any respect, or omits to perform a sub- stantial part of it, can not be permitted, under the guise of the rule ^s to substantial performance, to recover for the value of the work done; and the trend of the more recent decisions is to hold that the percentage of omitted work may, in and of itself, be sufficient to show that there has not been substantial performance. In a case where the evidence showed a disregard of contract obligations, and a deliberate attempt to use materials different than those required by the contract, the evidence is sufficient to show that the contractors did not act in good faith, or endeavor to complete perform- ance of the contract and did not substantially perforin, and failed to perform substantial and material work of the reason- able value of $450. Judgment below reversed and complaint dismissed as to plaintiff. North American Wall Paper Co. v. Jackson Cons. Co., 167 App. Div. 779; 153 N. Y. Supp. 204. a. The obligation to perform a building contract is the same as the law imposed with respects to other contracts, and there can be no recovery where there have been deviations, or omissions of a material nature unless a sufficient excuse or waiver be pleaded and proved, and the rule with respect to allowing deductions on account of small or immaterial items, and a recovery as for a substantial performance will not be extended. Accordingly held, that where the value of the work which was unperformed was about 15 per cent, of the contract price there was no substantial performance. " Neither a complete nor a substantial performance," says Laughlin, J., " can be predicated upon facts showing omis- sions, deviations and defects of this magnitude, regardless of whether or not they constitute structural defects." Fuchs v. Saladino, 133 App. Div. 710. h. Where the contractor was adjudicated bankrupt before 120 Lien Law — Aeticle II, Sec. 4. the completioii of his contract, which provided for making repairs to the elevators in the premises, and the sheriif took possession, and no demand was thereafter made upon the landlord in behalf of the contractor to complete, no lien can be asserted for the work done, as there was never a substantial performance of the contract. McNulty Brothers v. Offer- man, 152 App. Div. 181. « c. A claim to support a substantial performance must be an honest one. If it appears that there has been a willful departure from the plans and specifications, that inferior ma- terials have been used, that plaintiff has slighted the work, and has left undone those things which show that there was no substantial performance, the lien will be defeated and the claim under it disallowed. If the jury, or the court at Spe- cial Term, should allow a claim, based on the plea of substan- tia performance, which is clearly without merit, the Appel- late Court will reverse the judgment upon the ground that there is no sufficient evidence to support the claim. Evi- dence which shows that the contract has been evaded and that there has been an utter failure to substantially carry out its provisions cannot support a judgment of substantial perform- ance. Anderson, v. Petereit, 86 Hun, 600. d. The relaxation of the rule that plaintiff in an action must show performance when that is a condition of payment was not intended to permit courts and juries in cases arising under building contracts to substitute a money indemnity as an equitable compensation fpr the unfulfilled covenants of the contract, but arose because of the difficulty of complying with entire exactness with all the particulars embodied in this class of contracts. Anderson v. Petereit, 86 Hun, 600 ; Grouch v. Gutman, 134 N. Y. 45 ; Smith v, Buggiero, 52 App. Div. 382. e. The question of substantial performance depends mainly on good faith, and it must appear that the plaintiff" has at- tempted to comply with all the details of the contract and has failed only in slight or unimportant details that may be read- ily supplied. /. But if the evidence shows that the defects permeate the entire work, and that there has been a willful departure from the plans and specifications, and defects exist that can- not well be remedied, there has been no performance at all, Peefoemakcb Pbevented by DeT'ENDANT. 121 and there can be no recovery. The doctrine of substantial performance can never be used to aid a dishonest contractor. g. The owner has a right to have his building erected in ac- cordance with his own ideas as to strength and utility; and the contractor is bound to construct it as agreed. If he de- parts from the plans, substitutes inferior materials, or uses such as are not specified and are not of the required quality, or if he departs from specified dimensions, " the law will not allow him to allege that he has made as good a building as the one he has engaged to erect." Smith v. Brady, 17 N. Y. 186. 6. Performance prevented by defendant. — Where the de- fendant has been guilty of a breach of his contract, or has prevented performance on the part of plaintiff by such inter- ference as was unauthorized and unjustified, plaintiff is en- titled to recover the reasonable value of the materials fur- nished and work performed by him, together with such rea- sonable profit as he might have .made had he been permitted to fully perform his contract. Carlin v. City of New York, 132 App. Div. 90. 7. Performance alleged — When recovery may be had for substantial performance. — Substantial performance, under certain circumstances, may authorize a judgment for paintiff under an allegation of performance. Substantial perform- ance is performance, and entitles the plaintiff to recover un- der a complaint for performance, especially under a building contract where some of the infinite details may be easily over- looked. It may well be that a plaintiff, when he draws his complaint for performance, may be ignorant of minor exist- ing omissions. When such omissions are proved by the de- fendant, the plaintiff may recover on his complaint for performance if the omissions be unsubstantial and not will- ful, but the cost of supplying them must be deducted. Bowe V. Gerry, 112 App. Div. 358, affirmed, 188 IST. Y. 625. 8. Completion after action begun — No recovery for. — The complaint alleged performance. The answer alleged failure to perform. On these issues the case went to trial. It appeared when the action was begun and the notice of lien was filed palintiff had not suibstantially performed, but after the commencement of the action, plaintiff remedied all the 122 Lien Law — Article II, SexJ. 4. defects and performed his contract. Tte referee found that the plaintiff had not established his lien, but in view of the fact that he had completed the work after the action was be- gun, that he was entitled to a personal judgment against the defendant. Held, error. That the referee had no power to consider the evidence as to work performed and materials fur- nished after the action was begun, and that the remdy of the plaintiff was to interpose a supplemental answer by leave of the court, setting forth completion of the contract. Aex v. Allen, 107 App. Div. 182. 9. Substantial performance. — Upon an issue as to whether the plaintiff lienor had subs,tantially performed his contract the court at Special Term found that the amount of work under the contract was $17,393, and that the amount whichi ought reasonably to be deducted therefrom, for work unper- formed or to be made good, was $317. On appeal held that plaintiff had shown substantial performance. Cullen v. Gal- lagher, 28 App. Div. 173. a. In an action where plaintiff claimed substantial per- formance it appeared that he had been guilty of departures and omissions from the plans and specifications, which must have been intentional omissions or intentional bad work, re- lating to thickness of walls, height of partition stalls, plumb- ing work, shaft for fresh air, want of pillars or stones under posts supporting girders, and other defects. Held, that the defects pervaded the entire work, that a substantial perform- ance was not shown, and the complaint was properly dis- missed. Smith V. Ruggiero, 52 App. Div. 382. 10. Excuse for nonperformance. — If the plaintiff had failed to complete his contract by reason of the fact that there has been a default on the part of the owner, or that he has not been able to do so because work which had to be per- formed before plaintiff could finish had not been done, or for any reason which is not attributable to any fault on plaintiff's part, the latter will be excused from performance. In such ease he may file a lien for what he has done, and recover thereunder upon a quantum meruit its reasonable worth and value. Jones v. Dodge, 137 App. Div. 853 ; White v. Liv- ingston, 69 App. Div. 361 ; Lennon v. Smith, 23 App. Div. 293 ; Wyckojf v. Taylor, 13 App. Div. 240 ; Beatty v. Sears, Excuse foe Nok-performance. 123 Y4 App. Div. 214; Wright v. Beusens, 133 N. Y, 298; Hunter v. Walter, 12 N. Y. Supp. 60; McAveney v. Pas- quini, 23 App. Div. 120, affirmed, 163 N. Y. 575. a. If plaintiff relies upon excuse for nonperformance he must allege it in the complaint. If he alleges a substantial performance, and the answer puts the question of substantial •performance in issue, plaintiff will not be allowed to show excuse for nonperformance, without amending the complaint. The rules of evidence on the issues are entirely different. In an action for substantial performance evidence of the value of labor performed and materials furnished may be shown by the contract, as that is sued upon, and is evidence of the agreed price. But where plaintiff is excused from perform- ing, because there has been a breach of the contract by defend- ant, the contract has been violated and plaintiff must prove the reasonable value of the labor and materials independent of the contract. Lindblad v. Lynde, 81 App. Div. 603. Where it was shown that a contractor, under a contract for lathing and plastering, has been delayed through no fault of his, but by acts of the building department, and acts of the owner in failing to maintain the premises in a condition to receive the plastering in accordance with a trade custom, the plasterer is excused for the delay, and his discharge, pending such delay, is unauthorized. Carney v. Beilly, 18 Misc. 11. 11. Excuse for i.onperformance — Guarantee — When contractor relieved from. — The defendant contracted to in- etall a refrigerating plant on defendant's premises and guar- anteed that it would produce three tons of ice every twenty- four hours and maintain a twenty-ton refrigerating capacity on live steam at eight pounds pressure, or exhaust steam at one pound back pressure. The plant when installed did not fulfill the guarantee as to capacity and defendant refused final payment. It appeared that the plant was installed under the direction of the defandant's engineer and architect who refused to install it in the manner directed by the con- tractor. The latter protested against the form of construc- tion and told defendants the machine would not work if in- stalled in the manner they demanded. After it was completed the contractor declined to test it, saying it was no use, that he could tell them beforehand the machine would not work. If the cause of the failure of the machine to do its work was 124 LiEasr Law — 'Article II, Sec. 4. the result of the manner in whieli the defendant chose to in- stall it, then the contractor is relieved from his guarantee, and the defendant would become liable to pay for the machine whether it met the guarantee or not. Preidenrich v. Condici, 124 App. Div. 807. 12. Delay occasioned by owner excuses contractor. — Un- der a building contract for a public improvement for the State of New York the State agreed to furnish certain articles for the use of the contractors. The latter, by reason of the fact that the State failed to furnish these articles when needed, which failure delayed making the payment to the contractors when due, was estopped from complaining as to subsequent delay occasioned by the contractors who were pre- vented from proceeding promptly by reason of the delay, which the State itself had occasioned. Newman Lumber Co. V. Wemple, 56 Misc. 168 ; Jones v. Dodge^ 137 App. Div. 853. 13. Owner refusing to furnish plans — Remedy. — If the owner as a condition precedent to the performance of his con- tract agrees to furnish the materialman drawings, andr neg- lects or refuses to do so, the materialman may not furnish the drawings and recover their value in an action to enforce his lien. As to that branch of the case, the lienor has a right to regard the contract as broken, and hold the owner liable in damages for the breach. New York Terra-Cotta Co. v. Wil- liams, 102 App. Div. 1. 14. Abandonment — When excuses owner. — Plaintiff quit before the contract was finished. The excuse he gave was that the contract (which was oral) provided that defend- ant should pay him as the work progressed, enough to pay his workmen every week. Defendant says that he was to pay one-half when the work was one-half done, and the bal- ance when it was finished. Defendant had paid more than the wages of the men, and plaintiff's abandonment was un- justified. Having abandoned the contract without excuse he was not entitled to recover anything. D'Ugo v. Cirenza, 131 App. Div. 145. 15. Excuse for nonperformance — Building destroyed by fire. — Section 4 of the Lien Law provides that the lien shall Building Desteoyed by Fieb. 125: extend " to the owner's right, title or interest in the real prop- erty and improvements existing at the time of the filing of the notice of lien." If a notice of lien is filed the language of the statute quoted would seem to imply that whatever interest the owner had, in the premises at that time could he sold in an action to foreclose the lien. Questions may arise as to whether in case the building on the land is destroyed by fire, after the filing of the lien or after the commencement of the work or partial delivery of materials, a contractor, subcontractor, or materialman may foreclose his lien for the amount due at the time of the fire. a. The general rule is that unforseen casualties must be provided against in the contract in order to protect the parties from loss. In the absence of such an agreement the loss would fall upon the party whose property may be destroyed upon the ground that such party could have provided against such contingency in his contract. Paradine v. Jane, Aleyn, 271 ; Harmony v. Bingham, 12 N. Y. 99 ; Nihlo v. Binsse, 1 ■ Keyes, 476 ; s. c, 3 Abb. Ct. App. Ct. Dec. 375. h. The rule which imposes a liability under such circum- stances rests upon the doctrine admirably sitated in the Paror dine case above cited, that when a party by his own contract creates a duty or charge upon himself he is bound tO' make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against such acci- dent in his contract. Where, however, the law creates a duty or charge and the party is disabled from performing it with- out any fault on his part, and hath no remedy over, there the law will excuse him. c. The owner of the premises who contracts with another for the improvement thereof contemplates the delivery of ma- terials and the performance of the work, labor, and services upon the premises referred to or described in the contract. If the owner directs materials to be furnished to a building be- longing to him in course of erection or in a building being al- tered or repaired or newly equipped, it is not incumbent upon the person who delivers such materials to guarantee that the building shall remain intact. The owner is bound to furnish the building in which the materials are to be used. If without any faut of the materialman the building is consumed or de- atroyed, the latter may tender delivery at the place designated 126 Lien Law — Article II, Sec. 4. and will be entitled to recovr the value of materials so deliv- ered. Niilo V. Binsse, 1 Keyes, 476. d. In that case, which the court cites with approval in Whelan v. Ansonia Clock Co., 97 N. Y. 293, it appeared that plaintiff's assignor contracted to do work in a house owned by defendant's testator to be completed at a given date and part of the compensation to be paid as the work progressed, a cer- tain sum upon its completion, and the balance when it was tested and proved adequate. During the performance of the work, the building burned without any fault of either party and the contractor was permitted to recover upon a quantum meruit for the work performed. A judgment in plaintiff's favor was sustained by the Court of Appeals upon the ground that the owner, having created a duty under his contract to furnish the building upon which it was necessary for the plaintiff to execute his contract, was not excusedby reason of the fact tbat the building was destroyed by fire. He was bound to furnish the building and his failure to do so ren- dered him liabe to plaintiff upon a quantum meruit for the work performed and materials furnished up to the time of the fire. This principle of law was also followed in the case of Hayes v. Gross, 9 App, Div. 12, affirmed, 162 N. Y. 610. The court in that case held that where one contracts to do certain work upon a building and the building was destroyed' before the work was completed, the mechanic can recover upon a quantum meruit for the work which was actually performed. In such an action his contract may be received in evidence, but only for the purpose of showing the value of the work. Hayes v. Gross, 9 App. Div. 12, affirmed, 162 N. Y. 610. e. Upon the same principle, the Court of Appeals held that where a clock company, a defendant, empoyed plaintiff to varnish clock cases at a specified price per case, to be done in defendant's factory, and before the work Vas finished the fac- tory was destroyed by fire, a large number of cases upon which defendant had expended labor were burned and a portion had been finished but not inspected, the loss must fall upon defend- ant, as the clocks belong to it, were in its possession and under its control, and it was under an implied obligation to furnish and keep them on hand that the plaintiff could complete his work upon them and earn his compensation. Whelan v. An- Doctrine of Waivbe, 127 sonia Clock Co., 97 N. Y. 293. See also as to Artisan's Liens, where the doctrine res periit domino applies, Kafka v. Levensohn, 18 Misc. 202, and authorities cited under section 180, formerly section 70 of the Lien Law, post, page 479. /. Where, however, a party agrees to erect a building upon the premises of the owner and furnish the labor and ma- terials therefor, and turn the building over to the owner com- plete, before he is entitled to compensation under his contract, it woud seem that he has by his own agreement created a charge or duty upon himself which he is bound to make good, notwithstanding unforseen accidents which make it impossible for him to do so, as he might have provided against this in his contract. If the building is destroyed by fire before com- pletion and there is no provision in the agreement to relieve the builder, he must bear the loss. The builder may protect himself under such circumstances either by providing against Buch contingency in his contract or by insuring the building for the benefit of himself and his subcontractors. g. But where the loss by fire occasioned through the negli- gence of the owner, the contractor is excused from further performance, but in such a case the burden of proof is upon him to show that such loss was oecasiond by the owner's neg- ligence. Where the evidence fails to establish this he cannot recover. Clarke v. Koppell, 119 App. Div. 458. h. As to what acts constitute excuse for nonperformance, Bee also Henderson v. Sturgis, 1 Daly, 366 ; Sproessig v. Kevr iel, 17 ]Sr. Y. Supp. 839 ; Fogg v. Suburban Transit Co., 90 Hun, 274; Weeks v. Little, 9 Abb. IST. C. 415; Smith v. O'Donnell, 15 Misc. 98 ; Wolf v. Horn, 12 Misc. 100. IV. The Docteine of Waiver. 1. Waiver. — The doctrine of waiver is frequently invoked in actions relating to mechanics' liens. A party may, by his acts and conduct, so change the relative position of the parties as to waive rights which otherwise would have accrued. The question as to waiver arises, as to the various provisions of the contract, which may or may not be waived by the acts of the parties, as to the disposition of the funds, or surplus 128 Li'EU Law — Aeticle II, Skc. 4. moneys arising from foreclosure hj prior liens, and as to col- lateral security whicli a " lienor " frequently takes to secure the debt evidenced by the lien, and in other particulars. a. The proof required to estabish a waiver of the provisions of a written contract must be clear and must be sustained by a preponderance of evidence. Woarms v. Becker, 84' App. Div. 379 ; affirmed 163 JST. Y. 220. ' 2. Waiver, occupation of premises not. — An owner who examines the house and points out many defects in its con- struction, which he requires shall be remedied, does not, by taking possession of, and occupying the house, waive other and further defects in the building which he had not discov- ered when he took possession. Spence v. Ham, 27 App. Div. 379. 3. Waiver — Taking security. — A lienor is not precluded from taking security for the amount due him for his labor or materials. A subcontractor took from the contractor a note for the amount due from the latter, which expired prior to time within which a lien could be filed. Held, that the tak- ing of the note did not extinguish the debt or constitute a waiver of the right to file a lien. Miller v. Smith, 20 App. Div. 507 ; Jones v. Moore, 67 Hun, 109 ; Donovan v. Frazier, 15 App. Div. 521. a. The law is well settled that the right to acquire a me- chanics' lien will not be waived by an extension of credit un- less the time is extended beyond the time within which an action must be commenced to enforce the lien. Landsberg & Co. V. Hein Construction Co., 135 App. Div. 819. h. An owner gave his note to a subcontractor, to be used by the latter in payment for materials used in the building. The note was given to the materialman, but was not paid at maturity. In an action to foreclose a lien by a general con- tractor, in which the materialman was made a party, having filed a lien, lield, tbat the materialman was not obliged to sue at law on the note, but was entitled to a lien for the amount due upon the note, and upon his lien. Hall v. Long, 34 Misc. 1. c. In order to establish waiver of the right to file a lien, the evidence must be clear and show an intent to waive the Waivee by Ageeement. 129 right. A materialman, after lie had delivered materials, and after his right to file a lien had accrued, took a note for thirty days for the amount of half his claim and agreed to extend the time of payment of the remainder of the claim for thirty days more, if necessary. Such an agreement, without more, will not he construed as a waiver of his right to file a notice of lien at any time within the period allowed by the statute. Woolf V. Schaefer, 103 App. Div. 567. d. See also as to right of lienor to take securities for the debtor evidenced by the lien, Linneman v. Bieber, 85 Hun, 477 ; Keogh Mfg. Co. v. Eiseriberg, 7 Misc. 79; Teaz v. Chris- tie, 2 E. D. Smith, 621; Althouse v. Warren, 2 E, D. Smith, 657 ; Miller v. Moore, 1 E. D. Smith, 739 ; Carter v. Byzan- tium, 1 Cliff. 1; Abram v. Boyd, 7 Daly, 30; Baley v. Ad- ams, 14 "Wend. 201 ; Hall v. Pettigrew, 10 Hun, 609. 4. Waiver by agreement. — Lienors agreed in writing with a mortgage who had sold the premises against which liens were filed in foreclosure of a prior mortgage, that if the mort- gagee would distribute the surplus moneys in foreclosure, as directed in the written agreement, they would satisfy their J lens. Held, that the lienors thereby waived any right to participate in the surplus moneys. Taylor v. Butcher, 60 App. Div. 531. 5. Waiver terminated. — A building contract provided that the work should be done to the satisfaction of the archi- tect, to be testified by his certificate, and- made such certificate a condition precedent to payment. The parties agreed to waive the certificate and submit all matters in dispute to arbi- trators. The contractor subsequently terminated the arbitra- tion. Held, that in so doing he terminated the waiver of the architect's certificate and the parties became restored to their rights under the contract Fox v. Powers, 65 App. Div. 112. 6. Waiver — Architect's certificate. — An architect's cer- tificate is intended to inform the owner of the fact of completion. The contractor defaulted and the contract was completed by the owner as agent of the defaulting contractor. Held, that the owner, by himself assuming the performance 9 130 " Lien Law — Abticle II, Sec. 4. of the contract, thereby waived the production of the archi- tect's certificate. Hall v. Long, 34 Misc. 1. 7. Waiver — None for continuing breach. — Under a building contract to perform labor and furnish materials within a time specified in the contract, time is prima facM of the essence of the contract, and failure to complete within the time constitutes a breach which justifies its termination. a. This breach is not waived, if the contractor after the time limit proceeds with the work, as there is a continuing breach authorizing a forfeiture at any time. Wyckoff v. Taylor, 13 App. Div. 240. 8. Waiver — Dissolution of partnership. — Robinson & Kesht were copartners, and contracted with plaintiff Silleck for all the lumber required for a particuar building. Before the building was finished, the partnership was dissolved, and defendant Robinson continued the work. Plaintiff thereafter delivered a small quantity of lumber, but declined to fur- nish the balance on the sole credit of defendant Robinson, and filed a lien for the value of the lumber furnished. Held, that plaintiff's lien was valid, and that he was entitled to recover on a quantum meruit, for the value of the lumiber furnished. Silleck v. Bohinson, 60 Misc. 481. V. Specific Peovisions of Oonteact. 1. Contract — When severable. — A contract is entire when the parties intend that the promise by one party is con- ditional upon entire performance of his part of the contract by the other party. The contract is said to be severable when the part to be performed by one party consists of several dis- tinct and separate items, and the price to be paid by the other is apportioned to each item or is left to be implied by law. Wing v. Corhin, 142 N. Y. 340. For the application of the rule as to entire and severable contracts, see White v. Livingston, 69 App. Div. 361. 2. Contract — Quantum meruit. — If the owner is in de- fault under his contract for failure to pay the contractor an installment due, which the contractor has a right to demand, QxTANTUM Meruit. 131 the contractor is no longer bound to proceed with the contract, as the owner has been guilty of a breach. He has a valid claim against the owner, upon a quantum, meruit, for work done and materials furnished, and upon proper proof of such facts he may enforce a lien therefor. White v. Livingston, 69 App. Div. 361. 3. Contract — Quantum meruit — When architects en- titled to recover on. — Plans were drawn for the city of New York for the purpose of building an armory and estimating the cost. The city made a contract with the architects agree- ing to give them a certain fixed per cent, of the cost with the proviso that the cost of the armory, under the plans prepared by the architects, should not exceed the sum appropriated for the building. The city advertised for bids, but received none, and were unable to carry out the plans at the estimated cost. A larger appropriation was voted and the armory was erected by the city, who used the plans of other architects. Held, that the architects could not recover upon the contract as the plans liey prepared could not be carried out by the city at the cost required by the architects. But in view of the fact that the city, in determining the actual cost of an armory, had used the plans prepared by the architects, the latter were entitled to recover upon a quantum meruit to be measured by the cost of making the plans. Horgan & Slat- tery v. City of New York, 114 App. Div. 555. a. An architect employed to furnish plans and specifica- tions for the erection of a building is entitled to remuneration therefore, if they are made in accordance with the directions of the owner. He cannot recover, however, where the owner stipulates that the plans and specifications shall be for a building not to cost over a specified amount, if the plans and specifications made are for a building substantially exceeding that sum. lb. 4. Quantum meruit — When inconsistent with claim of abandonment. — The contractor is justified in rescinding or abandoning the contract on the owner's refusal to permit him to perform. The complaint alleged that plaintiff was en- titled to recover the reasonable value for work done and ma- terials furnished to the time when it was stated the contract was rescinded by reason of the owner's refusal to permit the 132 Lien Law — Aeticle II, Sec. 4. plaintiff to perform the work. The notice of lien proceeded upon the theory that the contract remained in force after plaintiff abandoned the work. Plaintiff sued for the entire sum agreed to be paid under the contract. Held, that a judg- ment of foreclosure and sale was improper. That while the court below found sufficient facts to sustain a personal judg- ment in favor of the plaintiff, it must* appear affirmatively that plaintiff was justified in abandoning the work. In such a case where the facts to justify abandonment are not clear a new trial must be granted. Borhstrum v. Ryan, 138 App. Div. 183. Where defendant makes default in making the payments, as provided for in the contract, plaintiff may elect to treat de- fendant's failure to pay as a breach of the contract, and may file a lien, and recover upon a avantum meruit for the full value of the work performed. Atlantic Gulf and Pacific Co. V. Woodmere Realty Co., 156 App. Div. 351. 5. Quantum meruit — Verbal contract. — Where work was done by a subcontractor under a municipal contract with res'pect to plastering a schoolhouse, which eonntract was not in writing, the plaintiff is entitled to recover upon a quantum meruit for the amount and value of the work performed and materials furnished by him. Moriarity v. Board of Educa- tion, 112 App. Div. 837. As to proof of value, in an action upon a quantum, meruit, see Evidence, post, pages 280, 281. 6. Contract — Reformation. — Where a dispute arises as to the construction of a contract, and not to a construction of the drawings and specifications, it is the duty of defendant to plead mistake and demand judgment for a reformation of the contract. Isaacs v. Dawson, 7.0 App. Div. 232. a. In such case a clause in the contract that any dispute as to the meaning of drawings and Sipecifi cations shall be decided hy the architect, whose decision shall be conclusive, has no application, as the dispute concerns a construction of the con- tract. Ih. 7. Contract — Decision of architect. — A provision in a huildino; contract that the work shall be done according to the plans and specifications, and if any dispute arises as to their Aechitect — Rights of. 133 true constmction and meaning the decision of the architect shall be final, does not make the architect an arbitrator to finally determine whether work done by the subcontractor has been performed in accordance with the contract. Schillinger Cement Co. v. Arnott, 152 E". Y. 584. 8. Waiver — When architect cannot waive provisions of contract. — A provision in a building contract that the builder is not to execute any extra work or make any modifi- cations or alterations in the work mentioned in the plans and specifications unless ordered in writing by the engineer in charge or claim payment for the same unless such written order be produced, is valid and should be enforced. The pro- vision is intended for the benefit of the employer. Langley V. Bouss, 185 ]Sr. Y. 201. Kelly v. St. Michael's Roman Catholic Church, 184 App. Div. 767. A provision of the contract that payment for extra work shall not be allowed unless in writing under the hand of the owner, or his duly authorized agent, are for the benefit of the owner, and may be waived, or the owner may act in such way as to create an estoppel. But such waiver or such conduct creating an estoppel must be on the part of the owner or his agent, duly authorized. An architect, although he may be the general agent of the owner, is not his agent with regard to waiving the provisions of the contract, requiring written orders for extra work. Kelly v. St. Michael's Boman Cath- olic Church, 148 App. Div. 767. a. A building contract which makes an architect an agent of the owner and limits his authority in regard to alterations and extra work differs from a contract providing that the contractor shall not be paid for alterations or extra work un- less the same are ordered in writing by the owner. A party to a building contract can waive a provision for his own bene- fit. Solomon v. Vallette, 152 'N. Y. 147; Dunn v. Steubing, 120 ]Sr. Y. 232 ; Eagle Iron Works v. Farey, 83 App. Div. 82. But it is an elementary rule that an agent for a party is bound by the terms of his agency. Ih. h. The building contract provided that no claim should be allowed for extra work unless the same shall be done pursuant to a written order from the engineer in charge and the claim for such work made at the first settlement after the work was 134 Lien Law — Aeticle II, 'Sec?, 'i. executed. This provision cannot be abrogated or changed by the engineer. It was inserted to protect the owner from felaims for extra work which might be based upon oral evi- dence after the work was completed, and when it might be difficult to prove the facts in relation thereto. If the en- gineer in charge had an unlimited aut]),ority to change the contract at will and to make special agreement for work fairly- embraced therein, the owner would derive but little protec- tion from the fact that the contract had been reduced to writ- ing. No recovery can be had by a contractor for extra work claimed to have been performed under verbal orders from the architect or engineer in charge, where the authority of such architect or engineer to bind the owner is expressly limited by the contract to such orders as should be given in writing upon itemized estimates submitted by the contractor. lb. 9. Architect — Liability of owner for delay. — Where a contract expressly makes the architect agent of the ovnier, a general contractor is not liable for the default of the architect in failing to furnish plans within the time required by the subcontract. Where the subcontract provides a penalty for delay in the completion of the work, occasioned by the de- fault of the general contractor " or the architect " that the time for completion shall be extended, the only relief to which the subcontractor is entitled, for delay caused by the archi- tect, is the extension of his time to complete the work to cor- respond with the delay occasioned. Norcross v. Wills, 130 App. Div. 430. 10. Architect's certificate. — When the contract provides that the architect's certificate shall be conclusive, the pro- vision governs, and such certificate can be attacked only on the ground of fraud, misconduct or palpable mistake. No evidence will be received on the trial to impeach the certificate unless the facts are fully set forth in the pleading. In such a case the contract makes the architect an arbitrator, and his determination can be attacked in such manner as the decision of any other arbitrator. Farrell v. Levy, 139 App. Div. 790 ; Mahoney v. Oxford Realty Co., 133 App. Div. 656. a. The contract provided that the final payment should be due " when water is turned on, and work accepted by archi- tect, and approved by the Tenement House and Building Architect's Cbetificate. 13& Department." iA. certificate of an inspector of the building department to the effect that he had examined the premises, and found them to conform with plans and specifications and regulations of the bureau of buildings. Held that neither the letters noT the certificate of the inspector constituted a final certificate within the meaning of the contract. Strauss V. Hanover Realty & Construction Company, 133 App. Div. 743. &. In a case where about 15 per cent, of the work remained unperformed there was no substantial performance, and an ■architect who refuses under such circumstances to certify that the contractor has performed his contract obliagtions, is not guilty of arbitrarily or unreasonably withholding his cer- tificate. Fuchs V. Saladino, 133 App. Div. YlO. c. An owner who takes possession, where the contractor has failed to perform, is under no obligation to pay the latter simply because he takes possession of his own property. Such possession does not constitute an acceptance of the work performed by the contractor. lb. d. The agreenient contemplated that defendant should' em- ploy an architect, whose duty it would be to pass upon the question whether the work was performed according to the contract. The owner failed to employ such architect, and re- fused to pay plaintiff because he did not furnish an archi- tect's certificate. Held, that as the owner never employed an architect, plaintiff was entited to recover upon the gromid that the architect's certificate had been waived by defendant's act in failing to employ one. Feldman v. Goldblat, 75 Misc. 656. e. Where palintiff claims performance of a municipal con- tract, which provides' that an architect's certificate must be furnished as a condition precedent to the contractor's right to receive payment, he cannot recover upon the ground that the certificate was unreasonably withheld, unless he alleges such unreasonable withholding in the complaint. Dwyer v. The Mayor of New York, 77 App. Div. 224', citing Weehs V. O'Brien, 141 N. Y. 199 ; MacKnigU & Flintic Stone Go. V. Mayor, 160' E". Y. 80. /. But if the work has been completed by the city under the contract, after abandonment by the contractor for a less 136 Lien Law — Abticle II, Sec. 4. sum than the contract price, the defaulting contractor maj recover from the city the balance under the contract over and above the cost of completion, veithout regard to the architect's certificate. Dwyer v. The Mayor of New York, 77 App. Div. 224. 11. Architect's certificate — Implied waiver of. — The complaint alleged a contract with plaintiff to install a vacuum cleaner plant in defendant's building. Plaintiff was to be paid upon the issuance of the architect's certificate. Parties agreed to make a test as to whether plaintiff had complied with the terms of the contract. The test was made, archi- tect refused certificate, owner refused to pay, on the gi'ound that the plant was not in accordance with the requirements of the contract. After the test defendant used the plant. Held, that the allegations were sufficient to show that such user was an acceptance, which operated as a waiver of the architect's certificate. Vacuum Cleaner Co; v. Broadway Cortlandt Co., 78 Misc. 174. 12. Architect's certificate. — The contract provided that " no change will be made in any of the materials called for in the specifications unless permission in writing is given by the architects." Held, that a change in materials was ai breach unless written permission by the architect was shown ; that his written approval of the work containing the changed material was not equivalent to written permission to substi- tute other materials within the meaning of the contract. L'Hommedieu v. Winthrop, 59 App. Div. 192. a. Under such a contract the architect has no power to vary the terms of the instrument and cannot authorize sub- stituted materials except by permission in writing. lb. h. If the architect's certificate is a condition precedent under the contract to a right to a payment, there can be no recovery unless the certificate is produced, or unless it is alleged in the complaint and proved at the trial that such certificate was unieasonably withheld. L'Hommedieu v. Winthrop, 59 App. Div. 192 ; Decker v. O'Brien, 1 App. Div. 81 ; Smith v. Smith, 7 Misc., 37 ; Beecher v. Schuhach, 23 N. Y. Supp. 604, affirmed, 1 App. Div. 309 ; WeeJcs v. O'Brien, 141 ]Sr. Y. 199; Highton v. Dessau, 19 N. Y. Supp. 395, BuEDEN OF Peoof. 137 aiErmed, 139 N. Y, 607; Murdoch v. Jones, 3 App. Div. 221; Kelly v. City of Syracuse, 10 Misc. 306, 13. Architect's certificate — Burden of proof. — By the terms of the contract payment was to be made only upon the written certificate of the architect. In order to maintain an action to forecose a mechanic's lien, under the contract, the plaintiff, in the absence of the certificate, must show not only a demand and refusal of the architect to deliver the certifi- cate and that it was unreasonably withheld, but plaintiff must establish these allegations by a preponderance of evidence, as they are part of plaintiff's affirmative case. Neshit v. Broker, 104 App. Div. 393. Plaintiff brought an action to foreclose a mechanic's lien for the value of electrical fixtures. Defendant put in a gen- eral denial and pleaded payment. The answer alleged that defendant purchased the fixtures from one Cottrell, the archi- tect, since deceased, and paid for them in full. Defendant offered in evidence copies of orders sent by Cottrell to de- fendant, including the electrical fixtures sued for. The court below excluded the evidence. Held, error. That as the answer contained a general denial as well as an affirmative defense, defendant had a right to show the dealings he had with Cottrell. Caldwell v. Glazier, 138 App. Div. 826. 138 LiEif Law — Article II, Sec. 5. § 5. Liens under contracts for public improvements • — ^A person performing labor for or furnishing mate- rials to a contractor, his sub-contractor or legal repre- sentative, for the construction of a public improvement pursuant to a contract by such contractor with the state or a municipal corporation, shall have a lien for the principal and interest of the value or agreed price of such labor or materials upon the moneys of the state or of such corporation applicable to the construction of such improvement, to the extent of the amount due or to become due on such contract, upon filing a notice of lien as prescribed in this article. , (As amd. by Laws 1902, chap. 37.) Lien Law of 1897, § 5, re-enacted Law 1909, chap. 38. 1. Municipal liens. — The object of the Lien Law of 1897 was to embrace within a single statute, as far as possible, a remedy for the enforcement of liens for labor performed or materials furnished upon public as well as private property. The Lien Law of 1885 .(Laws 1885, chap, 342) embraced, only liens upon private property. Liens against municipal property, prior to the Lien Law of 1897, were authorized and enforced under the provisions of what was known as the Cities Act (Laws 1878, chap. 315), entitled "An act to secure the payment of laborers, mechanics, merchants, traders, and persons furnishing material toward the performance of any public work in the cities of the State of 'New York." The provisions of this statute were made applicable to the city of New York by re-enacting its provisions as part of the Consolidation Act (Laws 1882, chap. 410, §§ 1824-1836). The Lien Law of 1897 repealed the provisions of the Cities Act in force at the time of its passage. It did not, however, repeal the provisions of the Consolidation Act relating to municipal liens in the city of New York. Ruge v. Gallagher, 22 App. Div. 572 ; McKay v. The City of New York, 46 App. Div. 537. a. The city of New York, and the contiguous ten-itory in the counties of Kings, Queens, Westchester, and Rich- mond, embraced in the new city of New York as constituted LiEif FOE Public Improvement. 139 •under tlie " Greater IsTew York Charter " (Laws 1897, chap. 378), was brought within the provisions of the Lien Law of 1897 on April 1, 1899, by the repeal of the portions of the Consolidation Act relating to municipal liens. The re- pealer (Laws 1899, chap. 195) became operative April 1st of that year. I. Lien foe Public Woek — Laboe Law. The object sought to be accomplished by the legislature, under the Lien Law of 1897, was to assimilate as far as pos- sible the entire law embraced in the subject of liens, not only with regard to public improvements and private property, but to personalty as well, into one harmonious statute. The Court of Appeals has declared that the various provisions of the statute will be held to relate to all liens affecting pub- lic or private property, unless the language of the act evinces a different intent, or where, from the nature of the subject, regulations as to one' class are inapplicable to the other. Brace v. City of Gloversville, 167 ¥, Y. 452; McKay v. City of New York, 46 App. Div. 579. 1. The State or a municipal corporation. — The first at- tempt to extend the operation of the Lien Law to funds due from the State, upon contracts for public improvements un- dertaken by it, is embraced in the provisions of the Lien Law of 1897. The words " municipal corporation," used in a statute, cannot be construed to include within its mean- ing the State of New York. The State is sovereign, in the exercise of all powers not delegated by it, or its people, to the Federal government, in the Constitution of the United States. The United States of America is sovereign in the exercise of all powers delegated to it under the Federal Con- stitution. Both the State and Federal governments are sov- ereign within their respective spheres. A sovereign, in the nature of things, cannot be sued, nor can it be forced or commanded to adjust claims against itself, without its con- sent. But the sovereign recognizes that injustice may be done, unless some tribunal is established where claims against it may be adjusted, and as matter of grace, both the State and Federal governments have instituted, for that purpose, what is usually known as a Court of Claims. Such a tribu- 140 Lien Law — Aeticle II, Sec. 5. nal, however, might not be able to grant summary relief to laborers and mechanics who have given their time and ser- vices, and furnished materials for public improvements. In order to establish a more convenient method of relief in this class of cases the State of New York, of its mere good pleas- ure, and as an act of grace, has consented, and authorized its legislature, to incorporate within the general provisions of the Lien Law a remedy for those having claims for labor and materials furnished under contracts for State improvements. a. In an action to foreclose a mechanic's lien upon funds of the State " the Court has no more jurisdiction " says Southerland, J., " to render a money judgment against the state for the amount due to the contractor in excess of the liens, than the Court has to render a similar judgment, against an individual owner of real estate against which mechanics' liens have been filed, in favor of a contractor who has filed no lien." But in such a case the judgment should contain a provision that it should not be a bar to any future action, which the contractor might elect to bring, either upon his contract, or for extra work. Smith v. State of New York, 65 Misc. 376. Plaintiffs, who were laborers under a barge canal contract filed liens, which they claimed attached to funds withheld by the State, upon a contract for work done by the con- tractor, Vulcan Engineering Company. The plaintiffs fur- ther claimed, that in the event of not being able to reach the funds so withheld, they could enforce their liens against the Aetna Indemnity Company, the surety of the original con- tractor. Held, that no obligation existed as to the State to collect from the surety on his bond, the increased cost of the work after default of the original contractor. Held fur- ther that the sureties were not liable, as the real object of the bond given by it, was to secure the faithful perforaiance of the contract. Laundani v. Vulcan Engineering Co., 10 Misc. 385. h. The Lien Law of 1897, as amended by Laws 1902, chap. 37, authorizes a lien for labor or materials furnished " to a contractor, his subcontractor, or legal representative, for the construction of a public improvement pursuant to a contract by such contractor with the State, or a municipal corporation. MUNICIPAI, COBPOEATION. 141 c. The provisions of the Lien Law, prior to the amend- ment of 1902, which became operative February 20th of that year, failed to provide specifically for the lien upon the moneys of the State, or the acceptance of the work by the ■State, or for the filing of the lien with the State comptroller. These omissions were supplied by the amendment of 1902. Prior to the amendment, it was held that those sections of the law providing for the lien authorized it only upon moneys of a municipal corporation. That the term " municipal cor- poration " was not broad enough to include the State, which created the municipal corporation, and that a lien upon the moneys of the State was not authorized. Tice v. Atlantic Construction Co., 52 App. Div. 284. d. In view of the ruling in the case last cited, the Lien Law was amended so as to provide specifically for a lien upon the moneys of the State, under a contract for a public improvement, notice of which must be filed with the State comptroller, pursuant to § 12 of the Lien Law. 2. Municipal corporation. — Prior to 1892 there was no provision for a lien for work done for a village, town, or county, as these political divisions of the State were not "incorporated cities" within the meaning of the Cities Act (Laws 1878, chap. 315). To cure this defect, the Cities Act was amended in 1891 (Laws 1891, chap. 255), and in 1892 (Laws 1892, chap. 629), so as to include within its provi- sions not only incorporated cities, but " any municipal cor- poration, county, town, or village." a. The General Corporation Law (Laws 1892, chap. 687, § 3) defines a municipal corporation to include a county, town, school district, village, or city, and any other territorial division of the State, established by law, with powers of local government. The term " municipal corporation," therefore, includes contracts for every sort of public work, or public improvement, except such as are authorized by the State of New York. IL Legality or Municipal Liens Under Labor Law. 1. Power of legislature. — The legislature is not omnipo- tent. In the exercise of its powers, as has been observed, it must act within the limitations prescribed by the Federal 142 Lien Law — Aeticle II, Sec. 5. Constitution, and the Constitution- of the State of "New York. When an act of the legislature violates a provision of the State or Federal Constitution, it is invalid, or, more cor- rectly speaking, unconstitutional. A law which impairs the obligation of a contract, or deprives any person of life, lib- erty, or property without due process §f law, or denies to any person the equal protection of the laws; or which as- sumes to regulate commerce between the States, or a law which shall " abridge the privileges or immunities of citizens of the United States " is invalid, and has no binding force and no person is bound to obey it. a. The constitutional limitations prescribed by the Federal and State Constitutions, designed to secure the inalienable rights of life, liberty, and property, are as follows : The Federal Constitution declares that Congress shall have power " to regulate commerce with foreign nations, and among the several States." Art. I, § 8. Privileges; immunities. — The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Art. IV, § 2. Congress supreme. — This Constitution, and the laws of the United States which shall be made in pursuance thereof; . . . shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Art. VI. Due process of law. — No person shall be * • • deprived of life, liberty, or property, without due process of law, nor shall private prop- erty be talsen for public use, without just compensation. Amendment V. All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or prop- erty, without due process of law, nor deny to any person within its jurisdiction, the equal protection of the laws. Amendment XIV. The following provisions and safeguards for the protec- tion of life, liberty, and property are contained in the State Constitution : Persons not to be disfranchised.— No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. Const., Art. 1, § 1. Bill of rights.— No person shall be held to answer for a capital or otherwise infamous crime (except in' cases of impeachment, and in cases of militia when in actual service, and the land and naval forces 'Constitutional Peovisions. 143 5n time of war, or which this State may keep with the consent of Con- gress in time of peace, and in case of petit larceny, under the regula- tion of the legislature), unless on presentment or indictment of a grand jury, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeop- ardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation. Const., Art. I, § 6. Power of legislature over municipal corporations and municipal con- tracts. — ^It shall be the duty of the legislature to provide for the organ- ization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loan- ing their credit, so as to prevent abuses in assessments, and in contract- ing debt by such municipal corporations. Art. 13, § 1. The legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed by the State or by any county, city, town, village or other civil division of the State, or by any contractor or sub- contractor performing work, labor or services for the State or for any county, city, town, village or other civil division thereof. (Added by amendment adopted November, 1905.) h. This amendment to the State Oonstitution above cited was the result of decisions in the Court of Appeals declaring unconstitutional certain provisions of the Labor Law (Laws 1897, chap. 415) with regard to the "eight hour day," the " prevailing rate of wages," and the attempt to have all stone for municipal buildings cut and dressed within the State. People ex rel. Rogers v. Coler, 166 N. Y. 1 ; People ex rel. Treat v. Coler, 166 N. Y. 144; People ex rel. Lentinhon v. Coler, 168 IST. Y. 6 ; Myers v. City of New York, 58 App. Div. 534; Ryan v. City of New York, 177 IST, Y. 271, af- firming 78 App. Div. 134; People v. Orange County Road Construction Co., 175 IST. Y. 84. c. It will be observed that the power conferred by the amendment of 1905 authorizes the legislature to enact laws with regard to municipal corporations and municipal eon- tracts. It must " provide for the organization of cities, and incorporated villages." It may " restrict their power of tax- ation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments, and in contracting debt." By the 1905 amendment power is extended to authorize legislation to " regulate and fix the wages or salaries, the hours of work or labor, and make pro- vision for the protection, welfare and safety of persons em- 144 Lieu Law — Aeticle II, Sec. 5. ployed by the State, or by any county, city, town, village or other civil division thereof " or by any contractor or subcon- tracto^r performing services for such municipal corporation. d. This is the extent of the power now lodged in the legis- lature. It is sufficient to authorize it to supplement the Labor Law by penal statutes making it- a criminal offense to work more than eight hours in a calendar day or for a contractor to permit his employees to do so. The amendment of 1905 would seem to permit also class legislation. It may legislate for " the protection, welfare, and safety of persons employed by the State " or by a municipal corporation. What particular " protection, welfare, and safety " may be extended to this class, embracing public servants, which is denied to other members of the community, is not clear, and it would seem that any law which legislates for the benefit of municipal contractors and municipal employees which is denied to the remainder of the inhabitants of the State would operate to discriminate against the general public in favor of those who retain positions in the public service. With this exception, the authority of the legislature seems to be limited to the power to regulate and fix wages or salaries and pre^ scribe the hours of work or labor as to those persons who perform labor and services for the State or for a municipal corporation, 1. The State may now prefer its own citizens in the per- formance of contracts for public work. — The Court of Ap- peals has held, that since the amendment to the Constitu- tion adopted November, 1905, the State may prefer its own citizens in the performance of public work. De- fendant made a contract with the city of New York for the construction of sewer basins. He employed laborers not citizens of the United States. One of them was an Italian. The nationality of the others was not shown. Be- cause of the employment of these aliens he was convicted for violation of section 14 of the Labor Law. This section provides that in the construction of public works only citi- zens of the United States shall be employed, and in all cases where laborers are employed in any such public work, pref- erence shall be given to the citizens of the State of New York. A violation of the statute was declared to be a mis- demeanor. Defendant Crane was convicted under this stat- State May Employ Its Own Citizens. 145 Tite for employing alien laborers. Held that the moneys of the State belonged to the people of the State. The State through its legislature has given notice to its agents that in building public work it wishes its own moneys to be paid to its own citizens, and if not to them, at least to citizens of the United States. That the State has a legal right to prefer its own citizens in the distribution of its own wealth, and that such preference may be lawfully exercised. The equal protection of the laws guaranteed by the Fourteenth Amendment to the Federal Constitution does not mean that those who have no common interest in the common property of the State must share in that property under the same terms as those who have an interest. The decision of the Appellate Division (165 App. Div. 449) reversing the court below was reversed, and the conviction affirmed. People v. Crane, 214 N. Y. 154; affirmed 239 TJ. S. 195. Mr. Justice Collin filed an elaborate dissenting opinion, in which he held that the Fourteenth Amendment forbade the legislature of any State from passing a law depriving any person within its jurisdiction of the equal protection of the law, and for that reason the New York Statute prohibit- ing the State from employing any but citizens was in viola- tion of the Federal Constitution. a. On November 1, 1915, the TJ. S. Supreme Court in Truax ex rel. Arizona v. Raich, held that the right to work for a living was guaranteed by the Fourteenth Amendment to the Federal Constitution. " It requires no argument to show," says Justice Hughes, " that the right to work for a living in the common occupation of the community, is of the very essence of the personal freedom and opportunity that it was the purpose of the amendment to secure. If this could be refused, solely on the ground of race, or nationality, the prohibition of the denial to any person of the equal protec- tion of the laws, would be a barren form of words." The case arose as to the validity of an Arizona statute which declared that an employer of more than five persons must employ eighty per cent qualified electors or native born citizens. Eaich, an Austrian waiter, procured from the Fed- eral Court an injunction to prevent his employer Traux, and the State of Arizona from causing his discharge on the ground that the statute was in violation of the Fourteenth Amend- ment which guarantees to all persons " the equal protection 10 146 Libit Law — Article II, Sec. 5. of the law," and was also in violation of the treaties of the United States with Austria. The decision was based on the constiuttional provisions. Truax ex rel. Arizona v. Baich, 239 U. S. 33. b. The Supreme Court of the United States in Champion V. Ames, No. 2, 188 U. S. 321 (the Jjottery cases), defines the word " liberty." The court declared that the " liberty " protected by the Constitution embraces the right " to be free in the enjoyment of one's faculties; to be free to use them in all lawful ways ; to live and work where he will ; to earn his livelihood by any lawful calling; to pursue any liveli- hood, and, for that purpose, to enter into any contract that may be proper." The Constitution not only protects the liberty of the citi- zen; it protects his property also. It is difficult to under- stand, in view of this definition of liberty as defined by the United States Supreme Court, how it could give its sanction to a State law, which makes it a crime to labor, and condemns an industrious man as a criminal. AtJcin v. Kansas, 191 U. S. 207. c. Eeferring to this decision, Mr. Justice O'Beiew in People ex rel. Cossey v. Grout, 179 N". Y. 417, observes that if the State legislature can make it a crime to earn a liveli- hood, then it is omnipotent, and may create new crimes never contemplated when the Constitution was framed. It can make it a crime for a municipal contractor to permit his employees to work five minutes more than eight hours in the day, even though the servant wanted to work and the em- ployer was willing to pay extra wages. " Of course, if the legislature could make it a misdemeanor to permit this, it could make it a felony, and if all this is so, there would be no limit to the power of a State legislature in this respect." The Court of Appeals, for the reasons stated by Justice O'Beien, refused to follow the ruling of the United States Supreme Court in the AtTcin case, sustaining the validity of the Kansas Labor Law making it a crime to permit a man to work when he wanted to, and making the industrious man a criminal, and confiscating his time and his property because he desired to exercise his inalienable right to " earn his livelihood by his lawful calling," and exercise his facul- ties, and use them in all lawful ways, and live and work where he will. Laboe Law — Municipal Conteact.' 14'7 d. " Whatever may be the law of Kansas, or the law of the Federal courts, in that respect," says O'Eeieit, J., " it is quite certain that this court has held that the power is limited, and that the legislature has no power to denounce as crimes acts which in their nature and consequences are innocent and harmless." People ex rel. Cossey v. Grout, 119 K Y. 417. e. The legislature, in re-enacting the Labor Law after the amendment to the Constitution of 190'5, and the penal stat- utes supplemental thereto, limited the punishment to a fine of not " less than $500 nor more than $1,000." But the power is conferred upon the municipal corporation to forfeit the contract upon conviction. Imprisonment is not author- ized for the reason, perhaps, that it seems repugnant to law and justice to put a man in jail for working. /. The new Labor Law has been held to be constitutional by the Court of Appeals so far as it declares that eight hours shall constitute a calendar day, under contracts with the State or a municipal corporation. It has also been held that the provisions of the new law relate only to those employed directly by a municipal corporation, and do not extend to persons who supply materials to those performing work and labor under a municipal contract. See page 116, post. la. Labor Law — Provisions of, as to municipal contracts. — The Labor Law (Laws 1897, chap. 415, Consolidated Laws 1909, chap. 31) requires contracts for the construction of public works by the State or a municipal corporation to conform to its provisions. The statute also regulates the hours of labor and provides for its violation. The provisions of the Labor Law so far as they affect municipal contracts are as follows: § 3. Hours to constitute a day's work. — Eight hours shall constitute a legal day's work for all classes of employees in this state except those engaged in farm and domestic service unless otherwise provided by law. This section does not prevent an agreement for overwork at an increased compensation except upon work by or for the state or a municipal corporation,, or by contractors or subcontractors therewith. Each contract to which the state or a municipal corporation or a com- mission appointed pursuant to law, is a party which may involve the employment of laborers, workmen or mechanics shall contain a stipula- tion that no laborer, workman or mechanic in the employ of the con- tractor, subcontractor or other person doing or contracting to do the 148 LiEW Law — Aeticlb II, Sec. 5. whole or a part of the work contemplated by the contract shall be permitted or required to work more than eight hours in any one calendar day except in cases of extraordinary emergency caused by fire, flood or danger to life or property. The wages to be paid for a legal day's work as hereinbefore defined to all classes of such laborers, workmen or mechanics upon all such public works, or upon any material to be used upon or in connection therewith shall not be less than the prevailing rate for a day's work in the same trade or Bccupation in the locality within the state where such public work on, about or in connection with which such labor is performed in its final or completed form is to be situated, erected or used; nor in any case, less than two dollars per day if such laborers, workmen or mechanics are employed upon, about or in connection with the canals of the state, or in the construction, enlarge- ment or improvement of canals. Each such contract hereafter made shall contain a stipulation that each such laborer, workman or me- chanic, employed by such contractor, subcontractor or other person on, about or upon such public work, shall receive such wages herein pro- vided for. Each contract for such public work hereafter made shall contain a provision that the same shall be void and of no effect unless the person or corporation making or performing the same shall comply with the provisions of this section ; and no such person or corporation shall be entitled to receive any sum nor shall any officer, agent or employee of the state or of a municipal corporation pay the same or authorize its payments from the funds under his charge or control to any such person or corporation for work done upon any contract, which in its form or manner of performance violates the provisions of this section, but nothing in this section shall be construed to apply to per- sons regularly employed in state institutions, or to engineers, elec- tricians and elevator men in the department of public buildings during the annual session of the legislature, nor to the construction, mainten- ance and repair of highways outside the limits of cities and villages. (Labor Law [Laws 1897, chap. 415], § 3, as amd. by Laws 1900, chap. 298, and re-enacted Laws 1906, chap. 506, in effect May 19, 1906; Con- solidated Laws 1909, chap. 31, § 3; as amd. Laws 1913, chap. 467.) 1. Prevailing rate of wages in Maine. — Plaintiff sued for judgment to require the cancellation of a contract made by defendant "with the city of 'New York for the construction of a Municipal Building and to restrain the Comptroller from making payments under it, on the ground that the contract was in violation of section 3 of the Labor Law (Laws 1909, chap. 31). The action was based on the ground that defendant, Thompson Starrett Co., had sublet the gran- ite work to a Maine corporation, who quarried, cut and dressed the stone for the building in that State, and paid therefore the prevailing rate of wages there, which was less than prevailing rate in ISTew York. Held that defendant company was well within its rights, and that the stone cut- ters in Maine were not employed " on, about or upon " the HoTTKS OF Laboe. 149 building in New York, and it was immaterial whether the workman in Maine were employed by the principal contrac- tor, or by a subcontractor or by any other person. Ewen v. Thompson Starrett Co., 208 N. Y. 245. 2. Penal statute. — The foregoing provisions of the Labor Law were supplemented by a penal statute making it a mis- demeanor to violate any of the provisions embraced in sec- tion 3 above cited, or other provisions of the Labor Law. This penal statute was contained in section 384h of the Penal Code (now designated Penal Laws, Consolidated Laws 1909, chap. 88, § 1271), as follows: Hours of labor to be required. — Any person or corporation, 1. Who, contracting with the state or a municipal corporation, shall require more than eight hours' work for a day's labor; or 3. Who shall require more than ten hours' labor, including one-half hour for dinner, to be performed within twelve consecutive hours, by the employees of a street surface and elevated railway owned or oper- ated by corporations whose main line of travel or routes lie principally within the corporate limits of cities of more than one hundred thousand inhabitants; or 3. Who shall require the employees of a corporation owning or oper- ating a brickyard to work contrary to the requirements of section five of the labor law; or 4. Who shall require or permit any employee engaged in or con- nected with the movement of any train of a corporation operating a line of railroad of thirty miles in length, or over, in whole or in part within this state to remain on duty more than sixteen consecutive hours; or to require or permit any such employee who has been on duty sixteen consecutive hours to go on duty without having had at least ten hours oflf duty; or to require or permit any such employee who has been on duty sixteen hours in the aggregate in any twenty- four hour period, to continue on duty or to go on duty without having had at least eight hours oflF duty within such twenty-four hour period; except when by casualty occurring after such employee has started on his trip, or unknown casualty occurring before he started on his trip, and except when by accident or unexpected delay of trains scheduled to make connection with the train on which such employee is serving, he is prevented from reaching his terminal; Is guilty of a misdemeanor, and on conviction therefor shall be punished by a fine of not less than five hundred nor more than one thousand dollars for each offense. If any contractor with the state or a municipal corporation shall require more than eight hours for a days' labor, upon conviction there- for in addition to such fine, the contract shall be forfeited at the option of the municipal corporation. (Penal Laws, § 1371.) § 4. Violations of the Labor Law. — Any officer, agent or employee of this state or of a municipal corporation therein having a duty to act 150 Lien Law — Aeticle II, Sec. 5, in the premises who violates, evades or knowingly permits the violation or evasion of any of the provisions of this act shall be guilty of mal- feasance in office and shall be suspended or removed by the authority having power to appoint or remove such officer, agent or employee: otherwise by the governor. Any citizen of this state may maintain proceedings for the suspension or removal of such officer, agent or employee, or may maintain an action for thg purpose of securing the cancellation or avoidance of any contract which by its terms or man- ner of performance violates this chapter, or for the purpose of prevent- ing any officer, agent or employee of such municipal corporation from paying or authorizing the payment of any public money for work done thereupon. (Labor Law [Laws 1897, chap. 415], § 4, as amd. by Laws 1899, chap. 567; Consolidated Laws 1909, chap. 31, § 4.) » « « * * * * *,» § 9. Payment of wages by receivers. — ^Upon the appointment of a receiver of a partnership or of a corporation organized under the laws of this state and doing business therein, other than a moneyed cor- poration, the wages of the employees of such partnership or corporation shall be preferred to every other debt or claim, (Labor Law [Laws 1897, chap. 415],. § 9. Consolidated Laws 1909, chap. 31, § 9.) § 10. Cash payment of wages. — Every manufacturing, mining, quar- rying, mercantile, railroad, street railway, canal, steamboat, telegraph and telephone company, every express company, every corporation en- gaged in harvesting and storing ice, and every water company not municipal, and every person, firm or corporation, engaged in or upon any public work for the state or municipal corporation thereof, either as a contractor or a subcontractor therewith, shall pay to each employee engaged in his, their or its business the wages earned by such em- ployee in cash. No such company, person, firm or corporation shall hereafter pay such employees in scrip, commonly known as store money orders. No person, firm or corporation engaged in carrying on public work, under contract with the state, or with any municipal corporation of the state, either as a contractor or subcontractor there- with, shall, directly or indirectly, conduct or carry on what is com- monly known as a company store, if there shall, at the time, be any store selling supplies within two miles of the place where such con- tract is being executed. Any person, firm or corporation violating the provisions of this section shall be guilty of a misdemeanor. (Labor Law [Laws 1897, chap. 415], § 9, as amd. by Laws 1906, chap. 316, and Laws 1908, chap. 443, in effect May 30, 1908; Consolidated Laws 1909, chap. 31, § 10.) 3. Penal statute. — The foregoing provisions of section 9 relating to the payment of wages in cash is supplemented by a penal statute making any violation of its provisions a misdemeanor. This penal statute was contained in section 3841 of the Penal Code (now designated Penal Laws, Con- solidated Laws 1909, chap. 88, § 1272), as follows: Payment of wages. — A corporation or joint-stock association or a person carrying on the business thereof, by lease or otherwise, who does Employees on Public Woks.. 151 not pay the wages of all its employees in accordance with the provisions of the lahor law, is guilty of misdemeanor, and upon conviction there- for, shall be fined not less than one hundred nor more than ten thuosand dollars for each offense. An indictment of a person or corporation operating a steam surface railroad for an offense specified in this section may be found and tried in any county within the state in which such railroad ran at the time of such offense. (Penal Code, § 1272, as amended by Laws 1909, chap. 205.) § 14. Preference in employment of persons upon public works. — In the construction of public works by the state or a municipality, or by persons contracting with the state or such municipality, only citizens of the United States shall be employed; and in all cases where laborers are employed on any such public works, preference shall be given citizens of the state of New York. In each contract for the construc- tion of public works a provision shall be inserted, to the effect that, if the provisions of this section are not complied" with, the contract shall be void. All boards, officers, agents of employees of cities of the first class of the state, having the power to enter into contracts which pro- vide for the expenditure of public money on public works, shall file in the office of the commissioner of labor the names and addresses of all contractors holding contracts with said cities of the state. Upon the letting of new contracts the names and addresses of such new contrac- tors shall likewise be filed. Upon the demand of the commissioner of labor a contractor shall furnish a list of the names and addresses of all subcontractors in his employ. Each contractor performing work for any city of the first class shall keep a list of his employees, in which it shall be set forth whether they are naturalized or native-born citizens of the United States, together with, in case of naturalization, the date of naturalization and the name of the court where such naturalization was granted. Such lists and records shall be open to the inspection of the commissioner of labor. A violation of this section shall con- stitute a misdemeanor and shall be punishable by a fine of not less than fifty dollars nor more than five hundred dollars, or by imprison- ment for not less than thirty nor more than niney days, or by both such fine and imprisonment. (Labor Law, § 14, as amd. by Laws 1902, chap. 454.) »♦»*»»»** § 20. Protection of persons employed on buildings in cities. — All con- tractors and owners, when constructing buildings in cities, where the plans and specifications require the floors to be arched between the beams thereof, or where the floors or filling in between the floors are of fire proof material or brick work, shall complete the flooring or filling in as the building progresses. If the plans and specifications of such buildings do not require filling in between the beams of floors with brick or fireproof material all contractors for work, in the course of construction, shall lay the under-flooring thereof on each story as the building progresses. Where double floors are not to be used, such contractor shall keep planked over the floors two stories below the story where the work is being performed. If the floor beams are of iron or steel, the contractors for the iron or steel work of buildings in course 152 LiEKT Law — Aeticle II, Sec. 5. of construction or the owners of such buildings shall thoroughly plank over the entire tier of iron or steel beams and extending not less than six feet beyond such beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the glans and specifications for stairways and elevator shafts. If elevators, elevating machines or hod- hoisting apparatus are used within a building in the course of construc- tion, for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a barrier at least eight feet in height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an ad- justible barrier not less than three nor more than four feet from the floor and not less than two feet from the edge of such shaft or opening. If a building in course of construction is five stories or more in height, no lumber or timber needed for such construction shall be hoisted or lifted on the outside of such building. Tlie chief officer, in any city, charged with the enforcement of the building laws of such city and tlie commissioner of labor are hereby charged with enforcing the provisions of this section and sections eighteen and nineteen, and said chief officer in any city charged with the enforcement of the building laws of such city shall have the same powers for the enforcement of these sections as are vested in the commissioner of labor. (Labor Law, § 20, as amd. by Laws 1913, chap. 492.) § 21. Commissio'ner of Labor to enforce provisions of article. — The commissioner of labor shall enforce all the provisions of this article. He shall investigate complaints made, to him of violations of such pro- visions and if he finds that such complaints are well founded he shall issue an order directed to the person or corporation complained of, re- quiring such person or corporation to comply with such provisions. If such order is disregarded the commissioner of labor shall present to the district attorney of the proper county all the facts ascertained by him in regard to the alleged violation, and all other papers, documents or evidence pertaining thereto, which he may have in his possession. The district attorney to whom such presentation is made shall proceed at once to prosecute the person or corporation for the violations com- plained of, pursuant to this chapter and the provisions of the penal law. If complaint is made to the commissioner of labor that any person contracting with the state or a municipal corporation for the perform- ance of any public work fails to comply with or evades the provisions of this article respecting the payment of the prevailing rate of wages, the requirements of hours of labor or the employment of citizens of the United States or of the state of New York, the commissioner of labor shall if he finds such complaints to be well-founded, present evidence of such non-compliance to the officer, department or board having charge of such work. Such officer, department or board shall thereupon take the proper proceedings to revoke the contract of the person failing to comply with or evading such provisions. (Labor Law, § 21, added by Laws 1899, chap. 192.) Eight Houe Dat. 153 4. All accidents to be reported. — In 1909 by chapter 36, the legislature added a new section to the Labor Law, desig- nated section 20a, requiring all deaths or accidents to work- men or employees to be reported to the commissioner of labor. This section was amended by Laws 1910, chapter 155. The law requires the report to be made within forty- eight hours after the accident, but " no statement contained in such report shall be admissible in evidence in an action arising out of the death or accident therein reported." In an action to recover damages therefor, plaintiff must prove the facts in the case dehors the record. The legislature also enacted the same rule under section 126 of the Labor Law so as to include injuries " sustained in the operation of a mine or quarry, or in the construction or repair of a tunnel." 5. Municipal contracts. — In order to ascertain what de- partment, officer, bureau, or board of an incorporated city, or of any county, town, school district, or village, has power to contract for public work, to bind the municipality, the charter of the city, the Town Law, or the School Law should be consulted. Section 12 of the Lien Law provides with whom a notice of lien for a public improvement must be filed, and declares that such filing must be " with the head of the department or bureau having charge of such construc- tion [construction of a public improvement], and with the financial officer of the municipal corporation, or other officer or person charged with the custody and disbursements of the corporate funds, applicable to the contract under which the claim is made." See § 12, pages 159, 160, post, and au- thorities there cited. 6. Labor Law — Regulation as to eight-hour day con- stitutional. — The new Labor Law was re-enacted in 1906 (Laws 1906, chap. 606) after section 1 of article 12 of the State Constitution had been amended in 1905 so as to confer upon the legislature power to fix wages or salaries and the hours of work or labor with regard to persons employed by the State or a municipal corporation. The new Labor Law declares among other things that " eight hours shall consti- tute a legal day's work for all classes of employees in this State, except those engaged in farming and domestic services, unless otherwise provided by law." This provision relates, 154 Lien Law — Aeticlb II, Sec. 5. however, only to work done for the State or a municipal corporation, or by their contractors or subcontractors. The constitutionality of this provision of the statute was aflSrmed by the Court of Appeals in the case of People ex rel. Wil- liams V. Metz (193 JST. Y. 148). In commenting upon the constitutional phase of the question, Mr. Justice Vann de- clared : " As the legislature has power to regulate and fix the hours of labor on public work, it has the incidental power to compel obedience to its commands by mild or severe penal- ties, as it sees fit. The method of enforcement is for it to determine. It can make violation a crime punishable by fine or imprisonment or both, or provide for a forfeiture of the contract, or prohibit payment for work done thereunder. All this is within its sound discretion. The prohibition of payment under certain circumstances by the Civil 'Service Law is quite analogous. The legislature is not required to act under the amendment at all, and any action taken, if unsatisfactory to the public, either in principle or detail, can be retracted at any time in response to public opinion. If the legislation retards public improvements or increases mu- nicipal debts, or does not work well in other respects, there is ample room for public sentiment to act through the chosen representatives of the people." The court further observed, in view of the importance of the statute, that it would pass upon no questions, except such as were directly involved in the case before the court. " Therefore," says Vann, J., " we do not now decide whether the provision requiring certain stipulations to be inserted in the contract is directory or mandatory, nor express any opin- ion as to the provision relating to the prevailing rate of wages." lb. 7. Labor Law — Municipal contract — Prevailing rate of •wages — Eight-hour day. — Section 3 of the Labor Law, re-enacted by Laws 1906, chapter 506, since the amendment of the Constitution giving the legislature power to regulate municipal contracts, provides that every contract wiSi the State or a municipal corporation involving the employment of laborers, workmen, or mechanics shall contain a provision that no such laborer, workman, or mechanic in the employ of the contractor, subcontractor, or other person doing or con- Pee VAILING Eate of Wages. 155 tracting to do tlie whole or part of the work, emhraced in the contract, shall be permitted or required to work more than eight hours a day, or to be paid less than the prevailing rate of wages in the locality in which the work is to be done, and providing that the contract should be void unless such stipulation is observed. This provision of the statute was held not to apply to the purchase of raw material, or to labor employed in the production of raw material, and that the person from whom such materials were purchased was not a subcontractor within the meaning of the Labor Law. Boh- nen v. Metz, 126 App. Div. 807, affirmed, 193 IST. Y. 676. a. One Wille contracted with the city for the erection of a municipal building for the sum of $30,000, in which were to be doors, windows, and other manufactured woodwork. The contract executed by Wille with the city contained a stipu- lation required by section 3 of the Labor Law, as re-enacted by Laws 1906, chapter 506, that he would not permit or re- quire any laborer, workman, or mechanic in the employ of himself, or subcontractor, or other person doing or contract- ing to do the whole or a part of the work embraced in his contract, to work more than eight hours a day, except in cases of emergency, and that he would pay the rate of wages prevailing in the locality, the contract to be void unless the above provisions and the provisions of the Labor Law are fully complied with. Doors, windows, and other manufac- tured woodwork required under the contract were manufac- tured within the State at the request of the contractor, Wille. The party who manufactured this woodwork employed work- men and mechanics more than eight hours a day and paid them less than the prevailing rate of wages in the city of 'New York. Held, that the manufacturer of the woodwork was not a subcontractor under Wille within the meaning of the Labor Law. That the windows and doors were required to be made to measure and it was therefore necessary that an order for their manufacture should be given. The trans- action amounted to a mere purchase of material necessary for the building. li. h. In construing the statute the court held that any other tonstruction " would follow, the iron beams necessary for a building to the mines, the wood to the log camp, and the stones to the quarry, and would put a contractor to the haz- 156 Libit Law — Aeticle II, iSec. 5. ard of forfeiture of his contract and all payments to him for the purchase of any material for the construction of any municipal building. * * * Labor laws, like any other laws which the legislature sees fit to enact, should be up- held by the courts where no constitutional violation exists, but no absurd interpretation which defeats their object should be permitted." The interpretation sought by the plaintiff would defeat the statute, because no contractor will be " foolhardy enough to enter into any contract liable to .be annulled in such a manner." Ih. 8. Decision under Labor Law before amendment to the Constitution. — Prior to the 1905 amendment to the Consti- tution, certain parts of the Labor Law had been declared un- constitutional by the Court of Appeals. It was held that the legislature had no power to forbid contractors and others engaged by a municipal corporation from working more than eight hours in any calendar day, or to make it a crime to labor, or to pay less than the prevailing rate of wages. Peo- ple V. Orange Co. Road Construction Co., 175 ~S. Y. 84; People ex rel. Cossey v. Grout, 179 N. Y. 417; People ex rel. Treat v. Coler, 166 H. Y. 144; People ex rel. Rogers V. Coler, 166 E". Y. 1; People ex rel. Lentinhon v. Goler, 168 N. Y. 6; Ryan v. City of New York, 177 K Y. 271; Myers v. City of New York, 58 App. Div. 534. a. What bearing, if any, these decisions will have under the legislation enacted since the amendment to the Constitu- tion, must be decided by the Court of Appeals. Provisions of the old Labor Law were held invalid as follows : h. Payment of a claim for work done under a municipal cx>ntraet may be enforced by mandamus. If the contract contains a stipulation based upon a statute which is uncon- stitutional, the stipulation cannot survive the statute on which it is founded. If the statute is invalid the payment will be enforced by mandamus, notwithstanding the statute. People ex rel. Rogers v. Coler, 166 N. Y. 1. c. A statute which provides that the rate of compensation to be paid for labor on a public work " shall not be less than the prevailing rate for a day's work in the same trade or occupation in the locality " where the work is being per- formed (Labor Law [Laws 1897, chap. 415, § 3 ; Laws 1899; Decisions Undee Laboe Law. 157 chaps. 192, 56Y]) is unconstitutional and void, and a stipu- lation in a contract that it should be void if the contractor should violate the Labor Law as to prevailing rate of wages has no binding force. People ex rel. Rogers v. Goler, 166 2^. Y. 1. d. The legislature has no power to limit the right of any person who contracts with the State or a municipal corpora- tion so as to compel him to pay not less than the prevailing rate for a day's work in the same trade or occupation in the locality within the State where such labor is performed. And the provision in that regard, contained in the Labor Law (Laws 1897, chap. 415, § 3, as amended by Laws 1899, chap. 567), is unconstitutional and void. Ryan v. City of New Yorie, 78 App. Div. 134', citing People ex rel. Rogers V. Coler, 166 N. Y. 1; People ex rel. Treat v. Coler, 166 IN". Y. 144; People ex rel. Lentinhon v. Coler, 168 N. Y. 6; Meyers v. City of New York, 58 App. Div. 534. e. The Labor Law (Laws 1897, chap. 415, § 3) declares that eight hours shall constitute a legal day's work. This statute was supplemented by section 384h of the Penal Code, making it a crime punishable as a misdemeanor for any per- son contracting with the State or a municipal corporation to require more than eight hours' work for a day's labor. The section declares that " any person or corporation, who, contracting with the State or a municipal corporation shall require more than eight hours' work for a day's labor * * * is guilty of a misdemeanor." /. The Orange County Road Construction Co. was in- dicted for a violation of the statute and demurred to the indictment on the ground that the law making it a crime to execute such a contract, when confined to work done for the State or a municipal corporation, was unconstitutional. The Court of Appeals sustained the demurrer and condemned the statute. The court held that the legislation complained of was not within the police power. In the interest of public health, public morals, or of public order, the legislature may restrain and forbid what, otherwise, would be the right of a private citizen. The statute in question, however, can have no bearina; on the health or security of the employees or on public health. The court pointed out that the vice of the statute involves the arbitrary distinction drawn between per- 158 LiEii Law — Aeticle II, Sec. 5. sons contracting with the State, and other employers. The doctrine enunciated by the Supreme Court of the United States, construing the Fourteenth Amendment to the Fed- eral Constitution, was invoked, declaring that " classification for legislative purposes, must have some reasonable basis upon which to stand. But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the Fourteenth Amendment forbids this." People V. Orange Co. Road Construciion Co., 175 N. T. 84. 9. Ten-Hour Law for bakers void. — To what extent the Supreme Court of the United States will adhere to its ruling in AtJcin v. Kansas, 191 U. S. 207, above cited, is entirely problematical in view of a later decision rendered in that tribunal April 17, 1905, in the case of Lochner v. People of the State of New York, 198 U. S. 45. The ruling in Peo- ple ex rel. Cossey v. Grout, 179 N. Y. 417, in which the Court of Appeals distinguished the reasoning in the majority opinion of the United States Supreme Court in the AtJcin case, was rendered in November, 1904. Since that time the United States Supreme Court in April, 1905, made the rul- ing in the Lochner case reversing the Court of Appeals (People V. Lochner, 177 W. Y. 145) and holding that the Ten-Hour Law, applicable to employees in bakeries (Labor Law, art. VIII, § 110; Penal Code, §3841, subd. 3) could not be sustained as a valid exercise of the police power of the State to protect public health, safety, morals, or the general welfare. Stripped of this phase, there was no ground on which the law could be sustained, and the majority of the court held that the statute was an arbitrary interference with the freedom of contract guaranteed by the Fourteenth Amendment to the Constitution of the United States. On this point Mr. Justice Peckham fully sustains the views of Chief Justice Cxtllen and Justice O'Eribn in People ex rel. Cossey v. Grout, 179 N. Y. 417, in which they held that the legislature was not omnipotent, and had no power to make criminal any lawful occupation or pursuit not in conflict with laws of pubic health, safety, or morals. The views of Justice Peckham also fully sustain the views of the major- ity of the Court of Appeals in People v. Orange County Road Construction Co., 175 IST. Y. 84, which arose upon a criminal indictment, similar to that construed in the A4hin case. In the Lochner case Mr. Justice Peckham observes: Municipal Liens — Gbeatek New Toek, 159 a. " Statutes of the nature that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exer- cise of the police power and upon the subject of the health of the individual, whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employees, if the hours of labor are not curtailed. If this be not clearly the case, the individuals whose rights are thus made the subject of legislative inter- ference are under the protection of the Federal Constitution regarding their liberty of contract as well as of person, and the legislature of the State has no power to limit their right as proposed in this statute." LocJmer v. People, 198 U. S. 45, reversing s. c, 177 !N". Y. 145. h. The final decision of the Supreme Court of the United States in the Lochner case, and the most recent decisions of the Court of Appeals in the Cossey case, and in the Orange County Road Construction case, seem to be in harmony. The only legal conclusion deducible from these decisions ia the assumption that the right to work and earn money, and the right to pursue any legitimate trade or calling, is an inalienable right which the legislature has no power to im- pair or abridge. That the legislature cannot, by statute, make industry a crime, or brand the industrious man as a criminal. On November 1, 1915, the U. S. Supreme Court held, that the right to work for a living was guaranteed by the Eour- teenth Amendment to the Federal Constitution and the right could be enforced by injunction. Truax ex rel. Arizona v. Raich, 239 IT. S. 33. But see People v. Crane, 239 U. S. 195. See ante, page 145. Municipal Liens in Geeatee New Yoek. 1. Municipal contracts — City of New York. — The power to contract for any public work or improvement which shall be binding upon the city of New York within the territory embraced under the Greater New York charter, is conferred by section 419 of the charter (Laws 1901, chap. 466, as amd. by Laws 1906, chap. 598). This section was further 160 LiEW Law — Aeticlb II, Sec. 5. amended by Laws 1910, chap. 554, in effect June 20, of that year. The chamberlain is now authorized to mail checks to contractors, and when such checks are endorsed by the payee, they shall operate as a receipt and voucher for the money so paid. The side headings in bold face type inserted below, form no part of the text of the statute, 'but were inserted for convenience and easy reference. Section 419 now provides as follows: § 419. Borough president and heads of departments must contract. — All contracts to be made or let for work to be done or supplies to be furnished, except as in this act otherwise provided, and all sales of personal property in the custody of the several borough presidents, de- partments or bureaus, shall be made by the appropriate borough presi- dents or heads of departments under such regulations as shall be estab- lished by ordinance or resolution of the board of aldermen. Contracts — Sealed bids. — Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for The City of New York, and the several parts of the said work or supply shall, together, involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance or reso- lution of the board of aldermen, excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract, and unless otherwise ordered by a vote of three-fourths of the members elected to the board of aldermen; and all contracts shall be entered into by the appropriate borough president, and heads of de- partments, and shall, except as herein otherwise provided, be founded on sealed bids or proposals, made in compliance with public notices, duly advertised in the City Record, and the corporation newspapers, a.nd said notice to be published at least ten days; if a borough president or th^ head of a department shall not deem it for the interests of the city to reject all bids, he shall, without the consent or approval of any other department or oiRcer of the city government, award the contract to the lowest bidder, unless the board of estimate and apportionment by a three-quarter vote of the whole board, shall determine that it is for the public interest that a bid other than the lowest should be ac- cepted; the terms of such contract shall be settled by the corporation counsel as an act of preliminary specification to the bid or proposal. Id. Provision for additional wotk.— In any contract for work or supplies made hereunder, there may be inserted, in the discretion of the borough president or head of department making such contract, a provision that additional work may be done or supplies furnished for the purpose of completing such contract, at an expense not exceeding five per centum of the amount of such contract, if such additional work or supply shall be ordered by such borough president or head of department. Id. Gkeatek New Toek 'Chaetee. 161 Contractor must give security.— The bidder whose bid is accepted shall give security for the faithful performance of his contract in the manner prescribed and required by ordinance; and the adequacy and sufl&ciency of this security shall, in addition to the justification and acknowledgment, be approved by the comptroller. All bids or proposals shall be publicly opened by the officer or officers advertising for the same, and in the presence of the comptroller, but the opening of the bids shall not be postponed if the comptroller shall, after due notice, fail to attend; if the bidder whose bid has been accepted shall neglect or refuse to accept the contract within five days after written notice that the same has been awarded to his bid or proposal, or if he accepts but does not execute the contract and give the proper security, it shall be readvertised and relet as above provided. Id. Abandoned contract to be readvertised. — ^In case any work shall be abandoned by any contractor, it shall be readvertised and relet by the appropriate borough president or the head of the appropriate de- partment in the manner in this section provided. No bid shall be accepted from, or contract awarded to, any person who is in arrears to The City of New York upon debt or contract, or who is a defaulter, as surety or otherwise, upon any obligation to the city. Id. Execution and filing of contracts. — Every contract, when made and entered into, as before provided for, shall be executed in duplicate, and shall be filed in the department of finance; together with a copy of the resolution or ordinance of the board of aldermen and the local board, and together with the approval of the board of estimate and apportionment wherever the same is required by the provisions of this act, or copies of both, as the case may be, authorizing said work; such copies shall be so filed within five days after the contract shall have been duly executed by the contractor. All warrants upon vouchers duly audited and approved, for payment of amounts due under con- tracts shall, by number or other description, refer to the voucher, the fund and the contract upon which the payment is to be made; and all checks drawn by the chamberlain on warrants duly approved and ■executed pursuant to law, as payments on contracts, may be mailed to the contractor at the address furnished by him, or delivered to him or Tiis authorized representative, and when so mailed or delivered, the in- dorsement by the contractor upon a cheek attached to such a warrant, which has been paid by the bank or trust company upon which the same has been drawn, shall be considered as a receipt of the contractor for the amount of said check so paid on account of said contract. No ex- penditure for work or supplies involving an amount for which no con- tract is required shall be made, except the necessity therefor be certi- fied to by the appropriate borough president or the head of the appro- priate department and the expenditure has been duly authorized and appropriated. Id. The mode in whieh a contract shall he secured hy any contractor and the conditions required of contractors to se- cure contracts for public work is governed by section 420 of the charter, which provides as follows: 11 162 Lien Law — AKtaCLE II, Sec. 5. I 420. Check must accompany bid, etc.— Whenever proposals for fur- nishing supplies or doing work are invited by advertisement by any department or officer, such department or officer is authorized and directed to require, as a condition precedent to the reception or con- sideration of any proposal, the deposit with such department or officer of a certified check upon one of the state or national banks of the said city, drawn to the order of the comptroller, or of money; such cheeks or money to accompany the proposal, to an amount not less than three nor more than five per centum of \he amount of the bond required by the department or officer for the faithful performance of the work proposed to be done or supplies to be furnished. Within three days after the decision as to whom the contract is to be awarded, the comptroller shall return all the deposits made to the persons making the same, except the deposit made by the bidder whose bid has been accepted; and if the said bidder whose bid has been accepted shall refuse or neglect, within five days after due notice that the contract has been awarded, to execute the same, or to furnish the required bond, the amount of deposit made by him shall be forfeited to and retained by the said city as liquidated damages for such neglect or refusal, and shall be paid into the sinking fund of the city, but if the said bidder shall execute the contract and furnish the required bond within the time aforesaid, the amount of his deposit shall be returned to him. The completion of the work under a contract for public improvements in the city of New York must be certified within five days after the completed work has been accepted by the proper official, and a final certificate of completion must be filed, toegther with a certificate of the cost of the work, pursuant to section 421 of the charter, which provides as follows: § 421. Certificate of completion. — ^It shall be the duty of the borough president, or head of any department, having in charge any work, within five days after the acceptance of such work, to file with the comptroller a final certificate of the completion and acceptance thereof, signed by the chief engineer or head of his department. The filing of such certifi- cate shall be presumptive evidence that such work has been completed according to contract. It shall also be the duty of such borough presi- dent, or head of department, in the case of work to be paid for in whole or in part by assessment for benefit, when such work shall have been completed and accepted, and all the expenses thereof which may be legally assessed shall have been ascertained, to execute a certificate of the total amount of all the cost and expenses which shall have been actually incurred by The City of New York on account of such work and forward the same to the board of assessors in accordance with section nine hundred and forty-six of this act. Accompanying said certificate shall be a copy of the resolution of the board of estimate and apportionment or of the resolution or ordinance of the board of aldermen, or of the resolution of the local board or department, or copies of any or such of them as may be required, authorizing such Payment by 'Comptroller. 163 ■work to be done, and also a copy of any resolution or ordinance, if any such has been passed, determining that any proportion of the cost and expense of such worli shall be borne by The City of New York. The board of assessors shall, upon receiving such certificate, assess upon the property benefited, in the manner authorized by law, tho amount of the certificate, or such proportions thereof, as is authorized by law. The proceedings relative to levying, confirming and collecting any such assessments shall be in accordance with the provisions of chapter seventeen of this act. The mode in which a contractor is authorized to be paid by the comptroller under a contract for a public improve- ment and the moneys which the comptroller is authorized to retain during the performance of the work is governed by the provisions of section 422 of the charter. Under the amendment of July 1, 1914, the comptroller is authorized to pay to the contractor or his assigns as the work progresses, eighty-five per cent, of the estimated value of the work, in- stead of seventy-five per cent, as formerly. Section 422 now provides as follows : § 423. Payment by comptroller. — Wljen a contract for a public im- provement shall have been entered into and a certified copy thereof shall have been filed with the comptroller, in conformity with section four hundred and nineteen of this act, said comptroller is hereby authorized and directed to pay to the contractor or his assigns, from time to time as the work progresses, eighty-five per centum of the estimated value of the work actually done under said contract, until the same shall have been completed. The estimate of the value of any such work shall be signed by the surveyor and also by the chief engineer of the depart- ment having the matter in charge, and upon the final completion of any contract, and filing of the final certificate of completion, the comp- troller shall, within thirty days thereafter, or within thirty days after the expiration of the time within which, according to the terms of the contract, the city has to accept such work, pay to the contractor or his assigns, the balance of the amount due under said contract, pro- vided, however, that the board of aldermen, upon the recommendation of the board of estimate and apportionment, may authorize contracts for asphalt or other pavement to be made with a guaranty upon the part of the contractor for one or more years, with a provision for the retention of a percentage of the amount to he paid, which shall be paid within thirty days after the expiration of the guaranty, upon the filing of a certificate signed by the chief engineer of the department having the matter in charge that the terms of the contract have been complied with. The payments to be made by the comptroller pur- suant to this section shall be made out of the " street improvement fund," if the cost and expense of said work are to be assessed in whole or in part upon property deemed to be benefited thereby. The amounts collected from any and all assessments for local improvements paid out of such fund, are to be paid into said fund. It shall be the duty of. 164j Lien Law — Aeticlb II, Sec. 5. and lawful for the comptroller, when thereto authorized by the board of estimate and apportionment to create and issue such additional amounts of the corporate stock of The City of New York as shall be Becessary to provide for the cost and expense of such work, or such part thereof as is to be borne and paid by The City of New York; and the proceeds of the sale of such stock shall be paid into the street improve- ment fund. (As amd. Laws 1914, chap. 446.) ■CoiTSTEUCTION OF MUNICIPAL CoNTItACTS. 1. Municipal contracts construed. — Owing to the rules prescribed by muiiicipal charters, and rules and regulations of the various departments having eiarge of the work of municipal corporations, many questions respecting the con- struction and meaning of these contracts constantly arise. Some authorities relating to this branch of the subject are as follows: 2. Municipal contract not assignable. — The provisions of the Greater 'New York charter (sections 419, 420) with re- spect to municipal contracts was supplemented by Laws 1897, chap. 444 (now § 86, General Municipal Law. See post, page 186), which requires that a clause shall be in- serted in all municipal contracts, prohibiting the contractor to whom the contract is awarded from assigning, transferring, conveying, subletting, or otherwise disposing of the same, or his right, title, or interest therein, or his power to execute such contract to any other person or corporation, without securing the previous written consent of the department or official awarding he same. For a violation of this provision prohibiting such assignment the contract shall be revoked, and the city shall be discharged from all liability thereunder, and the contractor and his assigns shall forfeit all moneys theretofore earned thereunder, except so. much as may be required to pay his employees. The assignment above re- ferred to does not prevent an insolvent contractor from mak- ing a general assignment for the benefit of creditors. Laws 1897, chap. 444; Burch v. Taylor, 152 TJ. S. 634; Fortu- nato V. Patten, 147 N. Y. 277. a. The Court of Appeals has held in construing the provi- sions of the law of 1897, chap. 444, that its provisions are not broad enough to hinder or prevent a contractor from assigning moneys due and to grow due under a municipal . Bids ow Municipal Contbact. 165 contract, and sueli assignment is valid. Brace v. City of Gloversville, 167 K Y. 452. 3, Bids — Lowest bidder. — The city, although the bids were made in good faith, is not bound to award a contract to the lowest bidder. It may, in the absence of collusion, reject all bids, if they deem it for the best interests of the city. In that case, they must readvertise for bids. Walsh V. The Mayor, 113 N. T. 142 ; Erving v. The Mayor, 131 E". Y. 133. a. Officers of a municipal corporation in awarding a con- tract do not act either in a judicial or quasi judicial capa- city, and for this reason a certiorari will not lie to review their acts. People ex rel. North v. Featherstoneiraugh, 172 N. Y. 112. h. If a contractor is absolutely entitled to have the bid to whicii he is entitled awarded to him the court is not bound absolutely to grant a writ of mandamus to compel the city to execute the contract, because the contractor may sue at law for damages for refusal of the city to award the contract. People ex rel.-Dowdney v. Thompson, 99 !N". Y. 641. 4. Bid — Form of bid executed by corporation — When sufficient. — A public official has no right to disregard a bid, for the sole reason that it was not signed or executed in the mode required by the official awarding it. Donlon Contract- ing Company submitted a sealed bid for cleaning water mains and cutting in stop-cock connections and blow-offs on water mains in the Borough of Brooklyn. The bid was signed " Patrick McMeel, Vice-Prest." although in the body of the instrument it purported to be the bid of the Donlon Contracting Company. The bid was $14,501 lower than its nearest competitor, but was rejected because it was not exe- cuted pursuant to a regulation made by the commissioner of gas, water supply, and electricity, noted on the blank bid as follows : " In case a bid should be submitted by or on behaK of a corporation, it must be signed in the name of such corporation by some duly authorized officer or agent thereof, who shall also subscribe his own name and office. If practicable the seal of the corporation should be affixed." .In a taxpayer's action, under section 1925 of the Code, the 366 LiEiT Law — Article II, Sec. 5. commissioner was enjoined from awarding the bid to the next highest competitor, the Home Water Main Cleaning Com- pany. In its opinion, the court said that defendant's rejec- tion of the lowest bid was arbitrary and unwarranted and nullified section 420 of the Grreater New York charter, which was designed to prevent favoritism, and that the con- tract entered into between the city and the Home Water Main Cleaning Company was illegal and void. People ex rel. Coughlin v. Gleason, 121 N. Y. 631. The court held that as the contract had been awarded its award could not be restrained, but granted an order prohibiting the defendant comptroller from paying and the Home Water Main Clean- ing Company from collecting any claim or demand for work done under the void contract during the pendency of the action upon plaintiff executing a bond for $5,000. Daly v. O'Brien, 60 Misc. 433. 5. Interest. — Where a municipal contract provides that the city shall pay for each particular class of labor or ma- terial furnished, tihe contractor will be entitled, in comput- ing the amount due him, to the interest upon his claim from the time demand is made upon the city for payment. Sweeny V. City of New York, 173 N. Y. 414. a. Under the broad principles of equity applicable in ac- tions to enforce municipal liens, compensation in the nature of interest should be allowed for the use of the money em- ployed by a contractor in completing a public improvement and such interest should run from the date of each payment due under the contract to the date of the final payment when the work was completed. Equity requires also that the sum total of such interest should be impressed with an equitable lien upon the funds in favor of those who furnished ma- terials or did work, in aid of the performance of the contract for a public improvement, in amounts proportionate to the amounts of their respective claims, as established on the trial. Willard v. City of New York, 81 Misc. 48. h. At the conclusion of the hearing the court announced that it did not think the defendant should be mulcted in in- terest, and the plaintiff's counsel replied that he was inclined to think the court was right, but that his client desired him to make the points, to which the court replying, reiterated Interest — Municipal Conteact. 167 its view that no interest should he allowed. Plaintiff not having appealed from the refusal to allow interest as of the earlier date, interest is properly chargeable from the time the making of the decision at Special Term, instead of from the last day of the trial. Coleman v. City of New York, 162 App. Div. 134. c. Under a municipal contract, interest runs from the time when payment becomes due, not from the time an action is brought to recover such payment. Plaintiff's contract pro- vided that whenever, in the opinion of the engineer, having supervision of the work for the city, the other party to the contract shall have " completely performed " then the engi- neer shall so certify in writing and " on the expiration of thirty days after the acceptance by said commissioners of the work * * * the said commissioners will direct to be paid to the said party of the second part, in cash, the amount remaining" due. Held, that interest begins to run thirty days after the acceptance by the commissioners of the work. Boehling's Sons v. City of New York, 110 App. Div. 366. d. Although section 261 of the Greater New York charter provides that an action cannot be brought against the city until thirty days after the plaintiff presents his claim to the comptroller, this provision relates only to the time fixed for the commencement of an action and has no bearing upon the time when interest begins to run under the contract. lb. e. A municipal corporation entered into a contract with plaintiff for the construction of a public water works. It contained a provision that the municipality might suspend or cancel the contract at any time if in its discretion it ap- peared that the interests of the municipality so required. It was provided also that, in case of such cancellation, the con- tractor should be paid in full for all work prior to such can- cellation and that no damages should be allowed such eon- tractor on account of such termination. Held, citing Beck- with V. City of New York, 121 App. Div. 465 ; Excelsior Terra Cotta Co. v. Hardy, 181 IST. Y. 13; Sweeney v. City of New York, 173 IST. Y. 417, that the contractor under the terms of the agreement could recover only for the work he had done xtp to the time of the cancellation and that he was not entitled to interest, as It could not be computed upon any 168 Libit Law — Article II, Sec. 5. gross sum from any specified period of time. Coates v. Vil- lage of Nyach, 127 App. Div. 153. /. A contractor, who was sued in an action brouglit by a materialman to foreclose a municipal lien, set up a counter- claim for damages against the plaintiff on the ground that the latter had refused to perform the contract sued upon, and defendant was obliged to make a new contract with another materialman to complete the contract that plaintiff should have performed. The court dismissed the complaint, and awarded damages to defendant contractor on his counter- claim with interest. Held, that the judgment was erroneous, as to the interest, and modified by deducting $1,823.06, the amount of interest, and as modified, affirmed. Camden Iron WorTes v. City of New TorTc, 185 IST. Y. 617. 6. Error of city surveyor. — A municipal corporation is liable to a contractor employed to excavate a street, for extra work occasioned by error made by its city surveyor, whose duty it was to give the contractor the center line of the street, from which he was to excavate a certain number of feet, if it appears that the inaccuracy was suspected by the con- tractor, who sought to have it corrected and who proceeded with the work under express orders. Becker v. City of New York, 170 K Y. 219. a. In such a case it cannot be said that the contractor ac- quiesced in the error of the city surveyor and made him "his agent with regard to the accuracy of the lines run by such surveyor. IT). 7. Arbitrary conduct of inspectors — Fraud or bad faith. — Plaintiff filed a municipal lien to reach funds due the de- fendant Masterson, under the latter's contract with the city of New York to construct a pipe line. Masterson contracted with plaintiff to furnish a portion of the pipe, in accordance with the plans and specifications with the city. The contract provided that the pipe should be tested and inspected by in- spectors appointed by the city. Plaintiff, after furnishing some pipe, complained that the inspectors rejected pipe ar- bitrarily and unreasonably and for unimportant defects, and declined to furnish more, unless assured of fair inspection. Masterson notified plaintiff that unless it continued to make IHUNICIPAL CONTEACT AeCHITEOT's iCeETIFICATE. 169 deliveries within five days he would terminate tlie contract and purchase pipe elsewhere. Plaintiff refused, and filed a lien for pipe that had been tendered Masterson, after he elected to terminate the contract. It appeared that Master- son did all he could to secure satisfactory inspectors. The latter swore that they acted in good faith, and rejected the pipe because it did not conform to the specifications. Held, that in the absence of fraud, or bad faith on the part of the inspectors, plaintiff could not recover. Camden Iron Works V. City of New York, 104 App. Div. 272, modified on an- other point and affirmed, 185 JST. Y, 617. a. Held, further, that if the pipe rejected did comply with the contract, plaintiff was not bound by the decision of the inspectors. It could have delivered, and insisted on such delivery as performance of the contract. Ih. 8. Work done to the satisfaction of the oflBcer. — The pres- ence of a clause in a municipal contract which requires that the work under it shall be performed " to the satisfaction " of the oflficer or engineer in charge of the work, does not clothe such officers with arbitrary power capriciously and without reasonable grounds to reject the work. The discre- tion must be exercised in accordance with good faith and fair dealing. Gearty v. The Mayor, 171 N. Y. 61. a. A clause in a municipal contract which provides that the commissioner of public works may, at any time, if he shaU be of opinion and shall so certify in writing that the work, or any part thereof, is unnecessarily or unreasonably delayed, or the contract is being willfully violated, or for other cause of bad faith, direct the contractor to discontinue upon written notice, does not give the commissioner arbitrary power. There must exist some basis for his action, and he must fairly exercise his judgment thereon. In the absence of sufficient grounds, therefore, the commissioner will not be justified in abrogating the contract. Snyder v. City of New York, 74 App. Div. 421. 9. Architect's certificate — When conclusive. — Where a contract provides that the contractor shall be bound by the final certificate of the engineer in charge of the work, such certificate, in the absence of proof of corruption, bad faith 170 LiEBT Law — Aeticle II, Sbo. 5. or misconduct on the part of the engineer, is conclusive, un- less a palpable mistake appears on the face of the certificate. Wilson & Adams Co. v. Mack Paving Co., 147 App. Div. 141. V 10. Refusal of certificate, when question of fact. — Where a certificate of approval under a municipal contract is re- quired to be issued by a municipal department of the city as a condition precedent to final payment and it is claimed that such certificate has been unreasonably withheld or arbi- trarily refused, the question should be left to the jury as to whether or not such refusal was arbitrary or unreasonable. N. Y. & N. H. Automatic Sprinkler Co, v. Andrews, 173 N. Y. 25. 11. Discretion as to payments. — A municipal contract providing for certain payments in case the commisioner of public works " should deem it advisable to do, so," creates a discretion which should not be exercised arbitrarily, but the officer must base his action upon all the facts and must fairly exercise his judgment. Snyder v. City of New York, 74^ App. Div. 421. a. In such a case the city cannot, by unjustly and arbi- trarily withholding payments without reasonable ground for so doing, put the contractor in default and declare the con- tract forfeited if the contractor fails to proceed with the work. Ih. 12. Retention of funds pending suits, etc. — A clause in a contract for the construction of a public road bound the con- tractor to save the city harmless against suits for damages for negligence in the performance of the work, and author- ized the municipal authorities to retain sufficient moneys due under the contract until all such suits shall have been set- tled. Held, that pending a suit for negligence of the con- tractor resulting in death, the city was entitled to retain money due under the contract till such suit was settled. Brown v. City of New York, 72 !N". Y. 420. a. A clause in a municipal contract allowing the city to keep and retain moneys due upon the contract when neces- sary, until all suits and claims for damages growing out of 'Cektifxcate of City Sueveyoe. 171 the acts of the contractor or his agent should he settled, and the city saved harmless therefrom, will authorize such re- tention against a subcontractor seeking to enforce his lien, hut the clause will not be extended to include faults in the design or specifications for the work. Cranford v. City -o/ BrooTclyn, 13 App. Div. 151. 6. In such a case the judgment should secure the city the benefit of the indemnity provision and should require it to pay plaintiff the amount remaining due after the negligence action had been disposed of. Ih. 13. Certificate of city surveyor. — A certificate required to be furnished under a municipal contract by the city sur- veyor as to quantity and quality of work done is binding and conclusive, in the absence of fraud or mistake, although the contract declares that no city department shall be pre- cluded or estopped by any return or certificate from show- ing the true and correct amount and character of the work. Snyder v. City of New York, 74 App. Div. 421. 14. Permit. — Plaintiff's failure to procure a permit from the building department for the construction of ovens in a cellar under a carriageway, as required by law (Laws 1892, chap. 275_, § 39), will not defeat the lienor's action, it ap- pearing that such permit should be obtained by " the owner or his agent or architect." DvJirkop v. Whiter 15 App. Div. 613. 15. Work done in violation of contract. — The city cannot escape liability for work done by a subcontractor which was sublet in violation of the contract, where the subcontractor had worked over a year without objection by the city or the architect and received partial payments on account of his work. Ocorr & Bugg Co. v. City of Little Falls, 77 App. Div. 592. 16. Election of remedies. — Where a contractor is ordered by the municipal authorities to do work a second time, upon the claim by the city that the work was improperly done, and was not in conformity with the plans and specifications, he may either refuse to do so on the ground that he has been 173 Lien Law — Aeticlb U, iSsc. 5. guilty of no breacli and sue upon tlie contract for the amount due and prospective damages, or lie may complete the work a second time and sue the city for damages for its breach in compelling him to do tlie work twice. Gearty v. The Mayor, l7l JST. Y. 61. Such an action, if brought for doin^ the work a second time, is not for extra work under the contract, but is for damages for its breach, and no certificate setting forth the completion of the work under the contract is necessary. lb. 17. Cash payments by contractor, legality of. — A con- tract, the consideration of which is based upon a statute which is unconstitutional, is doubtless void. But where the provisions of a statute which have been incorporated into the contract constitute extraneous matter and in no way tend to increase the cost of the work, they do not invalidate it. A provision in a contract requiring bidders to conform to the provisions of the Labor Law (Laws 1897, chap. 415, § 9), which directs them to "punctually pay workmen in cash currency, and not in what is denominated store pay orders," and declaring that the contract will be void if such provisions are not complied with, accompanied by a notice that no attempt would be made to enforce the provisions of the Labor Law, which bad been declared unconstitutional, will not impair the contract, as the specific provision as to cash payments had not been so declared. People ex rel. North V. Featherstonehraugh, 172 N. Y. 112. 18. Acts of board of education. — When a municipal cor- poration will be bound by the acts of its board of education upon a contract to construct a schoolhouse, where the powers and duties of tbe board are defined partly by the Consoli- dated School Law and partly by the city charter, see Ocorr & Eugg Co. v. City of Little Falls, 77 App. Div. 592. 19. Readvertising after default.— The provisions of the charter of the city of New York, which requires that where a contract has been abandoned by a contractor it shall be re- advertised and relet, applies to all city departments. If the abandoned contract is completed by the surety under his right to do so, no readvertisement of the work is necessary. Harley v. Mapes-Reeves Constr. Co., 33 App. Div. 626. MtrNiciPAi, Lien — Extent of. 173 20. Extent of municipal lien. — The statute specifically restricts the extent of a municipal lien " to the moneys of such corporation, applicable to the construction of such [public] improvement, to the extent of the amounts due or to become due on such contract." In this respect there is a marked difference between a municipal lien and a lien upon private property. The latter attaches to the land. The for- mer does not attach to the land, but, must be confined to the moneys due or to become due on the contract for the public improvement. It would be contrary to public policy, the Court of Appeals declares, to allow public property to be sold at forced sale. Public property is for the constant use of all citizens and of necessity cannot be subjected to a forced sale at the suit of a creditor, unless such sale is expressly authorized by the statute. Leonard v. City of Broohlyn, 71 K Y. 498. 174 Lien Law — Article H, Sec. 6. § 6. Liens for labor on railroads. — Any person wlio shall hereafter perform any labor for a railroad cor- poration shall have a lien for the value of such labor upon the railroad track, rolling stock and appurte- nances of such railroad corporation and upon the land upon which such railroad track and appurtenances are situated, by filing a notice of such lien in the office of the clerk of any county wherein any part of such rail- road is situated, to the extent of the right, title and interest of such corporation in such property, existing at the time of such filing. The provisions of this article relating to the contents, filing and entry of a notice of a mechanic's lien, and the priority and duration thereof, shall apply to such liens. A copy of the notice of such liens shall be personally served upon such cor- poration within ten days after the filing thereof in the manner prescribed by the code of civil procedure for the service of summons in actions in justices' courts, against domestic railroad corporations. Lien Law of 1897 ; § 6, re-enacted Laws 1909, chap. 38. 1. Liens on railroads. — The legislature intended by the Lien Law of 1897, embracing the law relating to the creation and enforcement of liens upon private and public property, to assimilate and harmonize as far as possible the entire law upon the subject. The Lien Law of 1885 (Laws 1885, chap. 342) related only to liens upon private property. Prior to the Lien Law of 1897 liens for work for a railroad corpora- tion were governed by Laws 1875, chap. 392. For work done upon any railroad bridge or trestle work for use of a railroad, the lienor was partially protected by Laws 1870, chap. 529. For work in sinking or drilling an oil well or digging a well for gas, or other volatile or mineral sub- stances, the lienor was obliged to file a lien in conformity to the provisions of Laws of 1880, chap. 440. These various statutes were repealed by the Lien Law of 1897 with the purpose of embracing their provisions in the Lien Law of 1897. In order to accomplish this purpose and to remove all doubt on the subject the legislature was careful to attach Liens Against Eaileoads. 175 to the words " real property " a definition broad enougli to cover the subjects embraced in these various statutes. In view of this definition in section 2 of the Lien Law, the pro- visions of section 6 would seem scarcely necessary, except to emphasize the legislative intent. The definition of " real property," as used in the Lien Law, is as follows: a. " The term ' real property,' when used in this chapter, includes real estate, lands, tenements, and hereditaments, corporeal and incorporeal, fixtures, and all bridges and tres- tle work and structures connected therewith, erected for the use of railroads, and all oil or gas wells and structures and fixtures connected therewith, and any lease of oil lands or other right to operate for the production of oil or gas upon such lands, and the right or franchise granted by a munici- pal corporation for the use of the streets or public places thereof, and all structures placed thereon for the use of such right or franchise." 2. Railroad — Judgment against. — The law in force at the time of the trial may be invoked in an action to foreclose a lien against a railroad corporation. A lien was filed for work done upon a railroad, under a contract with one of the corporations interested, pursuant to the provisions of chapter 392, Laws 1875, and Laws 1870, chapter 529, relating to bridges and trestle work operated by a railroad corporation. These statutes declared that liens for work upon a railroad should expire within one year after filing, unless within that time judgment was recovered thereon. The year having expired before judgment was rendered in the action to fore- close, the court invoked the rule under the statute authoriz- ing personal judgment, in a case, where for any reason, the plaintiff failed to establish his lien, and awarded money jugdments against the corporations liable for the debt under the contract. Wick v. Fort Plain & Richfield Springs R. R. Co., 27 App. Div. 577. See also Personal Judgment, post, page 316. 3. Railroad — Service of notice of lien upon. — Under sec- tion 6 of the Lien Law, the notice of lien must be served upon the railroad corporation in the same manner in which a summons in actions in justices' courts are required to be served upon domestic railroad corporations. The mode of 176 luEN Law — Article II, Sec. 6. service is declared by section 2880 of the Code of Civil Pro- cedure, which provides as follows: Special provision relating to railroad corporations. — ^Where the de- fendant to be served is a railroad corporation, and no officer thereof resides in the county, to whom a copy of the summons may be de- livered, as prescribed in the last section, it may be personally served, by delivering a copy thereof to a local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of the corporation, resid- ing in the county; unless, at least thirty days before it was issued, the corporation had filed, in the ofiBce of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it, may be served; in which case, the summons may be personally served by de- livering a copy to the person so designated. (Code Civ. Proc, § 2880.) Advance Payments. ITY § 7. Liability of owner for advance payments, col- lusive mortgages and incumbrances. — ^Any payment by the owner to a contractor upon a contract for the im- provement of real property, made prior to the time when, by the terms of the contract, such pajmaent be- comes due, for the purpose of avoiding the provisions of this article, shall be of no effect as against the lien of a sub-contractor, laborer or material man under such contract, created before such payment actually be- comes due. A mortgage, lien or incumbrance made by an owner of real property, for the purpose of avoiding the provisions of this article, with the knowledge or privity of the person in whose favor the mortgage, lien or incumbrance is created, shall be void and of no effect as against a claim on account of the improve- ment of such real property, existing at the time of the creation of such mortgage, lien or incumbrance. Lien Law of 1897; § 7; re-enacted Laws 1909, eh. 38. 1. Section 7 practically inoperative. — If the object of the legislature in adopting section 7 of the Lien Law was to prevent the owner from making payments to the contractor in advance, and before the moneys become due under the contract, that object has been defeated. This infirmity in the statute is due to the fact that a clause is contained in the section which renders its provisions absolutely nugatory, so far as laborers, subcontractors, and materialmen are con- cerned. For the benefit of the latter, and to protect their rights, the section was enacted. But the owner and contrac- tor can defeat its provisions at their option, because the pro- hibition against the owner which forbids advance payments to the contractor is qualified by the insertion of a clause which declares that in order to render such owner liable, for paying a contractor before money is due him, the burden of proof is thrown upon the party making the claim that ad- vance payments have been made, to show that such payment was made "for the purpose of avoiding the provisions of the Lien Law." 12 178 Lien Law — Aeticle II, Sec. 7. i a. This obliges the subcontractor to prove the intent of the owiier in making the payment. This is an extremely dif- ficult undertaking. Unless, therefore, the plaintiff can show collusion between owner and contractor, which is almost as difficult as to show intent, the owner may violate the section with impunity. The remedy is an amendment, striking from the first sentence of section 7, the words " for the purpose of avoiding the provisions of this article." "With these words eliminated, the owner, in order to avoid liability, must not pay money to a contractor, except at the time and in the manner designated in the contract. The contract is always available, and may be demanded pursuant to section 8 of the Lien Law at any time. 2. Premature and collusive payments. — The provisions of section 7 of the Lien Law of 1897 are substantially a re-enactment of the Lien Law of 1885 (Laws 1885, chap. 342, § 2), which forbade an owner to pay by collusion any money for the purpose of avoiding the provisions of the Lien Law or in advance of the terms of any contract. a. It has been held, under the Lien Law of 1885, that an owner was not precluded from making a payment in advance of the terms of the contract, unless it was also shown that such payment was collusive. Miller v. Smith, 20 App. Div. 507 ; Hofgesang v. Meyer, 2 Abb. N. 0. Ill ; Lind v. Braen- der, 7 N. Y. Supp. 664, h. The ground upon which advance payments were sus- tained, where no fraud or collusion was shown, was that in compelling the owner to pay twice he would be obliged to pay, by reason of all liens created, a greater sum than the value or agreed price of the labor and materials remaining unpaid at the time the notices of lien were filed, c. It might be urged, under the Lien Law of 1897, that an owner will not be obliged to pay twice if he makes his payments in the mode provided by the statute. If, by pay- ing the contractor in advance of the terms of his contract, giving him money to which he is not entitled, the owner, by so doing, defeats the claims of subcontractors who are en- gaged in performing portions of the work stipulated in the principal contract, the provisions of the Lien Law on which the subcontractor relies in the performance of his contract CorLusivE Payments. 1Y9I is evaded, and the owner is not entitled to protection. Under the Lien Law he becomes a trustee, so far as the moneys due under his contract are concerned, for all subcontractors who expend labor and furnish materials for the improvement of his realty. And if he pays out moneys to the principal con- tractor, in a manner at variance with the terras of the con- tract and upon the terms of which contract subcontractors have a right to rely, he violates his trust and cannot escape liability therefor. d. This is the principle enunciated in the case of Post v. Campbell, 83 N. Y. 279, which was decided in construing the provisions of a Lien Law relating to the counties of Kings and Queens (Laws 1862, chap. 478). In that case it was held that an owner who makes a contract for the im- provement of realty thereby becomes in one sense a trustee, holding the fund from which those who performed labor and furnished materials which enhanced the value of the owner's land were entitled to payment. Such trusteeship extends to payments due either directly from the owner upon the origi- nal contract, or by reason of contracts made with the prin- cipal contractor, entered into for the purpose of enabling the principal contractor to complete. Post v. Campbell, 83 N. y. 279; Cheney v. Troy Hospital Assn.. 65 K Y. 282; Hilton Bridge Co. v. N. Y. Central B. B. Co., 145 K Y. 390; Hoyi v. Miner, 7 Hill, 525. e. Under the Lien Law of 1897 it has been held that the claims of subcontractors who have a right under the statute to file liens, and are given a specific period within which that right may be asserted or lost, may invoke the doctrine of an equitable lien to protect their claims against those of the general creditors of an insolvent contractor, and as between such claimants and the assignee of the contractor, preference and priority will be given to the former. Kane Co. v. Kin- ney, 174 K Y. 69. /. An owner cannot well pay money to a contractor in ad- vance of the terms of his contract without destroying his equitable lien in favor of subcontractors. But all payments made by an owner in good faith, according to the terms of the contract, even after a lien has been filed, will be pro- tected if the owner had no knowledge; of the lien. De Lo- 180 Lien Law — Aeticlb II, Seo. 7. renzo v. Von Raitz, 44 App. Div. 329 ; Newman v. Levy, 84 Hun, 478. See also § 12 of the Lien Law, and authorities there cited. 3. Bad faith in making payments — Burden on party who asserts it. — A subcontractor who aHeges that the owner made payments to the contractor in advance of the terms of his contract in bad faith, under section 7 of the Lien Law, must show such bad faith and the burden of proof is upon him who asserts it. Behrer v. McMillan, 114 App. Div. 450. a. The burden of proof is on the lienor to show, that pay- ment made in advance of the terms of the contract was made with intent to avoid the statute. He must plead the invalid- ity of such payment. It appeared that the defendant coal company, had notice at the time of its advance payments, that the defendant lienor had been furnishing the materials for the work, under the contract, for which it had not been paid, and made advances with such knowledge. Such pay- ments can not be said under the circumstances to have been made in good faith. Glens Falls Portland Cement Co. v. Schenectady Coal Co., 83 Misc. 652. h. In a case where it appeared that before the subcontrac- tor filed his lien, the contractor had completed the building but could not lay the sidewalk until suitable weather, and the owner in good faith paid the contractor, reserving a sum to meet the expense of laying the sidewalk, the complaint was dismissed although the owner had promised to pay the plaintiff, the subcontractor. Wagner v. Butler, 155 App. Div. 425. c. Under section 7 of the Lien Law of 1897, all payments made in advance are not necessarily made " for the purpose of avoiding the provisions of the Lien Law." It is only where such payments are made in bad faith or collusion on the part of the owner making the payments in advance or, what is tantamount thereto, payment with notice actual or constructive of the claim of the laborer or materialman who subsequently filed his liens, that the owner becomes liable under section 7, and the plaintiff must show such bad faith, or an intent on the part of the owner in making such pay- ments to avoid the provisions of the Lien Law. Miller v. I Bad Faith Must Be Pleaded. 181 Smith, 20 App. Div. 510; Wolf v. Mendelsohn, 81 N. T. Supp. 468 ; Behrer v. McMillan, 114 App. Div. 450. d. The Lien Law of 1897, section 7, re-enacted Laws 1909, chap. 38, does not prohibit payments before the same become due, but only such payments when made for the purpose of avoiding the provisions of the act. It is not enough that such payments may impair the effect of the statute, and thus pro tcmto avoid it, but they must also have been made with the purpose to avoid it. Tommasi v. Archibald, 114 App. Div. 838, 4. Bad faith in making payments must be pleaded. — The burden of proof is on the party alleging it, to establish that payments were made under a contract " for the purpose of avoiding the provisions " of the Lien Law. But evidence of such collusive payments, cannot be received, unless, the facts as to such payments are alleged in the complaint. Evi- dence as to such advance payments, alleged in the pleading, examined, and held insufficient. Hudson River Blue Stone Co. V. Huntington^ 143 App. Div. 99. 5. Payments by contractor. — This provision, with respect to collusive payments, under the Lien Law of 189Y, applies to payments made by a contractor to a subcontractor as well as to payments made by the owner. Lawrence v. Dawson, 34 App. Div. 211. a. Subcontractors and materialmen have no lien or equity upon money due or paid under a building contract until their liens are filed. Until they assert their right of lien afforded by the statute, they remain creditors at large," having no greater or superior rights than other general creditors. When monev due him comes into the hands of a solvent contractor before liens are filed, it belongs to him absolutely to do with as he pleases. He violates no equity, therefore, in applying this money to the payment of antecedent debts due to his general creditors and having no relation to the particular contract under which he was paid. Mach v. Colleran, 136 IS". Y. 617. h. A principal contractor who makes a payment in good faith, under a municipal contract, to a materialman for ma- 182 Lien Law — Aeticle II, Sec. 7. terials which have been delivered and actually used in the building, if such payment is made before a lien is filed, will be protected in such payment under Laws 1878, chap. Sl5, against a lien filed by a subcontractor. Lawrence v. Dawson, 50 App. Div. 570. c. A materialman vi^ho had fumisl\ed materials to a sub- contractor was induced to refrain from filing a lien therefor by reason of representations made by the principal contrac- tors that they would keep back 15 per cent, from the subcon- tractor until the v^ork was completed, and the contract con- tained a clause to that effect. Relying on these statements the materialman filed no lien for six weeks. Meantime the contractors, in violation of their promise, paid the 15 per cent, to the subcontractor in advance of the terms of the con- tract. Held, that the payment was made to avoid the pro- visions of the Lien Law and that the payment was not opera- tive as against the materialman. Lawrence v. Dawson, 34 App. Div. 211. d. Where no specific time of payment is fixed by a contract for delivery of material, the contractors are bound to pay as soon as the vendor is able and ready to deliver it. Where payments were made for materials in good faith before de- livery, and without collusion, it was held, under the Lien Law of 1885, that such payments will be sustained against subsequent lienors. Smack v. Cathedral of Incarnation, 31 App. Div. 559. Teems ov •Contkact. 183 § 8. Terms of contract may be demanded. — ^A state- ment of the terms of a contract pursuant to which an improvement of real property is being made, and of the amount due or to become due thereon, shall be fur- nished upon demand, by the owner, or his duly author- ized agent, to a sub-contractor, laborer or material man performing labor for or furnishing materials to a contractor, his agent or sub-contractor, under such contract. If, upon such demand the owner refuses or neglects to furnish such statement or falsely states the terms of such contract or the amount due or to become due thereon, and a sub-contractor, laborer or material man has not been paid the amount of his claim against a contractor or sub-contractor, under such con- tract, and a judgment has been obtained and execution issued against such contractor or sub-contractor and returned wholly or partly unsatisfied, the owner shall be liable for the loss sustained by reason of such re- fusal, neglect or false statement, and the lien of such sub-contractor, laborer or material man, filed as pre- scribed in this article, against the real property im- proved for the labor performed or materials furnished after such demand, shall exist to the same extent and be enforced in the same manner as if such labor and materials had been directly performed for and fur- nished to such owner. 1. Terms of contract. — This provision of the Lien Law of 1897 is a substantial re-enactment of th« provisions of section 8 of the Lien Law of 1885. It was intended, in con- nection with section Y, to place a subcontractor or material- man in a position to know when the moneys become due to the principal contractor. The objects of these provisions are obvious. If the principal contractor refuses or fails to pay his materialman or subcontractor, the latter may file his lien and serve a copy of it upon the owner. The lien so filed will attach to what is earned or what is due or to become due under the contract, and the owner, after notice to him that 184 Lien Law — Aeticlb II, Seo. 8'. the lien has been filed, will not thereafter be protected in payments to the contractor, unless the liens are canceled or discharged as provided by the Lien Law. In this connection it is clear that advance payments might avoid entirely the provisions of the Lien Law and defeat the rights of subcon- tractors. The contract between the owner and contractors must be relied upon by materialmeft and subcontractors, should there be any question as to the financial responsibility of the general contractor, and in providing for an inspection of the contract, the intention was to protect the rights of subcontractors. Lumhard v. Syracuse j 55 N". Y. 494. 2. Subrogation. — In this connection the doctrine of sub- rogation might become material in order to protect the rights of the various parties in interest. For authorities as to rights of subcontractors to subrogation, see Hofgesang v. Meyer, 2 Abb. ]Sr. C. Ill; Gibson v. Leanane, 94 E". Y. 183; Crane V. Gennin, 60 IST. Y. 127 ; Morgan v. Stevens, 6 Abb. N. 0. 356; McMillan v. Seneca, 5 Hun, 12. Notice oi" Lien — Conteostts. 185 § 9. Contents of notice of lien. — The notice of lien shall state: 1. The name and residence of the lienor; and if the lienor is a partnership or a corporation, the business address of such firm, or corporation, the names of partners and principal place of business, and if a foreign corporation, its principal place of business within the state. 2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor. 3. The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials; or, if the lienor is a contractor or sub-con- tractor, the person with whom the contract was made. 4. The labor performed or to be performed, or ma- terials furnished or to be furnished and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials. 6. The time when the first and last items of work were performed and materials were furnished. 7. The property subject to the lien, with a descrip- tion thereof sufficient for identification; and if in a city or village, its location by street and number, if known. A failure to state the name of the true owner or con- tractor, or a misdescription of the true owner, shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his knowl- edge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. (As amended. Laws 1905, chap. 96.) Lien Law of 1897, § 9, re-enaeted by Laws 1909, chap. 38. 1. The notice. — The phraseology and arrangement of the provisions of the Lien Law of 189Y are not identical with 186 Lien Law — Aeticle IE, Sec. 9. that contained in the Lien Law of 1885 (Laws 1885, chap. 342, § 4), with respect to the notice and its contents. But there seems to be no material difference in the two statutes in this regard. The authorities under the Lien Law of 1885 are, therefore, applicable in the main to the provisions of the Lien Law of 1897. New Jersey Steel & Iron Co. v. Bohinson, 85 App. Div. 512. a. A substantial compliance with the statute which will convey to parties in interest the facts which the statute re- quires must be stated in the notice will be sufficient. Clarh V. Heylman, 80 App. Div. 572; Kerrigan v. Fielding, 47 App. Div. 246; Huhhell v. Schreyer, 14 Abb. N. C. 287; Beds V. Congregation, 1 E. D. Smith, 654; Anderson v. Dillaye, 47 IST. T. 678 ; Luscker v. Morris, 18 Abb. N. C. 67. 2. Notice of lien — When sufficient. — All that the statute (§9, subdivision 4) requires is that the notice shall state "the labor performed or to be performed or materials fur- nished or to be furnished, and the agreed price or value thereof." The statement was as follows : " Upon information and belief, the materials furnished and the agreed price and value thereof are as follows: Ce- ment, sand, stone, brick, lime and plaster of the agreed price of six thousand seventy-seven and 4/100 dollars ($6077.04)." Held, upon a review of the authorities, sufficient. That it was not necessary to state the agreed price of the specific articles. N. Y. County Nat. Bank v. Wood, 153 N. Y. Supp. 860. a. A notice of lien filed by a materialman which states that " the first item of work was performed or materials fur- nished " on a day specified and that " the last item was per- formed or materials were furnished " on a specified day is not necessarily void if the notice complies with the statute in other respects. Barrett v. Schaejfer, 162 App. Div. 52. h. Defendant questioned the validity of plaintiff's lien, which contained £he following allegations : "(3) The name of the person by whom the lienor was employed or to whom he furnished or is to furnish materials is Ambrose A. Gavigan Company, and the person with whom the contract was made is Ambrose A. Gavigan Company. The amount of contract was $30,200. Notice of Lien — When Sufficient. 187 "(4) The labor performed or to be performed consisted of all the carpenter work for and upon a building on the premises described below, and the materials furnished or to be furnished is the lumber, exterior woodwork, timber, nails, window frames and other materials specified in carpenter's specifications, such work by contract to be paid for on every two weeks to the amount of 70 per cent, thereof, and such materials to be paid for in the same way to the full value thereof. Said contractor has not paid as agreed. The total value of such work and material to date is $13,511.95. "(5) The amount unpaid to the lienor for such labor and materials is $5,357.86." c. Tie lien was challenged by defendant upon the ground that as to the work and materials furnished the statement was in the alternative, " performed or to be performed," " furnished or to be furnished." Held, reversing Special Term, that the lien was valid by reason of the fact that at the end of the last sentence in paragraph 4 appeared the words " to date," so that the sentence could be construed to read that the total value of the work and materials already performed and furnished, i. e., performed and furnished to date of filing the notice of lien, was $13,595.11. The lien also states that the amount unpaid at the time of filing the lien was $5,357.86. In view of the fact that the statute does not require the notice to state separately the value of the labor and materials, the lien was held to be sufficient under a liberal construction of the statute. Martin v. Gavi- gan Co., 107 App. Div. 279, 95 F, Y. Supp. 14. d. If the notice of lien states the value of the labor and materials which have been furnished up to the time of filing the notice of lien, separately from the statement of the value of the labor and materials to be subsequently furnished, in such a way that the labor and materials already furnished and that to be furnished is ascertainable from the face of the notice of lien by a mathematical computation, it will be sufficient. Wolf v. Schafer, 103 App. Div. 567. e. Defendant's land cannot be sold in an action to fore- close a mechanic's lien unless the plaintiff had a valid lien when the complaint was filed. A notice of lien stated that " the labor performed and to be performed and the materials furnished and to be furnished, is all the labor in, toward, and about the brick work for six buildings, four-story apart- ments on the north side of Fourth street. * * * And 188 Lien Law — Aetici,b II, Sec. 9. •the agreed price and value thereof is $12,205.57." The no- tice further states that " the amount unpaid to the lienor for such labor and materials is $3,4:6r>.57." Held, sufficient. " It is not to be doubted that the notice would bo sufHciont if the lienor had omitted all reference to materiuls funiishod and to be furnished, and it would bo strange, in to section 9 of the Lien Law, a notice of lien filed by two partners as individuals which did not set out the name of the copartnership was held sufficient and a veri- fication by one of them was sustained. Waters v. Goldberg, 124 App. Div, 611, 108 N. Y. Supp. 992, a. Mr, -Justice Jewks, in writing the opinion, adopts the views of Beli., J., in Knahb's Appeal, 10 Pa. St. 188, where the court said: "Adherence to the terms of the statute is in- dispensable, but the rule must not be pushed into such nice- ties as serve to perplex and embarrass a remedy intended to be simple and summary, without, in fact, adding anything to the security of the parties having an interest in the build- ing sought to be incumbered. Certainty to a common intent has, therefore, always been held to suffice," Ih. b. Under the amendment of 1905, however, the statute requires specifically that the notice must contain, not only the names and residence of the lienors, but if the lienor is a partnership or a corporation, the names of the partners and principal place of business, and if a foreign corporation, its principal place of business within the State, B. Nature of the work — Moving building. — A notice of lien stated that " the labor performed and materials fur- nished was the moving of a building from the north side of Pacific street and placing the same upon the premises here- 190 LiEiT Law — Article IT, Sec. 9. inafter described and designated, and the agreed price thereof is $3,460." Plaintiff had judgmefit for $3,454,20, $3,000 of which was for the building itself. The judgment was reversed by a divided court on the ground that the na- ture of the work in moving a building was not such as would sustain a mechanic's lien. The Court of Appeals reversed the Appellate Division, and sustained the Special Term upon the ground that a majority of the Appellate Division placed too narrow a construction on the Lien Law, and of the wording of the notice of lien, as plaintiff based its claim not only for the removal of the building, but also for " placing the same upon the premises hereinafter described." Lien sus- tained and judgment of Special Term alBrmed. Norton & G. Contracting Go. v. Unique Gonstr. Go., 195 !N". Y. 81. 6. Notice of lien — When not sufficient. — The notice of lien must contain what the statute requires, and the court has no power to supply an omission which the statute pro- vides must be contained in it. a. The four requisites of a notice of lien are (1) a state- ment of labor performed (2) or to be performed (3) or materials furnished (4) or to be furnished. " The most liberal statutory construction that the imagination can sug- gest," says Weenee, J., in Toop v. Smith, 181 IST. Y. 283, " cannot validate a notice of lien, unless it contains one or the other of these four requisites, according to the facts upon which plaintiff's claim to a lien is based. ISTeither can the favorable findings of the trial court avail the plain- tiff." It follows that a notice of lien which states only that the labor performed and the materials furnished were done pursuant to a contract, between the lienor and the de- fendant and that the agreed price was an amount therein stated, is insufficient. Ball v. Doherty, 144 App. Div. 277. b. The insufficiency of the lien, however, does not pre- clude the lienor from demanding a personal judgment for the work performed and the materials furnished, and where the amount of such judgment is less than defendant's offer of judgment, the defendant is entitled to his costs against the plaintiff from the time the offer was made, pursuant to § 738 of the Code. lb. IfoTiCE OF Lien — When Not Stjfficient. 19? c. Where the notice of lien fails to state the agreed price for plaintiff's materials and is defective in other respects, it cannot he urged that the person against whom the lien is filed knew what the work was and what materials were fur- nished. Such knowledge cannot cure the defect in the notice of lien. Fanning v. Belle Tetre, 15^ -^.pp. Div. 718. d. The notice of lien must state the amount of lahor which has heen performed and the value of the materials which have been furnished for the work and that a specified amount remains unpaid. If it fails to set forth these facts, it is fatally defective. The notice cannot be cured by a stipula- tion that the work, labor and services of the lienor had been performed to the satisfaction of the owner and contractor, if such stipulation contains no allegation that the work had been completed and the materials furnished for which the lien is claimed. Reilly v. Bwfey, 14'5 App. Div. 583. e. Where a notice of lien is filed during the progress of the work, it should contain a statement of what labor had been performed and what materials have been furnished, and what still remains to be done, and the amount unpaid to the lienor, under the contract. Otherwise the lien ia invalid- Bomanik v. Rapaport, 148 App. Div. 688. /. If the notice does not clearly state the nature and amount of the labor and services performed, or the nature and amount of the materials furnished or to be furnished, or the amount of work remaining to be performed to com- plete plaintiff's contract, the lien cannot be sustained. Mc- Kinney v. White, 15 App. Div. 423; Bachmann v. Spinghel, 164 App. Div. 725. g. A notice stated that' a lien was claimed for $341.25, " the same being for work, labor, and materials furnished as hereinafter mentioned * * * said amount being the true price and value of said work done and materials fur- nished, after deducting the payments that have been made thereon. That * * * ninety days have not elapsed since the completion of the contract or the furnishing of said ma- terial or the final performance of said work." Held, to be a substantial compliance with the statute as to the value of the work; also that it might be inferred that the last item of work or materials was performed or furnished within 193 LiEiT Law — Aeticle H, Sec. 9. ninety days from the filing. But that the failure of the notice to state when the first item of work was done, which the statute requires must be stated, and contains no facts from which that time might be inferred rendered the notice, in that regard, fatally defective, and that it could not be enforced. Mahley v. German Bank, 174 W. Y. 500. h. A notice of lien must state explicitly or by plain infer- ence the value or the agreed price of the labor performed, or the materials furnished at the time the notice is filed. If it fails in this regard, the lien is fatally defective. The no- tice stated that claimant had a lien for $5,589.60, " being the value and agreed price of certain materials furnished and to be furnished, to-wit, timber, lumber," etc. When the lien was filed, the value of material actually delivered was $2,661.29. Held (explaining Gilmour v. Colcord, 183 IST. Y. 342), that the notice of lien was fatally defective in that it failed to state the amount of materials actually furnished at the time of filing the notice and the agreed price or value thereof. Finn v. Smith, 186 IST. Y. 465. i. Referring to the case of Gilmour v. Colcord, 183 E". Y. 342, the court said the decision in that case proceeded on the ground that there was no sufficient exception to the decision of the trial court, and was not to be considered as overruling the prior decisions of the court (Bradley & Currier Co. v. Pacheteau, and New Jersey/ Steel & Iron Co. v. Rohinson, both affirmed in 175 K Y. 492, 178) with reference to suf- ficiency of notice of lien. Ih. j. The statute requires that the notice shall state the whole value of labor and materials, as well as the amount remain- ing unpaid. The complaint showed that the total value of the work done and materials furnished was $111,771.65, less $1,263, the value of the part left undone. The notice of lien states that the agreed price and value of said labor and ma- terials was $42,868.31, and the amount unpaid was $41,- 605.31. Held, not acompliance with the requirements of sec- tion 9 of the Lien Law, if the notice of lien is to be under- stood as referring to the same contract that was set forth in the complaint. Mitchell v. Dunmore Realty Co., 126 App. Div. 829, 111 N. Y. Supp. 322. h. A notice of lien stated that " the labor performed and materials furnished and the agreed price or value thereof is Notice of Lien- — When ITot Sui-ficient. 193 as follows : Under and by virtue of a contract partly written and partly oral, made with the said Smith, Coope and Shut- tleworth, above mentioned, according to specifications in writing and drawings for the improvements herein men- tioned, on or about February 24th, 1898, April 25th, 1899, and September 25th, 1899." Held, fatally defective. Toop V. Smith, 181 N. Y. 283. I. A notice of lien which states " The labor performed or to be performed and the materials furnished or to be fur- nished consists of electrical apparatus, wiring and equipment and labor of N'os. 149 West 125th street, and 152 to 158 West 126th street, borough of Manhattan, New York city, and the agreed price and value thereof is $4,594.50," is in- sufficient. Alexander v. Hollender, 106 App. Div. 404, 94 ISr. Y. Supp. 796. m. The notice should not be in the alternative, nor should it contain a literal transcript of the statute, which is phrased in the alternative. It should state either what labor was performed or what materials were furnished at the time of filing the lien. It must state the agreed price and value of the materials or labor to be performed or furnished. An al- ternative statement is not sufficient. New Jersey Steel & Iron Co. V. Robinson, 85 App. Div. 512. n. The notice in the case cited was as follows : (4) The labor performed or to be performed is the cutting and set- ting of all the cut limestone for the building on the premises; and the material furnished or to be furnished is the stone so to be cut and set, and the agreed price or value of such labor oi materials is $44,700. There has also been furnished extra work and materials amounting to $1,543. (5) The amount unpaid to the lienors for such labor and ma- terials is $43,243. Held, that the notice was not specific and definite, nor in compliance with the statute, and could not be enforced. 76. See also Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492, 524. 0. The notice contained a statement as follows: "(4) The labor performed and the materials furnished and to be fur- nished consists of wainscoting, closets, * * * and the agreed price and value thereof is $611.86. less amount al- lowed for material. (5) The amount unpaid to the lienor for such labor (or) (and) material is $603.61. (6) The time 13 194 ' ■ Lien Law — Aeticle II, Sec. 9. when the first and last items of work were performed and materials furnished is first delivery, December 9, 1901; last delivery, January 17, 1902, within ninety days last past." The notice was held to be in the alternative as to what had been done and what was to be done and wholly insufficient. Bossert v. Happel, 40 Misc. 569. , 7. Lien for money loaned invalid. — The statute authorizes a mechanic's lien only for work done and materials fur- nished. A notice of lien upon funds of the State or a mu- nicipal corporation which claimed $1,078.65 for work done and materials furnished and $2,500 for moneys loaned and advanced by the plaintiff to the contractors is invalid as to the moneys advanced. Uvalde A. Paving Co. v. City of New Yorh, 191 K T. 244. a. The court held, however, that, as to the moneys ad^ vanced, although not the subject of a municipal lien, the claim for such moneys could be enforced against the con- tractors to whom the money was advanced as an equitable lien upon the funds due upon their contract. That a court of equity would regard that as done which ought to be done, and could frame the decree to grant the appropriate relief as between the parties. This in view of the fact that the plain- tiff who advancd the money to the contractors was entitled to personal judgment against them, although the notice of lien was invalid in so far as it claimed a lien for moneys ad- vanced. Ih. h. The courts have reiterated the rule that a statement of the work done, or materials furnished, or to be done or fur- nished must not be alleged in the alternative. A statement in the alternative stating that the amount of work done or to be done, or material furnished or to be furnished is of the value stated will render the notice of lien void. Arm- .strong v. Chisholm, 100 App. Div. 440. c. In support of the rule above stated the court cited Brad- ley & Currier Co. v. Pacheteau, 71 App. Div. 148, reversed on another point,. 175 N. Y. 492 ; Bossert v. Fox, 89 App. Div. 7 ; Statzinger v. Chehra Chai Odom Anshi Minsk, 91 App. Div. 612 ; Westergern v. Pabst Brewing Co., 99 App. Div. 623 ; New Jersey Steel & Iron Co. v. Bohinson, 85 App. Div. 512, affirmed, 178 IST. Y. 632. Name of Ownee. 195 8. Lienor limited to amount claimed.— A notice of lien contained the following statement : " The amount claimed is the sum of $925 and due to claimant on the 12th day of June, 1901, * * * which is the amount of claimant's demand after deducting all just credits and offsets, except the sum of $75." Held, that claimant was limited to a lien for $850. Held v. City of New York, 83 App. Div. 510. 9. Name of owner. — The lienor is put upon inquiry as to the name of the true owner of premises. When the notice is filed only against a vendee in possession, under an executory contract of sale, the notice will be insufficient to acquire a lien upon the vendor's interest. Fish v. Anstui Cons. Co., 71 Misc. 2. a. Failure to state the name of the true owner shall not impair the validity of the lien. The word " failure " used m the statute means an unsuccessful attempt to designate the owner. Where the lienor is put on his inquiry as to who the owner is he must endeavor to ascertain his name, and if he names the tenant as owner after due inquiry, believing him to be the owner, it might be construed as a " failure " to name him. But he cannot name the tenant as the person against whom he intends to claim a lien and then be allowed to pro- ceed against the owner against whose interest he did not in- tend to file notice of claim. De Elyn v. Govld, 165 N. Y. 282, 6. The lienor must state in his notice the name of the owner and must claim a lien against the interest of such owner. Where the notice contained the name of the occu- pant or lessee and claimed a lien against his interest only and also stated the name of the owner, but made no claim for a lien on the owner's interest, the lien will not be sustained as against the owner. Orippin v. Weed, 22 App. Div. 593,. affirmed, 165 K Y. 612. c. A failure to state the name of the true owner or con- tractor or a misdescription of the true owner shall not affect the validity of the lien. But where two liens are filed, and the one first filed did not state the name of the owner. Pace, but stated as owner a corporation the Eochester Turkish Baths,, a vendee in possession. The. lien subsequently filed, named Pace as the owner, and the Turkish Baths as having " some 196 Lien Law' — Aeticle IT, Sec. 9. interest in the said property, either as purchaser by contract, lessee, licensee or occupant of said premises." An attempt was made to correct the first lien, an hour after the second lien was filed, by naming Pace as owner, and the Turkish Baths as " vendee, lessee, licensee, or occupant of said prem- ises." Held, that the second lien took priority, as it alone icould bind the interest of the owner Pace, in the fee. Stravr chen V. Pace, 195 IST. Y. 167. d. The first notice described one Firth as owner. A sec- ond lien was filed, stating that one Fielding was owner. It appeared that Fielding had a judgment and other claims against Firth, and that the latter deeded the land to Fielding to secure the judgment and claims. Held, that the deed, though absolute in form, was simply a mortgage, and that Firth was in law the OAvner after he had delivered the deed, and that the filing of the second lien did not impair the rights of the lienor under the first. Kerrigan v. Fielding, 47 App. Div. 246. e. Thomas, the owner of the premises, made a deed of trust for the benefit of creditors to J. C. Wechler, as trustee, on August 2, 1907. In the notice of lien, filed August 5, 1907, Thomas was designated as the owner of the fee. Held, to be a sufficient compliance with the Lien Law as the lien so filed took priority over a general assignment for the benefit of creditors made within thirty days before the filing of the lien, Hall V. Thomas, 111 N". Y. Supp. 979. /. The lienor must claim a lien against the interest of the owner. A lienor furnished materials on premises in posses- sion of a vende under an agreement to purchase, which agree- ment had not been filed. The latter took title before the date fixed by the contract and gave back to the owner a purchase- money mortgage and then conveyed the premises to one Screiber. Held, that in order to reach the proceeds of the mortgage, the lienor whose lien was filed subsequent to the delivery of the deed should have described such mortgagee as owner, or inserted his name in the notice and claimed a lien against his interest. Not having named the mortgagee nor •claimed a lien against his interest, held, that the lienor co.uld not reach the proceeds of his mortgage to satisfy his lien. Fackard v. Sugarman, 31 Misc. 626. False Statements. 19T g. See also as to omission of owner's name from the- notice, which shall not impair its validity, Berry v. Gavin, 88 Hiin, 1 ; Walkman v. Henry, 7 Misc. 522 ; Boss v. Simon, 9 N. Y. Supp. 536 ; Filey v. Thousand Islands Hotel, 9 Hun,, 424 ; Moran v. Chase, 52 E". Y. 347 ; Leiegne v. Schwartzer, 10 Daly, 547. 10. Name of owner — Two names stated. — A notice of lien is not void because the name of the owner is stated in the alternative. The language of the notice was as follows : " The name of the owner of the real property against whose interest therein a lien is claimed is Katie Finkelstein or Ju- lius Meyer, and the interest of said owner as far as known to the lienor is the fee." The name of the owner is required for purposes of identification, but the Lien Law does not require the lienor to state at. his peril the name of the true owner, but he must do the best he can. The effect of the statement of the name in the alternative is that the lienor does not know whether the owner's name was Katie Finkel- stein or Julius Meyer, but that it was one or the other, and the claim is made against the interest of whichever one turned out to be the true owner. Held, sufficient. Abelman V. Meyer, 122 App. Div. 470, 106 N. Y. Supp. 978. 11. Name of owner used to defraud. — The notice of lien set forth the name of defendant Madansky, as owner. The complaint alleged thart he was in fact the owner, but took title in the name of his sister, Mary Greenberg, who con- veyed the premises to Sachs. That the grantees of Madan- sky, were mere dummies, to whom the premises were con- veyed, in order to cheat and defraud plaintiff. These alle- gations were denied. Held, that as plaintiff failed to estab- lish that the conveyance by Madansky to his grantee was fraudulent, plaintiff's proof failed, and as the notice of lien did not state the name of the true ovsmer, it could not be sustained. Curtis Bros. Lumber Co. v. MadansTcy, 141 App. Div. 886. 12. False statements. — It has been doubted whether a false statement contained in the notice of lien would operate to defeat the lien, in the absence of any positive direction or declaration to that effect in the statute. Single v. Wallis Iron Worhs, 149 N. Y. 439. 198 LiEW Law — Article IT, Sec. 9. a. But the Court of Appeals has recently held that a false statement contained in the notice which has heen shown to be willfully and intentionally false, to the prejudice of the rights of others, will operate to defeat the lien. Aeschliman V. Presbyterian Hospital, 165 IvT. Y. 296. h. A false statement in a notice of lien will not be suffi- cient to defeat it, unless it can be shown not only that the statement is untrue, but that it is willfully and intentionally false in some important or material respect. Such willful and intentional falsehood in the notice will defeat the claim of the lienor under the notice. lb. c. Where it appears that the amount claimed in the notice has been willfully and intentionally grossly exaggerated and such as could not have arisen from honest mistake and other lienors or persons interested in the fund are misled or preju- diced thereby, or might be prejudiced, the lien will not be sustained, though there be no actual affirmative fraud. New Jersey Steel & Steel Iron Co. v. Robinson, 85 App. Div. 512 ; Foster v. Schneider, 50 Hun, 151. d. Where the statement of the lienor's claim is so exces- sive and grossly inaccurate, being for more than twice the amount proved to be due upon the trial, an honest mistake will not be inferred, improbable explanations will be disre- garded, and the lien declared void. Williams v. DaiTcer, 33 Misc. 70; Goodrich v. Gillies, 21 IT, Y. Supp. 400; Close v. Clarh, 9 N. Y. Supp. 538. 13. Honest mistake. — If statements contained in the no- tice of lien are in fact false and the lienor claims a sum in excess of what he is entitled to recover, if it appears that the error arose from an honest mistake in the method of formu- lating the claim or for some other good reason, and no person is injured or misled by the error, the lien will be sustained. Beatty v. Searls, 74 App. Div. 214 ; Donovan v. Frazier, 15 App. Div. 521; Bryson v. St. Helen, 79 Hun, 167; Ameriz can Mortgage Co. v. Butler, 36 Misc. 253. a. In any case where there is an error in the notice of lien and it can be shown that no person has been thereby misled to his prejudice, and that the statements were not willfully false or intended to mislead, and were the result of mistaken Notice op Lien — Honest Mistake. 199 judgment or honest mistake, the lien will be enforced. Ringle V. Wallis Iron Works, 149 N. Y. 439 ; Gaskell v. Beard, 58 Hun, 101 ; BulMey v. Kimball 19 N. Y. Supp. 672 ; s. c. 46 St. Rep. 543 ; Barrow v. Morgan, 65 W. Y. 333 ; Mull v. Jones, 18 N. Y. Supp. 359 ; Luiz v. Ey, 3 E. D. Smith, 621 ; Vogel V. Lintweiler, 5 IT. Y. Supp. 154; McLean v. Baker, 11 IT. Y. Supp. 781; Morgan v. Taylor, 5 IST. Y. Supp. 920; Brandt v. Verdon, 18 N. Y. iSupp. 119. b. The notice of lien stated that the amount due the claim- ant was $2,893.90. The actual amount was $2,284.79. There was no evidence to show that the misstatement was willful or that there was any intent to mislead, or misstate the actual amount due. Held, that the error did not vitiate the lien as there was no willful intent to mislead nor was the amount so grossly exaggerated as to represent a presumption of had faith. Hall v. Thomas, 111 N. Y. Supp. 979. 14. Honest mistake in amount bid. — Defendant made a mistake of $5,000 in the amount of his hid for furnishing supplies to the city of New York upon a municipal contract. This mistake was known to the municipal authorities hefore the contract was awarded. The city sued defendant for an amount equal to the difference between the amount bid by defendant and the amount the city was obliged to pay for the materials. Held, that the city was not entitled to recover. " A slip of the pen, or a slip of the tongue, ought not to be treated as a deliberate contract " unless the other party has been misled to his injury. Where a mistake has been made, without gross negligence, and the mistake is apparent and was known, or should have been known to the other party, the minds of the parties never met, and there was no con- tract. Oity of New York v. Dowd Lumber Co., 140 App. Div. 358. 15. Description of premises. — Upon demurrer it was held that the description of the property would be deemed sufficient for identification when it refers to a particular map, the name of the highway and the side thereof, on which the property is situated, for the reason that the defendant could in no way be deceived or misled, and where there was nothing to indicate whether the property in the particular street had numbers. Krauss v. Burnett, 73 Misc. 428. 200 Lien Law — Aetiole IE, Sec. 9. a. The law requires that the notice shall contain only such a description of the premises as shall be " sufficient for iden- tification." If the work was done in a city or village, the lienor, if the street and street number are known, should in- sert them in addition to the description. The test as to the sufficiency of the notice in this respegt is, has the property been described in such a manner that it may be readily iden- tified by those inspecting the records. On this point see Donnelly v. Libhy, 1 Sweeny, 259. 6. A misnomer as to the street upon which the lien is claimed, to-wit, upon a stable standing upon certain premises designated 166-172 Perry street, borough of Manhattan, and in another place 166-172 Ferry street, borough of Manhat- tan, the lien will be sustained, as the description is sufficient for identification. Hurley v. Tucker, 43 Misc. 464, 112 N. Y. Supp. 580. c. The property was described in a notice of lien as a lot of fifty feet wide instead of twenty-five feet. There was but one building on the corner on which the premises were lo- cated, which premises were twenty-five feet wide, not fifty feet. Held, that the error could not mislead any person, and that the misstatement as to the width of the lot was not such a misdescription as would invalidate the lien. Hall v. Thomas, 111 N. Y. Supp. 979. 16. Acknowledgment in lieu of verification. — The statute requires the notice of lien to be verified, not acknowledged. In view of the provisions of this statute, an acknowledgment cannot be substituted for a verification, and where there is no verification, but simply an acknowledgment appended, the notice is invalid. Schenectady Contracting Co. v. Schenec- tady By. Co., 106 App. Div. 336, 94 N. Y. Supp. 401. 17. Verification. — The statutory provision as to verifica- tion is mandatory, and without it there can be no lien. The notice must he verified and the verification must be in due form, and before an officer authorized to administer an oath. Otherwise pur jury could not be assigned, and the object of the statute is to have the lienor make his claim under oath. Kave V. Hutkoff, 81 App. Div. 105 ; Hallahan v. Herbert, 57 N. Y. 409. Veeification — Name of Lienoe, 201 a. It has been repeatedly held that a verification following the exact language of the statute is sufficient. Union Stove Worlcs V. Klingman, 20 App. Div. 4:'49, affirmed, 164 ]Sr. Y. 589; Moore v. McLaughlin, 66 Hun, 133; Staubsandt v. Lennon, 3 Misc. 90, affirmed, 14'2 N. Y. 666; Schwartz v. Allen, 1 E". Y. Supp. 5 ; Ward v. Kilpatrich, 85 IST. Y. 413 ; Kealey v. Murray, 61 Hun, 619 ; s. c, 15 N. Y. Supp. 403 ; Boyd V. Bassett, 16 IN". Y. Supp. 10 ; Cunningham v. Doyle, 6 Misc. 219. 18. Verification without the State. — It is wholly imma- terial where the notice is verified. If the verification is taken in another State, it must comply with the Code of Civil Procedure, section 844, with respect to affidavits taken with" out the State. The statute is as follows : AfSdavits withoiit the State. — An oath or affidavit required, or which may be received, in an action, special proceeding, or other matter, may be taken, without the State, except where it is otherwise specially pre- scribed by law, before an officer authorized by the laws of the State, to take and certify the acknowledgment and proof of deeds, to be re- corded in the State; and, when certified by him to have been taken before him, and accompanied with the like certificates, as to his official character and the genuineness of his signature, as are required to entitle a deed acknowledged before him to be recorded within the State, may be used, as if taken and certified in this State, by an officer authorized by law to take and certify the same. (Code of Civ. Pro., § 844.) a. As a notice of lien, although it affects real property, is not required to be recorded, nor is it required to be proved or acknowledged. The statute requires that it shall be veri- fied. Instruments required to be acknowledged, if taken without the State, must conform to the provisions of the Heal Property Law, sections 249, 250, and must be authenticated as provided by sections 260, 261. h. For construction of the language of section 844 of the Code of Civil Procedure, with regard to verifications taken without the State, see Boss v. Wigg, 34 Hun, 192 ; Hyatt v. Swivel, 52 Super. Ct. Rep. 1 ; Bowen v. Stilwell, 9 Browne's Civ. Proei E. 2Y7 ; Levy v. Levy, 29 Misc. 3Y4. c. A lien was verified in Wisconsin before a commissioner of deeds for the State of 'New York. In order to entitle the notice to be filed or read in evidence it must be authenticated by the secretary of state of the State of ISTew York, who has 202 LiEiT Law — Aeticle II, Sec. 9. on file the autograph signature of the Wisconsin commis- sioner, who must certify that the officer purporting to act in Wisconsin as a commissioner was such commissioner. In 'the absence of such certificate it was held that the lien was not properly verified and could not be enforced. Cream City Furniture Co. v. Squiei^, 2 Misc. 438. , 19. Verification — Agent. — The Court of Appeals has held that the lien laws must be liberally construed. The Consolidation Act (Laws 1882, chap. 410, § 1825 ; Laws 1878, chap. 315, § 2) provides that a notice of claim for work done for a municipal corporation shall be " verified by such claimant's oath or affirmation." The notice was veri- fied by Pierre W. Briggs, who swore that he was the agent of John B. McDonald, " the claimant mentioned in the fore- going claim, and that the statements therein contained are true to his own knowledge or information and belief." Al- though no provision was contained in the statute giving au- thority to the agent to verify the notice, the court held that the notice so verified was a substantial compliance with stat- ute, especially in view of the provisions of the Lien Law of 1897 (Laws 1897, chap. 418, § 22), and that the verifica- tion was sufficient. McDonald v. The Mayor, 170 N. Y. 409, reversing s. c, 58 App. Div. 73. a. The Lien Law of 1897, as well as the Lien Law of 1885, authorize the verification of the notice " by the lienor or his agent." A lien was filed by the Union Stove Works for materials furnished. The lien was signed as follows: " Union Stove Works, by Newton H. Burr, agent." The verification was by- Mr. Burr, the agent. Held, sufficient under Lien Law of 1885. Union Stove Works v. Kling- man^ 20 App. Div. 449, affirmed, 164 N. Y. 589. 20. Verification — Assistant treasurer — Information and belief. — The verification on the notice of lien was as fol- lows: "Thomas F. Larkins, being duly sworn, deposes and says: I am assistant treasurer of the lienor mentioned in the foregoing notice of lien. I have read the said notice and know the contents thereof, and the statements therein stated to be alleged upon information and belief and as to those matters I believe it to be true." iVeeification — Partnership. 20S Held, tLat as all the statements in the notice were made on information and belief, the verification was a substantial compliance with the statute. Chambers v. Vassar's Sons & Co., Inc., 81 Misc. 562. 21. Verification — Partnership. — A notice of lien filed by a copartnership was verified as follows : " being duly sworn says that he is M. Kane & Son, the lienors mentioned in the foregoing notice of lien, that he has read the said notice and knows the contents thereof and that the statements therein contained are true to their knowledge except as to the matters therein stated to be alleged on information and belief and that as to those mat- ters they believe it to be true. " M. KANE & SON." Held, that as it did not appear who verified the notice, perjury could not be assigned thereon. No person was de- scribed as being sworn, nor were the names of the individual partners given. The verification was declared to be wholly insufficient. Kane v. Huthoff, 81 App. Div. 105. a. Where the verification on a notice of lien filed by a copartnership recited that the party verifying was one of the firm of D. A. & W. D. Moore, one of the parties making the foregoing claim, the court held the verification to be suf- ficient. Moore v. McLaughlin, 21 N". Y. Supp. 55. 22. Verification — Omission of officer's signature. — The notice of lien was subscribed and sworn to before a commis- sioner of deeds. Through inadvertence it was filed without the signature of the officer to the jurat. Later in the day the county clerk allowed the officer to append his signature and refile the notice. Held, that the lien became operative from time of first filing and took priority over the claim of a trustee in bankruptcy appointed under a petition of the bankrupt filed intermediate the filing and refiling of the no- tice of lien. Sage v. Stafford, 42 App. Div. 449. 23. Signing notice. — The Act of 1897 does not declare that the notice of lien shall be subscribed by the lienor. It provides what the notice shall state and directs that it " must be verified by the lienor or his agent." In this respect the Law of 1897 is the same as the Lien Law of 1885. It is usual and customary that the lienor shall subscribe the no- "204 Lien Law — Aeticle II, Sec. 9. tioe ; but it has been held that the fact that the lien was not subscribed did not invalidate it. Moore v. McLaughlin, 21 JsT. Y. Supp. 55, 24. Blanket lien. — When owners have adjoining lots and agree in writing in a joint contract for the -excavation of both and the contract fixes the price per cubic yard for excavat- ing earth and rock and treats the two lots as one parcel of land, the contractor may file a lien upon both lots and en- force it against the land as if it were one parcel. Deegan v. Kilpatrick, 54' App. Div. 371. a. Where materials are furnished for and are used indis- criminately in the erection of several contiguous buildings, they may, for the purposes of a mechanic's lien, be regarded as one building, and but one notice of lien need be filed cov- ering all. Hall V. Sheehan, 69 IST. Y. 618. b. Where owners of adjoining lots make a joint contract ito erect two houses, one house on each lot, the contractor may file a blanket lien on both lots, and the objection that the lots were ovnied in severalty and not jointly is wholly im- material. The liability is a joint liability and may be en- forced as one lien covering both lots. Mandeville v. Reed, 13 Abb. Pr. 173. See alSo Moran v. Chase, 52 IST. Y. 346; Hall V. Sheehan, 66 E". Y. 618; Livingston v. Miller, 16 Abb. Pr. 371 ; Paine v. Bonney,A E. D. Smith, 734 ; Broadr way Savings Bank v. Cumm(ings, N. Y. Daily Kegister, Jan. 10, 1884. c. Where work was done upon two separate lots which were not contiguous, one being in West Fifty-first street, the other on Tenth avenue, Manhattan, and the contractor agreed with the owner that all payments for both lots shall apply only to one lot, and that the other lot shall not be charged with any lien for work done upon it, but all claims for labor and materials shall attach to one lot only — held a valid agreement, and that a lien against the exempted lot was un- authorized. Gallick V. Engelhardi, 36 Misc. 269. • " d. Where a blanket lien covering several buildings, as to mode of conveyance of one building, see McAuley v. Mil- dram, 1 Daly, 296. Filing Notice of Lien. 205 § 10. Piling of notice. — Tlie notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or within ninety days after the completion of the contract, or tne lina). per- formance of the work, or the final furnishing of the may terials, dating from the last item of work performed oi\ materials furnished. The notice of lien must be filed in the clerk's oflfice of the county where the property is situated. If such property is situated in two or more counties, the notice of lien shall be filed in the office of the clerk of each of such counties. The county clerk of each county shall provide and keep a book to be called the " lien docket," which shall be suitably ruled in columns headed " owners," " lienors," " property," " amount," " time of filing," " proceed- ings had," in each of which he shall enter the particu- lars of the notice, properly belonging therein. The date, hour and minute of the filing of each notice of lien shall be entered in the proper column. The names of the owners shall be arranged in such book in alpha- betical order. The validity of the lien and the right to file a notice thereof shall not be affected by the death of the owner before notice of the lien is filed. Lien Law of 1897, § 10, re-enacted Laws 1909, chap. 38. 1. Filing — What constitutes. — The authorities are to the effect that a paper is considered filed in a public office, when it is delivered for filing at such office, to the proper officer. It is the duty of the clerk to take the paper. In such a case, if the clerk shall refuse to file the paper, for some reason, and casts it back to the person filing it, the rights of the par- ties are not lost, because the public officer refused to do his duty. Accordingly where an assignment of a mechanic's lien was filed, and the clerk after looking at it, threw it back to the party who had delivered it, held, that the paper which was duly executed, was legally filed, although the messenger picked it up and took it away, presumably to correct some supposed error. N. Y. County Nat. Barik v. Wood, 153 N. T. Supp. 860. 206 Libit Law — Ajeiticle II, Sec. 10, 2. Filing — When time begins to run. — Where a contract had been substantially performed and nothing remained for the lienor to do but to set up and attach a bath tub, which had been supplied and delivered to the house of the owner, •and th6 value of the services for this work was about $5.00, the contract has been substantially perfdrmed. The lienor offered to set up the bath tub in September, ISTovember and December, 1907, but was prevented from so doing by the' tenant who had closed the house. The lienor made repeated attempts to connect the bath tub to fully perform his con- tract, but was unable to gain admission to the house because it was closed. The lienor made no further attempts because he was unable to gain admittance to the house. Held, that the lienor could have demanded his money in November or December, for all the contract work, and if the owner refused he could have filed a lien for the full amount, or brought an action for the contract price. When the lienor was in posi- tion to sue the owner, he could have filed his notice of lien, and his time to do so began to run when he could have brought the action, not later than December, 1907. Having failed to file his notice until April 9, 1908, the lien was in- operative because it was filed too late. Delany v. Carpenter, 62 Misc. 416. 3. Filing — Foreign corporation. — A foreign corporation doing business in this State, which failed to procure a cer- tificate from the secretary of state, as provided by the Cor- poration Law, may file a lien for materials furnished under a building contract. But such lien cannot be enforced, nor any action maintained thereon, until such certificate shall have been obtained pursuant to Laws 1892, chap. 687, § 15. Neuchatel Asphalt Co. v. The Mayor, 155 IST. Y. 373. 4. Filing lien in city of Yonkers not necessary. — Section 3 of title 12 of chapter 635, Laws 1895, entitled " An act to revise the charter of the city of Yonkers," provides with re- gard to filing notices of lien as follows : "All notices to effect liena upon property within the city under and Iby virtue of the mechanic's lien law, now applicable or which hereafter may become applicable, to the county of Westchester, shall also be filed in the ofiBce of the city clerk and no such lien shall be enforced unless so filed." Filing Notice of Lien. 207 a. In 1895, when the charter of the city of Tonkers was revised, the Lien Law of 1885 was in force. Two years later the Lien Law of 1897 was enacted. Held, that the pro- vision of the city charter was not a substitute for the method of filing a lien under the general Lien Law, hu.t was a local statute in furtherance of it, and made the filing of an addi- tional notice in the office of the city clerk of Yonkers neces- sary, but as the provision embraced in section 3, title 12 of the charter was not germane to the title of the act, to wit, " An act to revise the charter of the city of Yonkers, the law was, therefore, repugnant to section 16, article 3 of the Constitution of the State of New York, which provides that " no private or local bill which may be passed by the legis- lature shall embrace more than one subject, and that it he embraced in the title; " and, therefore, was unconstitutional and void, and that a notice of mechanic's lien filed in the office of the clerk of the county of Westchester is valid, al- though such notice was not filed in the office of the city clerk of the city of Yonkers. Tomassi v. Archibald, 114 App. Div. 838, 100 K Y. Supp. 367. h. A mechanic's lien is a statutory remedy favoring cer- tain classes of workmen to secure them priority or prefer- ence of payment or compensation for work or materials. A municipality has no concern either in the creation of such remedy, or of its enforcement, and has no duties relative thereto. It follows that an isolated provision for the filing of mechanic's liens, or for the additional filing thereof, em- braced in a city charter, is not in any way germane to the subject of an act creating such municipal corporation. Ih. 5. Agreement to refrain from filing. — A sub-contractor was induced by the contractor to refrain from filing a notice of lien, upon the promise of the latter to collect the amount due the subcontractor on his own lien. The contract was thereafter assigned to a bank which agreed to see the sub- contractor paid. Thereafter the bank failed and a receiver was appointed. The latter sold the bank's claim " subject to. all claims, counterclaims, set-offs and equities." Held, that defendant having purchased from the receiver the con- tract, the lien and all obligations which, arose under the bond, and knowing all the conditions and circumstances, was liable 208 LiEH- Law — Article II, Sec. 10. for the amount due to plaintiff, the sub-contractor. Buffalo Glass Co. V. Assets ReaUzation Co., 133 App. Div. 775. a. The contract provided that the contractor would not at any time suffer or permit any lien by any person or persons, whomsoever, to be filed against the premises or to remain on file for work done or materials furnished on the build- ing, by reason of any other claim or demand against the contractor, nor to put any materials in the building to which the contractor had not obtained absolute title. The contrac- tor defaulted and the plaintiff filed a lien for the moneys due him. Held, that the contractor was well within his rights. The owner having defaulted in making the payments due plaintiff, the latter was thereby relieved of his obligations under the broken contract and was entitled to file a lien. The court observed further that the contract related only to the workeman, sub-contractors and materialmen other than the contractor. The right of the latter to security under the statute can be waived only by clear and expressed terms of the agreement. Kertscher & Co. v. Green, 205 !N". Y. 522. See also Lauer v. Dunn, 115 N. Y. 405; Greenfield v. Brady, 204 IsT. Y. 669, affirming 139 App. Div. 936. 6. In a case where there was nothing due from the owner to the contractor at the time a lien was filed by the plaintiff, a materialman, the owner thereafter agreed with plaintiff that she would pay for the materials he furnished less a cer- tain discount upon condition that he would file no lien against the property. Held, that the filing of such lien might affect the credit of the owner and cause her annoyance and that the filing of the notice was a violation of the agreement and precluded the plaintiff from recovering against the de- fendant. Genung v. HawTces, 159 App. Div. 30. 6. Successive liens. — There is no provision of the Lien Law to prevent a lienor from filing successive liens. He may file liens during the progress of the work and upon com- pletion may file a final lien. He may abandon the early liens and elect to enforce the final lien. The rights of a lienor are not restricted under the statute as to the number of liens he may file, and his power to incumber the property is not e^austed by filing one lien. ClarTc v. Heylman, 80 App. Div. 572. See also Kerrigan v. Fielding, 47 App. Div. 246 '• Haden v. Buddensiek, 6 Daly, 3. ' ' Fictitious Claim. 209 7. Fraudulent filing — Fictitious claim — When notice of lien an injury to property. — The complaint in effect alleged that the defendant wrongfully, unlawfully, and knowingly caused a notice of mechanic's lien against plaintiff's property to he filed in the clerk's office of New York county upon a fictitious claim, thereby delaying the work on a building in process of construction, resulting in the loss of a month's rental of the property. The action was brought in a munici- pal court of the city of New York under subdivision 14 of section 1 of the Municipal Court Act, which confers upon the court jurisdiction in an action to recover damages for " an injury to property." The term " injury to property " is defined in section 3343 of the Code of Civil Procedure, subdivision 10, as an actionable act whereby the estate of another is lessened other than a personal injury, or for the breach of a contract. Held, reversing the municipal court, that a good cause of action was stated in the complaint. That the words " injury to property " embraced " every invasion of one's property rights by actionable wrong." Ghiglione v. Friedman, 115 App. Div. 606, 100 N. Y. Supp. 1024. a. The right of a lienor, however, whose lien is not ficti- tious, is not restricted under the statute as to the number of liens he may file, and his power to incumber the property is not exhausted by filing one lien. Clarice v. Heylman, 80 App. Div. 572. See also Kerrigan v. Fielding, 4:1 App. Div. 246 ; Haden v. Buddensieh, 6 Daly, 3 ; Strauchen v. Pace, 195 K Y. 167. 8. Time to file cannot be extended. — After the time of filing a lien for a monument has expired, the court has no power to make an order to allow the lien to be filed nunc pro tunc (under the Lien Law of 1897, §§ 40, 41, now §§ 120, 121), thereby extending the time of the claimant within which the statute requires him to file his lien. Adler V. Lumley, 46 App. Div. 229. See also Spencer v. Barnett, 34 K Y. 94 ; McMahon v. Hodge, 2 Misc. 234 ; Lutz v. Ey, 2 E. D. Smith, 621 ; Donaldson v. O'Connor, 1 E. D. Smith, 695. 14 210 LiEN" Law — Ab,tiole II, Sec. 11'. § 11. Seirice of copy of notice. — ^At any time after filing the notice of lien, the lienor may serve a copy of such notice upon the owner, if a natural person, by de- livering the same to him personally, or if the owner cannot be found, to his agent or attorney, or by leav- ing it at his last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discre- tion, or by registered letter addressed to his last known place of residence, or, if such owner has no such resi- dence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof con- spicuously on such property, between the hours of nine o'clock in the forenoon and four o'clock in the afternoon; if the owner be a corporation, said service shall be made by delivering such copy to and leaving the same with the president, vice-president, secretary or clerk to the corporation, the cashier, treasurer or a director or managing agent thereof, personally, within the state, or if such officer cannot be found within the state by affixing a copy thereof conspicuously on such property between the hours of nine o 'clock in the fore- noon and four o 'clock in the afternoon, or by registered letter addressed to its last known place of business. Until service of the notice has been made, as above provided, an owner, without knowledge of the lien, shall be protected in any payment made in good faith to any contractor or other person claiming a lien. A failure to serve the notice does not otherwise affect the validity of such lien. (As amended, Laws 1913, chap. 88, in effect March 20, 1913.) Lien Law of 1897, § 11, re-enacted Laws 1909, chap. 38. 1. Amendment of 1913. — The legislature by chapter 88 of the Laws of 1913, amended section 11 of the Lien Law with regard to the service of a copy of the notice of lien upon a corporation. Prior to the amendment no specific Seevicb of Notice — Unsigned Copt. 2HI provision was made as to the mode of serving a corporation "witli such notice. The usual practice has been to make the service in nformity with the provisions of §§ 341, 431 and 432 of the Code of Civil Procedure, as to the service of a summons upon a corporation. The mode of service, as to the notice of lien, is now simplified and made applicable to any corporation whether foreign or domestic. 2. Service of notice — Unsigned copy. — The owner was sued by the contractor for a balance due on his contract. While the trial was in progress a subcontractor (material- man) filed a notice of lien and an unsigned copy was served upon the owner in court during the trial. The trial resulted in judgment in favor of the contractor, which was immedi- ately paid.' Held, that such payment did not protect the owner against the claim of the materialman. The fact that the copy of the notice served did not contain the signature of the lienor at the end of the notice or in the verification was not material, as the notice filed contained the signatures. Beeves v. Seitz, 47 App. Div. 267. 3. Payments in good faith. — Where an owner in good faith and without collusion pays the principal contractor the full amount due upon the contract, he cannot be made liable to a subcontractor on the ground that by permitting the latter to proceed with the work he became liable to him on the ground of consent. In the absence of fraud or collusion the owner's liability is limited to the price specified in the con- tract, and he cannot be held to pay a greater sum upon al- leged consent. De Lorenzo v. Von Baitz, 44 App. Div. 329. 4. Payment in absence of notice. — Where an owner with- out notice that a subcontractor had filed a lien paid the full amount to the contractor, he will be protected in making such payment by section 11 of the Lien Law, which provides that until service of a notice of lien upon him " an owner, with- out knowledge of the lien, shall be protected in any payment made in good faith to anv contractor or other person claim- ing a lien." Snyder v. Monroe-Eckstein Brewing Co., 107 App. Div. 328, 95 IST. T. Supp. 144, affirmed, 188 IST. Y. 576. a. The lien was filed April 27, 1903, by the subcontractor. On the second of May following, he served a copy of the 212 LiEw Law — Akticle II, Sec. 11. notice of lien on the defendant corporation. Such corpora- tion, on the day that the lien was filed, to wit, on April 2$, 1903, mailed to the various claimants under the contract, checks aggregating the full amount of the contract price. There was no claim that the defendant owner had any actual notice of the filing of the lien, but plaintiff claimed that they were under obligation to exercise due diligence to discover whether such notice had been filed or not. Held, that the good faith required by the statute does not relate to the dili- gence of the owner to ascertain as to whether a lien ias been filed, and that where he pays an existing obligation in good faith, he will be protected under the statute. Tb. But see Kelly V. Bloomingdale, 139 IST. Y. 343. MtTNiciPAL Lien. 213 § 12. Notice of lien on account of public improve- ments. — At any time before the construction of a pub- lic improvement is completed and accepted by the state or by tbe municipal corporation, and within thirty days after such completion and acceptance, a person performing work for or furnishing materials to a contractor, his sub-contractor, assignee or legal rep- resentative, may file a notice of lien with the head of the department or bureau having charge of such con- struction and with the comptroller of the state or with the financial officer of the municipal corporation, or other officer or person charged with the custody and disbursements of the state or corporate funds appli- cable to the contract under which the claim is made. The notice shall state the name and residence of the lienor, the name of the contractor, or sub-contractor for whom the labor was performed or materials fur- nished, thfe amount claimed to be due or to become due, "the date when due, a description of the public improve- ment upon which the labor was performed and ma- terials expended, the kind of labor performed and ma- terials furnished and give a general description of the contract pursuant to which such public improvement was constructed. If the lienor is a partnership or a corporation, the notice shall state the business address of such partnership or corporation, the names of the partners, and if a foreign corporation, its principal place of business within the state. If the name of the contractor or sub-contractor is not known to the lienor, it may be so stated in the notice, and a failure to state correctly the name of the contractor or sub-contractor shall not affect the validity of the lien. The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his own knowledgoj except as to the matters therein stated to be alleged on information and belief, and that as to 214; Lien Law — Auticlb II, Sec. 12. those matters lie believes them to be true. The comp- troller of the state or the financial officer of the muni- cipal corporation or other officer or person with whom the notice is filed shall enter the same in a book pro- vided for that purpose, to be called the " lien book." Such entry shall include the name and residence of the lienor, the name of the contractor or sub-contractor, the amount of the lien and date of filing, and a brief designation of the contract under which the lien arose. (As amd. by Laws 1902, ch. 37, § 2; Laws 1908, chap. 85, § 1.) Lien Law of 1897, § 12, re-enacted Laws 1909, chap. 38. The above section was repealed June 26, 1911, by chap. 450, Laws 1911. It was re-enacted without change on Octo- ber 6, 1911, by chap. 873, laws of that year. 1. Amendments to section 12. — Prior to 1902 there was no provision of the statute which required a municipal lien to be verified. Clapper v. Strong, 90 App. Div. 536; Bock- land Lake Go. v. Portchester, 102 App. Div. 360, affirmed, 185 'S. Y. 590. This omission was supplied by Laws 1902, chap. 37. The only other amendment to section 12 was with respect to the names of lienors who were either a corporation or a copartnership. Laws 1908, chapter 85, which supplied this omission provides that if the lienor is a partnership or a corporation, the notice of lien shall state the business ad- dress of such partnership or corporation, the names of the partners, and if a foreign corporation, its principal place of business within the State. 2. Municipal lien — When not sufficient. — A notice of lien for labor performed and materials furnished pursuant to a municipal contract, differs in some respects from a notice of lien filed against private property. In case of a municipal lien, the notice must set forth the date when the amount claimed by the lienor became due. If the notice contains no such statement it can not be sustained. Brad- ley & Son V. Huher Co., 146 App. Div. 630. a. The Fitzgibbons Boiler Company sold to Eossman & Bracken, steam heating contractors, three boilers which the! Filing Municipal Lien. 215 latter installed in Bellevue Hospital, Gouverneur Branch. The vendors thereafter wrote three letters to the Comptrol- ler of the city of New York, in which they stated the con- tract price of the boilers; and further that it was especially provided " that title to the boilers shall not pass from our company until all sums due on the purchase price are fully paid." That Sheehan & Co. were the general contractors, and that there was a balance of $1,113 unpaid on the boilers. Held, that these letters did not operate as a contract of con- ditional sale under the statute, whereby notice was given that the title to the boilers remained in the vendors, nor were they equivalent to- a notice of a mechanic's lien. The letters were not verifiedj did not state the residence of the claimants, nor whether they were a copartnership or a corporation, nor the date when the purchase price was to become due, and failed to comply with the provisions of § 12 of the Lien Law. Nor did these letters constitute a valid lien against any funds in the hands of the Comptroller due to the con- tractor. Matter of Sheehan & Co., 135 App. Div. 94. 6. A notice of lien on account of a public improvement differs in some respects from the notice required under § 9 of the Lien Law against private property. Section 12 re- quires that the notice shall state among other things the amount claimed by the lienor " to be due, or to become due." A notice of lien which fails to state when the amount claimed by the lienor became due is invalid. Post & McCord v. City of New York, 86 Misc. 300. Section 12 requires also that the notice of lien shall state the busines^of the lienor and if the latter " is a partner- ship or corporation, the notice shall state the business address of such partnership or corporation." Held, not in conflict with the previous sentence, which requires the notice to state the name and residence of the lienor, and that a notice con- taining the business address of a partnership or corporation is sufficient. lb. 3. Filing. — A lien for work done, or materials furnished upon a public improvement must be filed within thirty days after completion and acceptance. Both these requirements, completion and acceptance, are usually questions of fact. A substantial completion of the contract is not sufficient to set running the statutory time for filing the lien. To hold that 216 Lien Law — Article II, Sec. 12. where the work is still proceeding, the acceptance of it in an uncompleted state is sufficient to set running the time for filing liens, would lead to unreasonahle results and cannot be sustained. Milliken Bros. v. City of New York, 201 K Y. 65. « 4. Engineer's certificate — When conclusive. — The con- tract made by the Bronx Valley Sewer Commission, con- tained a provision that the engineer " shall be the sole and final judge and arbiter as to the intent and meaning of any clause in this contract." Plaintiff sued to recover for ma- terials furnished to Moore, a subcontractor.. The latter aban- doned the contract because he was unable to get a modifica- tion of the contract as to the depth of the sewer, as inter- preted by the engineer. Held, that in the absence of fraud or collusion the construction given to the contract by the en- gineer was binding. As the work was completed by the con- tractor, the subcontractor could recover nothing until the completion of the work, and plaintiff's lien would attach to the balance, if any, due on the contract after deducting the cost of completion. Willson & Adams Go. v. Mack Paving Co., 78 Misc. 441. 5. Municipal lien — Not authorized for materials to be furnished in future. — A mechanic's lien upon private prop- erty may be filed in anticipation of work done or materials furnished. Section 9, subdivision 4', specifically authorizes a lien for " labor performed or to be performed or materials furnished or to be furnished." Wo such provision, however, is contained in section 12 relating to municipal liens. A lien upon funds of the city of ISTew York for $108,000 worth of materials which had not been furnished at the time the no- tice of lien was filed is invalid. The lienor procured an ex parte order extending such lien for six months. A motion was thereafter made by another contractor to vacate the order upon the ground that the lien was void on its face and that the court had no jurisdiction to grant the order of extension. Section 12 of the Lien Law authorizes a lien only for work done or materials actually furnished, and the motion to va- cate was granted upon the ground that the lien was void on its face. Matter of Goss v. Williams Engineering Co., 57 Misc. 7S. Lien foe Money Advanced. 217 6. Lien asserted against real estate instead of the funds of the State is sufficient. — A subcontractor who furnishes materials for work done for the State of New York asserted a claim against real estate. It also stated the claim against the State of New York, as owner of the real estate described in the lien. Held sufficient, although subsequently in the printed form there was a statement that the lien was asserted against the real estate, such statement will be deemed sur- plusage, and the statement that the lien was asserted against the State of New York as owner of the property for which materials had been furnished, will suffice. Newman Lumber Co. V. Wemple, 56 Misc. 168, 182, 107 N. Y. Supp. 318. 7. Lien for moneys advanced invalid. — Plaintiff filed a municipal lien for $3,578.65, of which $2,500 was for moneys loaned to the contractors by plaintiff to enable them to perform their contract with the city, the remainder, $1,078.65, was for furnishing asphalt. The notice of lien read " Cash advanced for labor and materials furnished, to wit: Asphalting the openings (for certain sewer work in Brooklyn), supplying broken stone and cement at the agreed price and value of $3,578.65." Held, that the lien was in- valid as to the item for money loaned, but valid against the funds of the city for $1,078.65, for labor and materials. Uvalde A. Paving Co. v. City of New York, 191 N. Y. 244. a. In the case above cited, it appeared that the moneys advanced by the plaintiff to the contractors for which he claimed a lien was advanced in order to enable the contrac- tors to perform their contract with the city, and that the latter, in consideration of the loan by the plaintiff, agreed to assign to him their contract or the moneys due and to grow due thereunder to reimburse plaintiff for the moneys so ad- vanced, but thereafter refused to do so. The court held that while the money advanced was not \he subject of a valid lien, yet it constituted an equitable lien upon the funds claimed by the contractors in the action. The court, therefore, sus- tained the lien as to the amount due for work done and ma- terials furnished, and would regard as done that which ought to have been done, and framed the decree so as to grant re- lief to the plaintiff, in accordance with the facts, and to enforce his equitable Hen for moneys advanced against the contractors, who were liable to plaintiff in a personal judg- ment. 11). 218 LiEM" Law — Ajbticle II, Sec. 12. 8. Schoolhouse. — A schoolhouse erected on lands belong- ing to a school district, the title to which was in the trustees of the school district, is a " public improvement " within the meaning of the Lien Law. The notice of lien should be filed with the board of trustees and the treasurer of the school dis- trict. Filing with the county clerk, and serving copies on the trustees is insufficient. Terwilliger v. Wheeler, 81 App. Div. 460. a. In such a case where the lien fails, the court has power to determine the rights of the parties to the fund and award personal judgment against the parties indebted. Ih. i. The construction of a school building is a public im- provement, as the real estate of the school district cannot be sold or reaehed under the foreclosure of a mechanic's lien. In an action brought by plaintiff, a subcontractor, for exca- vating, team work, and manual labor in the erection and con- struction of a district school in the town of Union, Broome county, it appeared that the money to erect the school was raised pursuant to a resolution of the board of education, and a committee was appointed to receive and disburse the funds during the progress of the work. The notice of lien was filed in the office of the clerk of Broome county. It was served also upon John Witherrill, who was the treasurer and financial officer of the board of education, and also upon the president of the board. The court held that the service was sufficient. Upon this point Mr. Justice Forbes says : " The treasurer of the board of education is the financial officer of the dis- trict and I do not believe that a temporary designation — made expressly under a resolution of the board of education — changed his relation ; since the treasurer still remained the financial officer of- the district, while the secretary and presi- dent of the board temporarily became the custodians of the fund for the purposes of convenience in the erection of said school building to avoid more frequent matters of said board. The treasurer was a continuing entity, and as such this finan- cial steward could easily be traced. Under the circum- stances, must the plaintiff be defeated by the designation of a committee by the board itself, and be held responsible for failing to search beyond the head financial agent of the cor- poration for its secretary, the temporary custodian of the funds. The court said that while the notice of Ken might LiBN — Public Hospital. 219 have been served upon the temporary custodian of the funds, plaintiff was not bound to do so under the statute. The build- ing fund belonged to the board of education — to the school district. The appropriation was made under a resolution of the board. The secretary and president were used as a com- mittee to carry out the directions of the board of education as a matter of convenience. Held, that the service upon the president and treasurer of the board of education was suffi- cient. Westgate v. Shirley, 42^ Misc. 245. See also Bell v. VmderUlt, 12 Daly, 476; Bell v. The Mayor, 105 N. Y. 139 ; Yellow Pine Go. v. Board of Educa- tion, 15 Misc. 58. 9. Public hospital. — In Greater New York the proper de- partment with which to file a notice of lien for work done upon a puolic hospital in Gouverneur Slip, the construction of which was authorized by Laws 1894, chap. 703, is with the department of public works of the city of ISTew York. HawTeins v. Mapes-Reeves Construction Co., 82 App. Div. 72, affirmed 178 JST. Y. 236. 220 Lies Law — Akticle II, Sec. 13. § 13. Priority of liens. — A lien for materials fur- nished or labor performed in the improvement of real property shall have priority over a conveyance, judg- ment or other claim against such property not re- corded, docketed or filed at the time of filing the notice of such lien; over advances made upon any mortgage or other incumbrance thereon after such filing; and over the claim of a creditor who has not furnished ma- terials or performed labor upon such property, if such property has been assigned by the owner by a general assignment for the benefit of creditors, within thirty days before the filing of such notice. Such liens shall also have priority over advances made upon a contract by an owner for an improvement of real property which contains an option to the contractor, his suc- cessor or assigns to purchase the property, if such ad- vances were made after the time when the labor began or the first item of material was furnished, as stated in the notice of lien. If several buildings are erected, altered or repaired, or several pieces or parcels of real property are improved, under one contract, and there are conflicting liens thereon, each lienor shall have priority upon the particular building or premises where his labor is performed or his materials are used. Persons standing in equal degrees as co-laborers or materialmen, shall have priority according to the date of filing their respective liens ; but in all cases laborers for daily or weekly wages shall have preference over all other claimants under this article, without refer- ence to the time when such laborers shall have filed their notices of liens. Lien Law of 1897, § 13, re-enacted Laws 1909, chap. 38. 1. Extent 3nd scope of section 13. — The Lien Law is a remedial statute designed for the procteetion of those who expend labor and furnish materials for the improvement of real property. The value of the land is increased by the Peioeitt of Lien. 221 efforts of contractors," materialmen and laborers, and the design of the statute is to protect those who have enhanced the value of the realty against the general creditors of tha owner, and also against the general creditors of an insolvent contractor. The object is accomplished by creating certain priorities in favor of lien creditors as against general credi- tors and also establishing certain priorities amongst lienors. Section 13, therefore, should be read in connection with sec- tion 4 of the Lien Law, which gives lien creditors an equit- able lien upon the premises while being improved and ex- tends the protection of the statute where an insolvent owner, during the progress of the work, makes a general assignment for the benefit of the creditors. The priorities among the lienors themselves are provided for in section 25 and sec- tion 56, formerly 3414 of the Code, which must be read also in connection with section 13. These two sections create pre- ferences as among the lienors themselves. Section 25 gives laborers and materialmen priority among themselves in ac- cordance with the date of filing of their respective liens. Sec-, tion 56 gives laborers and materialmen priority over con- tractors and subcontractors. The priorities under section 13 of the Lien Law are as follows : 1. Over judgments and deeds not docketed or recorded when lien filed. 2. Over advances on mortgage made after filing of lien. 3. Over claim of a general creditor who has not furnished material or performed labor on the land. 4. Over advances made by an owner to a contractor who has an option to purchase the land, made after the labor be- gan, as stated in the notice of lien. 5. Priority on particular building where work was done, where several buildings are being erected. 6. Priority of laborer working for daily or weekly wages. 2. Equitable assignment. — One holding an equitable as- signment or order which has been duly filed as provided by section 15 of the Lien Law is entitled to priority over subsequent lienors. Such an assignment having been especi- ally provided for by the Lien Law will be enforced. The au- thorties upon the doctrine of equitable assignment will be found under section 15, post, page 173, et seq. 222 Lien- Law — Article II, Sec. 13. 3. Priority — Indebtedness of plaintiff to defendant — When not an offset. — In an action to foreclose a municipal lien by a subcontractor against the city and Gallo, the prin- cipal contractor, who sublet part of the excavation to plain- tiff, the former set up as an offset or counterclaim a sum which he alleged' was due from t^e plaintiff to him for moneys previously advanced. Held, Newbueoee, J., that without passing upon the question as to whether the defense of the contractor was a counterclaim or an offset, that funds " in the hands of the city, due under the contract between it and Gallo (the contractor), are subject first to the liens of the materialmen and laborers." The object of the Lien Law is to protect those who enhance the value of property by furnishing labor or materials to the extent of the value thereof, and the amounts due from the contractor to a sub- contractor are chargeable with the amount of the liens filed under the Lien Law and take priority over any conveyances, assignments, nad also over claims of general creditors." Fal- vello V. City of New York, 53 Misc. 468. 4. Unrecorded deed. — The attempt to record a deed if the record is inoperative will not be construed as construc- tive notice to a lienor. There can be no record unless the recording acts have been complied with. Irving v. Camp- hell, 121 K Y. 353; Rennie v. Bean, 24 Hun, 123; Lem- mer v. Morrison, 89 Hun, 277. a. A deed was acknowledged in New Jersey before a no- tary public. Under the laws of !N^ew Jersey a notary has no power to take an acknowledgment of a conveyance of lands and tenements. A county clerk's certificate stating that the notary had such power was attached to the instru- ment, and it was spread upon the record in the register's oflBce. Plaintiff' filed a lien thereafter. The deed was sub- sequently acknowledged before a master in chancery in New Jersey and duly recorded after the lien, was filed. Beld, that the deed was not recorded until the acknowledgment was taken before an officer authorized by the laws of New Jersey to take acknowledgments of conveyances of lands and tene- ments, and that the lien took • priority over the unrecorded deed. Lemmer v. Morrison, 89 Hun, 277. Bankruptcy — Effect of. 223 5. Assignment for the benefit of creditors. — Section 4 of the Lien Law declares that " if an owner asigns his interest in real property by a general assignment for the benefit of creditors," within thirty days prior to the filing of a lien, the lien shall extend to the interest assigned. Section 13, supra, declares expressly that the lien shall have priority over the claims of general creditors of the owner who makes a general assignment for the benefit of creditors, if filed within thirty days after such assignment. Thus the statute protects the lienor against the general creditors of an insol- vent owner. The Court of Appeals has also extended this rule so as to protect creditors of an insolvent contractor, upon the ground that, as against the general creditors of such con- tractor, those who furnish materials and perform labor for the insolvent contractor are given by the statute a period of ninety days within which to secure their claims by filing liens against the property which is the subject of the con- tract. That within that time such laborers and materialmen have an equitable lien upon the contract and the realty which will take priority over the title of the assignee of the insol- vent contractor and over the claims of his general creditors. Kane Co. v. Kinney, 174 N. Y. 69 ; Armstrong v. Borden Condensed Milk Co., 174 IST. Y. 510. a. The rule that an assignment by a contractor for the benefit of creditors will not defeat the right of a subcontrac- tor to file a lien which will have priority over the title of an assignee for the benefit of creditors applies to municipal contracts as well as contracts relating to private property. Beading Hardware Co. v. City of New York, 27 App. Div. 448. h. A subcontractor, after filing his lien, .assigned it to a materialman in payment of the latter^s claim against the lienor. Held, that the assignee stood in the position of his assignor, and that the lien so assigned took priority over a lien subsequently filed by a materialman who had also sup- plied materials on the same work to the assignor. Wood v. Oriffenhagen, 37 Misc. 553. Compare Herman & Grace V. City of New YorTc, 130 App, Div. 531, affirmed 199 N. Y. 600. * 6. Bankruptcy. — Section 67f of the Bankruptcy Law de- clares " that all levies, judgments, attachments, or other liens 224 LiEW Law — Aeticlb II, Sec. 13'. obtained through legal proceedings against a person who is insolvent at any time within four months pror to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt." In construing this statute the courts have declared that a lien which is acquired under a State law for labor performed or materials furnished to an owner who becomes bankrupt, is not a lien " obtained through legal proceedings," within the meaning of the Bankruptcy Act, and that such a lien is not dis- charged by the adjudication in bankruptcy of an owner within four months after the filing of the notice. ' a. Such a lien is not an incumbrance created by the debtor. It is created by operation of law upon the filing of the notice of lien, without legal proceedings on his part. It is based upon a present consideration, and upon accruing indebted- ness or indebtedness immediately accrued, and is not given by the debtor as security for an antecedent debt. Such a lien, therefore, is preserved, notwithstanding the fact that the owner against whose land the lien has been filed may be adjudged bankrupt within four months after such filing. In re EmsUe, 102 Fed. Rep. 291; In re Adam Houston, 7 Am. B. R 92. h. The fact that a general contractor was adjudged a vol- untary bankrupt intermediate the time when labor was per- formed and materials furnished by a subcontractor, and the filing of the lien by him, will not operate to defeat the lien. During the time allowed by the statute within which a con- tractor, subcontractor, or materialman may file his lien, a preferential statutory right exists in favor of such contractor in the nature of an unperfected, equitable lien which will not be cut off by an adjudication in bankruptcy until after the ninety days which the statute gives to file the lien has expired. Crane Co. v. Mutual Signal Co., 94' App. Div. 53 ; aifirmed sub nomine Crane Co. v. Smytihe, 182 1^. Y. 545. See also Concord Construction Co. v. Plante, 137 App. Div. 243, 7. Bankruptcy Court — Leave to sue. — If, after a me- chanic's lien has been filed pursuant to a State law, an owner whose land is affected thereby is adjudicated bankrupt, the property which is subject to the lien is within the custody Lien of Oeeditoe — Peiokitt of. 225 of tlie court in bankruptcy. The lienor thereafter will not he permitted to bring an action to foreclose his lien in the State court without first having obtained an order of the court in bankruptcy granting leave to prosecute the action. If no such leave is obtained, and the lienor begins an action to foreclose, the Federal court will grant an order staying all proceedings in the State court until such order has been obtained. In re Russell, 101 Fed. Eep. 248 ; In re Emslie, 102 Fed. Eep. 291. 8. Priority over general creditors — Right to file lien ■when not defeated by mortgage. — Section 13 of the Lien Law protects those who have performed labor and furnished materials for the improvement of real property against the general creditors of an insolvent owner, and also against gen- eral creditors of an insolvent contractor. The scheme of the statute is to treat the money due upon a contract for the improvement of real property as a trust fund, primarily for the payment of those who furnished labor and materials which enter into and enhance the value of the land, as against the general creditors of an insolvent contractor or the general creditors of an insolvent owner. A lien creditor is given tinder the statute a period of ninety days within which to secure his claim by filing his lien against the property which is the subject of the contract for its improvement. Within that period, a lien creditor has an equitable lien upon the contract and upon the land which takes priority over the title of an assignee of the insolvent contractor over the claims of general creditors. Kane Co. v. Kinney, 174 N. Y. 69. a. The right of a lien creditor to file his lien for work ■done and materials furnished for the improvement of real property cannot be defeated by the owner whether he is sol- vent or insolvent, who makes a mortgage to a trustee for the "benefit of all creditors who have performed work or furnished materials toward the improvement of the land. Where such a mortgage has been made by the owner, it inures to the "benefit of all creditors who may elect to accept its benefits and secure their rights under the mortgage. Such a mort- gage, however, has no priority over the claim of a lien credi- tor who has performed work or furnished materials before the execution of the mortsrasfe, who chooses to file his lien for work done and materials furnished, and who does not 15 226 Libit Law — Article II, Sec. 13. desire to extend credit for the period of one year under the trust mortgage. Such a lien takes priority over the mortgage given for one year, made hy the owner to a trustee for the benefit of lien creditors, if filed within the statutory period. American Mortgage Co. v. American Construction Co., 120 App. Div. 150, 104 ]Sr. Y. Supp. 900. ^ 9. Mortgages made simultaneously. — Where two mort- gages are made simultaneously, as to which of the two ia entitled to priority is a question of fact depending upon the agreement and intent of the parties at the time the mortgages were executed. Dodge v. Manning, 19 App. Div. 29. 10. Receiver in supplementary proceedings. — The title of a receiver in supplementary proceedings attaches to what was due the judgment debtor at the time the proceeding was instituted and not at the time the order appointing was made, and takes priority over an assignment made interme- diate the commencement of the proceeding and the entry of the order. McDonald v. Village of Ballston, 34 Misc. 496 ; McCorhle v. Eerrman, 117 N. Y. 297. 11. Day laborers. — The man who labors or toils for daily or weekly wages takes priority over contractors and subcon- tractors. Such persons have priority without regard to when their liens were filed. 12. Materialman. — The statute in like manner (Code Civ. Proc, § 3414) gives a materialman as well as a laborer pri- ority over contractors and . subcontractors. The language of the section is : " when a laborer or a materialman shall per- form labor or furnish materials for an improvement of real property, for which he is entitled to a mechanic's lien, the amount due to him shall be paid out of the proceeds of the sale of such property under any judgment rendered pursu- ant to this title, in the order of priority of his lien, before any part of such proceeds is paid to a contractor or subcon- tractor." Herman & Grace v. City of New York, 130 App. -Div. 531. See § 56 of the Lien Law, formerly § 3414 of the Code of Civil Procedure, post, 'page 327. 13. Day laborers — Municipal contracts. — The courts have held that the pTeference given by the statute to laborers Peioeity — Oedeb op. 22T working for daily or weekly wages applies to contracts for public improvements as well as to contracts relating to pri- vate property. McDonald v. Village of Ballston, 34 Misc. 496. a. In 1898, however, tlie Lien Law was amended (Laws 1898, chap. 169) by adding section 24 to the law (re-enacted as section 25, Laws 1909, chap. 38), which declares specifi- cally that upon municipal contracts, those working for daily or weekly wages shall have preference oyer all other lienors, without reference to the time when their liens were filed. See § 25, post, page 233. 14. Priority — Order of, among lienors. — If a judgment in a mechanic's lien action does not give to a claimant the priority among other lienors to which he is entitled, the claimant aggrieved may appeal to correct the error. If he perfects his appeal as to some of the parties and not as to others, the court may, nevertheless, correct the judgment as against those embraced in the appeal if this can be done without prejudice to the rights of any of the parties. Hall V. City of New Yorlc, 176 K T. 293, modifying on that point only, s. c, 79 App. Div. 102. 228 Lien Law — Article II, Sbo. 14. § 14. Assignment of lien. — A lien, filed as prescribed in this article, may be assigned by a written instru- ment signed and acknowledged by the lienor, at any time before the discharge thereof. Such assignment ishall contain the names and places of residence of the assignor and assignee, the amount of the lien and the date of filing the notice of lien, and be filed in the office where the notice of the lien assigned is filed. The facts relating to such an assignment and the names of the assignee shall be entered by the proper officer in the book where the notice of lien is entered and opposite the entry thereof. Unless such assignment is filed, the assignee need not be made a defendant in an action to foreclose a mortgage, lien or other incum- brance. A payment made by the owner of the real property subject to the lien assigned or by his agent or contractor, or by the contractor of a municipal cor- ]poration, to the original lienor, on account of such lien, without notice of such assignment and before the - same is filed, shall be valid and of full force and effect. Except as prescribed herein, the validity of an assign- ment of a lien shall not be affected by a failure to file the same. Lien Law of 1897, § 14, re-enacted Laws 1909, chap. 38. 1. Assignment of lien. — It will be observed that section 14 of the Lien Law expressly provides for the assignment of a lien filed pursuant to the statute, although such assign- ment may, in some instances, operate to defeat claims of subcontractors and materialmen who perform labor or fur- nish material subsequent to such assignment, in like manner as advance payments by the owner may defeat subsequent lienors, under the provisions of § 7 of the Lien Law. Under that section such assignments are valid unless they have been made " for the purpose of avoiding the provisions of the Lien Law." Unfortunately the burden of proof to show fraudu- lent intent is on the lienor. An assignment of a mechanic's lien by a contractor, to a Assignment op Lien. 229 creditor for a valuable consideration, in payment of a bona fide indebtedness, it bas been held, is valid as against sub- contractors who filed liens upon the same premises, after the making and filing of such assignment, when the assignment was duly filed in the county clerk's office, although it was made in payment of an indebtedness for materials, only part of which were used in the premises subject to subsequent liens. Parsons v. Curran, 149 App. Div. 762. a. The right to file a lien is a personal right, limited to the person performing the labor or furnishing the material and is not assignable. The right to file does not pass to the " successor in interest " of the person whose right it is to file the lien. Tidsdate Lumher Co. v. Bead Realty Co., 154 App. rfiv. 270. b. The statute gives the right to file a lien to one " who performs labor or furnishes materials " (Lien Law, § 3). A lienor is defined in section 1 as any person " having a lien," and includes his " successor in interest." It is obvious that one who performs no labor or furnishes no materials is not entitled to file a notice of lien. If, therefore, labor is per- formed, or materials are furnished by any one, and he should fail to file a lien pursuant to the statute, he could not assign the right to file the lien, because that right is expressly given to him who performs the labor or furnishes the materials. Such person does not become a " lienor " until he has a lien, and he can have no lien until he files his notice. After the lien has been filed it can be assigned, but the right to file it cannot be assigned. c. This was the rule under prior lien laws. Halahan v. HerheH, 57 K Y. 409; Rollin v. Cross, 45 K Y. 766; English v. Sill, 63 Hun, 572; Roberts v. Fowler, 3 E. D. Smith, 632. d. Section 14 provides that a lien filed as prescribed by the statute may be assigned by a written instrument, but the assignment must contain the names and places of residence of the assignor and assignee, the amount of the lien, and the date of the filing of the notice. It follows therefore that one employed to furnish labor and materials can have no lien until he has complied with the statute and filed his notice of lien and until the notice of lien has been filed, the lienor has nothing to assign. Barrett v. Schajfer, 162 App. Div. 53. 230 LiEM- Law — Auticle II, Sec. li. 2. Assignee — Successor in interest. — The right to file a lien for work done or materials furnished, by a corpora- tion, whicli right existed prior to the consolidation of such corporation with another, survives, and may be exercised after such consolidation is effected, pursuant to the provi- sions of §§ 7 to 10 of the Business Cor^joration Law. The devolution of interest, in the right to file the lien, is not an assignment of such right, within the meaning of the Lien Law, and may be exercised by the corporation after consoli- dation. Chambers v. Vassar Sons & Co., Inc., 81 Misc. 562. Assignment must be filed. — The owner gave an order to one who had performed labor and furnished materials in the building, upon the corporation, which agreed to make a building loan to the owner, for the amount due for such labor and materials. The corporation accepted the order whereby it was directed to pay to the materialman, Morris Talkow, " the sum of $1,200 out of the last payment in building loan contract on house southeast comer of 184th street and Broadway and charge same to me." Held, that the failure to file the order constituted a defense in an action by the acceptor, when prior liens against the property had been filed, where such prior liens were set up in defendant's an- swer. Talkow V. Metropolitan Ins. Co., 73 Misc. 393. Assignment of Conteact. 231 § 15. Assignments of contracts and orders to be filed. ^No assignment of a contract for the performance of labor or the furnishing of materials for the improve- ment of real property or of the money or any part thereof due or to become due therefor, nor an order drawn by a contractor or sub-contractor upon the owner of such real property for the payment of such money shall be valid, until the contract or a statement containing the substance thereof and such assignment or a copy of each or a copy of such order, be filed in the office of the county clerk of the county wherein the real property improved or to be improved is situ- ated, and in case of a contract with a municipal corpor- ation, also with the comptroller or chief fiscal officer thereof, and such contract, assignment or order shall have effect and be enforceable from the time of such filing. Such clerk shall enter the facts relating to such assignment or order in the " lien docket " or in an- other book provided by him for such purpose. (As amended, L. 1907, chap. 360.) Lien Law of 1897, § 15, re-enacted Laws 1909, chap. 38. 1. Presumption when assignment not filed. — A presump- tion of law arises in favor of an owner of real property, im- proved by a contractor, that moneys paid by such owner were used to pay for materials furnished and labor performed under the contract. Such owner has a right to make pay- ments to laborers, and materialmen where an order or as- signment of money due or to become due under the contract, has not been filed. Nason Manufacturing Co. v. Adams., 76 Misc. 590. 2. Equitable assignments — Common-law rule. — At com- mon law a debtor could assign to his creditor in payment of his debt the whole or any portion of moneys due or to become due to him under a contract, and such assignment, if based upon a valuable consideration, would create a preference in favor of the assignee over subsequent creditors and lienors. The effect of such an assignment upon notice to the party 232 Lien Law — Auticlb II, Sec. 15. against wliom it was drawn is to bind the moneys in his hands for which he became liable to the assignor. The as- signor loses his interest in, and dominion over, the fund assigned, and the assignment is subject to no other equities than such as the holder of the fund may have against the assignor at the time of the assignment.* Bates v. Salt Springs Nat. Bank, 157 N. Y. 322; Brill v. Tuttle, 81 N. Y. 454; Lauer v. Dunn, 115 N. Y. 405 ; McGorhle v. Herrman, 117 ]Sr. Y. 297 ; Stevens v. Ogden, 130 IST. Y. -182 ; Beardsley v. Cook, 143 ISr. Y. 143 ; Pierce v. Devlin, 22 IST. Y. Supp. 208. a. In the absence of any prohibitive statute, therefore, it was possible for the contractor, if he chose, to defeat every lien filed against the land. It was possible for him to prefer any creditor by giving him an order on the owner for any sum due or to grow due under the contract. The contractor might borrow money with which to perform, his contract and then secure his creditor by assigning to him all moneys due and to grow due under the contract, and when such as- signment or order was served upon the owner it operated as an equitable assignment of the fund. As the contractor had, after his assignment, no longer any interest in the fund assigned, and as lienors could have no greater rights in the fund than the contractor has when liens are filed, they could not reach the fund in an action to enforce liens filed subse- quent to the assignment and notice thereof to the ovraer. Even a refusal of the owner to accept an order drawn upon him by the contractor would not defeat the assignment, Notice to the owner of the assignment, whether he accepts it or not, will be sufficient to bind the funds in his hands or moneys which may thereafter become due from him under the contract. Lauer v. Dunn, 115 N. Y. 405 ; Williams v. Edison Electric Co., 16 IST. Y. Supp. 857. b. Even if the contractor, after assigning funds due or to grow due to him under a building contract, subsequently abandons the contract and the owner chooses to complete the work as agent of the contractor, the default of the contractor in failing to complete will not defeat the equitable assign- ment if a fund remains in the hands of the owner to which the assignment can attach. Bates v. Salt Springs Nat. Bank, 157 ]Sr. Y. 322. c. In consequence of this rule of law applicable to equita- ble assignments there was, prior to May 27, 1896, no law Equitable Assignments. 233 to prevent liens from being defeated by persons holding prior orders or assignments from the contractor. Consequently, when liens were sought to be foreclosed, they were often de- feated by such orders and assignments, which the lienors, as a rule, never heard of till the answers in the foreclosure suits were interposed. 3. Equitable assignments — Law of 1896. — In order to protect the laborer and materialman against these concealed defenses to his lien, the legislature, in 1896, amended sec- tion 5 of the Lien Law of 1885 (Laws 1885, chap. 342) so as to provide that orders drawn upon the owner by the contractor or assignments of the fund by the contractor should have no force or validity until they had been duly filed in the office of the clerk of the county wherein the premises upon which the work was being done were situated, and that such orders and assignments should take effect only from the time of such filing (Laws 1896, chap. 915). a. This wholesome rule has also been incorporated in sec- tion 15 of the Lien Law of 1897. The facts relating to such assignments or orders shall be entered by the clerk in the " lien docket " or other book provided by him for that pur- pose. The papers now required to be filed are the contract, or a statement containing its substance, and the assignment or a copy of each, or a copy of the order drawn on the owner or holder of the fund. L Law as to Equitable Assignments. h. The provision applicable to the filing of assignments and orders drawn by the contractor has been in the statute since May 27, 1896, when chapter 915 of the laws of that year became operative. All subsequent decisions, therefore, under the Lien Law of 1885 are applicable under the Lien Law of 1897. c. A contract contained a provision that no payments should be made under it until the contractors shall have ob- tained a certificate from the county clerk showing that at the date of payment " no liens or claims have been recorded or filed against the premises which are then unsatisfied of record." Before any work had been performed under it, the contractors assigned to the Salt Springs Bank the last 234 LiEJsr Laav — Autiole II, Sec. 15. payment due under the contract as security for existing and future indebtedness of the assignors to the bank. It was claimed that the clause requiring payment of all liens inured to the benefit of subsequent lienors, and that such liens ac- quired a preference over the assignment ; but the court hold that the clause in question was for the benefit of the owner alone, and that the assignment carried all interest of the as- signors in the fund assigTied and gave the assignee a prefer- ence over subsequent lienors. Bates v. Salt Springs Nat. Banh, 157 N. Y. 322. d. But where a final payment to become due under a con- tract has been assigned, if the contractor does not complete the work and never becomes entitled to the final payment, his assignee stands in no better position than his assignor. It is incumbent on the assignee, therefore, to show perform- ance by his assignor to entitle the assignor to the payment of the fund assigned, and the burden of proof is on the holder of the assignment. Beardsley v. Co'oh, 143 N. Y. 144; Smyth V. Marsich, 4 App. Div. 171. e. The owner has a right to contest the claim that the as- signor has performed if it be a fact that there was nothing due from him to the assignor. When the claim that money is due the assignor is denied, it is error to exclude evidence of the owner tending to show, that nothing was due. Law- rence V. Phipps, 67 Hun, 61; s. c, 22 IST. Y. Supp. 16. 4. Equitable assignment not in writing. — It was held prior to the amendment of 1896 (Laws 1896, chap. 915), amending Lien Law of 1885, § 5, and as now embraced in the Lien Law of 1897, § 15, that an equitable assignment could be created by parol if it was based on a valuable con- sideration, which had been fully executed, nnd that such an assignment took precedence over a subsequent written as- signment. The consideration for the assignment was that the assignee would indorse notes given by the contractor in payment for materials, and it was verbally agreed that in consideration of such indorsements the party indorsing should be reimbursed from moneys due and to grow due on the contract. Yorhe v. Conde, 61 Hun, 26. _ a. The Lien Law of 1897, § 15, now provides that no as- signment of a contract or moneys due or to become due under Equitable Assignments. 235 it, or an order drawn on the fund due or to gTow due shall be valid until the contract or order or copies shall be filed in the proper county clerk's office. As the validit}- of an equitable assignment is now made to depend upon a written instrument, which must be filed as a condition precedent, an assignment resting upon a verbal agreement, although the consideration to support it has .been fully perfonned and executed, can no longer prevail, unless the agreement or its substance shall be reduced to writing and filed pursuant to tbe statute. 5. Equitable assignment — Consideration. — ^The presence of a valuable consideration is an essential element to sustain an equitable assignment. The holder of the assignment from the contractor or of an order drawn upon the fund must be a holder for value. He then stands in the position of a vigi- lant creditor who has taken the precaution to take security for the moneys due him by the contractor. The fact that the holder of such an assignment has parted with a valuable consideration distinguishes him from a general assignee of the contractor for the benefit of creditors. The latter merely stands in the place of the assignor. He is not a creditor of the assignor, but a trustee, holding the assets of the insolvent assignor for the benefit of all of his creditors, and he takes the assets of his assignor, subject to every claim and every equity existing against the assignor. Kane Co. v. Kinney, 174 isr. Y. 69. a. In the absence of a valuable consideration to support it, the alleged equitable assignment fails, and if such con- sideration is not alleged in the complaint or proved upon the trial the equitable assignment cannot be sustained. Shaw v. Tonus. 20 App. Div. 39. 6. Equitable assignment — Demand — Waiver. — The es- sential elements to support an equitable assignment are valu- able consideration and notice to the holder of the fund. The assignment binds the fund on notice to the holder, no matter whether such holder accepts the assignment or not. Such assignee does not lose his right to the fund merely because he fails to make a demand for payment upon the holder, when the money becomes due. Such failure does not con- stitute a waiver of the assignee's right to tie fimd, and he 236 Lien- Law — Auticle II, Sec. 15. is entitled to recover, in tlie absence of such demand. White V. Livingston, 69 App. Div. 361. a. If the holder of an equitable assignment gives notice to the owner,' and in addition asks the owner to accept the assignment or order in writing, and the latter modifies his acceptance by making payment from him conditional upon completion of the work and the assignee consents to the modi- fied acceptance, he is bound by it and must accept payments on conditions as modified. Lawrence v. Phipps, 67 Hun, 61; s. c, 22 ]Sr. T. Supp. 16. ' 7. Equitable assignment — Form. — The form of an equi- table assignment or of an order drawn upon a fimd due or to grow due from an owner is not material and no particular form is prescribed by statute. It must not be general in terms, but must be drawn upon a particular fund or upon a particular contract. In the case of Lauer v. Dunn, 115 N. Y. 405, the order was drawn by the contractor in favor of subcontractors and was addressed to the owner, Mr. Dunn. It was in the briefest possible form. It did not specify the contract by date, but the presumption is that Mr. Dunn had made but one contract with Mr. Herle, the general contrac- tor, and his direction to the holder of the fund to " charge to contract " was held sufficient. The order is as follows : " Rochester, N. Y., April 18, 1888. ''Mr. B. Dunn: "Please pay A. E. Lauer & Co., seven hundred dollars, and charge to contract and oblige " WILLIAM HERLE." The fund or the contract upon which the order is drawn must be specified. a. An order, as follows : " Please pay to the order of Mar- tin McDonald $119.73 and charge same to my account" is not sufficiently definite, as it 'refers to no particular fund or contract. An order to " charge the same to my account of contract " would be sustained. McDonald v. Village of Ballston, 34 Misc. 946. And see Kennedy v. McKone, 10 App. Div. 88. h. It is essential only that the assignment or order shall designate a particular fund or shall clearly identify the par- ticular contract. It must also be definite and certain as to Orders on Contractor. 23T amount. See also Hirschfield v. Ltudwig, 69 Hun, 554;: Hondorf v. Atwater, 75 Hun, 369 ; Hurd v. Johnson Park- Investment Co., 13 Misc. 643 ; Spicer v. Snyder, 21 IST. T. Supp. 157; s. c, 34 St. Eep. 376; Gunther v. Darmstadt^ 14 Daly, 368 ; Mayer v. Killilea, 63 App. Div. 318. 8. Equitable assignment — Orders must be filed with county clerk. — Subcontractors who were employed by Grissler & .Son, who were also subcontractors, refused to perform their contract until they received a written order on the contractors. Such order and its acceptance by the- contractor is as follows: " Mess. W. & J. Sloane, "Broadway & 19th St., " New York City. " Gentlemen: We beg to advise you that we have sublet part of the work for the St. Kegis Hotel, covered by our contract with you, to R. Hilbrandt for the amount $37,000 for French Walnut rooms and Doors- throughout at $33 each. " We hereby authorize you to deduct from the payments that may become due us under our contract with you, such amount as R. Hilbrandt may have earned under their contract with us and to pay such amounts direct to him from time to time. " We further authorize you to retain at all times, out of amounts that may be due us, sufficient money to protect you aginat any claims that may arise out of the contracts of Hilbrandt with us. " GRISSLER & SONS." Contractors sent to E. Hilbrandt the following letter: "Dear Sir: " Referring to your contract with Messrs. Grissler & Sons for work to be done in the Hotel St. Regis, we hereby agree to pay to you direct such sums as you may be entitled to for Messrs. Grissler & Sons cover- ing the work which they have contracted to do for us. " Yours truly, " W. & J. SLOANE." a. Neither this letter nor the acceptance by the contractor was filed in the office of the county clerk. Held, that the letters did not constitute an absolute promise on the part of the contractor to pay money to the subcontractor. They merely agreed to retain and devote to the payment of these subcontractors the amount which they might earn in per- forming their contract with Grissler & Sons. It constituted merely an equitable assignment of a fund for the payment of subcontractors when their work should be completed under 238 Lien Law — Article II, Sec. 15. the contract with Grrissler & Sons. Section 15 of the Lien Law requires such an assignment to be filed as required by the statute before it can become operative as against subse- quent liens. Any owner or contractor may make a contract to pay for the work or improvement in advance, or at stated times during the progress of the work,* and he may make such payments when they become due, unless in the mean- time a notice of lien has been filed. Section 15 provides that if there is any assignment of the contract or moneys due or to become due under it, notice of that fact shall be given by filing the contract, or order. That the letter and acceptance did not operate as a payment of sums due under the contract or subcontract, but constituted an equitable assignment only, and not having been filed with the county clerk they did not defeat the rights of the plaintiff under the Lien Law. Van Kannell Revolving Door Co. v. Astor, 119 App. Div. 214', 104 ]Sr. Y. Supp. 653. b. If the assignment or order drawn on the fund, or copies thereof, are not filed in the proper county clerk's office, as required by section 15 of the Lien Law, such assignment or order is void as to subcontractors and lienors. Riley v. Ken- ney, 33 Misc. 384. c. If the assignment is made or the order drawn on the fund by the contractor after the contract has been completed, but before liens are filed, the order will take priority over the liens subsequently filed, although the money was due on the contract and could have been reached by the subcon- tractor if his lien had been filed before the order was given. Bradley Currier Co. v. Ward, 15 App. Div. 386. d. If the owner accepts and pays an order drawn upon funds in his hands by the contractor, and the order or a copy of it has not been filed in the proper county clerk's office, the order is void as to subsequent contractors and lienors, and the owner is not protected by reason of such payment. Kenyan v. Wfdsh, 31 Misc. 634. 9. Equitable assignment — Order — Payment by owner. — Section 15 of the Lien Law declares that an assignment of the contract or the moneys due thereunder, or some part therepf, or an order drawn by a contractor upon the owner shall not be valid " until the contract or a statement contain- Oedek — Payment by Owwee. 239 ing the substance thereof, and such assignment or a copy of each or a copy of such order be filed " in a proper county clerk's office. The Court of Appeals has held that this pro- vision of the statute does not hinder or enibarrass an owner ■who in good faith makes a payment to a subcontractor pur- suant to an order drawn by a contractor before the filing of liens. Harvey v. Brewer, 178 !N". Y. 5. a. In the case cited, the Van Brunt Plumbing Company, on March 23, 1901, filed a lien upon premises owned by Dr. Brewer for plumbing work done under a contract with one iConklin, a contractor. In order to secure an immediate satisfaction and discharge of the lien, the contractor Conklin "wrote a letter to Dr. Brewer requesting him to pay to the Van Brunt Plumbing Company the sum due it, and for which its lien had been filed, and requested him to deduct the sum from the last payment to Conklin on the contract price. Dr. Brewer accepted this order on the 3d day of April, 1901, and promised in writing to pay the Van Brunt Plumbing Company such sum. Upon the receipt of this promise, the agent of the company indorsed upon the back of it, the following: "Accepted, April 3, 1901, Van Brunt Plumbing Company, per writer." Nine days thereafter the Van Brunt Plumbing Company in consideration thereof sat- isfied the lien which it had filed. The owner thereafter on the 19th day of June paid the amount of the lien, $673, to the Van Brunt Plumbing Company. A month and eight days after the plumbing company had discharged its lien, a number of other liens were filed. An action was brought to foreclose the first of these subsequent liens. The balance due by the owner was not sufiicient to satisfy the lien of the appellant, Harvey. For this reason the appellant claimed that the owner, Dr. Brewer, was not entitled to be credited with the sum of $673, paid to the plumbing company. The referee who tried the case, held that the transaction between the contractor Conklin, Dr. Brewer, the owner, and the Van Brunt Plumbing Company, the subcontractor, amounted to a payment of $673 due the plumbing company upon the lien filed by it nearly two months before the appellant's lien was filed. The Court of Appeals sustained this ruling, hold- ing that the owner made the payment in good faith, to dis- charge a valid lien, and that the order drawn by the con- tractor upon the owner should be treated as a payment, and 240 Lien Law — Article II, Sec. 15. that tlie failure to file the order with the county clerk did not invalidate the payment. 6. Paekee^ C. J., on this point says : " A valid lien having been acquired by the Van Brunt Plumbing Company for $673 due to it, Conklin, the contractor, in order to secure an immediate satisfaction and discharge of the lien, gave to the company an order upon Dr. Brewer, the owner, for the amount due, which he at once accepted, and promised in writing to pay. That promise the Van Brunt Plumbing Company accepted in satisfaction of their lien, which was thereupon discharged of record. All this transpired before the filing of appellant's lien, and constituted a payment by the owner on account of the sum due under the contract with Conklin, for when the Van Brunt Plumbing Company accepted Dr. Brewer's written promise to pay the order drawn on him by Conklin, and discharged the lien of record, the legal effect of the transaction was, as against the con- tractor and subsequent lienors, precisely as if Dr. Brewer had immediately paid to Van Brunt Plumbing Company the amount due to it and specified in the order of Conklin." Harvey v. Brewer, 1Y8 N. Y. 5. c. See also as to effect of an order given by the contractor on the owner directing the latter to deduct moneys from spe- cific installments due the contractor as the work progressed. Garden City Co. v. Schnugg, 39 Misc. 840; s. c, 81 IS. Y. Supp. 496. 10. Equitable assignment — Acceptance by owner, when not essential. — An order given by a contractor upon the ovraer, in favor of a subcontractor, directing the owner to pay the subcontractor specific sums then due the subcontrac- tor for plastering and extra work, will operate as an equita- ble assignment of the fund as between the subcontractor and an assignee of the contractor for the benefit of creditors, although the contractor made such general assignment before the orders were accepted by the owner, and before the orders were filed in the office of the county clerk. Armstrong v. Chisolm, 99 App. Div. 465. The court assumed, but did not decide, that the filing of the orders with the county clerk were essential to render them valid, as against the contractor, or his assignee for the Equitable Lien. 241 benefit of creditors, yet the assignee took subject to the right of the payee named in the orders to file them, and thus perfect his title to the fund. Z&. 11. Equitable lien for moneys advanced. — The Lien Law does not permit a lien to be filed except for work done or material furnished under contract for the improvement of real property or for construction of a public improvement. A lien, therefore, which was filed for work done and ma- terials furnished and was for moneys loaned and advanced to contractors to enable them to perform their contract, is good only as to the work done and materials furnished, and invalid as to the claim for moneys loaned oo* advanced to the contractors. "Where it appeared that the money ad- vanced was paid to the contractors by the plaintiff, on their agreement to assign their contract, or the profits thereof, to the plaintiff, to reimburse him for the advances, and there- after refused to do so, the Court of Appeals invoked the doctrine of an equitable assignment to protect plaintiff for the moneys so advanced by him to the contractors. It was held that an equitable lien was created upon the fund due from the city to the contractors in favor of the plaintiff. The court held that the contractors should have made the assignment to plaintiff as agreed, and invoked the doctrine that equity would regard that as done which ought to have been done, and as plaintiff was entitled to a personal judg- ment against the contractors for the moneys advanced by him, the court decreed that this debt created an equitable lien upon the moneys due from the city to the contractors, and gave judgment in plaintiff's favor accordingly. Uvalde A. Paving Co. v. City of New York, 191 IST. Y. 244. 12. Equitable assignment — Existing equities. — One who takes an assignment of a claim or cause of action takes it subject to all equities or defenses existing between the origi- nal parties at the time of the assignment; but it does not follow that he takes it subject to any equity that may subse- quently arise between them upon new and independent con- tracts, though they may relate to the same subject-matter. A defense or counterclaim arising against a contractor upon a new contract, after the assignment of a prior contract, though both contracts relate to the same subject-matter, is 16 24:3 LiEW Law — Aetiole II, Sec. 15. not available as against the assignee. Lawrence v. Congre- gational Church, 164 IST. Y. 115. Compare Cody v. Turn, Verein, 48 App. Div. 279. 13. Assignment for the benefit of creditors. — The au- thorities referred to under the head of " equitable assign- ments " hold that the holder for value of such an assignment or of an order drawn on the fund which has been properly filed shall have priority over the claims of subsequent lien- ors. So long as a contractor remains solvent he may, for a valuable consideration, make an equitable assignment, and thus create a preference in favor of the creditor taking the same. The statute in like manner protects lienors in case the owner becomes insolvent, and makes a general assign- ment for the benefit of creditors, and provides (§§4 and 13) that one who has performed labor or furnished materials may, within thirty days after such assignment, file his lien therefor, which is given proirity over such assignment. But the statute is silent as to the effect of a general assignment for the benefit of creditors made by an insolvent contractor, and as to the rights of such assignee with regard to those who have performed labor or furnished materials under con- tracts with the insolvent contractor. The courts, however, in order to protect the class of creditors who have performed such labor or furnished such materials, as against the general creditors of the contractor, have invoked in their behalf the doctrine of an equitable lien upon the funds due or earned by the insolvent contractor, or to grow due under his con- tract, if completed by the assignee or subcontractors. a. A general assignee of an insolvent contractor does not stand upon the same plane as an assignee under an equita- ble assignment who holds the moneys assigned to him by the contractor for value; nor does he stand upon the same foot- ing as a vigilant creditor who has lawfully secured a specific lien upon the fund. A general assignee for the benefit of creditors of an insolvent contractor stands in the place of his assignor, and takes the fund assigned subject to every equity and claim that might have been asserted by third par- ties. He is not a creditor of his assignor. The title of such assignee is subject to liens filed by laborers, mechanics, ma- terialmen, or subcontractors subsequent to the assignment, but within the ninety days given them under the Lien Law Equitable Lien. 243 within whicli they have a statutory right to file their liens. Kane Co. v. Kinney, 174 N. Y. 69. See also Reading Hard- ware Go. V. City of New York, 27 App. Div. 448. 6. The object of the Lien Law is to protect those who, with the consent of the owner, enhance the value of real property by furnishing labor or materials to the extent of the value thereof. A period of ninety days is allowed within which a lien for such labor and materials may be asserted or lost. " During that period," says Judge O'Bkien, in Kane Co. v. Kinney, 174 N. Y. 69, " there is a preferential statutory right in the nature of an unperfected equitable lien " in favor of the laborer, materialman, or subcontractor. Until that time has expired, such right cannot be defeated by the voluntary act of the party against whom it might be asserted, such as a general assignment for the benefit of creditors. Ih. c. The result of this construction is to protect subcontrac- tors and materialmen after the general contractor becomes insolvent, and to give them an equitable lien upon moneys due and earned or to grow due under the general contract, in case it is completed by the owner, or by the assignee of the insolvent contractor, and to exclude the insolvent con- tractor's general creditors from participation in such fund. 14. Equitable lien. — This general doctrine of an equitable lien has also been successfully invoked as between principal and agent. If it be shown that the insolvency or irrespon- sibility of the principal would defeat the right of an agent to his disbursements, equity will raise in the agent's favor a lien upon the fund for his protection. If payment to the principal required the funds to be sent abroad, beyond the jurisdiction, equity will interpose and raise a lien upon the funds to protect the agent in like manner. Underhill v. Jordan, 72 App. Div. 71. a. Other illustrations of the doctrine of an equitable lien will be found in the cases of Payne v. Wilson, 74 'N. Y. 348 ; Hamilton Trust Co. v. Clemes, 163 N. Y. 423. 6. A vendee in possession, under a contract of sale from one tenant in common, who concealed the fact that he did not control an outstanding one-eighth interest of his coten- 244; LiEK Law — Article II, Sec. 15. ant, made improvements, and thereafter his vendor failed to convey a good title, as the one-eighth interest outstanding and the property was then sold in partition. The vendee claimed an equtable lien on the proceeds for his improve- ments. Held, that where one tenant in common expects to be able on a sale to control the title and expends money on improvements not necessary to preserve the property, other owners who do not consent to the same, and are not guilty of any concealment, cannot, by a claim of an equitable lien, be deprived of what they would have obtained had no such improvements been made. The party making such improve- ments must pursue his remedy at law against the parties liable for the concealment. Ryder v. Cobum, 47 App. Div. 182. 15. Judgment creditor's lien. — The commencement of an action by a judgment creditor gives him a specific Hen, pro- vided an execution has been issued on the judgment and returned unsatisfied, and when a lis pendens is filed the filing of the bill operates as an attachment of the property which cannot be levied on at law. Such a lien is within the purview of the clause in section 1268 of the Code of Civil Procedure, which being enacted in furtherance of the bankrupt act, should be construed in harmony with the pol- icy thereof. The liens that are preserved, unaffected by the bankruptcy proceedings, include all which are recognized by State laws. It is immaterial whether they be statutory, or based on usage and custom, or whether they be legal or equitable. Where a judgment creditor brings an action and files a notice of pendency of action before the debt has been discharged on the application of the bankrupt, an order made on a motion by the bankrupt to cancel the judgment should provide that the judgment should be allowed to stand for the purpose of enforcing any lien created by it, upon real estate owned by tlie bankrupt. Arnold v. Treviranus, 78 App. Div. 589. See also Nat. Union Bank v. Riger, 3S App. Div. 123, Assignment — Municipal Contetact. 24'5 § 16. Assignment of contracts and orders for public improvement to be filed. — No assignment of a contract for the performance of labor or tbe furnishing of ma- terials for a public improvement, or of the money, or any part thereof, due, or to become due, therefor, nor an order drawn by the contractor or sub-contractor npon the municipal corporation, or the head of the de- partment or bureau having charge of the construction of such public improvement, or the financial officer of the municipal corporation, or other officer or person charged with the custody and disbursement of the cor- porate funds applicable to the contract for such public improvement, shall be valid until such assignment or order, or a copy thereof, be filed with the head of the department or bureau having charge of such construc- tion, and with the financial officer of the municipal cor- poration or other officer or person charged with the custody and disbursement of the corporate funds ap- plicable to the contract for such public improvement, and such assignment or order shall have effect and be enforceable from the time of such filing. The financial officer of the municipal corporation, or other officer or person with whom the assignment or order, or copy thereof, is filed, shall enter the facts relating to the same in the lien book or other book provided for such purpose. Lien Law of 1897, § 15a, re-enacted as § 16, Laws 1909, chap. 38. The above section was repealed June 26, 1911, by chap. 450, Laws 1911. It was re-enacted without change on Octo- ber 6, 1911, by chap. 873, laws of that year. 1. Assignment of municipal contracts. — Prior to the 22d day of July. 1907, the law which sought to limit the power of a contractor to assign or sublet or otherwise dispose of his contract with a municipal corporation, was contained in Laws 1897, chapter 444. Under that statute, it was held in Brace v. City of Gloversville, 167 N. Y. 452, that the stat- 246 Lien Law — Aeticle II, Sec. 16. lite was not broad enough to prevent a contractor from nego- tiating an order drawn by him against moneys due or to grow due under his contract. In view of this ruling, the legislature in 1907 (Laws 1907, chap. 692) amended the Lien Law by adding a new section designated 15-a, which ■declared that no assignment of moneys due or to grow due under a municipal contract should be valid until such as- signment, order or copy thereof had been filed with the proper department or bureau having charge of the construction of the work and with the financial ofiicer of the municipal cor- poration, having the custody and disbursement of corporate funds. This section of the Lien Law was re-enacted in 1909 (Laws 1909, chap. 38), as section 16 of the Lien Law. In addition to this provision requiring all assignments under municipal contracts to be filed, chapter 444 of the Laws of 1897 were incorporated in the General Municipal Law (Laws 1909, chap. 29) as section 86, which requires a municipal corporation to insert in every contract a clause prohibiting any contractor from assigning, conveying or subletting or otherwise disposing of his contract without the previous con- sent in writing of the department or official awarding the same. This provision of the General Municipal Law, now known as chapter 24 of the Consolidated Laws, provides as follows : § 86. Contractors not to assign contracts with municipality without its consent. — A clause shall be inserted in all specifications or contracts hereafter made or awarded hy any municipal corporation, or any pub- lic department or official thereof, prohibiting any contractor, to whom any contract shall be let, granted or awarded, as required by law, from assigning, transferring, conveying, subletting or otherwise disposing of the same, or of his right, title or interest therein, or his power to exe- cute such contract to any other person, company or corporation, without the previous consent in writing of the department or official awarding the same. If any contractor, to whom any contract is hereafter let, granted or awarded, as required by law, by any municipal corporation in the state, or by any public department or official thereof, shall, without the pre- vious written consent specified in the first paragraph of this section, assign, transfer, convey, sublet or otherwise dispose of the same, or his right, title or interest therein, or his power to execute such contract, to any other person, company or other corporation, the municipal cor- poration, public department, or official as the case may be, which let, made, granted or awarded said contract shall revoke and annul such contract, and the municipal corporation, public department or officer, as the case may be, shall be relieved and discharged from any and all liability and obligations growing out of said contract to such con- Assignment — Wheke Eiled. 247 tractor, and to the person, company, or corporation to ■whom he shall assign, transfer, convey, sublet or otherwise dispose of the same, and said contractor, and his assignee, transferee, or sub-lessee, shall forfeit and lose all moneys, theretofore earned under said contract except so much as may be required to pay his employees; provided, that nothing herein contained shall be construed to hinder, prevent or affect an as- signment by such contractor for the benefit of his creditors, made pur- suant to the statute of this state. 2. Assignment of municipal contract — Where filed. — The provisions of the Lien Law under sections 15 and 16 with respect to the assignment of building contracts for money due or to grow due thereon, are inconsistent. Under section 15 the assignment of such contract must be filed in the office of the county clerk, as well as with the chief fiscal officer of the municipal corporation, whereas under section 16 it is suffi- cient if the assignment be filed with the head of the depart- ment or bureau havitig charge of the work and with the finan- cial officer of the municipal corporation charged with the custody and disbursement of the corporate funds applicable to the contract. It follows therefore that the assignment of a contract for money due or to grow due from a municipal cor- poration, should be filed with the head of the department or bureau having charge of the work and with the financial officer of the municipal corporation charged with the custody and disbursement of corporate funds, and such assignment need not be filed in the office of the county clerk as required by section 15 of the Lien Law. Section 16 completely covers the whole subject of assignments of contracts, of municipal corporations and the money due or to grow thereon. Con- tractor's Supply Co. V. City of New York, 153 App. Div. 60. 3. Equitable assignment — Municipal contracts. — The right of a contractor to create an equitable assignment in favor of a creditor for a valuable consideration is not confined to contracts or moneys due or to grow due thereon between private individuals or corporations with respect to private property. It includes also contracts with municipal corpora- tions with regard to public improvements and moneys due and to grow due thereon. The subject of such an assignment may embrace not only moneys due or to grow due on the con- trast, biit also choses in action and agreements to secure con- tracts in future or rights under such agreements. Brace v. 248 Lien Law — Article IL, Sec. 16. City of Gloversville, 167 E". Y. 452 ; McKay v. City of New York, 46 App. Div. 579; Furtunato v. Patten, 147 N". Y. 277; Hackett v. Campbell, 10 App. Div. 523, affirmed, 159 K Y. 537 ; Pierce v. Devlin, 22 N. Y. Supp. 208 ; Hall v. City of New York, 79 App. Div. 102. a. Prior to the enactment of seetioft 16 of the Lien Law, the legislature sought to limit the power of a contractor to dispose of a contract with a municipal corporation or from " assigning, transferring, conveying, sub-letting," or other- wise disposing of the contract, or of his right, title, or inter- est therein, without the previous consent in writing of the department or official awarding the same. (Laws 1897, chap. 444.) h. The Court of Appeals, in construing this statute, held that it did not prevent a contractor from jiegotiating an order drawn by him against moneys due or to grow due under his contract, assigning as a reason that the negotiation of such an order might secure to the contractor the means of carrying out his contract, and that the act of the contractor in so doing was not repugnant to the statute in question (Laws 1897, chap. 444). Brace v. City of Gloversville, 167 N. Y. 452. c. The court held, further, that where a contractor had drawn and delivered such an order, the filing of the order would be sufficient without filing also a copy of the contract. lb. d. Municipal authorities, likewise, have sought to prevent principal contractors from assigning the contract or moneys due or to grow due thereunder without the consent of the proper agent of the municipality. In order to accomplish this result they frequently insert a clause to that effect in the agreement which the contractor is called upon to execute. e. A municipal contract contained a provision that it should not be assigned without the previous written consent of the commissioner of public works, or his successor, and provided further that the contractor should not assign " any of the money payable under this contract," except upon writ- ten consent of the commissioner. It was claimed that the city had been guilty of a breach of the contract. The court held that the contractor was not precluded from assigning Equitable Assignment — Municipal Conteacts. 249 r moneys which were due on his contract after performance, as such an assignment was not an assignment of the contract, within the meaning of its provisions, and, in any event, the city having violated the terms of the contract, the contractor was no longer hound by it and had a right to assign the moneys earned by him thereunder ; and also damages for the breach. Snyder v. City of New YorTc, 74 App. Div. 421. f. The same rule applies to an equitable assignment under a municipal contract as to one under a contract relating to private property as to a claim of priority over subsequent lienors, and gives the holder of the equitable assignment for value precedence. g. A contractor assigned to a bank certificates of payment under his contract as collateral for moneys loaned. The contract provided that prior to making any payments for which the certificates were issued, the contractor should fur- nish a county clerk's certificate showing that no liens were filed. Held, following Bates v. Salt Springs Nat. Bank, 157 N. Y. 322, that the assignee took title to the moneys assigned over subsequent lienors, who could reach only the interest remaining in the contractor. Hall v. City of New York, 79 App. Div. 102. 250 LiEif Law — Article H, Sec. 17. § 17. Duration of lien. — No lien specified in this arti- cle shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of the parties to the action, the object of the action, a brief description of the real property affected thereby, and the time of filing the notice of lien; or unless an order be granted within one year from the filing of such notice by a court of record, continuing such lien, and such lien shall be redocketed as of the date of granting such order and a statement made that such lien is continued by virtue of such order. No lien shall be continued by such order for more than one year from the grant- ing thereof, but a new order and entry may be made in each successive year. If a lienor is made a party de- fendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such defendant is thereby con- tinued. Such action shall be deemed an action to en- force the lien of such defendant lienor. The failure to file a notice of pendency of action shall not abate the action as to any person liable for the payment of the debt specified in the notice of lien, and the action may be prosecuted to judgment against such person. 1. Duration of lien. — The foregoing section is a sub- stantial re-enactment of the Lien Law of 1885 (Laws 1885, chap. 342, § 6). The Lien Law of 1897, however, declares that a lis pendens must be filed when an action is- begun to enforce a lien in a court not of record. In every action to enforce a lien, a lis pendens must now be filed in the county clerk's office in the county where the land affected thereby is Duration op Lien. . 251 situated. If no lis pendens is filed, and the action is not tried until after the expiration of one year from the time of filing of the notice of lien, the lien will expire, unless an order ex- tending it within the year has been made. Matter of Catta- bery v. Knox, 17 App. Div. 372 ; Prior v. White, 32 Hun, 14; Welsh v. The Mayor, 19 Abb. Pr. 132. See also "Lis Pendens," infra. a. Section 17 of the Lien Law, with regard to limitation and expiration of mechanics' liens must be read in connection with section 19 (formerly section 18 of the Lien Law), with regard to the discharge of such liens. The limitation of a lien filed under the statute is one year, except a municipal lien, which expires in three months under section 21 (form- erly section 20 of the Lien Law). See section 19, subdivision 2, and the authorities cited under that section. The limita- tion of one year is declared in both sections 17 and 19 of the Lien Law. 2. Duration of lien — Limitation of action. — Section 17 of the Lien Law declares that no lien shall continue " for a longer period than one year after the notice has been filed, unless within that time an action is commenced to foreclose the lien," and the notice of pendency of action is filed. The lien must be kept alive, however, in the mode prescribed by the above section by procuring an order within the year con- tinuing the lien. A new order and entry may be made in each succeeding year. It was held August 2, 1909, in Martin V. De Eoppet, 64 Misc. 385, that it was necessary not only to commence the action within the year, but to serve all the various defendants within that time in order to maintain the action. In that case the court observed that " if it was im- possible to complete service within the year an order could have been obtained continuing the lien for one year, or the summons and complaint could have been delivered to the sheriff for service which could have constituted a commence- ment of the action within the meaning of section 399 of the Code of Civil Procedure." The court dismissed the com- plaint therefore, as to the plaintiff and all of the defendants, except those who vs^ere served with the summons and com- plaint before the expiration of the year. "All that is re- quired to save the lien is that the lienor be made a party to 252 Lien Law — Aeticle IL, Sec. 17. an action to foreclose it, and that the summons be served upon him before it expired. It does not require him how- ever at his peril to see that all the other defendants are served within that time." As to him the action is well be- gun. The court allowed the liens of the defendants who were served within the statutory period, and dismissed the complaint as to plaintiifs and the defendants who were not served in season. Martin v. De Eoppet, 64 Misc. 385 ; s. c, 118 ]Sr. Y. Supp. 523. a. The principle laid down in the above case was fol- lowed, Julv, 1915, in an action to foreclose a municipal lien. Furze v. City of New York, 154 N. Y. Supp. 912. b. The statute, however, does not preclude the commence- mence a new action for the same cause after the expiration limited to commence the first action in & case where the action was begun within the time and was not dismissed for neglect to prosecute or where there has been no final judg- ment on the merits. In such case the plaintiff may com- mence a new action for the same cause after the expiration of the time prescribed pursuant to § 405 of the Code of Civil Procedure, provided the second action is brought within one year after the determination or reversal of the first action. Connelly v. Eyames, 176 IST. Y. 403. c. An action to enforce a lien must be commenced within one year after the notice of lien has been filed, unless the time has been extended by an order as provided in section 16 (now section 17) of the Lien Law. Where such an order has been granted, the time to commence an action is thereby extended during the time granted by the order. If a lien survives the filing of an undertaking, an order of the court will operate to extend it. If no lien survives filing of an undertaking, then the limitation within which the action must be brought under sec. 16 (now sec. 17) has no appli- cation. Kelly V. Highland Construction Co., 133 App. Div. 579. d. "WTiere the order to continue the lien was made within the year but by a failure to pay the clerk's fees the clerk did not file the order and did not redocket the lien or make a statement in his books that the lien is continued by virtue of the order, the lien becomes inoperative. Manton v. BrooJclyn & Flatbush Realty Co., 160 App. Div. 783. WoEDS " Another Lien." 253 3. Duration of lien — Words " another lien " construed — Surplus money. — Where the lien expires or ceases to be a lien on the premises, at the time the premises are sold, under a judgment for the foreclosure of a mortgage thereon, there is no lien which can attach to the surplus money, in the foreclos- ure suit. The sale in foreclosure took place more than a year after the lien was filed. No order was obtained extending it, no action was begun to foreclose it, and the lienors were not made parties in an action to foreclose another mechanics lien on the same premises. The language in section 17 of the Lien Law declares that the lien shall be kept alive. " If a lienor is made a party defendant in an action 'to enforce another lien, and the plaintiff or some defendant has filed a notice of the pendency of the action within the time pre- scribed by this section the lien of such defendant is thereby continued. Held, that the words " another lien " in the sec- tion above referred to, means a lien provided for by the Lien Law, and not an action to foreclose a mortgage, although that in a sense is a lien upon the property. Filbrich &. Broiher v. Florio Co-Operative Assoc, 137 App. Div. 613. Compare Danziger v. Simonson, 116 N. Y. 329. See also authorities cited under § 17, post. 2. Duration of lien — Second action. — Section 16 of the Lien Law, which provides that an action to foreclose a me- chanic's lien must be brought within one year after the no- tice of lien has been filed, does not declare that if this is not done the lienor shall not maintain his action. Section 16 must be read, therefore, in conjunction with section 405 of the Code of Civil Procedure, which provides that if an action be commenced within the time limited therefor, and be terminated in any manner other than a voluntary discon- tinuance, a dismissal for neglect to prosecute, or final judg- ment on the merits, plaintiff may commence a new action for the same cause, after the expiration of the time limited, and within one year after the reversal or determination. Conolly V. Hyams, 176 N. Y. 403. a. In the case cited, plaintiff sued to enforce his lien on February 15, 1889, within the year, but the complaint was dismissed on the trial, for plaintiff's failure to produce the architect's certificate as required by the contract. Defend- 254 Lien Law — Aeticle TI, Sec. 17, ant's judgment dismissed the action " on the merits," but on appeal the words " on the merits " were stricken out, and as thus modified the judgment was aflBrmed by the Appellate, Division March 9, 1900. On March 15, 1900, plaintiff com- menced a second action to foreclose his lien, which was sus- tained. 84 App. Div. 641. Held, ^lo error. That as the Lien Law did not in terms forbid a second action, which was authorized by section 405 of the Code, plaintiff had saved his rights by bringing the first action within one year after filing his notice of lien, and as there was no adjudica- tion of that action " on the merits," the second action was properly brought within one year after the reversal or de- termination of the first action. Conolly v. Hyams, 176 ]Sr. Y. 403. 3. Municipal liens. — The law with respect to the duration of municipal liens is governed by § 21 of the Lien Law. In all cases in which liens are filed for work done upon public improvements, the lien will expire in three months, unless a lis pendens is filed, either with the State comptroller, if the work has been done for the State, or if the work has been done for a city, town, or village, with the financial officer of the municipal corporation with whom the notice of lien is filed. 3a. Municipal lien — Second action after three months. — It has been held that § 16 (now § 17) of the Lien Law, relating to liens on private property, must be read in con- nection with § 405 of the Code of Civil Procedure, which provides that if an action is commenced within the time lim- ited therefor, and is terminated in any manner, other than by voluntary discontinuance, or dismissal, or final judgment on the merits, a new action for the same cause may be com- menced after the expiration of the time limited, and within one year after the reversal. Conolly v. Hyams, 176 IN". Y. 403, supra. In view of the fact that the provisions of § 405 of the Code are general in their application, and § 21 of the Lien Law contains no prohibition, a second action to enforce a municipal lien, could be brought within the time limited, after the termination of the first action. [Abatement — Lis Pendens. 255 4. Abatement. — If after an action is begun to foreclose a lien, no lis pendens has been filed, and the statutory period of one year from the time of filing the lien has expired, and there has been no order continuing the lien, the action "will abate only in so far as relates to the foTeclosure of the lien. The language of section 17 preserves the action against the party liable for the debt, since the statute expressly declares that the failure to file the lis pendens shall not abate the action " as to any person liable for the payment of the debt," and the action " may be prosecuted to judgment against such person." a. Nor will the validity of the lien or the right to file it abate by reason of the death of the ovyner, and the lien may thereafter be filed and the action prosecuted against the heirs or legal representatives of the deceased owner. (Lien Law, §10.) h. If, after an action has been commenced to foreclose a lien, and after a lis pendens has been filed, the lien has been discharged by giving a bond or undertaking as required by the statute, the bond or undertaking will operate to abate the action in so far as the real estate is concerned, and the court, pursuant to section 1674 of the Code of Civil Pro- cedure, has power to cancel the lis pendens. Breen v. Len- non, 10 App. Div. 36. c. Section 1674 of the Code of Civil Procedure gives the court power to cancel a lis pendens " after the action is set- tled, discontinued, or abated," or final judgment has been rendered and the time within which to appeal has expired. The courts hold that as the undertaking discharges the realty, the action abates as to the land, although it continues for the purpose of reaching the bond which the statute has sub- stituted for the land. Ih. 5. Lis pendens. — When lienors are parties defendant in an action to foreclose a similar lien, in which plaintiff has filed a lis pendens, it is unnecessary for the defendant to bring an independent action, and it necessarily follows that it is not necessary for such defendant to file a lis pendens. Section 45 of the Lien Law gives the court power to " de- termine all issues raised by any defense or counterclaim in 256 Lien Law — Akticle II, Sec. 17, the action. Coleman & Krause v. Board of Education, IT Misc. 504. Compare Bradley & Sons v. Huher Co., 146 App. Div. 630 ; Martin v. De Coppet, 64 Misc. 385. See also Danziger v. Simonson, 116 IST. Y. 329. a. A municipal lien will expire within three months from the time of filing the notice of lien, unless an action is com- menced within that time and the notice of pendency of ac- tion is filed with the comptroller of the State or the financial officer of the municipal corporation with whom such notice of lien has been filed, or unless an order be made by a court of record continuing such lien, and a new docket made stating such facts. In an action to foreclose a municipal lien against the city of New York, it was held that such action is not begun until all of the defendants are served. " It may be conceded," says Geigerich, J., " that the lodg- ing with the sheriff of the summons upon several of the defendants followed by service upon them or their appear- ance within sixty days thereafter is sufiicient under section 399 of the Code of Civil Procedure so far as those defend- ants were concerned, but that does not help the plaintiff's case, because there were still other defendant lienors, who were not served until after the lien had expired." Furze v. City of New York, 154 N. Y. Supp. 912; Martin v. De Koppet, 64 Misc. 385 ; s. c, 118 K Y. Supp. 523. b. " The language of the statute," says McLaughlin, J., " makes a clear-cut distinction between liens upon private property, and liens upon funds accruing to contractors for a public improvement. Section 18 does not contain any pro- vision analogous to the provisions contained in section 17 of the Lien Law, and to read into it that provision is to enact a statute by judicial decree, instead of construing a statute which the legislature has made." Accordingly held that a municipal lien is not kept alive as to a defendant who neg- lects to file a lis pendens within three months or who fails to serve his answer on his co-defendants, within that time. Bradley & Son v. Huber Co., 146 App. Div. 630. But see Coleman & Krause v. Board of Education, 77 Misc. 504, and § 45 of the Lien Law. See also Danziger v. Simonson, 116 IT. Y. 329. c. An undertaking given to discharge a municipal lien, does not change the relation and rights of the parties other Lis Pendens. 257 than to sutstitute the pTovisions of the undertaking, for tha fund remaining due, or to become due, from the municipal- ity to the contractor. The statute does not purport to ex- tend the time within which an action to foreclose the lien must he commenced. A valid lien on the primary fund must be established to require payment pursuant to the terms of the undertaking. Where a lienor, therefore, failed to commence an action to enforce its lien within three months after filing the same, it can establish no lien on the primary fund, nor call on the contractor or his surety for payment of a judgment recovered in an action to enforce the lien. Berger Manufacturing Co. v. City of New York, 206 N". Y. 24; Willard Co. v. City of New York, 81 Misc. 48. d. "Where a plaintiff has commenced an action in season, and duly filed a lis pendens, and co-defendants, before the €xpiration of their liens, have interposed answers, it is not necessary for such defendants to commence further, and in- dependent actions to foreclose. The court may adjust the equities of all parties to the action, pursuant to § 45 of the Lien Law of 1909. Ih. e. The court, prior to Laws 1905, chapter 60, in effect September 1, 1905, had no general power to cancel a notice of pendency of action. Such power, in the absence of a statutory provision, could not be exercised ex parte, and the lien, in actions other than those to foreclose a mechanic's lien, could be canceled only upon notice, after the action had abated as to the land, or after the time within which to ap- peal from a final judgment in the action had expired, or upon consent of all parties to the action. Beman v. Todd, 124 K Y. 114. /. The authority of Beman v. Todd, however, does not apply to a mechanic's lien, for the reason that under sections 18 and 19 of the Lien Law, provision is made for the dis- charge of the lien, so that upon compliance with these sec- tions the lien abates as to the land and attaches to the fund, bond, or deposit. Madden v.- Lennon, 23 Misc. 179 ; Ward V. Kilpatrick, 85 N. Y. 413. g. By Laws 1905, chapter 60, in effect September 1, 1906, the provisions of section 1671 of the Code of Civil Procedure have been amended, giving the court general dis- 17 258 Lien Law — Aeticle IL Sbo. 17. cretionary power, " in any action other tkan an action to foreclose a mortgage, or for the partition of real property oi for dower," to cancel a lis pendens upon giving proper security by deposit or by giving an undertaking as provided in the section.* * Section 1671 of the Code of Civil Procedure, as amended by Laws 1905, chap. 60, ia as follows: § 1671. Effect of notice. — Where a notice of the pendency of an action may be filed, as prescribed- in the last section, the pendency of the action is constructive notice, from the time of so filing the notice only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed, as prescribed in the next section. A person, whose conveyance or incumbrance is subsequently executed, or subse- quently recorded, is bound by all proceedings taken in the action, after the filing of the notice, to the same extent as if he was a party to the action. In any action, other than an action to foreclose a mortgage or for the partition of real property or for dower, in which a notice of the pendency thereof has been filed, and in which it shall appear to the court upon a motion made i,s hereinafter provided, that adequate relief can be secured to the plaintiff by a deposit of money, or in the discre- tion of the court by the giving of an undertaking, as hereinafter pro- vided, where the cancellation of such notice is not otherwise expressly provided for or regulated, any defendant or any other person having an interest in the property affected by the action, may apply for the cancellation of such notice. Such application shall be by motion made in the action upon notice, to be directed and approved by the court, to all the parties to the action and to such other persons as the court may direct. If the court on the hearing of the motion shall decide that adequate relief can be secured to the plaintiff and that the case is one in which the judgment sought to be enforced against the real property mentioned in said notice of pendency of action may be secured by the deposit of the amount claimed or by the giving of an undertaking, the court may make an order directing that the applicant make a deposit in court of a sum of money, or in the discretion of the court, give an undertaking with at least two sufficient sureties for the payment of any amount which the party filing such notice of pendency of action, or any other party to the action claiming an interest or lien upon such real property may recover in the action, and will pay the judgment sought to be enforced against said real property, in the event that a final judgment shall be recovered therein and conditioned for the per- formance of such other terms as the court may direct, and that there- upon, and upon such other terms, if any, as the court shall deem equitable, an order be made canceling such notice of record. The sum required to be paid into court or the amount of the undertaking, shall be at least the amount claimed by the plaintiff or the value of the property affected by the action or the interest of the party filing such notice therein, with interest and costs, and if the court allow an undertaking to be given, a copy thereof with notice of filing of the same, shall be served upon the attorney for the plaintiff and upon Lis Pendejns. 25 & Ji. A notice of pendency of action operates to continue^ the lien until final judgment in the action. If the action is begun and the Us pendens is filed within one year from the time of filing the lien, such lis pendens operates to continue the original notice of lien, so that an order continuing the lien is not necessary. But the complaint must be filed at the time the lis pendens is filed. In other actions affecting real estate, the lis pendens may be filed when the complaint is filed or at any time thereafter, twenty days before final judgment. (Code Civ. Proc.,' § 1670.) But in an action to foreclose a mechanic's lien, if the complaint is not filed with the lis pendens or within the year from the time the lien is filed, the lis pendens becomes inoperative, the land is discharged, and the lien expires. Alhro v. Blume, 5 App. Div. 309. i. The fact that an action has been commenced to fore- close a mechanic's lien is not sufficient, without more, tO' con- tinue the lien after one year has expired from the time of filing. In order to prevent the statutory period from operat- ing to discharge the lien, plaintiff must, in addition to com- mencing the action, file a lis pendens. If no lis pendenf has been filed within a year from time of filing the lien, it will expire by limitation, although the summons in the action may have been served upon the defendant. Matter of Gab- ler, 57 Misc. 148, j. Under the Lien Law of 1885 (§ 6), in order to give the law such liberal construction as to preserve its beneficial interests, the court held, in a case where plaintiff filed his complaint in his action to foreclose the lien, but neglected to Buch other parties as the court may direct and notice of not less than two days of the justification of the sureties. Upon the deposit of the Bum required into court, or if an undertaking is given, upon the ap- proval of such undertaking by the court or a judge thereof and the compliance with such other terms as may have been imposed, the court may direct that the notice of pendency of action be canceled of record by a particular clerk or by all the clerks with whom it is filed and recorded, which cancellation must be made by a note to that eflFect, on the margin of the record, referring to the order. Unless the order is entered in the same clerk's office, a certified copy thereof must be filed therein, before the notice is canceled. After a notice of pendency of action has been canceled as herein provided, neither the proceedings in the action, nor any judgment which may be rendered therein, shall affect the real property described in any notice of pendency which has been canceled pursuant to the provisions of this section. 260 LiEW Law — Article II, Sec. 17, file a lis pendens, that the complaint was sufficient to pre- serve the lien, although no lis pendens had been filed. Wright V. Boherts. 8 K Y. Supp. 745, affirmed, 118 ]S^. Y. 672. h. The action must be begun and the lis pendens must be filed within the statutory period of one year from filing the notice of lien. After the year expires, *if no order has been made continuing the lien, it will be too late to begin an ac- tion and file a lis pendens.' Bowers v. N. Y. Christian Home, 64 How. Pr. 509-. I. A lis pendens is not essential to commence an action. A lien is foreclosed by a civil action and is begun by the service of a summons. Notice was served on the lienor to be- gin an action to foreclose within thirty days, as required by the Lien Law. (Code Civ. Procedure., § 3417.) Within the thirty days the action was begun by the service of a sum- mons. Held, sufficient to begin the action and that the lis pendens could be filed thereafter, if so filed within one year from the time of filing the notice of lien. Matter of Catta- ierry v. Knox, 17 App. Div. 372. m. A notice of lis pendens filed by the plaintiff preserves the liens of all other lienors who have been made parties to the action, and it will not be necessary for such defendant to file a lis pendens to preserve his lien. And section 16 of the Lien Law so specifically declares. The same rule was ap- plied to the Lien Law of 1885, although the provision of section 6 of that statute was not specific on the point. Mc- Allister V. Case, 5 N. Y. Supp. 600. n. The rule as to the rights of a defendant lienor who had not filed a lis pendens was not extended to persons per- forming labor or furnishing materials under a municipal contract. Danziger v. Simonson, 116 N. Y. 329. Compare Neuchatel Asphalt Co. v. The Mayor, 12 Misc. 26. 0. The office of a lis pendens is to give notice to all par- ties searching for liens against the realty. The object of the notice is to create or continue the lien upon the land. The statute prescribes that the land may be freed from the lien by giving a proper bond or undertaking. When this security has been approved and filed, the land is discharged and the lien is shifted to the bond or undertaking, which is substi- tuted for the realty. The action, to foreclose the lien, upon Lis Pendens. 261 giving a bond or undertaking, abates as to tbe land, and the court thereafter has power to cancel tbe lis pendens upon no- tice pursuant to section 1674 of the of tbe Code of Civil Pro- cedure. Breen v. Lennon, 10 App. Div. 36. 6. Lis pendens — How far notice binding. — Plaintifif, a materialman, filed a notice of lis pendens after an action bad been begun to foreclose a second mortgage upon the prem- ises. PlaintifF was not made a party defendant in tbe fore- closure suit, which proceeded to judgment and the premises upon which the lien was subsequently filed were sold. Tbe defendants, in tbe action to foreclose tbe lien, one of whom bad filed a building contract prior to plaintiif's lien, pleaded the judgment of foreclosure as a bar to plaintiff's action, upon tbe ground that be should have applied to be made a party to the foreclosure suit, and should have litigated its lien in that action, and is, therefore, bound by the judgment. Held, Leventeitt^ J., that tbe judgment of foreclosure op- erated as a bar to plaintiff's action in so far only as it might prevent plaintiff from foreclosing its lien against tbe prop- erty, and that it was bound by tbe judgment of foreclosure only to tbe extent of all proceedings taken in the action, after tbe lis pendens was filed, and that plaintiff could pur- sue bis remedy for personal judgment against the owner. Penn. Steel Co. v. Title Guarantee Co., '50 Misc. 51, 120 App. Div. 879, reversed on another point, 193 N. Y. 37. a. Tbe authority contained in Beman v. Todd (124 N. Y. 114), as to the power of the court to cancel a lis pendens, held not to apply, to a case where tbe action has abated as to tbe land. lb. h. If the lien has been discharged by a deposit prior to tbe commencement of tbe action, the lien shifts from the land to tbe deposit, and in an action begun after such deposit tbe filing of a lis pendens is not necessary. Ward v. Kil- patrick, 85 N. Y. 413. See also " lis pendens, Municipal lien," page — , infra. See also Lien Law, §§ 43-49 (formerly Code Civ. Proc, §§ 3401-3407), as to mode of foreclosing liens, and au- thorities as to pleading and practice cited, post, pages 255- 301. 262 LiEW Law — Aeticle II, Sec. 17. 7. Order continuing lien. — The object of an order con- tinuing a lien is to preserve the lien upon the realty. Such order is necessary only where no action has been begun and no lis pendens has been filed within the statutory period of one year after filing the notice. Eut the mere fact that an action has been begun to foreclore the lien is not a good rea- son for denying the motion for an order continuing it. Mat- ter of Gould Coupler Co., 79 Hun, 206. a. But when the order is obtained it becomes inopera- tive, unless the lien is redocketed pursuant to the order ex- tending it. The docket is essential, so that the continued lien will appear upon a search against the land. The lan- guage of the statute requires not only that the order of ex- tension shall be granted, but that such lien "shall be re- docketed" as of the date of the order, and an entry made in the docket stating that the lien has been continued "by vir- tue of the order." It has been held that an order alone with- out a redocket will not preserve the lien. Matthews v. Daly, 7 Abb. N. S. 379. h. A lien which has expired by limitation cannot be re- vived by an order extending it nunc pro tunc, and the court has no power to grant any such order, Poerschhe v. Bederir burg, 6 Abb. N. S. 172. c. If the court sees fit to grant an order extending the lien ex parte it has power to do so, and if no direction is made requiring notice of the application an order extending the lien ex parte is valid. Darrow v. Morgan, 65 'N. Y. 333. d. If the lien has been discharged in the mode prescribed by the statute, either by a deposit or by giving a bond or un- dertaking, the land is freed from the lien, and the lien at- taches to the fund deposited or to the bond or undertaking given to discharge it. e. An order continuing the lien against the land after such deposit, or after the filing of a bond or undertaking, is unne- cessary. The question has been raised as to whether such order is necessary to preserve the lien as to the fund or as to the undertaking. The statute, however, requires no such order. But section 19 of the Lien Law declares that an order for tie surrender of a fund deposited may be made by a court of record. And such order may be made if no action is brought to foreclose the lien. StJEPLTJs Monet, 263 8. Surplus money. — After a sale of premises pursuant to a judgment of foreclosure, the surplus moneys, if any, stand in the place of the land, and the right of a party to share therein must be founded upon some lien existing at the time of the sale. Taylor v. Butcher, 60 App. Div. 531; Ellis v. Solomon, 57 App. Div. 118. 9. Lien, how lost. — A party, after filing his lien, made an agreement to satisfy it and take what was due him out of cer- tain moneys as they became due to a new contractor, who agreed to proceed with and finish the work. The owner then made a purchase-money mortgage. The new contractor aban- doned the work, and the payment on which the lienor relied to get his money was never earned. Held, that as the lienor bad satisfied his lien, he had no standing to attack the valid- ity of the mortgage. Sheldon v. Palliser, 23 App. Div. 191. The rights of a lienor may be lost by express or implied waiver of his rights. For the authorities as to what will con- stitute a waiver, see iv. 29, 99 IST. Y. Supp. 642. a. The same rule applies to a mechanic's lien against real property, which will expire in one year from the time of fil- ing the lien, if within that time no suit to foreclose has been begun, and no lis pendens has been filed in the action. Matter of TUHy-fiflh St. & Fifth Ave. Realty Co., 121 App. Div. 625, 106 ]Sr. Y. Supp. 390. 3. Expiration of lien — Termination of employment — Termination of contract. — The courts have clearly estab- lished the doctrine which recognizes the distinction between the act of an owner in terminating the contract, and his act in terminating only the employment of the contractor. The distinction is material, and directly affects the right of a con- tractor to claim whatever balance may remain, after his em- ployment has been terminated. Where the contract is ter- minated, the contractor can recover nothing under the broken contract. On the other hand, where the employment of the contractor is terminated and the work is completed for a sum less than the amount stipulated in the contract, such balance saved by the municipality, over and above the cost of com- pletion may be recovered by the contractor, and enures to the benefit of such contractor, and his subcontractors. FraenJeel V. Friedman, 199 N. Y. 351 ; Willard v. City of New York, 81 Misc. 48. f 4. Lis pendens — Municipal lien — When codefendants need not file. — The plaintiff, a subcontractor, brought an 266i Lien- Law — Article II, Sec. 18. action to foreclose a municipal lien against moneys due and to become due under a contract between the board of man- agers of the State Industrial School and J. Kady Wemple, and George W. Eyclesbymer, composing the firm of the Sche- nectady Engineering and Construction Company. The plain- tiff's was one of about eighty-four filed against the same moneys, sixteen of said liens being for materials furnished and the balance for labor. Each defendant set forth his lien and asked for a foreclosure. The first lien was filed July 21, 1905, and the last February 13, 1906. The defendant lienors did not file any notice of pendency of action. Held, that the lis pendens filed by the plaintiff with the comptroller of the State of New York was sufficient to give notice to the various defendant lienors, under section 17 of the Lien Law, that in the absence of a positive requirement of the statute, that each of the several defendants must file a notice of pendency of action as was heretofore required under the Consolidation Act (Laws 1882, chap. 410, § 1813, as amended by Laws 1883, chap. 276), it will not be necessary for each defendant to file a notice of pendency of action in order to preserve his lien. All liens which were in life at the time the lis pendens was filed by the plaintiff will be preserved without a sepa- rate notice being filed by each of the defendants. Newman Lumber Co. v. Wemple, 56 Misc. 168, 182, 107 K T. Supp. 318. a. In case of a lien upon private property which is gov- erned by section 16 of the Lien Law, the statute expressly declares that codefendants need not file a lis pendens, in order to preserve his lien. That section provides that where a lienor is made a party defendant " and the plaintiff or such defendant has filed a notice of pendency of the action wiAin the time prescribed in this section, the lien of such defendant is thereby continued. Such action shall be deemed, however, to enforce the lien of such defendant lienor." The same nils applied under tihe Lien Law of 1885, although the provisions of section 6 of that statute was not specific on the point. Mc- Allister V. Case, 5 IST. Y. Supp. 600. b. The main object of filing a lis pendens is to furnish peo- ple who are interested in the property or fund affected with the knowledge of what is going on, and that is accomplished by the filing of a lis pendens by the plaintiff, and there seems Municipal Lien — Dischaege of. 267 to be no good reason why every man who had a lien and was made a party defendant should file a lis pendens so as to give the same notice that has already been given by the plaintiff. Newman Lumber Co. v. Wemple 56 Misc. 168 ; McAllister v. Case, 5 IST. Y. Supp. 600 ; s. c, 24 N. Y. St. Kep. 52 ; Neu- chatel Asphalt Co. v. Mayor, 12 Misc. 26, affirmed, 155 IST. Y. 373. 5. Discharge of lien by order — When not permissible. — The statute confers no power on the Supreme Court to dis- charge a municipal lien,. upon the ground that three months have expired since the lien was filed, and no action was brought to enforce it. The court may make an order under section 3417 of the Code (now § 59 of the lien Law) to dis- charge a lien unless an action is brought, but it has no power to make an order to discharge a lien because it has expired by limitation. Matter of Rudinger, 118 App. Div. 86, 102 K Y. Supp. 1053. a. Two days before the lien expired, the lienors procured an order extending it for sixty days. A motion was there- after made to vacate the order, and pending this motion the lienors commenced an action to enforce it. After the action was brought, the order extending the lien was vacated. A motion was then made to cancel the lien on the ground that the order extending it had been set aside. Held, reversing the Special Term, that the court had no power to cancel the lien on such a motion. Ih. 168 Lien Law — Article II, Sec. 19. § 19. Discharge of lien generally. — ^A lien other than i lien for labor performed or materials furnished for a public improvement specified in this article, may be iischarged as follows: 1. By the certificate of the lienor, duly acknowl- edged or proved and filed in the office where the notice )f lien is filed, stating that the lien is satisfied and may )e discharged. 2. By failure to begin an action to foreclose such lien )r to secure an order continuing it, within one year 'rom the time of filing the notice of lien. 3. By order of the court vacating or canceling such ien of record, for neglect of the lienor to prosecute the lame, granted pursuant to section fifty-nine of this ihapter. 4. Either before or after the beginning of an action )y the owner or contractor executing an undertaking \rith two or more sufficient sureties, who shall be free- lolders, to the clerk of the county where the premises ire situated, in such sums as the court or a judge or ustice thereof may direct, not less than the amount ilaimed in the notice of lien conditioned for the pay- nent of any judgment which may be rendered against he property for the enforcement of the lien. The sure- ies must together justify in at least double the sum tamed in the undertaking. A copy of the undertaking, nth notice that the sureties will justify before the lourt, or a judge or justice thereof, at the time and )lace therein mentioned, must be served upon the lienor >r his attorney, not less than five days before such ime. Upon the approval of the undertaking by the ourt, judge or justice an order shall be made discharg- ng such lien. The execution of any such bond or un- [ertaking by any fidelity or surety company authorized >y the laws of this state to transact business, shall be quivalent to the execution of said bond or undertak- ng by two sureties; and such company, if excepted to, DiSCHAEGE OF LlEN. ' 269 shall justify through its officers or attorney in the man- ner required by law of fidelity and surety companies. Any such company may execute any such bond or un- dertaking as surety by the hand of its officers, or at- torney, duly authorized thereto by resolution of its board of directors, a certified copy of which resolution, under the seal of said company, shall be filed with each bond or undertaking. If the lienor cannot be found, or does not appear by attorney, such service may be made by leaving a copy of said undertaking and notice at the lienor 's place of residence, or if a corporation at its principal place of business within the state as stated in the notice of lien, with a person of suitable age and discretion therein, or if the house of his abode or its place of business is not stated in said notice of lien and is not known, then in such manner as the court may direct. The premises, if any, described in the notice of lien as the lienor's residence or place of business shall be deemed to be his said residence or its place of business for the purposes of said service at the time thereof, unless it is shown affirmatively that the person serving the papers or directing the service had knowl- edge to the contrary. (As amd. Laws 1908, chap. 254; Laws 1909, chap. 427.) Lien Law of 1897, § 18, re-enacted as § 19, Laws 1909, chap. 38. Amendment of 1911. repealed. — Section 19 of the Lien Law was amended by Chapter 450, Laws 1911, in which the bond prescribed in article 19 to discharge a municipal lien was required to be executed by a surety company. The amending act made no provision for individual sureties, and upon that ground the constitutionality of the law was ques- tioned by Pooley, J., in an opinion rendered September, 1911, People ex rel. Burgard Co. v. City of Buffalo, 73 Misc. 356, on the ground that no provision was made in the amendment for individual sureties. Chapter 450 of the Laws of 1911 amending section 19, was repealed October 6, 1911, and sec- SYO LiEw Law — Article II, Seo. 19 tion 19 was r&-enacted in its original form and made retroac- tive. Laws Chap. 873. 2. Cancellation of lien — Statute must be complied with. — A mechanic's lien on private property can only be can- celled and discharged in the mode prescribed by section 19 o£ the Lien Law. Subdivision 3 of this section declares that such lien may be cancelled " by order of the court, vacating or cancelling such lien of record, for neglect of a lienor to prosecute the same, pursuant to sec. 59 of the Lien Law." This latter section provides that before an order directing cancellation shall be granted the notice of lien shall be served upon the lienor, and shall require him to commence an action to foreclose it within a time specified in the notice, not less than thirty days from the time of service, or show cause why the lien should not be cancelled of record. Held, that the no- tice can be cancelled only in the mode prescribed by the statute. The Lien Law is an affirmative statute and directs the thing to be done in a certain maimer. In such a case that thing may not be done in any other manner, even though there are no negative words in the statute. The Lien Law provides a new right and prescribes the manner in which the right may be extinguished, and there is no other way in which this may be done, unless under circumstances which might induce a court of equity to exercise its peculiar powers. Matter of Bronitshy, 136 App. Div. 672. 3. Discharge of lien — Service of undertaking on non- resident. — The statute makes provision for the mode of service of a copy of the undertaking given to discharge a lien, with notice of justification of sureties, in eases where the residence of the lienor is unknown. The statute, however, makes no provision for such service where the residence of the lienor is stated in the notice of lien, to be in another State. In a ease, where the residence was stated to be 2410 Crystal Street, Chicago, Illinois, held that the service should be made in the mode prescribed by the Illinois statute. Matter of Blumberg No. 1, 149 App. Div. 303. 4. Expiration of lien — Discharge of sureties. — An action on a bond or undertaking, given to discharge a mechanic's lien, can not be maintained after the lien has expired. The owner may move to cancel a bond or undertaking given by Limitation of Lien. 2T1 him to discharge the lien, when the lienor has not brought suit to enforce it within the year, nor obtained an order extending it as provided by the statute. In such a case the liability of the surety ceases, and he is entitled to be released. Matter of Thornton Apartment Co., 74 Misc. 210. 1. Discharge of lien. — The provisions of the above section of the Lien Law are a substantial reenactment of part of sec- tion 24 of the Lien Law of 1885. The notice which an owner must serve upon the lienor, requiring him to commence an action to foreclose his, lien or show cause within thirty days why an order should not be made discharging the lien, was contained in Code Civ. Proc, § 3417 (now § 59 of the Lien Law), being part of the procedure prescribed for the enforce- ment of liens. See post, page 440. a. After a mechanic's lien has been discharged by giving a bond, the bond takes the place of the property and becomes the subject of the lien. The lienor then may pursue either of two remedies. He may sue to foreclose his lien against the xiebtor alone and recover a judgment establishing the validity of the lien, and its amount, and then maintain an action at law against the sureties on the bond. Or he may bring an action in equity against the debotr and the sureties on the bond, and secure a judgment establishing the validity of the lien and the amount due thereon, and personal judgment may be had in said action against the debtor and the sureties. Mertz V. Press, 99 App. Div. 443. See also Bingle v. Matthiessen, 158 'N. Y. 740, affirming 10 App. Div. 274. Compare Harley v. Plant, 149 App. Div. 719, as to the liability of sureties on a bond given by the principal contrac- tor to discharge a municipal lien, who were not parties to a suit brought by a subcontractor to reach the funds due from the corporation in an action against the principal contractor, to whi(Ji the sureties were not parties. 2. Limitation of lien. — A lien on private property may be discharged pursuant to the provisions of section 3417 of the Code of Civil Procedure (now § 59 of the Lien Law) by giv- ing the lienor notice to commence an action within thirty days, or show cause why the lien should not be discharged, but if the owner of the land has given an undertaking to dis- 272 LiEiT Law — Article II, Sec. 19. charge the land from th® lien of the complainant, the lien ia discharged for all purposes and the bond or undertaking ia substituted in its place, and the owner or bondsman cannot resort to a motion under section 3417 to cancel the lien. Mat- ter of Uris V. Brmhett Realty Co.. 114 App. Div. 29, 99 N. Y. Supp. 642. 3. Expiration of lien in one year. — Unless an action has been commenced to foreclose a mechanic's lien on real prop- erty ant a lis pendens has been filed in such action, within one year from the date of filing the notice of lien, or unless within one year from date of filing said lien, an order has been made extending it, the lien will expire by limitation. Although an undertaking has been given to discharge the lien from the land or a deposit has been made to that end, the effect of such undertaking or deposit is to shift the lien from the land to the undertaking or to the deposit, and the lien will expire, as against the sureties or as against the deposit, if no action to foreclose is begun and no lis pendens is filed within the year. Matter of Thirty-fifth St. & Fifth Ave. Realty Co., 121 App. Div. 625, 106 N. Y. Supp. 390. a. The same rule applies to a municipal lien, which will expire in three months from the time of filing the lien, if wjthin that time no suit to foreclose has been begun, and no lis pendens has been filed in the action. Clonin v. lAppe, 121 App. Div. 466, 106 W. Y. Snpp. 58. 4. Expiration of lien When is an action begun? — Section 18 (now § 19), subdivision 2, of the Lien Law, de- clares that a lien on private property will expire " by failure to begin an action to foreclose such lien, or secure an order continuing it, within one year from the time of filing the notice of lien." When is an action begun to foreclose a lien ? Section 398 of the Code of Civil Procedure defines when an action shall be deemed to be commenced against a parti- cular defendant in an action, as follows: "An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him." (Code, § 398.) , -• ■ ExPIUATION OF LlEW. 273 6. The objection that an action was not commenced in time, however, can be taken only by answer as prescribed by sec- tion 413 of the Code. c. The question has arisen whether the lien expires where an action was begun, a lis pendens filed, and two lienor de- fendants were served within the year, but the owner who was also a defendant was not served within the year. After the year had expired, the owner appeared specially for the purpose of moving to cancel the lien and the lis pendens, on the ground that the action had not been begun as to him (the owner), within the year, and that therefore the lien had ex- pired, and the lis pendens should be canceled. The motion was denied. On appeal, the Appellate Division modified the order, as to the lis pendens, on the ground that as the suit was not begun against the owner within the year, the lien expired, and the lis pendens should have been canceled. Mar- tens V. O'Neill 131 App. Div. 123, 115 IST. Y. Supp. 260. d. The attention of the court in the Martens case, however, was not called to the provisions of section 413 of the Code which expressly forbids a party to raise the objection that the action was not begun in time in any other mode than by an- swer. It is also true that section 18 of the Lien Law does not declare that the lien will expire unless an action to fore- close it is commenced against the owner, or against any par- ticular defendant. If " an action to foreclose the lien " is begun within the year, and a lis pendens is filed, the statute is satisfied. e. It may be observed further that prior to September 1, 1905, the court had no general power to cancel a lis pendens. The court could not grant an order ex parte unless the stat- ute specifically conferred the power. A lien in actions other than those to foreclose a mechanic's lien could only be can- celed on notice after the action had abated as to the land or after the time within which an appeal from the final judgment had expired or upon consent. Beman v. Todd, 124 W. Y. 114. In 1905, however (Laws 1905, chap. 60), section 1671 of the Code of Civil Procedure relating to notices of lis pen- dens was amended giving the court general discretionary power to cancel a lis pendens upon giving security in any ac- tion " other than an action to foreclose a mortgage or for the partition of real property or for dower." It will be observed 18 274: Lien Law — Akticle II, Sec. 19. that under this amendment to section 1671 of the Code the court has no power to cancel a lis pendens unless the party applying for the order gives an undertaking which must be approved by the court or upon the applicant making a deposit in court of a sum of money, the amount to be approved by the court, which must be the amount claimed by the plaintiff or the value of the property affected. It would seem, therefore, that an order to cancel a lis pendens in an .action to foreclose a mechanic's lien is only authorized when security is given. /. It seems clear also, in view of the fact that any claim, that an action had not begun within the time limited, " can be taken only by answer as prescribed by section 413 of the Code, that the legislature intended that the question of the statute of limitations must be litigated in the action, and that the lis pendens must remain until the action is terminated, unless security is given to discharge it. g. The Lien Law is a remedial statute. Section 22 (now § 23) of the act directs that its provisions shall be construed liberally to secure the beneficial interests and purposes of the statute. Under this provision the rule is applicable, that where a statute is susceptible of two constructions, one of which will sustain and the other defeat it, the court must adopt that construction which will sustain its validity. h. In construing section 18 (now § 19), subdivision 2 of the Lien Law, and the words " action to foreclose a lien," it may be observed that such a suit is not an action in personam, but is a suit in equity, analogous to an action to foreclose a mortgage, which partakes of the nature of a proceeding in rem. The suit is against the res to secure a decree directing that it be sold, and the proceeds applied to satisfy the lien. Personal service against the owner is not essential, in an ac- tion to foreclose a mortgage, if no deficiency judgment is sought. The provisions of the Code, applicable in foreclosure suits, are declared to be also applicable as near as may be, in actions to foreclose liens, and section 43 of the Lien Law (formerly § 3401 of the Code) expressly so declares. i. It will be observed further that an " action to foreclose a lien" is an action to reach whatever interest any defendant may have in the land, whether that interest be the fee or a lesser estate. Strauchen v. Pace, 195 N. Y. 167. If subse- DiSOHAEGE OF MUNICIPAL LlEK. 275 quent lienors who have an interest in the land to which their liens attach are made defendants in lien actions, they must be deemed to he codefendants with the owner, in the sense that they have interests in the res, which is the subject-matter of the action. Service, therefore, on one or more such defend- ants operates to begin the action. Indeed, for the purposes of a provisional remedy, the court acquires jurisdiction in the action when the summons is issued, and before any defendant has been served. (Code, § 416.) 5. Re-docketing lien after discharge unauthorized. — Where a mechanic's lien has been discharged by giving an un- dertaking pursuant to the provisions of subdivision 4 of sec- tion 18 of the Lien Law, the property is freed from the lien. The lien thereafter cannot be extended by an order of the court on application of the lienor, and an order extending the same will be vacated on notice. Matter of Hurwitz, 58 Misc. 379. There is no provision in the Lien Law which would warrant the redocketing of a lien against premises which have once been released therefrom. The lien is dead and life cannot be infused into it by an order of continuance. lb. 6. Discharge of municipal lien. — Prior to the enactment of the Lien Law of 1897, the discharge of a lien under a municipal contract was governed by Laws 1878, chapter 315, section 13, and by section 1836 of the Consolidation Act. These provisions with others, were re-enacted in section 20 of the Lien Law of 1897, and are now embraced in section 21 of the Lien Law of 1909. The earlier decisions under the Lien Law of 1897 made a distinction between the discharge of a municipal lien, and the discharge of a lien on private prop- erty, on giving a bond or undertaking. In case of a munici- pal lien, the earlier authorities held that it was necessary for the lienor to get leave to sue on the bond, given to dis- charge a municipal lien, which formality was not necessary where the discharged lien was against private property. In re John P. Kane Co., 52 App. Div. 630, 66 N. Y. Supp. 684; D' Andre v. Zimmerman, 17 Misc. 358. The recent authori- ties, however, hold that it is not necessary to get leave to sue on a bond given to discharge a lien, whether the lien so dis- 276 Lien Law — Article II, Sec. 19. charged is a municipal or a private lien. Morton v. Tucker, 145 K Y. 244; Pierce-Butler Mfg. Co. v. Wilson, 118 App. Div. 662, 103 N. Y. Supp. 678 ; Vitelli v. May, 120 App. Div. 448, 104 K Y. Supp, 1082. See also post, page 298, and authorities there cited. 7. Bond — Undertaking. — The Lien Law of 1897, § 18, subd. 4, uses both the word " bond " and " undertaking." The sureties on a bond given to discharge a lien are, there- fore, estopped from claiming that the bond was invalid be- cause it was not in the form of an undertaking. Mathiasen V. Shannon, 25 Misc. 274. a. It is not necessary to require several owners of lands to unite in giving a bond to discharge a lien covering their lands. All that the law requires is a bond with two or more suificient sureties in a sum sufficient to indemnify the lienor, as directed by the court. Miller v. Schmitt, 35 Misc. 231. 8. Bond — When not operative against surety. — Pala- dino & Papa made a contract with the City of !N"ew York for the construction of a sewer, and thereafter assigned the contract to Joseph Paladino, who performed it. Paladino, the assignee, bonded a lien filed against his assignor. The bond provided that the assignor will " well and truly " pay any judgment which may be recovered in an action to enforce such alleged lien. Held, that the bond secured the payment of any judgment which might be obtained against the assignor, and the lienor having recovered personal judgment against the assignor only, could not recover upon the bond against one Sullivan, the surety. The responsibility of the surety was limited by the terms of the undertaking, to the effect that Sullivan would pay any judgment, meaning clearly any judg- ment against him, the said Sullivan, Contractor's Supply Co. V. City of New York, 153 App, Div. 60. 9. Bond — Undertaking. — The right to discharge a lien by the filing of an undertaking is not limited to the contrac- tor named in the notice of lien. Any person who comes within the meaning of the term " Contractor " as defined by Section 2 of the Lien Law, may obtain an order fixing the amount of an undertaking, to be given by it to discharge a lien filed by a ^Notice of Justificatiom'. 277 subcontractor. Tlie contractor was required to keep the premises free and clear of all mechanics' liens, and agreed to promptly obtain the cancellation and discharge any lien that might be filed against the premises. His right to do so cannot be questioned. Matter of Hedden Construction Co., 72 Misc. 153. 10. Bond — Notice of justification — When to be served personally. — Where a mechanic's lien has been discharged before the commencement of an action to foreclose it by giv- ing an undertaking with two or more sureties, a copy of the undertaking and notice that the sureties will justify must be served upon the lienor personally. " The fact that the ligis- lature," says Gibgeeich, J., " in section 11 of the Lien Law provides that service of a copy of the notice of lien may be made by leaving it at the last known place of residence of the owner, indicates that the omission of such a provision in sec- tion 18 with respect to a notice of justification was inten- tional." It is only where an action has been begun that the notice of justification may be served upon the lienor or his attorney. Matter of Boland v. Soholshie, 56 Misc. 333. 11. Bond — Must be filed before lien canceled. — The county clerk has no right to cancel a lien and lis pendens of record in his office, pursuant to an order directing such bond to be canceled until he receives the bond and files the same in his office. The remedy of the lienor, however, is not by appeal, but to move the court below to restore the lien and lis pendens of record, on the ground that the discharge is unau- thorized and not in accordance with the order directing can- cellation. Dannalla v. Paradise, 52 Misc. 662. 12. Seal omitted from bond. — The word " bond " and "undertaking" are used interchangeably in subdivision 4 of section 18 of the Lien Law. As a rule, a bond must be executed xmder seal. In this it differs from an undertaking. It was held under a prior statute that where the instrument given to discharge the lien had no seal affixed, but was in all other respects regular and had been approved by the court and the lien had been discharged, that the sureties could not thereaf- ter avoid liability in a suit upon the instrument, upon the 278 Lien Law — Article II, Sec. 19. ground that no seal was attached. Whitney v. Coleman, 9 Daly, 238. 13. Seal — When municipal corporation bound by. — Aqueduct commissioners appointed under chapter 490, Laws 1883, executed a contract on behalf qf the city of New York, which was attested as follows : " In witness whereof, the said Aqueduct Commissioners have hereunto set their hands and seals on behalf of said parties of the first part (the city of JSTew York), and the said party of the second part have also hereunto set their hands and seals, and the said Commis- sioners, and party hereto of the second part, have executed the agreement in triplicate ; one part of which to remain with said Commissioners, one other to be filed with the Comptroller of the city of New York, and the third to be delivered to said party hereto of the second part, the day and year first above written." The city pleaded the six-year Statute of Limita- tions, upon the ground that the contract was not under seal, upon the theory that the aqueduct commissioners had no power to execute a contract under seal. Held, reversing the judgment below, dismissing the complaint, that as between private parties, authority to execute a contract under seal must be conferred by an instrument under seal. Where an agreement is executed by public officers, how- ever, such authority is conferred by the legislature. An instrument not under seal purporting to authorize an agent to execute an agreement under seal would be a mere nullity ; but where an instrument is under seal and, therefore, sufficient to confer authority and power to the agent to place name of principal to a contract, it will be sufficient to au- thorize the agent to execute the sealed instrument on behalf of his principal. The statute creating the aqueduct commis- sion gave it exclusive authority to determine what provisions should be embodied in its contracts. This provision conferred plenary power over the form of the contract, subsequently approved by the corporation counsel, under the seal of the corporation, which seal had been adopted by the commission- ers. A sealed instrument retains certain characteristics. " It binds the parties," says Cullen, J., " and only the parties. It is not permitted to show by parol that the apparent parties to it acted merely as agents for other parties." When a sealed instrument is presented, the burden of proof is on the defend- Assignment by Ooepoeation. 279 ant to show either that the contract was unauthorized or that it was not within the ordinary form of municipal contracts. Peterson v. City of New York, 194 N. Y. 437. a. Wafer or wax no longer essential to constitute a seal, which may be made hy writing the word " seal " or the ini- tials " L. s." The statute in this regard became operative May 18, 1892, and provides as follows : Law as to seals. — The private seal of a person other than a cor- poration, to any instrument or writing shall consist of a wafer, wax or other similar adhesive substance af&xed thereto or paper, or other similar substance affixed thereto by mucilage or other adhesive sub- stance Dr of the words " seal," or the letters " L. S." opposite the signa- ture (Laws 1893, chap. 677, § 13, and is now embraced in the General Construction Law — Laws 1909, chap. 27, § 44.) Acknowledgment by Corporation and Form of Certificate. — The acknowledgment of a conveyance or other instrument by a corporation, must be made by some officer thereof authorized to execute the same by the board of directors of said corporation. The certificate of ac- knowledgment must be in substantially the following form, the blanks being properly filled: State of New York, County of ss. : On the day of in the year before me personally came to me known, who, being by me duly sworn, did depose and say that he resides in ; that he is the (president or other officer) of the (name of corporation), the cor- poration described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to said instru- ment is such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that he signed his name thereto by like order. (Signature and office of officer taking acknowledgment.) If such corporation has no seal, that fact must be stated in place of the statements required respecting the seal. (Real Property Law, § 309, Laws 1909, chap. 53.) § 45. Seal, private or corporate seal. — An instrument or writing duly executed, in the corporate name of a corporation, which shall not have been adopted as a corporate seal, hy the proper officers of .the corpora- tion under their private seals, shall be deemed to have been executed, under the corporate seal. (General Construction Law — Laws 1909, chap. 37. § 45-) ..■■,;, I 46. Signature. — The term signature mcludes any memorandum, mark or sign, written or placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. (General Construction Law— Laws 1909, chap. 27, § 46.) 280 Lien Law — Article II, Sec. 19. Eights and Liabilities of Sueeties. 1. Liability of surety. — The sureties in the bond intended and must be understood as undertaking to pay the amount which it should be adjudged was due and owing to the plain- tifFs and which was chargeable againsl^the property by virtue of their notice of lien. In other words, the condition was for the payment of any judgment which might have been rendered against the property had not the bond been given. Morton V. Tucker, 145 IST. Y. 244. a. The condition of a bond given to discharge a mechanic's lien recited " the condition of this obligation is such, that if the above bounden, Cugley, shall well and truly pay any judg- ment which may be recovered in an action to enforce the aforesaid lien, then this obligation to be void, otherwise to remain in full force and virtue." Held, that the bond was not in conformity with the provisions of the Lien Law, which provides for a judgment " which may be rendered against the property," and unless the obligor is liable upon it, as a com- mon law obligation, it is not liable at all. The undertaking is predicated upon the existence of the lien, and the liability was to attacb if plaintiff recovered a judgment directing that the lien be foreclosed. When the lien was dismissed, the liability of the surety terminated. This liability could not be kept alive by the recovery of a mere personal judgment against the defendant because it was not against a judgment of that character, that the surety agreed to indenmify the plaintiff. McKeefry v. Cugley, 83 Misc. 481. h. Sureties upon a bond given to discharge the lien, the bond being conditioned " to pay any judgment that may be rendered against said property in any proceeding to enforce the foregoing lien," are not relieved from liability because the judgment in foreclosure contains no provision for its en- forcement against the property. After the lien is discharged no judgment can be rendered against the property. The sureties must pay the sum adjudged due to plaintiff. Bmgle V. Matthiessen, 17 App. Div. 374. c. A bond was given conditioned to pay " any judgment that may be rendered against such property for the enforce- ment of said liens, or either of them." (Lien Law of 1897, Liability of Sueeties. 281 § 18.") In an action on the bond the defendants claimed that the incumbrances on the property prior to plaintiff's lien ex- ceeded the value of the property. Held, untenable, and that the defendants, by executing and delivering the bond, had waived the right to make such an objection. Kerrigan v. Field- ing, 47 App. Div. 246. d. The undertaking provided that the surety would pay " any judgment which may be recovered in the action to en- force the aforesaid lien, not exceeding the sum of $1,100." Held, that the language must be construed to impose upon the surety the costs of the action in addition to the $1,100. Held V. City of New York, 83 App. Div, 510. e. A bond given to discharge a mechanic's lien stands in place of the property which has been discharged from the lien. If no bond had been given, plaintiff, if he had succeeded, could have sold the property, and the question as to whether he could have realized sufficient from it to pay his lien is not a defense to an action on the bond. lb. f. By giving a bond, conditioned for the payment of any judgment that may be rendered against the property, the sureties are not thereby precluded from denying the validity of the lien. Their liability depends upon the ability of plain- tiff to establish a valid lien, and they have a right to show that there was no valid lien in an action against them on the bond. Parsons v. Moses, 40 App. Div. 58. g. A bond was given by the contractor to discharge a lien under the Lien Law of 1885 (Laws 1885, chap. 342, § 24, subd. 6), conditioned that the sureties would pay " any and all judgments which may be rendered against the property." Held, that the word " judgment " meant a final, as distin- guished from an interlocutory judgment, but did not con- template a judgment that could not be reversed. Heagney v. HopUns, 23 Misc. 608. h. A subcontractor, at the request of t^e contractor's surety, to whom the contractor had assigned the balance due on the contract, relying on such request and upon the promise of the surety to pay the subcontractor for work done on the premises, ■ may enforce the promise, in a suit at law against the surety, although the primary debt due from the contractor has not 282 Lien Law — Article II, 'Sec. 19. been paid. The promise of the surety is original, not collat- eral, and the failure to file the lien is a sufficient considera- tion therefor. Alley' v. Fruch, 8 App. Div. 50. i. Sureties who have been made parties to an action to fore- close a mechanic's lien by a contractor mill not be allowed an order discontinuing the action as to them, although the sure- ties had not been served when the application to discontinue was made, if other lienors object, whose liens were discharged by bonds executed by the same sureties and personal judgment has been demanded against them. Brewster v. McLaughlin, 28 App. Div. 50. j. One having a municipal contract abandoned it, and it was completed by the surety of the defaulting contractor. In such a case subcontractors have the same rights against the surety as they had against his principal, the defaulting con- tractor, and are entitled to liens on moneys earned upon the contract remaining unpaid at the time of the breach. Harley V. Mapes-Reeves Construction Co., 33 Misc. 626. 1. Sureties not liable if no lien is established. — The lia- bility of sureties on a bond given to discharge a mechanic's lien, depends upon the establishment of a valid lien. When plaintiff fails to establish a lien, the sureties on the bond given to discharge it are not liable as there never was a valid lien upon the premises. Romanik v. Rapaport, 148 App. Div. 688. a. The question as to whether upon a bond given to dis- charge a lien against private property, as distinguished. from a municipal lien, the sureties are liable, if the lien is not established, but plaintiff recovers a personal judgment only against the person liable for the debt. The bond under sec- tion 18 (now section 19), of the Lien Law must be condi- tioned for the payment by the surety " of any judgment which may be rendered against the property for the enforcement of the lien." After the lien is discharged, and the land freed, it is obvious that no judgment can be rendered against the property. The courts, therefore, construe the bond to mean that the sureties must pay whatever is adjudged to be due plaintiff by reason of the lien. In other words, the sureties must pay any judgment which might have been rendered Liability of Stiebties. 283 against the property had not the bond been given. Morton v. Tucker, 145 E". Y. 244; Copley v. Hay, 16 Daly, 446, 12 K Y. Supp. 277. h. But if no judgment is recovered in the action upon the lien, but judgment in personam is rendered against the per- son liable for the debt, because the lien is held to be invalid, then no judgment could have been rendered against the prop- erty. The lien being invalid did not bind the property. This being so, and plaintiff not being able to establish any lien, the sureties are not bound. They are bound only when a judgment is obtained or could have been obtained against the property, and not otherwise. The sureties have a right, therefore, to interpose the same defenses that the owner interposes. If the sureties can establish that the lien is void, then the land — the property — ^was never bound and could not have been sold to satisfy the lien, had no bond been given, and no lia- bility can attach to the sureties. Parsons v. Moses, 40 App. Div. 58 ; VitelK v. May, 120 App. Div. 448, 104 N. Y. Supp. 1082 ; Gallich v. Engelhardt, 36 Misc. 269. c. See as to liability of sureties on a bond given to dis- charge a municipal lien, pursuant to section 20, now section 21, of the Lien Law, post, page 293 et seq. 2. Sureties — When not entitled to judgment on the merits. — A mechanics' lien was discharged upon the giv- ing of a bond by the contractor. Thereafter the principal and its surety were sued by plaintiff. On the trial it appeared that the materials were defective in appearance, but the de- fects were entirely patent, and defendant used them with- out objection. Held, that the purchaser of the materials by user, waived the defects, and a judgment in his favor must be reversed. The sureties however claimed, that as to them, the judgment should be affirmed because plaintiff failed to introduce in evidence the machanics' lien, and he would be entitled, in any event, only to a personal judgment against the defendant. Even if this were true, the court said, the surety would be entitled only to a dismissal of the complaint and not to a judgment on the merits. Howes v. Corti Build- ing Co., 76 Misc. 507. 284 Lien Law — Aeticle II, Sec. 19. 3. Liability of sureties after appeal. — The lien was dis- charged by the bond required by the Lien Laws (Laws 1885, chap. 342). The lien was thereafter foreclosed and judgment rendered in favor of the lienor. The owner appealed and gave an xmdertaking to stay execution on appeal. The judgment was affirmed. The lienor then sued the sureties on the bond given to discharge the lien. The sureties set up as a defense that they had requested the plaintiff to collect his judgment from the sureties on the undertaking given on the appeal, which he refused to do. Held, that plaintiff was not obliged to exhaust his remedy against the sureties upon the under- taking on appeal, and that he had a right to sue the sureties on the bond as primarily liable. Sullivan v. Goodwin, 30 App. Div. 194. 4. Stay on appeal. — The bond to discharge the lien hav- ing been given by the contractor and not by the owner, an appeal taken by the owasr from the judgment against the contractor and an order staying proceedings on the judgment appealed from did not operate to stay proceedings of the subcontractors to enforce the judgment against the contractor and his sureties. Heagney v. HopJcins, 23 Misc. 608. 5. Sureties — Parties. — After a lien has been discharged by giving a bond, the lienor may proceed to foreclose it with- out making the sureties on the bond parties. After judg- ment in foreclosure, in form only against the property, plain- tiff may sue the sureties in an action at law to recover from them the amount due upon the lien when the bond was given. Bingle v. Matthiessen, 10 App. Div. 274, affirmed 158 N. Y. 740. 6. Surety defense — May not plead duress. — A building- contract procured from an owner by duress exercised by means of threats is not void, but voidable only. The defense of duress is not available to a defendant, sued as surety in an action to foreclose a mechanic's lien. Defendant's under- taking took the place of plaintiff's lien, and the surety cannot set up a defense, which would put plaintiff in a worse posi- tion then he would have been in, if his lien had not been dis- charged. Such a defense, if available at all, must be inter- Defenses of Sureties. 285 posed promptly. Colon v. East 189th Street Building Co., 141 App. Div. 441. 7. Sureties — Defense. — As a rule any defense which was available to the principal named in a bond given to discharge a mechanic's lien is available to the sureties in an action on the bond. In such an action the sureties have a right to show that the amount claimed in the notice of lien was false and fictitious, and operated by reason thereof to defeat the lien. Aeschlimann v. Presbyterian Hospital, 165 'R. Y. 296. a. A surety must set up in his answer all defenses which accrue after he becomes liable as surety. One became surety that the ovpner would perform his part of the contract. Held, that delay in completion caused by the owner was no defense if set up by the owner's surety. Kunzweiler v. Lehman, 34 Misc. 466 ; Henrichus v. Englert, 137 N. Y. 488. 6. In an action upon a bond given to discharge a mechanic's lien, where the principal in the bond made default, the sure- ties are not precluded by such default from defending the action as if they were principals, and may set up any legal or equitable defenses which would have availed their principal. Aeschlimann v. Presbyterian Hospital, 165 JST. Y. 296. 8. Surety — Personal judgment. — After a suit to fore- close the lien was begun, the lien was discharged by giving a bond. The complaint did not demand a personal judgment against the sureties, but prayed for judgment according to law and other relief. The sureties were fully heard on the right to personal judgment. Held, that the court could award personal judgment against the sureties. Mathiasen v. Shanr non, 25 Misc. 274. a. A lien was filed against land, against which the lienor tad agreed with the ovmer should not be subject to a lien, and the owner gave a bond to discharge the lien. Held, that upon failure of the lien, in such a case no personal judgment could "be had against the sureties. Gallick v. Engelhardt, 36 Misc. 269. 9. Leave to sue not necessary. — It is now settled law that section 814 of the Code has no application to a bond given un- 286' Lien Law — Article II, Sec. 19. der the Lien Law to dischg,rge a mechanic's lien. The bond or undertaking which is required as to liens against private property under section 18, subdivision 4, must be conditioned " for the payment of any judgment which may be rendered against the property for the enforcement of the lien." Where such a bond or undertaking is given jto discharge a municipal lien, under section 20, subdivision 5, it must be conditioned " for the payment of any judgment which may be recovered in an action to foreclose the lien." A plaintiff seeking to en- force a lien, therefore, need not apply to the court for leave to sue upon the bond, for the reason that the bond has taken the place of the property against which the notice of lien was filed. Such an action is not brought, observes McLaughlin, J., " to recover for a breach of the condition of the bond, such as is contemplated by section 814 of the Code. To hold other- wise would require a lienor, where a bond has been given to discharge the lien to obtain leave of the court before he could properly bring his action, when but for the giving of the bond he would be under no such necessity. The legislature in providing for the discharge of the lien by the giving of the bond, must have intended to allow the lienor the same remedy against the bond that he would have had against the property as if the bond had not been given." Leave of court, therefore, is not necessary as a condition precedent to an action against the bondsman after the lien has been discharged, and it is not necessary to allege in the complaint that an order granting , leave to sue had been obtained prior to the commencement of the action. Pierce-Butler Mfg. Co. v. Wilson, 118 App. Div. 662, 103 IST. Y. Supp. 678 ; Vitelli v. May, 120 App. Div. 448, 104 IST. Y. Supp. 1082. a. It has been repeatedly held that where a bond or under- taking has been given to discharge a lien against private prop- erty, an order giving leave to sue upon the bond is not neces- sary. That the sureties may be sued in the first instance, and made codefendants in an action to foreclose the lien as part of the statutory remedy respecting liens; or they may be sued after the action to foreclose the lien has proceeded to judgment, to recover any moneys adjudged to be due upon the lien in the foreclosure suit. But if the sureties are sued after foreclosure, they may avail themselves of any defense that could have been urged in the suit to foreclose the lien. Contempt — False Justification. 287 Morton v. Tucker, 145 N. Y. 244; Aeschlimann v. Presby- terian Hospital, 165 N. Y. 296 ; D' Andre v. Zimmerman, 17 Misc. 357; Beilly v. PoerschJce, 14 Misc. 466. b. An objection that no order was granted giving leave to sue the sureties upon a bond given to discharge a mechanic's lien, upon the ground that section 814 of the Code of Civil Procedure requires that leave must be given to sue sureties upon a bond or undertaking, cannot be raised for the first time on appeal. D' Andre v. Zimmerman, 17 Misc. 357. 10. Justification — Presumption as to. — The law pre- sumes that a court in making an order has complied with all necessary prerequisites. • Omnia praesumuntur legitime facta donee probetur in contrarium. After a bond given to dis- charge a mechanic's lien has been approved, and an order has been made thereon discharging the lien, the law pre- sumes that the amount of the bond has been fixed by the court and that the sureties have properly justified, and there- after the sureties will be estopped from claiming such alleged irregularities. D' Andre v. Zimmerman, 17 Misc. 358; Miller v. Youmans, 13 Misc. 63; Barwich v. Youmans, 13 Misc. 769. 11. Contempt — False justification. — Section 14, subdi- vision 2, of the Code of Civil Procedure declares that a court of record has power to punish by fine and imprisonment, or either, " a party to the action or special proceeding for put- ting in fictitious bail, or a fictitious surety, or for any deceit or abuse of a mandate or proceeding of the court." Section 2281 of the Code requires the court, where the misconduct was calculated to or did defeat, impair, impede, or prejudice the rights or remedies of a party, to make a final order direct- ing the person guilty of misconduct to be punished by fine or imprisonment, or both, and to issue a commitment. Section 2284 of the Code prescribes the amount of the fine which, in case of actual loss, must be " sufficient to indemnify the ag- grieved party." a. It is now well settled, imder these provisions of the Code, that the court has power to punish not only the party giving the undertaking pursuant to the provisions of the Lien Law, but the surety also who executes a worthless bond or under- 288 Lien Law — Aeticle IL Seo. 19. taking. Matter of Sheppard, 33 Misc. 724; Matter of Bay Foundry & Iron Works, 22 App. Div. 87 ; Matter of Hopper, 9 Misc. 171, aiErmed, 145 N. Y. 605 ; Simon v. Aldine Pub. Co., 14 Daly, 279 ; McAveney v. Bush, 1 App. Div. 97. h. A surety who, by false justification, induces the release of a mechanic's lien though he may mot be technically a party to the action, by executing the bond or undertaking, becomes a party to the proceeding. His misconduct, by destroying the security of the lien, defeats and impairs the rights and reme- dies of a party to the action or proceeding. Matter of Shep- pard, 33 Misc. 724. c. The fact that the surety when he execute the bond or undertaking did not justify and was not examined as to his property is nevertheless guilty of contempt. The aggrieved party was not bound to examine the surety and " had a right to rely on the surety's sworn statement of his pecuniary re- sources." Matter of Hopper, 9 Misc. 171. d. And if one violates a direct order of the court requiring him to redeposit a fund which had previously been deposited to discharge a lien, he is clearly guilty of misconduct and may be punished for contempt of court. Gunningham v. Hatch, 3 Misc. 101 ; 30 Abb. K C. 21. DiSCHAKGE OF LlEN — Peivate Pkopeutt. 289 § 20. Discharge of lien by payment of money into court. — ^A lien specified in this article, other than a lien for performing labor or furnishing materials for a public improvement, may be discharged, at any time before an action is commenced to foreclose such lien, by depositing with the county clerk, in whose office the notice of lien is filed, a sum of money equal to the amount claimed in such notice, with interest to the time of such deposit. After such action is commenced the lien may be discharged by a payment into court of such sum of money, as, in the judgment of the court or a judge or justice thereof, after at least five days' notice to all the parties to the action, will be sufficient to pay any judgment which may be recovered in such action. Upon any such payment, the county clerk shall forth- with enter upon the lien docket and against the lien for the discharge of which such moneys were paid, the words " discharged by payment." A deposit of money made as prescribed in this section shall be repaid to the party making the deposit, or his successor, upon the discharge of the liens against the property pur- suant to law. All deposits of money made as provided in this section shall be considered as paid into court and shall be subject to the provisions of the code of civil procedure relative to the payment of money into court and the surrender of such money by order of the court. An order for the surrender of such moneys may be made by any court of record having jurisdiction of the parties and of the subject-matter of the proceeding for the foreclosure of the lien for the discharge of which such moneys were deposited. If no action is brought in a court of record to enforce such lien, such order may be made by any judge of a court of record. Lien Law of 1897, § 19, re-enacted as § 20, Laws 1909, chap. 38. 1. Discharge by deposit. — Money deposited to discharge a mechanic's lien, being money paid into court, can be sur- 19 290 Lien Law — - Aeticle II, Sec. 20. rendered only pursuant to the provisions of sections 745 and 751 of the Code of Civil Procedure. 2. Deposit — How surrendered. — All moneys deposited to discharge a lien are considered as money paid into court. Such deposits are governed by sections 745 and 751 of the Code of Civil Procedure. These sections provide as follows : § 745. Money paid into court. — Unless the court otherwise specially directs, money, paid into court, must be paid, either directly, or by the officer who is required by law first to receive it, to the county treasurer of the county, where the action is triable. Where it is paid to an officer, other than the county treasurer, he must pay it to the county treasurer, within four days after he receives it. In the city of New York, he must pay it to the chamberlain, within two days after he re- ceives it. A bond, mortgage, or other security, or a certificate or trans- fer of stock, taken upon the investment of money paid into court, must be taken to the county treasurer of the county where the fund belongs, in his name of office; or to such other county treasurer, as the court specially directs. But this and the next section do not prevent the court, upon the application of a party to an action, from directing in what manner or place, money, paid into court in the action, shall be deposited or invested. § 751, Surrender of money by order. — No money, security or other property which shall have been placed in the custody of the court shall be surrendered without the production of a properly certified copy of an order of the court, in whose custody said money, security or other prop- erty shall have been placed, duly made and entered, directing such disposition. Each order must be countersigned by the presiding judge by whose direction it is made. a. All moneys deposited to discharge mechanic's lien on real property can be surrendered only upon notice pursuant to an order made by a court of record. Hafkar v. Henry, 5 App. Div. 258. See also Flynn v. Butler, 61 How. Pr. 274; Dunning v. Clark, 2 E. D. Smith, 535. 3. Deposit — '■ Court cannot substitute bond for. — A lien was discharged by the owner making a deposit of money as required by the statute. He subsequently applied for an order for leave to substitute a bond in lieu of the money, so that he might withdraw the deposit. Held, that under the statute the court had no power to grant such order. Matter of Mechanic's Lien, 27 App. Div. 682. 4. Deposit — After expiration of lien. — Money deposited with the county clerk under section 19 of the Lien Law to dis- Tendek — Offee of Judgment. 291 charge a mechanic's lien takes the place of the land and the lien is transferred from the realty to the deposit. The lien does not continue against the deposit for any longer period than it would continue against the land if the deposit had not been made. Under subdivision 2, section 18, of the Lien Law, if the lienor fails to bring an action to foreclose his lien or to secure an order continuing it within one year form the time of the filing of the notice of lien, it is discharged for all purposes. If no deposit has been made and no undertaking given, the lien is discharged as to the land, and if money has been paid into court and no suit has heen begun or no order made extending the lien, it is discharged as to the deposit, and the court may make an order, after the expiration of the year, directing the chamberlain of the city of New York to pay to the depositor the moneys deposited by him to discharge the lien. Matter of Thirty-fifth Street and Fifth Avenue Realty Co., 121 App. Div. 625, 106 N. Y. Supp. 390. 5. Tender — Right to withdraw funds paid into court. — In an action to foreclose a mortgage it appeared that the defendant, before suit, made a tender of certain instalments due upon the mortgage and thereafter paid the money into court to prosecute his defense of tender. In such a case the money belongs to the plaintiff and he is entitled to withdraw it from the custody of the court. Plaintiff's claim as to the amount paid into court must he deemed stricken from the complaint, and where the plaintiff's cause of action is based wholly upon the nonpayment of that sum and limited thereto his action must fail. If the defense of tender before action brought was established, plaintiff could not take a decree of foreclosure but only a money judgment against the defend- ants, less defendant's costs. Bieher v. Goldberg, 120 App. Div. 457, 104 K". Y. Supp. 1080. a. By analogy, it would seem that this rule would apply also to an action to foreclose a mechanic's lien, where a de- fendant desires to pay into court and tender the amount to which he claims the plaintiff is entitled. 6. Offer of judgment. — The Lien Law of 1885 (Laws 1885, chap. 342) contains no provision which will preclude a party from making an offer of judgment in an action to fore- .293 Lien Law — Aeticle II, Sec. 20. ■close a mechanic's lien, pursuant to the provisions of the Code of Civil Procedure, § 738, if he so desires. Kennedy V. McKone, 10 App. Div. 88. The Lien Law of 1897 contains nothing which forbids a party to make an offer of judgment in an action to foreclose .a mechanic's lien. ^ a. An offer of judgment made pursuant to section 738 of the Code of Civil Procedure, authorizes the clerk to enter the judgment accordingly, 4, &., according to the offer. An offer of judgment made in an action to foreclose a mechanic's lien, was made in form for a money judgment as follows : " The defendants, Edward Eowan and Margaret J. Kowan, offer to allow judgment to be taken against them herein, by the plain- tiff for the sum of $1,376.56, with costs." The offer was not accepted, and on the trial the amount of plaintiff's lien was established at $1,195.58, with interest from July 3, 1903, and a sale of the premises was directed in the judgment. The clerk taxed the costs. Defendants appealed from the taxation, claiming that the amount offered was more favorable than the judgment recovered. The taxation was set aside at Spec- ial Term. h. On appeal the order of Special Term was reversed, and the taxation aifirmed, on the ground that the offer authorized only a personal judgment against defendants for money, and that upon such an offer the clerk could not enter a judgment of foreclosure and sale, and for a deficiency in case the pro- ceeds of sale were inadequate. Such a judgment would not "be in accordance with the offer. The judgment obtained by plaintiff was, therefore, more favorable than the judgment offered, and plaintiff was entitled to costs regardless of the offer. McNcdly v. Rowan, 101 App. Div. 342. See also Rollins V. Barnes, 23 App. Div. 240. 7. Offer of payment. — A party to an action to foreclose a mechanic's lien, under the express provisions of section 3413 of the Code of Civil Procedure, which provision is supple- mental to the Lien Law, and is now embraced in section 55, may make and file a written offer to pay money into court or to deposit securities to discharge the lien if he so desires. See :§ 3413, post page 434. DiSCHAEGE OF MUNICIPAL LlElT. 293 § 21. Discharge of lien for public improvement. — ^A lien against the amount due or to become due a con- tractor from the state or a municipal corporation for the construction of a public improvement may be dis- charged as follows: 1. By filing a certificate of the lienor or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. 2. By lapse of time, when three months have elapsed since filing the notice of lien, a,nd no action has been commenced to enforce the lien. 3. By satisfaction of a judgment rendered in an ac- tion to enforce the lien. 4. By the contractor depositing with the comptroller of the state or the financial officer of the municipal corporation, or the officer or person with whom the notice of lien is filed, such a sum of money as is di- rected by a justice of the supreme court, which shall not be less than the amount claimed by the lienor, with interest thereon for the term of one year from the time of making such deposit, and such additional amount as the justice deems sufficient to cover all costs and ex- penses. The amount so deposited shall remain with the comptroller or such financial officer or other officer or person until the lien is discharged as prescribed in subdivision one, two or three of this section. 5. Either before or after the beginning of an action by a contractor executing an undertaking with two or , more sufficient sureties, who shall be freeholders, to the state or the municipal corporation with which the notice of lien is filed, in such sums as the court or a judge or justice thereof may direct, not less than the amount claimed in the notice of lien, conditioned for the payment of any judgment which may be recovered in an action to enforce the lien. The sureties must to- gether justify in at least double the sum named in the undertaking. A copy of the undertaking with notice 294 LiKN Law^ — Airi'Kii.io IT, Sict'. 21. that ili(» Hurciics will jiiHtiTy bd'ori^ ilin coiirl or h jud^o or justice tlion^oT at tlio tiiiio mid ))liiO(» tli(*r(»iii iiK^n- tioned must bo worvcid iii)oii ilio I'KMior, not I((hh IIimii five days b^fon* nnc-h liiiu*. H' ib<« lidiioi- ciniiiot b(* found, such scwviw^ nuiy b(* iiiiido i\n itrcHdi'ibcd in Hiib- (liviHion four of H(*cl.i()ri uiiuiidfui of Uiis iiriichi. llii(»ii tli(( H|)i)rovul of th(* iiiid(^rtiil( \WU, chap. .'{H. Till! iiliovc Hiic.l.ioii wa« nqicidcd -Iniio, 2(1, 11)1 I, by cliijp. '\M), Laws lOli. It was nwirmoUid wilimiil; cjmn^^'o OH OcUihcr (>, 1!)1 I, by cliui). HTA, \mw» of (liiil, yciir. 1. Municipal lien — Second action. — In the triHc of ;i lien on pt'ivjil,(! pfofxirly, iiiidor § 17 of I.Ihi I, ion Liiw, it hiiH hfiori liold, IIkiI, a H(!W)nil fK'Uon rniiy ho hroM^';lil, piirHUiint to § 405 of tho Codo of (!ivil iVooodnro, (li'li!)' Iho torrninjilinn of l.lio Undeetaking — Bond. 295 first, where there has heen no voluntary discontinuance, dis- missal for neglect to prosecute or final judgment on the merits. Conolly V. Hyams, 176 N, Y. 403. See ante, page 252 et seq. It would seem that. the provisions of § 405 of the Code, which is general in its application, applies in like manner in an action to enforce a municipal lien. 2. Discharge of municipal liens. — The Lien Law of 1897 provides for the discharge of a municipal lien in the same manner as a lien upon private property. In the discharge of a lien against private property, the statute speaks of hoth a bond and an undertaking. a. In the case of a municipal lien the statute speaks only of an undertaking. It will he observed, however, that in the sections of the Code of Civil Procedure (§§ 810-816) made iapplicable to undertakings given to discharge municipal liens, the words "bond" and "undertaking" are used interchange- ably. h. Where a municipal lien has been discharged by a deposit of a sum of money with the Comptroller or financial officers of the Municipal Corporation, pursuant to section 21, sub- division 4 of the Lien Law, the sum so deposited is a substi- tute for the fund to which the lien attached until the deposit was made. A valid lien on a primary fund must therefore be established to justify payment out of the deposit. Millihen Bros. V. City of New York, 201 N". Y. 65 ; Upson v. United Engineering Co., 72 Misc. 541. 3. Undertaking — Bond. — A bond to discharge a munici- pal lien in New York city was governed by Laws 1895, chap. 606. On March 24, 1898, subdivision 5 was added to section 20 of the Lien Law, which provides how a municipal lien may be discharged upon filing an undertaking. The undertaking under the Act of 1895 was required to be conditioned to pay any judgment which might be recovered in an action against the person liable. The undertaking must, under the amend- ment of 1898, be conditioned " for the payment of any judg- ment which may be recovered in an action to foreclose the lien." Held, that the sureties on an undertaking under the Act of 1895 were liable, in an action to foreclose a lien begun 296 Lien Law — Aeticle II, Sec. 21. after the Act of 1898 became operative. Hawkins v. Mapes- Beeves Construction Co., 82 App. Div. 72, affirmed on another point, 178 N. Y. 236. 4. Liability of surities — Municipal^ bond. — A judgment obtained by a sub-contractor, who had filed a lien against funds due from a municipal corporation, and established his lien on the fund, is not binding upon the sureties of the principal contractor upon a bond filed by him when it appears that such sureties were not parties to the suit brought by the sub-contractors. Harley v. Plant, 149 App. Div. 719. "When the suit was dismissed against the city, the judg- ment operated as a determination that the principal contrac- tor, owed the sub-contractor, and was not binding on his sureties who were not parties to the action. Ih. 5. Liability of sureties — Municipal bond — Failure to establish lien. — It has been held that where a bond has been given to discharge a municipal lien, the sureties will become liable, although the plaintiff fails to establish his lien, and recovers personal judgment against the contractor. These authorities relate to bonds given prior to the enactment of the Lien Law of 1897, when the undertaking was given pursuant to the provision of section 1836 of the Consolidation Act, which provides that bonds or undertaking given to discharge a municipal lien shall be conditioned that the surety " will pay on demand to the claimant or claimants named in such notice of lien, the amount of any judgment which may be recovered in an action upon the claim or demand specified in such notice of lien against such person or persons not exceed- ing the sum specified in the undertaking with interest and costs." McDonald v. The Mayor, 113 App. Div. 625; Pier- son V. Jachman, 47 App. Div. 625 ; Hawkins v. Mapes-Beeves Cons. Co., 82 App. Div. 72, affirmed on another point, 178 K Y. 236. a. The question has arisen, however, as to whether a bond given under the Lien Law of 1897, section 20, subdivision 5, renders the sureties liable, where the plaintiff fails to estab- lish a valid lien, but recovers a personal judgment against his contractor. The Lien Law of 1897, section 20, subdi- Municipal Bond — Liability of Sueett. 297 vision 5, as does the Lien Law of 1909, section 21, subdivi- sion 5, requires that the bond shall be " conditioned for the payment of any judgment which may be recovered in an ac- tion to enforce the lien." It will be observed that under the Consolidation Act, liability arises upon the bond for the pay- ment of "any judgment which may be recovered in an action upon the claim or demand specified " in the notice of lien. It follows, that under such a bond, if the plaintiff gets any judgment, upon the claim specified in his notice of lien, whether by reason of the fact that the lien was sustained or whether in case the lien fails, personal judgment is awarded against his contractor, the liability attaches to the sureties. b. Under the Lien Law of 1897, liability arises when plaintiff recovers " any judgment " in the " action to enforce the lien." It follows, therefore, that liability attaches to the bondsmen, who execute a J)ond to discharge a municipal lien whenever the plaintiff recovers judgment in an action to fore- close the lien — any judgment — whether upon the establish- ment of the lien, or whether it be simply a money judgment against the party liable for the debt. This conclusion would seem to follow from the language which defines the condition which must be contained in the bond given to discharge the lien. On this ground the Appellate Division held that the sureties were liable on their bond given to discharge a munici- pal lien. In that case the court held upon the trial that the lien was void, but gave personal judgment against the con- tractor, which it was held the sureties were bound to pay. Hawhins v. Mapes-Beeves Cons. Co., 82 App. Div. 72. This case was affirmed on other points, 178 N". Y. 236. c. In view of the fact that the Court of Appeals declined to pass on the question of the liability of sureties, in an action to enforce the lien, where the lien was not established, the court at Onondaga, Special Term, declined to follow the rul- ing of the majority of the Appellate Division in the Hawkins case, and held that the sureties on an undertaking given to discharge a municipal lien under section 20, Laws 1897, con- ditioned for the payment of " any judgment which may be recovered in an action to enforce the lien " were not liable unless the judgment establishes the validity of the lien. Casey v. Connors Cons. Co., 53 Misc. 101. 298 Lien Law — Akticle II, Sec. 21. d. There are authorities, however, to the effect that the sureties upon a bond given to discharge a lien on private property are not liable, unless plaintiff establishes the valid- ity of his lien. The bond given to discharge a lien on private property renders the sureties liable for the payment for any " judgment which may 'be rendered against the property for the enforcement of the lien." If the lien fails, then the only judgment recoverable will be against the person liable for the debt. The lien is not enforced and not enforceable, and the sureties are not liable. Parsons v. Moses, 40 App. Div. 58; Vitelli V. May, 120 App. Div. 448, 104 N. _Y. Supp. 1082. Compare Bingle v. Mattheiessen, 17 App. Div. 246 ; Morton V. Tucker, 145 N. Y. 244. See ante, under section 19, pp. 276, 280. e. After a municipal lien had been discharged by giving a bond as required by the Consolidation Act (Laws 1882, chap. 410, § 1836, as amd. by Laws 1895, chap. 605), now Gen- eral Construction Law, the lienor is not obliged to exhaust his remedy against the contractor alone. He may bring an action in equity to foreclose in which all parties, including the sureties, may be made parties defendant. Miller v. Mc- Keon, 15 App. Div. 133. /. In this connection it will be observed that the iStatutory Construction Law (Laws 1892, chap. 6177, § 16), now Gen- eral Construction Law (Laws 1909, chap. 27), expressly provides that a lav/ authorizing a bond shall be deemed to have been complied with by the execution of an undertaking. The language of the section is as follows : A provision of law authorizing or requiring a bond to be given shall be deemed to have been complied with by the execution of an under- taking to the same effect. (General Construction Law, § 14.) 1. Bond — Conditions of — To discharge municipal lien. — ' Under section 20, subdivision 5, of the lien Law relating to the discharge of a municipal lien upon executing an un- dertaking the staute provides that such undertaking must be " conditioned for the payment of any judgment which may' be recovered in an action to enforce the lien." Section 18 of the Lien Law relating to the disehai'ge of a mechanic's lien on private property provides that the bond or undertaking must be " conditioned for the payment of any judgment which may be rendered against the property for the enforcement of Municipal Bond — Conditions of. 299 the lien." Section 20' of the Lien Law re>-enaots substantially section 13, chapter 315 of the Laws of 1878, and section 1836 of the Consolidation Act (chap. 629, Laws of 1892). The bond required under the provisions of section 1836 of the Consolidation Act required the bondsman to "pay on demand to the claimant or claimants named in such notice of lien the amount of any judgment which may be recovered in an ac- tion upon the claim and demand specified in such notice of lien against such person or persons (the person or persons liable to the lienor) not exceeding the sum specified in the undertaking, with interest and costs." In other words, the condition of the bond or undertaking required the sureties to pay any judgment which the lienor might recover against the persons indebted to him. Under this section it was held that in an action upon such an undertaking, all that was necessary for the claimant to show was performance of his obligations to the contractor, and that it was not necessary for him to prove in addition that the contractor performed his obliga- tions to the city because after the bond was given that issue became immaterial. Piemon v. Jackman, 27 Misc. 425, affirmed, 47 App. Div. 625. a. In the ease above cited, the court said that there was a broad distinction between abond required to discharge a lien upon private property and a lien upon moneys due or to be- come due a contractor doing work under a municipal con- tract. The former is given by the owner to free his property from the incumbrances and, therefore, conditioned for " the payment of any judgment which may be rendered against the property for the enforcement of the lien." The latter is given by the contractor in order to free himself from the embarrass- ment of the lien, and, therefore, is conditioned for the pay- ment of any judgment in an action against him upon a claim or demand. In the former case, the contractor may be and yet l/he property n^t be liable. In the latter case, if the con- tractor is liable, the claimant is entitled to payment out of the fund, if 'any, or out of the bond which is given to dis- charge the lien against that fund or anticipated fund. After the bond has been given, there remains only the question of the liability of the contractor to the complainant; but no question of the liability of the city to the contractor. Ih. 300 Lien Law — Article II, Sec. 21. h. If a contractor under a municipal contract for reasons sufficient to himself sees fit to free his relations with the city of the incumbrance of this lien, no hardship is apparent in requiring him to furnish an undertaking that the claimant shall be paid any amount found due on the claim, irrespective of whether any amount is due, or ever Ijecomes due, the con- tractor from the city. lb. c. The language of section 20, however, does not require a bond to be conditioned to pay a claimant the amount of 'any judgment which the claimant may recover in an action against a person or persons whom he claims are indebted to him. It requires the bond to be " conditioned for the pay- ment of any judgment which may be recovered in an action to enforce the lien." In view of the fact, however, thiat a per- sonal judgment may be recovered under section 3400 of the Code (now section 42 of the Lien Law), in an action to en- force a municipal lien, against the persons liable for the debt, it may be that the rulings of the court in the case of Pierson V. JacJcman (27 Misc. 425) are still applicable. 2. Bond — Assignee of contractor may execute. — The as- signee of a contractor in order to procure a discharge of a mu- nicipal lien under section 20 of the Lien Law may execute an undertaking and discharge the lien. The term " contrac- tor " is defined as a person " who enters into a contract with the owner of real property for the improvement thereof." A strict interpretation of tiiis definition would exclude either the personal representatives of the deceased contractor or his assigns. Where the surety must be approved by the court, or a judge or justice thereof, his undertaking will be ample to protect the municipality, and the fact that it was executed by the assignee of the contractor is no valid objection to the bond. Matter of Hudson Water Works, 111 App. Div. 860, 98 ]Sr. Y. Supp. 33. a. The Twelfth Ward Bank held an assignment from the contractors to part of the moneys to be paid by the city under the contract and made application to discharge the lien. Held, that either the assignee of the entire contract or the as- signee of part of the moneys due thereunder might apply to the court to bond the lien. Russell <& Edwin Mfg. Co. v. Citij of New York, 118 App. Div. 88, 103 N. Y. Supp. 9. Leave to Sue. 301 3. Leave to sue — Not necessary. — It has been held in some early cases at Special Term that plaintiff, before he could bring an action upon a bond given to discharge a me- chanic's lien or a municipal lien, vsras required to apply to the court for lan order granting leave to sue thereon pursuant to the provisions of section 814 of the Code of Civil Pro- cedure. Ooldstein v. Michelson, 45 Misc. 601 ; In re John P. Kane Co., 66 IST. Y. Supp. 684, affirmed without opinion, 52 App. Div. 630. a. In the later cases, however, since the decision of the Court of Appeals in Morton v. Tucker, 145 E". Y. 244, the courts hold that the plaintiff who seeks to enforce a bond given to discharge a lien need not apply to the court for leave to sue thereon for the reason that the bond forms part of the scheme under the Lien Law for the discharge of the property from liens filed thereon and substituted for the real property or the fund against which the notice of lien was filed. Plain- tiff, therefore, does not sue for a breach of the condition of the bond such as is contemplated by section 814 of the Code. The lienor has a right to bring his action to foreclose his lien without leave of the court. In the course of procedure under the statute, the defendant has a right to bond a lien and the plaintiff by reason of the fact that the bond has been given is under no greater obligation to apply to the court for leave to sue than he was in the first instance to bring an action to foreclose his lien. " The legislature," says McLiAttghlin, J., " in providing for the discharge of the lien by the giving of the bond, must have intended to allow the lienor the same remedy against the bond that he would have had against the property if the bond had not been given." Leave of court, therefore, is not necessary as a condition precedent to an ac- tion against the bondsman after the lien has been discharged. Pierce-Butler Mfg. Co. v. Wilson, 118 App. Div. 662, 103 ISr. Y. Supp. 678 ; Vitelli v. May, 120 App. Div. 448, 104 N. Y. Supp. 1082 ; Morton v. Tucker, 145 jST. Y. 244. 6. Although leave to sue on the bond givgn to discharge a lien is not necessary, section 20 (now section 21) of the Lien Law, subdivision 4, declares that the provisions of article 5 of title 6 of chapter 8 of the Code (§§ 810-816) are ap- plicable to an undertaking given to discharge such lien, ex- sept section 814, which prescribes leave to sue. The pro- ■ visions of the Code referred to are as follows : •302 Lien Law — Aeticle II, Sec. 21. § 810. Acknowledgment. — A bond or undertaking, given fn an action or special proceeding, as prescribed in this act, must be acknowledged or proved, and certified, in like manner as a deed to be recorded. § 811. Party need not join. — Where a provision of this act requires ■a. bond or undertaking, with sureties, to be given by, or in behalf of, a party or other person, he need not join with the sureties in the exe- cution thereof, unless the provision requires him to execute the same; and the execution thereof by one surety is sufficient, although the word " sureties," is used, unless the provision expressly requires two or more sureties; and the execution of any such bond or undertaking by any fidelity or surety company authorized by the laws of this State to trans- act business, shall be equivalent to the execution of said bond or un- dertaking by two sureties, and such company, if excepted to, shall justify through its officers or attorney in the manner required by law of fidelity and surety companies. Any such company may execute any such bond or undertaking as surety by the hand of its officers, or at- torney, duly authorized thereto by resolution of. its board of directors, a certified copy of which resolution, under the seal of said company, shall be filed with each bond or undertaking. § 812. Form of bond ot undertaking. — A bond or undertaking, exe- cuted by a surety or sureties, as prescribed in this act, must where two or more persons execute it, be joint and several in form; and, ex- cept when executed by a fidelity or surety company, or when otherwise expressly prescribed by law, it must be accompanied with the affidavit of each surety, subjoined thereto, to the effect that he is a resident of and a householder or a freeholder within the state, and is worth the penalty of the bond, or twice the sum specified in the undertaking, over all the debts and liabilities which he owes or has incurred, and exclu- sive of property exempt by law from levy and sale under an execution. A bond or undertaking given by a party without a surety must be accompanied by his affidavit to the same effect. The bond or undertak- ing, except as otherwise expressly prescribed by law, must be approved by the court before which the proceeding is taken, or a judge thereof, or the judge before whom the proceeding is taken. The approval must be endorsed upon the bond or undertaking. The surety or sureties or the representatives of any surety or sureties upon the bond heretofore or hereafter executed, of any trustee, committee, guardian, assignee, re- ceiver, executor, administrator or other fiduciary, shall be entitled as a matter of right to be and shall be, discharged from liability as here- inafter provided, and to that end may on notice to the principal named in such bond apply to the court that accepted such bond or to the court of which the judge that accepted such bond was a member or to any judge thereof, praying to be relieved from liability as such surety or sureties for the act or omission of such principal occurring after the date of the order relieving such surety or sureties hereinafter provided for and that such "principal be required to account and give new sure- ties. Such notice of such application may be served on said principal personally within or without the state, or, not less than five days prior to the date on which such application is to be made, unless it satis- factorily appears to the court, oje a judge thereof, that personal notice cannot be given with due diligence within the state, in which case Justification of Stteeties. 303' notice may be given in such manner as the court or a judge thereof directs. Pending the hearing of such application the court or judge may restrain such principal from acting except to preserve the trust estate until further order. Upon the hearing of such application if the principal does not file a new bond in the usual form to the satisfaction of the court or judge the court or judge must make an order requiring the principal to file a new bond within such reasonable time not exceed- ing five days as the court or judge in such order fixes. If such new bond shall be filed upon such hearing or within the time fixed by said order the court or judge must thereupon make a decree or order requir- ing the principal to account for all hia acts and proceedings to and in- cluding the date of such order and to file such account within a time fixed, not exceeding twenty days, and releasing the surety or sureties making such application from liability upon the bond for any act or default of the principal subsequent to the date of such decree or order. If the principal fail so to file such new bond within the time specified, a decree or order must be made revoking the appointment of such prin- cipal or removing him and requiring him to so account and file such account within twenty days. If the principal fail to file his account as in this section provided such surety or sureties, or representatives thereof, may make and file such account with like force and effect as though made and filed by such principal, and upon the settlement thereof credit shall be given for all commissions, coats, disbursements, and allowances to which the principal would be entitled were he ac- counting, and allowance shall be made to such surety or sureties or representative for the expense incurred in so filing such account and procuring the settlement thereof. And after the filing of an account as required, or permitted, in this section the court or judge must upon the petition of the principal or surety or sureties or the representatives of any such surety or sureties, issue an order requiring all persons inter- ested in the estate or trust funds to attend a settlement of such account at a time and place therein specified and upon the trust fund or estate being found or made good and paid over or properly secured, the surety or sureties shall be discharged from any and all further liability and the court or judge shall settle, determine and enforce the rights and liabilities of all parties to the proceedings in like manner and to the same extent as in actions for an accounting in the supreme court. And upon demand made in writing by the principal such surety or sureties, or representatives thereof, shall return any compensation that has been paid for the unexpired portion of such suretyship. § 813. When several sureties may justify each in a smaller sum. — But where the penalty of the bond, or twice the sum specified in the undertaking is five thousand dollars or upwards, the court or judge may, in its or his discretion, allow the sum in which a surety is required to justify to be made up by the justification of two or more sureties each in a smaller sum. But in that case a surety cannot justify in a sum less than five thousand dollars, and when two or more sureties are required by law to justify, the same person cannot so con- tribute to make up the sum for more than one of them. It shall be law- ful for any party of whom a bond or undertaking is required to agree with his sureties for the deposit of any or all moneys for which such 304 Lien Law — Article II, Sec. 21. sureties are or may be held responsible with a trust company authorized by law to receive deposits, if such deposit is otherwise proper, and for the safe-keeping of any or all other depositable assets for which such sureties may be held responsible, with a safe-deposit company author- ized by law to do business as such, in such a manner as to prevent the withdrawal of such moneys and assets, or any part thereof, except with the written consent of such sureties, or an order of the court made on such notice to them, as it may direct. § 813a. Further protection for imdertakings in certain cases. — ^Where an undertaking has been or shall be given in any action or proceeding the court may in its discretion, if justice so requires; order further or other security to be given in addition to such security. Upon cause shown the court may permit an examination or re-examination of any surety upon any such undertaking. Upon such examination or re- examination, if justice so requires, the court may require a new surety or sureties to be furnished or further or other security to be given in addition to the security already given. The court may enforce such order by any disposition of the action or proceeding that may be proper. (New section added 1913.) § 814. Bonds, etc., to the people of a public ofScer, for the benefit of a suitor. — Where a bond or undertaking has been given, as pre- scribed by law, in the course of an action or a special proceeding, to the people or to a public officer, for the benefit of a party or other person interested, and provision is not specially made by law for the prosecu- tion thereof; the party or other person, so interested, may maintain an action in his own name, for a breach of the condition of the bond, or of the terms of the undertaking; upon procuring an order, granting him leave so to do. The order may be made by the court, in which the action is or was pending; the city court of the city of New York, or a county court, if the bond or undertaking was given in a special pro- ceeding, pending before a judge of that court; or, in any other case, by the supreme court. Notice of the application therefor must be given, as directed by the court or judge, to the persons interested in the dis- position of the proceeds. § 815. Bonds, etc., not affected by change of i>arties. — ^A bond or undertaking, given in an action or special proceeding, as prescribed in this act, continues in force, after the substitution of a new party in place of an original party, or any other change of parties; and has thereafter the same force and effect, as if then given anew, in conformity to the change of parties. § 816. Id.; to be filed. — ^A bond or undertaking, required to be given by this act, must be filed with the clerk of the court; except where, in a special case, a different disposition thereof is directed by the court, or prescribed in this act. Building Lien. 305 § 22. Building loan contract. — ^A contract for a building loan, either with or without the sale of land, and any modification thereof, must be in writing and duly acknowledged, and within ten days after its ex- ecution be filed in the office of the clerk of the county in which any part of the land is situated, and the same shall not be filed in the register's office of any county. If not so filed the interest of each party to such contract in the real property affected thereby, is subject to the lien and claim of a person who shall thereafter file a notice of lien under this chapter. A modification of such contract shall not affect or impair the right or interest of a person, who, previous to the filing of such modification had furnished or contracted to furnish materials, or had performed or contracted to perform labor for the improvement of real property, but such right or interest shall be determined by the original contract. The county clerk is entitled to a fee of twenty cents for filing such a contract or modification. Such contracts and modifications thereof shall be indexed in a book provided for that purpose, in the alphabetical order of the names of the persons to whom such loans shall be made. (As amd. by Laws 1900, chap. 78.) Lien Law of 1897, § 21, re-enacted as § 22, Laws 1909, chap 38. 1. Building loan. — If the owner has contracted to sell his land and to furnish a bulding loan to the vendee to enable him to erect buildings thereon, the interest of the vendor re- mains subject to claims of subcontractors and materialmen who subsequently file liens, unless the contract is filed in the proper county clerk's office within ten days after its execu- tion. Packard v. Sugarman, 31 Misc. 623. a. In case such building loan 'agreement is not filed as re- quired by the statue, it is wholly immaterial whether subse- quent lienors knew of the existence of such agreement or not. lb. 306 Lieu- Law — Aeticle II, Sec. 22. 2. Building loan contract — Of what facts court will take judicial notice. — It is the ordinary and usual course where a party agrees to make a loan on real estate that existing in- cumbrances, whether mortgages, or taxes and assessments, and also the expenses attendant on the loan, such as the ex- amination of the title, brokerage and the like, are paid out of the new loan as far as practicable. Of this custom, which is the common course of practice by conveyances, the court may take judicial notice. Penn. Steel Co. v. Title Ouarantee & T. Co., 193 K Y. 37. 3. Equitable assignment — Order drawn by owner on mortgagee making building loan. — An owner agreed with one Ward, that the latter should advance moneys to the owner during the construction of fourteen houses, under a building loan contract. The owner gave an order to plaintiff, Rosen- blum, a materialman, directing Ward to pay certain moneys to Rosenblum at the times and in the manner specified, charging the sums so paid to the owner. The order recited that the sums so advanced constituted an equitable assignment of such sums under the contract. The order further directed that in case Ward should make any payments to the owner, before the same fell due, under the loan contract, to first pay Rosenblum the amount assigned to him out of such payments. Held, that the order given in this case, did not involve a di- version of the moneys advanced for the purpose of construc- tion, but enabled such construction to proceed, and as there was no proof of any intervening lien on the moneys, the ad- vances were lawful. Rosenblum v. Tilder Improvement Co., ■ 136 App. Div. 743. 4. Priority of building loan mortgage. — One Forgotstom made a contract with Frederick G. Potter to purchase a par- cel of realty for $265,000. The land was subject to a mort- gage of $160,000. Forgotston agreed to assume this mort- gage and give to Potter a purchase money mortgage for $105,000. Potter agreed to obtain for Forgotston a building loan of $370,000 out of which the first mortgage of $160,000 should be paid, the remainder of the building loan to be ad- vanced in installments as the buildings to be erected by For- gotston progressed. Potter agreed to subordinate his pur- chase money mortgage for $105,000 to the lien of the build- ing loan mortgage. Forgotston also agreed to pay for procur- ing the building loan, $11,100 to be paid by the purchaser in Building Lien. 307 five equal installments. Forgotston procured the loan from the Title Guarantee & Trust Co., for which he gave his bond and secured it hy a mortgage on the premises. The mortgage provided that it should be a lien on the premises for all sums advanced " subject to no incumbrance except such as may be waived by the lender". Out of the first payment, the $160,000 mortgage was satisfied. The proceeds of the loan were paid to Forgotston as agreed. On receipt of the last payment, Forgotston abandoned the work. The assignee of the $105,000 purchase money mortgage brought an action to foreclose and filed a lis pendens but did not make the plain- tiff, who was a materialman and who furnished iron and steel to Forgotston at the agreed price of $10,686.95, a party to the foreclosure suit for the reason that plaintiff did not file its lien until after the lis pendens was filed in the foreclosure action. After the land had been sold under foreclosure, plaintiff brought an action to foreclose his lien, seeking to have it declared a prior incumbrance. The court below held that it was a prior incumbrance as to the defendants Forgot- ston and the Title Company and that the Title Company's mortgage was subject to plaintiff's lien. Held, reversing the court below, that " building loan agreement " need not provide for the disposition of the proceeds of the loan. That an agreement for the diversion of the proceeds to other pur- poses than the improvement of the realty, might become vital so as to affect the security of contractors and materialmen in which ease it must be in writing and duly filed. Where, how- ever, the oral agreement was to apply the proceeds of the loan to the benefit of subsequent lienors by discharging an existing incumbrance on the property which was paramount, to any' liens, such oral agreement is not material. That when the installments were paid to Forgotston, he could apply them to any purpose whatever without creating any liability on the part of the lender. The plaintiff was chargeable with notice that the Title Company's mortgage should be a first lien and until the first mortgage was paid off, no obligation rested on the mortgagee to advance any money under the contract. That the bnal agreement to pay the prior incumbrance under the circumstances, was not a material modification cf the written contract for a building loan, which the statute re- quires to be in writing and filed, and the judgment subjecting the building loan mortgage to plaintiff's lien, was erroneous. Penn. Steel Go. v. Title Guarantee & T. Co., 193 N. Y. 37. 308 Lien Law — Article II, Sec. 23. § 23. Construction of article. — This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and tc give jurisdiction to the courts to en- force the same. Lien Law of 1897, § 22, re-enacted as § 23, Laws of 1909, chap. 38. 1. Construction of Lien Law. — It was the intention of the legislature in enacting a general Lien Law (Laws 1897, chap. 418) to assimilate and harmonize as far as possible the emtire law embraced in the subject into a harmonious statute. And the various provisions of the article will be held to relate to all mechanic's liens affecting public or private property, unless the language of the act evidences a different intent, or where, from the nature of the subject, regulations as to one class are inapplicable to the other. Brace v. City of Glovers- ville, 167 N. Y. 452. See also McKay v. City of New Yorh, 46 App. Div. 579. a. Accordingly held that the provisions of section 15 of the Act of 1897, relating to equitable assignments or orders drawn by the contractor or subcontractors upon the owner, applies to municipal contracts and contracts for public im- provements as well as to contracts relating to private prop- erty, lb. h. The provisions of the statute that the Lien Law shall be liberally construed does not authorize the court to dispense entirely with a provision of the statute declaring what a no- tice of lien must contain. If the notice of lien omits to state when the first item of work was done, or any fact from which that time may be inferred, it is fatally defective, and such lien cannot be enforced. Mahley v. German Bank, 174 N. Y. 500. c. For other authorities as what shall constitute a sub- stantial compliance with the Lien Law with regard to the no- tice of lien, see section 9, avie, page 116. Ehtoecement of Liens. 309 § 24. Enforcement of mechanics' liens. — The me- chanics' liens specified in this article may be enforced against the jjroperty specified in the notice of lien and which is subject thereto and against any person liable for the debt upon which the lien is founded, as pre- scribed in article three of this chapter. lien Law of 1897, § 23, re-euacted as § 24, Laws 1909, chap. 38. 1. Enforcement of liens. — The mode in which mechanics' liens may be enforced and the practice and procedure in such cases are governed by provisions contained in article 3 of the Lien Law, §§ 40-61. These provisions prior to February 17, 1909, were embraced in chapter 22 of the Code of Civil Pro- cedure (§§ 3398-3419), which was a supplement to the Lien Law. 2. Enforcement of liens — Court in which lien may be enforced. — The foregoing section of the Lien Law (form- erly section 23), authorizes liens against private property, 'as distinguished from municipal liens, to be enforced in the manner prescribed in section 41, article 3 of the Lien Law of 1909, which is a re-enactment of section 3399 of the Code of Civil Procedure repealed by section 251 of article 11 of chapter 33 of the Consolidated Laws (Laws 1909, Chap. 38). Section 41 confers jurisdiction in such actions upon any court (whether of record or not of record) which has juris- diction in an action founded on a contract for a sum of money equivalent to the amount of the debt claimed to be due to the lienor. a. In like manner, section 42 of the Lien Law (formerly section 3400 of the Code) confers jurisdiction upon courts of limited or inferior jurisdiction in actions to enforce mu- nicipal liens. As to other matters relating to jurisdiction see sections 41-42, and authorities there cited. h. The jurisdiction of these minor courts are prescribed by statute, limiting the amount for which suits may be brought, as follows : 310 Lien Law — Article II, Seo. 24. 3. Two hundred dollars — Justices' courts. — Where the amount involved does not exceel $200, certain common law actions may be brought in the courts of justices of the peace. If these courts have authority to entertain an action to fore- close a mechanic's lien on real property or a municipal lien, such authority is derived solely by virtue of sections 41 and 42 of the Lien Law, formerly sections 3399 and 4000 of the Code, which declares that such liens may be enforced in any court when the amount claimed does not exceed the jurisdic- tion in actions to recover a sum of money in the same court. 4. One thousand dollars — Municipal courts, New York city. — Where the amount involved does not exceed $1,000 exclusive of interest and costs, actions to foreclose liens on real property may be brought in the city of New York in the Municipal Court in said city. (Laws 1915, chap. 279.) 5. Two thousand dollars — County Court. — Where the amount involved does not exceed $2,000, actions to enforce liens on real property and municipal liens may be brought in the County Court of the county in which the land is situate, or in which the municipal corporation resides. Raven v. Smith, 148 N. Y. 415. The exception to this rule relates to an action to enforce a municipal lien against money in control of the city of New York, which cannot be brought in the County Court of Kings county, as the funds of the city are not in Kings county, but in the county of New York. See Masiche v. City of New York, 193 N. Y. 460. a. All the relief that a lienor can get, in these minor courts, except County Courts, is a money judgment for work, labor and services, or goods sold and delivered. These tribunals can exercise no equity jurisdiction, and cannot pass upon the question of priorities, or render a decree of foreclosure, and sale of the land. Plaintiff gets a judgment and sells under execution issued in the regular way to the sheriff. 6. Two thousand dollars — City Court of the city of New York. — In the city and county of New Y'ork such an action where the amount involved does not exceed $2,000, exclusive of interest and costs, may be brought in the City Court of the city of New York. While that court has no general jurisdic- JUEISDICTION OF SuPEEME CoUET. 311i tion in a common law action against the city of New York (O'Connor v. City of New York, 191 IST. Y. 238), sections 3999 and 3400 of the Code, re-enacted as sections 41 and 42 of the Lien Law of 1909, expressly confers such jurisdiction in act' ""s to foreclose municipal liens and liens against real property. See Raven v. Smith, 148 N. Y. 415. Legislature cannot increase this jurisdiction beyond $2,000. Lewhowich V. Queen Aeroplane Co., 207 N". Y. 290. See also jurisdic- tion of City Court of the city of New York, post pp. 332, 333, et seq. 7. Supreme Court — Claims exceeding $2,000. — If the amount involved exceeds $2,000 the action to foreclose muni- cipal liens and liens on real property must be brought in the Supreme Court. While the Supreme Court has jurisdiction in all actions to foreclose liens, in actions triable in the county of New York or county of Kings, no costs will be awarded to the successful party, unless he recovers more than $2,000. Section 3228, subdivision 5 of the Code of Civil Procedure provides expressly that in actions brought in that court in those counties which could have been brought, except for the amount claimed therein, in a court of limited or inferior jurisdiction, no costs will be awarded to a successful plaintiff. This provision was intended as a penalty because the plain- tiff, who, under such circumstances, brings his action in the Supreme Court for the reason that he could have secured exactly the same relief in a court of limited jurisdiction. It is only in cases which could not be prosecuted in a court of limited jurisdiction that the Supreme Court will award costs to a successful plaintiff irrespective of the amount re- covered. Maische v. City of New York, 193 N. Y. 460. Appellate Division — Jurisdiction. — In an action to fore- close a mechanic's lien, the Appellate Division, has no power, under the facts found by the court below to strike bodily from the judgment, the principal part thereof and aiErm it as thus modified. Dennison Construction Co. v. Manneschmidt, 204 N. Y. 404. The Appellate Division in the exercise of its jurisdiction may (1) reverse a judgment on facts, or on law, if legal er- ror existed, or upon both, and order a new trial ; (2) it could reverse the judgment and order a new trial, unless the proper parties should stipulate to make a reduction as suggested, and 312 Leen Law — Aeticle II, Sec. 24. in that event it could affirm the jiadgment as thus modified. lb. >. As to the authority of the Appellate Division, the Court of Appeals has stated the rule to be that in an equity suit, where the facts have all been judicially ascertained and es- tablished in the form of findings and there is no controversy as to the facts so found, there is no necessity to send the case back for a new trial, which would involve needless and un- necessary expense. Central N. Y. Tel. Co. v. Averill, 199 N. Y. 128. In 1914 the Legislature amended Sec. 1346 of the Code, with respect to appeals to the Appellate Division (Laws 1914, chap. 351), so as to authorize an appeal upon questions of law, or upon the facts or upon both, where the judgment was rendered upon a trial by a Referee, or by the court with- out a jury, or upon the verdict of a jury. Prior to this amendment, it seems that where the judgment was rendered upon the verdict of a jury, the appeal to the Appellate Divi- sion could be taken only on questions of law. Middleton v. Whitndge, 213 IST. Y. 499. A party has a right to appeal to the Appellate Division either from an order made on motion for judgment upon the pleadings authorized' by § 547 of the Code, when the appeal . is taken before the entry of judgment, or he may appeal from the judgment entered in pursuance of such order, or from both the judgment and the order. Mitchell v. Dunmore Realty Company J 135 App. Div. 583, as modified and affirmed, 199 1^. Y. 530. The Appellate Division has power to modify a judgment in an action to enforce a mechanic's lien, which through in- advertence failed to grant a judgment for deficiency against the original contractor. The judgment after appeal should be amended in the Appellate Division, rather than at Special Term. Goodrich v. Board of Education, 137 App. Div. 499. Where all the facts necessary to determine the amount due a contractor, have been found at Special Term, the Ap- pellate Division has power to award final judgment for the amount due, reverse the judgment, and direct the form of judgment to be entered in favor of appellant, without sending the case back for new trial. Steiger v, London, 141 App. Div. 382. CoTjET OF Appeals. 313 Court of Appeals. — The jurisdiction of the court of ap- peals, except where the judgment is of death, shall be limited to the review of questions of law. No unanimous decision of the Appellate Division of the supreme court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals. Except where the judgment is of death, appeals may be taken as of right to said court only from judgments or orders entered upon decisions of the Ap- pellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them. The Appellate Division in any department may, however, al- low an appeal upon any question of law which in its opinion ought to be reviewed by the Court of Appeals. Constitution Art. 6, § 9 ; Code Civ. Proc, §§ 190, 191. Where an appeal was allowed by the Appellate Division, pursuant to section 191 of the Code, subdivision 1 and the certification of questions to be answered by the Court of Appeals was irregular and tmnecessary, the court may dis- regard the questions so certified and consider the question of law involved. Barrett Manufacturing Co. v. Van Bonk, 212 N. Y. 90. Keported below 149 App. Div. 194. For a review of the authorities, on the question of jurisdic- tion in actions to enforce municipal liens, and liens on real property, see notes under sections 41 and 42 of the Lien Law, postj pp. 321, 325, et seq. 8. Personal judgment. — The intention of the legislature to enable a lienor to secure a personal judgment against any party liable for the debt in an action to foreclose the lien, appears clearly in the various provisions of the law, in addi- tion to the positive provisions of sections 24. See also § 54, post, page 421, and authorities there cited. 314 Lien Law — Article II, Sec. 25. § 25. Priority of liens for public improvements. — N Persons having liens under contracts for public im- 7 provements standing in equal degrees as co-laborers or materialmen shall have priority according to the date of filing their respective liens; but in all cases laborers for daily or weekly wages shall have prefer- ence over all other lienors having liens arising under the same contracts pursuant to this article, without reference to the time when such laborers shall have filed their notice of lien. (Added by Laws 1898, chap. 169.) Lien Law of 1897, § 24, re-enacted as § 25, Laws 1909, chap. 38. The above section was repealed June 26, 1911, by chap. 450, Laws 1911. It was re-enacted, without change, on October 6, 1911, by chap. 873, Laws of that year. 1. Equitable liens. — Liens at common law pertained only to chattels. Common-law liens are discussed under article 8 of the Lien Law, page 479, post. Liens in equity are not regu- lated by statute. They are derived from the civil law. a. The general rule i3 that possession constitutes an essen- tial element of every lien, because a lien is a right of posses- sion, and as Lord Ellenborough observes, how can that be held which was never possessed. Liens in equity, however, exist without possession. One familiar instance of an equit- able lien is in favor of a vendor, for the amount of purchase money of the land which remained unpaid at the time of the sale. It would seem at first blush, that liens of this charac- ter were in direct violation of the statute of frauds, which requires all agreements with regard to the sale of lands, tene- ments, and hereditaments to be in writing. But it will be noticed that a vendor's lien for purchase money rests upon an executed contract. The land has been sold and conveyed, or contracted to be sold. The amount of the purchase money has been agreed upon, and a portion of it has been paid. It is only as to the unpaid balance that the lien exists which can be enforced only in courts of equity. The doctrine rests upon the notion of a trust. Equity will regard the purchaser in the light of a trustee for the vendor, to the extent of the Equitable Liens. 315 unpaid purchase money. And this trust extends to the ven- dee, his heirs, and all persons claiming under him having notice of the trust. The equitable doctrine is that a person who has gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it, and not to pay the full consideration money or purchase price. A third ,person having knowledge that the estate has been so obtained ought not to be permitted to keep it without making such payment, for it attaches to him also, as a matter of conscience and duty. Story on Equity, § 1219. i. Judge Stoet^ speaking of this class of liens, with respect to the statute of frauds, observes : c. " It has often been objected, that the creation of such a trust by courts of equity is in contravention of the policy ■of the statute of frauds. But whatever may be the original ■force of such an objection, the doctrine is now too firmly es- tablished to be shaken by mere theoretical doubts." Story on Equity, § 1218. 2. Equitable lien under executory contract defined by United States Supreme Court. — As has been observed, equitable liens are the subject of equitable jurisdiction, and are not regulated by statute. The principle upon which such liens rest, when based upon an executory agreement, are clearely defined by Mr. Justice White in Walker v. Brown, ■165 U. S. 654. The court in that action thus defines under .what circumstances an equitable lien will arise, under an ex- ecutory contract as distinguished from one which has been executed and performed. a. " Every express executory agreement, in writing, whereby the contracting party sufficiently indicates an inten- tion to make some particular property, real or personal, or fund therein described, or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equit- able lien upon the property, so indicated, which is enforcible against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, volun- tary assigns or purchasers, or incumbrances with notice." Walker v. Brown. 165 U. S. 654. 316 Lien Law — Article II, Sec. 25. 3. Equitable lien — Purchase money paid under contract of sale. — Plaintiff made a contract for the purchase of cer- tain lands with one Rubin and paid her a deposit under the contract. Eubin did not have title to the lands. She subse- quently procured a contract of sale from one who was not the owner, and assigned it to Eosie Ale!kander, who subsequently took title, and by mense conveyaances the title was vested in one Schrank and his wife. Plaintiff brought an action to recover the deposit and to charge the lands with an equitable lien for the amount. Held, reversing the Special Term, that the title acquired by Schrank and his wife was not obtained through Rubin witb whom plaintiff made his contract, but through Alexander who took from the true ovsnaer. That Rubin under her contract of purchase with one who was not the owner, acquired no title, legal or equitable, to whoch a lien could attach in plaintiff's favor. Weinberg v. Schrank, 115 App. Div. 247; 100 K Y. Supp. 800, affirmed 191 K Y. 539. 4. Equitable lien — Growing crops. — Where the consid- eration has been fully paid under an agreement, oral or writ- ten, to give a lien where the agreement has been so far ex- ecuted and no rights of creditors or hona fide purchasers in- tervene, the contract is good between the parties and operates as an equitable lien, although the subject matter was not in esse when the contract was made. It becomes operative and attaches to the subject matter as soon as it comes into existence. Schermerhom v. Gardenier, 107 App. Div. 564; 94 ]Sr. Y. Supp. 253. a. A merchant contracted vrith a farmer to advance supplies and money to enable him to carry on farming operations, in consideration whereof the farmer agreed that when his crops were ready for market they should be delivered to the mer- chant, sold by him, and that he should retain out of the pro- ceeds the amount of his advances and pay over the balance to the farmer. After the rye and hay had been harvested, the farmer died. The merchant then advanced to the widow, who was his executrix, on her request, the money to enable her to market the crops, which were subsequently delivered to the merchant, Gardenier. Held, that the latter had an equitable lien upon the farm products which came to his possession, for Equitable Liens. 317 the advances made not only to the husband, hut also to his wife, who was his executrix, and this although the latter did not intend to fulfill her husband's contract. Ih. 5. Equitable lien — Statute of Frauds. — Where the con- deration has been fully paid under an agreement to give a lien and thus so far executed, and no rights of creditors, or bona fide purchasers intervene, the contract is good as between the parties without writing. This rule applies to a contract for a lien on property not in esse, and is effectual in equity as between the parties when the property comes into existence. Schermerhom v. Gardenier, 107 App. Div. 564; 94 N. Y. Supp. 253, 6. Equitable lien — Accounting — Sale. — In enforcing this equitable lien, the vendor is entitled not only to an ac- counting of the rents and profits, but may foreclose the lien, as in the case of a written mortgage, and the court will de- cree a sale of the property to accelerate the payment of the debt, if it cannot be otherwise satisfied within a reasonable period. 7. Equitable liens — Principal and agent. — As between principal and agent, where the latter has made advances for his principal, and insolvency might defeat the lien of the latter, equity will raise a lien upon the funds of the prin- cipal, if the fund has been directed to be forwarded without the jurisdiction or into a foreign country. Underhill v. Jor- dan, 72 App. Div. 71. See ante, page 243. 8. Equitable liens — After acquired property. — An equi- table lien will sometimes arise upon the maxim that equity regards that as done which ought to be done. An instance of this is where a mortgagor of chattels incorporates in the mortgage appropriate language with intent to have the mort- gage extend to after acquired property. If the mortgagor subsequent to the execution of the instrument acquires or manufactures chattels, which it was intended the mortgage should cover, equity will extend to the mortgagee an equitable lien on such property, as it will regard that as done which in equity and good conscience ought to be done. 318 Lien Law — Article II, Sec. 25. a. But in such a case, if the rights of general creditors of the mortgagor intervene before the mortgage has been ex- tended to such property, or before supplementary mortgages are given, the doctrine of an equitable lien will not be in- voked to aid the mortgagee, if it will defeat the rights of such creditors. Zartman v. First National Bank, 189 E". Y. 26'7. 9. Equitable liens — Creditors. — Equity will enforce a lien in favor of creditors, where the debtor has given a con- tract to secure their obligations, in consideration of the ex- tension of credit or for other good or valuable considerations, and has agreed to give a mortgage or other security as col- lateral, and the contract is not performed. Hamilton Trust Co. V. GlemeSj 163 'N. Y. 423. And see ante, page 183. a. It is not our purpose to pursue a discussion of the doc- trine of equitable liens. It will be sufficient to state the doc- trine as to liens of this sort, which had their origin in the civil law, and have been recognized in courts of equity from time immemorial. 10. Purchasers in good faith. — Purchasers, in good faith, and without notice, are not affected by this class of liens. And since the passage of the recording acts, a vendor's lien for purchase money should be expressed in his purchase-money mortgage, and put upon a record so as to give notice to sub- sequent vendees. But in a court of equity, if such a purchaser has knowledge of the fact that a vendee has not paid the full amount of the purchase money to his vendor, he purchasing from such vendor is not a hona fide purchaser in a court of equity as against the original vendor, who may enforce his lien for the unpaid balance, and secure a decree to sell the land to accelerate the payment of the debt, especially if the rents and profits are not sufficient to discharge the lien within a reasonable period. 11. Banker's lien — Pledge. — When securities are pledged with a banker or broker for the payment of a promissory note, or for the payment of a particular claim or demand, such broker or banker has no lien upon the securities so Lien on Seat in Stock Exchange. 31& pledged, for a general balance, or for the payment of other claims due by the pledgor. As the pledge is specific, the pled- gee cannot retain the securities pledged for a particular debt, and hold them to secure other debts or demands against the pledgor. Wyckoff v. Anthony, 90 1^. Y. 442. a. A banker has no lien on special deposits in his hands or on notes placed with him for collection. Van Zant v. Hem' over Bank, U. S. Cir. Ct. of Appeals, Second Circuit, 79 11. S. C. C. A. page 23. See also Rynes v. Dumont, 130 U. S. 354. 12. Lien on a seat in stock exchange. — A seat in the New York Stock Exchange is property. A receiver may bring- an action to compel a judgment creditor to convey his " seat " to a member of the Exchange with whom the receiver may contract for its sale. Eitterband v. Baggett, 4 Abb. N. C. 67 ; 42 Superior Ct. (10 J. & S.) 556. A creditor may sue also to recover of defendant the amount due upon a loan made to defendant and to establish a lien in favor of plaintiff upon defendant's " seat " and membership in the New York Stock Exchange. Stevens v. Coolidge, 211 ]Sr. Y. 604, affirming 154 App. Div. 884. 320 Lien Law — Aeticle III, Sec. 40. LIEJSr LAW— AETICLE IIL [Laws 1909, Chap. 38.] EWFOECEMENT OF LlENS OlST EeAL PeOPEETT, Section 40. Construction of article. 41. Enforcement of a mechanic's lien on real property. 43. Enforcement of a lien under contract for a public improve- ment. 43. Action in a court of record; consolidation of actions. 44. Parties to an action in a court of record. 45. Equities of lienors to be determined. 46. Action in a court not of record. 47. How summons served, when personal service cannot be made. 48. Proceedings on return of summons; answer; judgment by default. 49. Issue, how tried; judgment. 50. Execution. 51. Appeals from judgments in courts not of record. 53. Transcripts of judgments in courts not of record. 53. Costs and disbursements. 54. Judgment in case of failure to establish lien. 55. Offer to pay money into court, or to deposit securities, in discharge of the lien. 56. Preference over contractors. 57. Judgment may direct delivery of property in lieu of money. • 58. Judgment for deficienpy. , » ' 59. Vacating of a mechanic's lien, by order of court. 60. Judgment in action to foreclose lien on account of public improvement. 61. Judgment in action to foreclose a mechanic's lien on prop- erty of a railroad corporation. § 40. ConstructioD of article. — This article is to be construed in connection with article two of this chap- ter, and provides proceedings for the enforcement of liens for labor performed and materials furnished in the improvement of real property, created by virtue of such article. Code of Civil Procedure, § 3398, re-enacted as § 40 of the Lien Law, Laws 1909, chap. 38. Jurisdiction — Lien Actions. 321 § 41. Enforcement of a mechanics' lien on real prop- erty. — A mechanics' lien on real property may be en- forced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal represen- tative, in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt. Code of Civil Procedure, § 3399, re-enacted as § 41 of the Lien Law, Laws 1909, chap. 38. 1. Jurisdiction conferred by section 41. — The legislature in enacting section 41 of the Lien Law, which is a re-enact- ment of section 3399 of the Code of Civil Procedure, clearly intended to give to minor courts jurisdiction in actions to foreclose mechanic's liens on real property, to the extent of the jurisdiction of such courts to award money judgments. In view of the fact, however, that this jurisdiction exists in courts not of record, the fact that such courts have no equity powers renders their jurisdiction in lien actions wholly in- adequate. If the amount involved is small a plaintiif can foreclose his lien in a court not of record, and procure a money judgment for work, labor and services, if he is a contractor or subcontractor, or for goods sold and delivered if he is a materialman, which judgment can be enforced by an execution issued to the sheriff under which the plaintiff can sell whatever right, title and interest the defendant had in the land when the lien was filed. A plaintiff, however, in a court not of record, cannot make other lienors parties defend- ant to the action, for the court has no jurisdiction to pass upon the question of priorities nor can he procure a judgment of foreclosure and sale, or distribution of the proceeds for the payment of his judgment. The jurisdiction, therefore, con- ferred by section 41 of the Lien Law is not generally available in actions to foreclose mechanics' liens. The remedy may be invoked, however, where the amount involved is small and there are no other lienors. See also authorities under section 42, infra, with regard to municipal liens. 2. Jurisdiction — County Court — Liens against real property. — A County Court has jurisdiction in an action to 21 323 Lien Law — Aeticlb III, Sec. 41. foreclose a mechanic's lien on real property within the county, although the defendant does not reside therein, as distin- guished from a municipal lien on funds of a municipal cor- poration, where the funds are not within the county. Raven V. Smith, 148 IST. Y. 415. An action to enforce a mechanic's lien is a proceeding in equity and l^e court acquires jurisdic- tion of all subsequent lienors irrespective of their places of residence. Ih. a. The jurisdiction over actions to foreclose a mechanic's lien is not covered by section 340 of the Code of Civil Pro- cedure, defining the general jurisdiction of county courts. That section does not specify all the cases over which the court has jurisdiction. It only defines the powers to be ex- ercised in numerous specified cases in addition to that con- ferred by special statute. Under the Lien Law of 1885, section 7 (Laws 1885, chap. 342), it was provided that after the lien had been filed, it might be enforced " by civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a judg- ment in an action founded upon a contract for a sum equal to the amount of the lien." Under this section, the Court of Appeals in Baven v. Smith, held that the objection by de- fendant in an action to foreclose a mechanic's lien against private property, that the County Court had no jurisdiction against him because he was not a resident of the county, was not tenable, with regard to an action in equity to foreclose a lien on real property as distinguished from a common-law action for the recovery of money only. The constitutional prohibition contained in article 6, section 14 of that instru- ment prohibits the legislature to enlarge or restrict the juris- diction of county courts, provided " that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded ex- ceeds two thousand dollars, or in which any person not a resident of the county is a defendant." In this connection, the court said : h. " The fact that the court would be without jurisdiction to entertain an action between the parties for the recovery of a judgment is not the test of jurisdiction to foreclose a lien for the same amount. The statute (Lien Law 1885, § 7) contains no limitation upon the jurisdiction arising from the Jurisdiction — Lien Actions. 323 residence of the defendant. It requires only that the land shall be situated within the county and that the amount of the lien shall not exceed the sum for which the court may render judgments in actions on contracts generally. * * * In a broad sense, the County Court has jurisdiction of certain ac- tions on contract without regard to the residence of the de- fendant, as will be seen by section 340 of the Code, though not in common law actions for the recovery of money only. In granting the jurisdiction, the legislature did not have in mind, when speaking of actions on contract, those actions where the jurisdiction depends on the defendant's residence. An action to enforce a mechanic's lien is a proceeding in equity, and, in order to subserve the purpose of the statute, the court in which the action is brought, must acquire juris- diction of all parties who have subsequent liens upon the land, irrespective of their place of residence." Ih. c. Section 7 of the Lien Law of 1885 was repealed by the Lien Law of 1897, and its provisions were re-enacted in sec- tions 3399-3400 of the Code, now embraced in sections 41 and 42 of the Lien Law. Section 23 of the Lien Law of 1897, declares that a mechanic's lien may be enforced against any person liable for the debt on which the lien is founded and declares that " the Code of Civil Procedure regulates and provides for such enforcement." The provisions of the Code referred to in section 23 of the Lien Law were, prior to February 17, 1909, embraced in sections 3399 and 3400 of the Code of Civil Procedure. The first of these sections re- lates to the enforcement of a lien on private property and the second to a municipal lien. As to a lien on private prop- erty, section 3399 declares that it may be enforced in a "court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt." As to a municipal lien, section 3400 declares that it may be enforced by a civil action in the same court and in the same manner as a mechanic's lien on real property." The provisions relating to the jurisdiction of courts in which liens may be enforced, remains practically as it was under section 7 of the Lien Law of 1885, which provisions are retained and an- plified in section 3399 and 3400 of the Code of Civil Pro- cedure, and in sections 41 and 42 of the Lien Law of 1909. It follows, therefore, that the County Court has jurisdiction 324 Lien Law — ^Aeticle III, Sec. 41. of an action to foreclose a mechanic's lien on real property where the amount involved does not exceed $2,000 irrespec- tive of the residence of the defendants. See also authorities under § 42 as to municipal liens. 3. City Court — Jurisdiction to cancel lien. — The Code of Civil Procedure (section 316) limits the jurisdiction of the City Court to $2,000 in actions to recover on contract indebtedness. This jurisdiction is extended by section 41 (formerly section 3399) of the Lien Law, to actions to fore- close liens on private property. Held, that a justice of the City Court could not, by order, discharge a lien where the amount due was in excess of $2,000. Such an order where the lien was for $7,300 was vacated on the ground that the justice making it was without jurisdiction. Matter of Steiger V. London, 52 Misc. 462. As to jurisdiction of the City Court of the City of JSTew York, see post, page 331, 332. 4. Person liable for the debt. — The authorities upon the right of the lienor to a personal judgment against the person liable for the debt will be found under section 54, which gives such right to the lienor, if for any reason he shall fail to establish a valid lien. See post, page 316. Municipal Lien — Jueisdiction as to. 325 § 42. Enforcement of a lien under contract for a pub- lic improvement.— A lien for labor done or materials furnished for a public improvement may be enforced against the funds of the state or the municipal cor- poration for which such public improvement is con- structed, to the extent prescribed in article two of this chapter, and against the contractor or sub-contractor liable for the debt, by a civil action, in the same court and in the same manner as a mechanic's lien on real property. Code of Civil Procedure, § 3400, re-enacted as § 42 of the Lien Law, Laws 1909, chap. 38. The above section was repealed June 26, 1911, by chap. 450, Laws 1911. It was re-enacted without change on Octo- ber 6, 1911, by chap. 873, Laws of that year. 1. Jurisdiction as to municipal liens — Courts of record and not of record. — In an action to enforce a municipal lien upon funds in possession or under the control of a municipal corporation, such corporation of necessity must be a party defendant. Prior to the enactment of the Lien Law of 1S97 and section 3400 of the Code of Civil Procedure as a supple- ment to that law, courts of limited jurisdiction had no au- thority to entertain an action against a municipal corpoi-a- tion unless such authority was expressly conferred upon them by statute. The provisions of section 42 of the Lien Law (which is a re-enactment of section 3400 of the Code of Civil Procedure) now expressly confers such jurisdiction, but only in cases to enforce municipal liens. Unless the statute means this, it means nothing. It was evidently the plain intention of the legislature, under the section referred to, to give jurisdiction in actions to enforce municipal liens to all courts of record and not of record. Under the authority thus con- ferred, an action to enforce a municipal lien may now be brought in any court having jurisdiction of the amount claimed in the notice of lien, notwithstanding the fact that one of the defendants is a municipal corporation. Some confusion may arise on the question in courts of limited jurisdiction, by reason of the fact that in very many instances, such courts have no general jurisdiction in actions 326 Lien Law — ^Article III, Sec. 42. against a municipal corporation. For instance, the City Court of the city of New York, a court of limited jurisdiction, has no power to entertain an action other than an action to enforce a municipal lien, where such action is brought against the city of New York. O'Connor v. City of New York, 191 N. Y. 238. See also Maische v. City of New York, 193 N. Y. 460. a. While this is the general rule which prevails in actions against a municipal corporation, section 3400 of the Code of Civil Procedure, enacted as a supplement to the Lien Law of 1897, which was re-enacted as section 42 of the Lien Law of 1909, creates an exception in cases where the action is brought to enforce a municipal lien. It follows that this exception authorizes such actions to be brought in courts of limited jurisdiction, and minor courts throughout the State, notwithstanding the fact that in such suits a municipal cor- poration is a party defendant. h. But although section 43 of the Lien Law confers upon minor courts having no equity powers, jurisdiction over muni- cipal corporations in actions to enforce municipal liens, the jurisdiction is not available. Such courts have no equity jurisdiction, and for that reason a plaintiff can have no adequate remedy to foreclose a municipal lien therein. The Constitution (art. VI, § 18) forbids the legislature to confer equity jurisdiction upon " inferior local courts." The only relief, therefore, which a lienor could get in such courts would be a money judgment for work, labor and services, or for goods sold and delivered as the case may be, depending on the fact as to whether plaintiff is a contractor, subcontractor or materialman. He cannot, in such courts, make other lienors parties, because he is in a tribunal having no equity jurisdiction, and the question of priorities cannot be ad- judicated. He can get no decree of foreclosure and sale^ but a judgment for money only, which must be enforced by an execution issued to the sheriff. Drall v. Gordon, 51 Misc. 618. 2. Jurisdiction — County Court — Municipal liens. — A County Court has jurisdiction in an action to foreclose a me- chanic's lien on real property within the county, notwithstand- Municipal Lien — County Couet. 327 ing the fact that some of the defendants do not reside therein. In like manner a County Court would have jurisdiction to foreclose a municipal lien on funds of a municipal corpora- tion when it appears that the funds in possession of or under the control of the municipality was within the county, and that the municipality, which is a domestic corporation within the meaning of the statute, was a resident of, or had a prin- cipal place of business established within the county. This jurisdiction is covered expressly by section 3400 of the Code of Civil Procedure (now section 42 of the Lien Law), which declares that " a lien for labor done or materials furnished for a public improvement may be enforced against the funds of the State or a municipal corporation for which such public improvement is constructed to the extent prescribed in article 1 of the Lien Law and against the contractor or subcontractor liable for the debt by civil action in the same court and in the same manner as a mechanic's lien on real property." A me- chanic's lien on real property within the county can be en- forced in a County Court where it is founded on a contract for a sum which does not exceed $2,000, and this notwithstanding the fact as to the nonresidence of the defendants. Raven v. Smith, 148 IST. Y. 415. This jurisdiction, however, conferred by section 3400 of the Code (now section 42 of the Lien Law) is confined only to actions to foreclose liens, and does- not extend generally to suits against municipal corporations to recover damages in actions at law. Maische v. City of New York, 193 N. Y. 460. a. The Maische case was an action brought in the Supreme Court, Kings county, to recover damages for the negligence of the defendant, the city of New York, in so constructing a public sewer as to injure the property of the plaintiif by caus- ing water to flow into the cellar. The plaintiff recovered less than five hundred dollars and defendant claimed that plaintiff could not recover costs because he could have brought the ac- tion in the County Court of Kings county. The court held that the County Court of Kings county had no jurisdiction in an action against the city of New York, where the action was brought to recover damages for a sum of money only. The decision was based upon the proposition that no action could be maintained in a County Court against a nonresident de- fendant where the suit was brought to recover damages for a 328 Lien Law — Aeticlb III, Sec. 42. sum of money. The jurisdiction of tlie County Court with regard to actions at law as distinguished from equitable ac- tions, is defined by section 340 of the Code, subdivision 3, which provides that the jurisdiction of the court extends to an action " where the defendant is or if there are two or more defendants where all of them are at*the time of the commence- ment of the action residents of the county, and wherein the complaint demands judgment for a sum of money only not exceeding two thousand dollars." The Court of Appeals held that the city of New York was a domestic corporation and resided, so far as residence controls the jurisdiction of county courts, in the county of New York, the place where its chief governmental functions are exercised. The action being to recover damages for a sum of money only, the County Court had no jurisdiction over the city of New York, which was a nonresident defendant. Maische v. City of New Yorh, 193 N". Y, 460. See also O'Connor v. City of New Yorh, 191 N. Y. 238, which holds that the City Court of the city of New York has no jurisdiction in an action against the city of New York, in which the plaintiff seeks to recover damages for a sum of money only. 6. A different rule, however, applies in an action brought in a County Court to enforce a muicipal.lien against a munici- pality having its principal office or place of business and the place where it exercises its chief governmental functions in the county where the action is brought. This jurisdiction of the County Court is not covered by section 340 of the Code, but by section 3400 of the Code, which is now embraced in section 42 of the Lien Law, which expressly declares that a municipal lien can be enforced in any court in the same man- ner as a mechanic's lien on real property may be enforced in the same court. The constitutional provision contained in article 6, section 14 of the State Constitution, which forbids the legislature to extend the jurisdiction of county courts to an action therein, in which any person not a resident of the county is a defendant, relates to actions for the recovery of money only and does not embrace equitable actions in the nature of suits to foreclose liens upon real property, or upon the funds of a municipal corporation, where the amount in- volved does not exceed $2,000, but is confined to common law actions for the recovery of money damages. Raven v. Smith, JuEisDicTioN — Municipal Liens. 329 148 N. Y. 415. It follows, therefore, that section 3400 of the Code and section 42 of the Lien Law is not repugnant to the constitutional prohibition embraced in article 6, section 14 of the State Constitution and that a County Court has jurisdiction in an action to foreclose a municipal lien, where the sum demanded does not exceed $2,000, against the funds of a municipal corporation within the county, and which cor- poration is a resident of the county in which the action is brought. c. The only exception to this rule, however, relates to an action to enforce a municipal lien against the city of New York. Such an action cannot be brought in the County Courts either of Kings, Queens or Richmond coimties, for the reason that the funds of the defendants are not within those counties, but within the county of New York, and the city of New York is not a resident of the county of Kings. Queens or Richmond within the meaning of the statute, but a resident of the county of New York in which it exercises its chief governmental functions. Maische v. City of New York, 193 N. Y. 460. 3. Jurisdiction — County Court — None against the city of New York. — The County Courts of Kings and Queens or Richmond counties, as has been observed, have no juris- diction in an action against the city of New York, for the reason that the Constitution of the State, article 6, section 14, forbids the legislature to extend the jurisdiction of County Courts, to authorize an action therein, in which any person not a resident of the county is a defendant. The Constitution, also, by article 8, subdivision 3, declares that all corporations shall have the right to sue and shall be sued in all courts in like cases, as natural persons. Within the meaning of these provisions of the Constitution, a " domestic corporation " must be a resident of some county. The legislature in section 341 of the Code of Civil Procedure defines the jurisdiction of County Courts, and provides that a " domestic corpora- tion " whose " principal place of businenss is established by or pursuant to a statute," or in case of a joint stock associa- tion, by its articles of association, is actually located within the county, is deemed a resident of the county, so that personal service of the summons may be made within the county. 330 Lien Law — Aeticlb III, Sec. 42. a. Section 431 of the Code prescribes that personal service of a summons may be made on a " domestic corporation " by delivering a copy thereof within the State as follows: " (1) If the action is against the mayor, aldermen and commonalty of the city of ISTew York to the mayor, comptroller or counsel to the corporation." The same provisions are embraced in section 263 of the Greater Wew York charter. h. The Court of Appeals in Maische v. City of New York, 193 N. Y. 460, which was an action to recover damages for negligence in constructing a sewer, held that the legislature in enacting the section of the Code above referred to included municipal corporations in the term " domestic corporations." That the city of New York was a domestic corporation. That section 431 of the Code regulating the service of process, eo nomine expressly provides upon what city officers the sum- mons must be served when the action is brought against the city. That the legislature has conferred upon every city in the State the attribute of residence in that county in which its principal place of business is located, so far as residence controls the jurisdiction of County Courts. That the city of New York was a resident of the County of New York, where its chief governmental funcitions are exercised. The Greater New York charter, section 262, also expressly declares: c. " All actions wherein the city of New York is made a party defendant shall be tried in the county within the city of New York in which the cause of action arose, or in the county of New York, subject to the power of the court to change the place of trial in the cases provided by law." d. The city of New York is in. the county of New York and extends into three other counties. Kings, Queens and Eich- mond. It has been held under section 262 of the Greater New York charter and section 983 of the Code, directing that causes must be tried where the cause of action arose, when against a public officer for an act done by virtue of his office, where the city is a party, that a taxpayer's action to annul a city contract, executed in New York county, where bids were, received under it, must be tried in the latter county. Enow- les V. City of New York, Tl App. Div. 410, s. c, 75 N. Y. Supp. (109 St. Eep.) 725. Jurisdiction — City Ooukt of City of New Yoke. 331- e. But in an action to foreclose a municipal lien, the County Court of Kings county can have no jurisdiction, because the funds of the city are not within any of the counties to which the city of New York extends, but remain in the county of New York, and the defendant is not a resident of Kings county, and cannot be served with process in that county. On this last point, section 263 of the Greater New York charter declares that " all process and papers for the commencement of actions, and legal proceedings against the city of New York shall be served either upon the mayor, comptroller or the cor- poration counsel." /. The question of residence would not bar a mechanic's lien action against real property in the County Court, if the land is within the county where the action is brought. It would seem to follow, therefore, that a similar rule would ap- ply to an action to enforce a municipal lien, brought in a County Court against funds of the city which were in the county where the action is brought. 4. Jurisdiction — City Court of the city of New York — Territorial jurisdiction. — The territorial jurisdiction of the City Court of the city of New York, is limited by § 1345 of the Greater New York charter, to_ the city as it existed June 6, 1895, which embraced the territory within the limits of the old city of New York, and the annexed district, which was included in the 24th Ward. This additional territory was formerly within the incorporated villages of Wakefield, East- chester, and Williamsbridge, in the town of Westchester and portions of the towns of Eastchester and Pelham. On June 6, 1895, this territory was included in the 24th Ward and was annexed to the old city of New York, Laws 1895, chap. 934. a. On the first day of January, 1898, therefore, when the Greater New York charter became operative, the territorial jurisdiction of the old city of New York as defined in § 2 of the Greater ,New York charter, is now embraced in the Borough of Manhattan as follows : " The Borough of Man- hattan shall consist of all, that portion of the city of New. York, as hereby constituted, knovwi as Manhattan Island, Nuttin or Governor's Island, Bedloes Island, Bucking or Ellis Island, The Oyster Islands, Eandall's Island, and 332 Lien Law — ^Aeticle III, Sec. 42. Ward's Island in the East or Harlem Elvers." Greater New York charter, § 2, Laws 1897, chap. 378, as amended by Laws 1901, chap. 466. b. Although for the purpose of bringing an action and serv- ing the summons and complaint, the jijrisdiction of the City Court of the city of New York is limited to the Borough of Manhattan, nevertheless, § 338 of the Code prescribes that certain mandates may be executed beyond the territorial limits embraced in the Borough of Manhattan as follows: (1) an execution upon judgment exceeding $25.00 may run to the Sheriff of any county wherein the judgment has been duly docketed ; (2) a subpoena may be served within either of the counties of Richmond, Kings, Queens and Westchester; (3) a warrant to apprehend a witness for failure to obey a subpoena may be executed by the sheriff of the city and county of New York or a marshall of that City within either of those counties ; (4) an order requiring the performance of an act by a party in an action or by an officer may be served in any part of the state ; (5) an order to show cause why a person should not be punished for contempt may be served in any part of the state; (6) a warrant to apprehend a person charged with contempt may be served in any part of the state. And it has been expressly held, that although the City Court of the city of New York is a court of record, it is nevertheless, a court of limited jurisdiction, and can exercise no power or authority other than that which is expressly conferred by statute. McCann v. Oerding, 29 Misc. 283; 60 N. Y. Supp. 467. In this connection in support of the provision of § 338 of the Code, cited supra, it may be observed that § 1345 of the Greater New York charter, declares that the word " city " shall be construed to mean and apply to the territory within the city of New York as it existed and was constituted prior to the 1st day of January, 1898. Greater New York charter, § 1345. 5. Jurisdiction — City Court of the city of New York. — The City Court of the city of New York, being a court of limited jurisdiction, possesses only such powers as the legis- lature may from time to time prescribe. The statute creating JuBisDicTioN — .City Coitet. 333 tlie City Court of the city of New York confers upon it no jurisdiction in actions against the city to recover damages for negligence. For this reason such an action cannot be prosecuted in such City Court. O'Connor v. City of New Yorh, 191 N. T. 238. a. The jurisdiction of the City Court of the city of !N^ew York, prior to September 1, 1911, was defined by § 315 of the Code of Civil Procedure, which was thereby limited to an amount not exceeding $2,000, exclusive of interest and costs. By laws 1911, chap. 569, the legislature sought to increase this amount to $5,000. The power of the legislature to in- crease the jurisdiction of the court beyond $2,000 was chal- lenged, in an action in the Supreme Court, in which it was held, that chapter 569, Laws 1911, was unconstitutional, in- operative and void, as being in conflict with article 6, §§ 14 and 18 of the State constitution. Lewkowich v. Queen Aero- plane Co., 207 N. Y. 290, affirming the unanimous decision of the Appellate Division in 154 App. Div. 142. The court referred approvingly to the elaborate opinion of Mr. Justice Clarke, in the court below, in reference to the review of the debates of the Constitutional Convention of 1894, " which are fully recited in the opinion of the Appellate Division." In view of the decision of the Court of Appeals, in the LewJcowick case, the jurisdiction of the City Court of the city of New York, remains as it existed prior to September 1, 1911, as defined by § 315 of the Code of Civil Procedure, which confers jurisdiction in the following cases : 1. An action against a natural person, or against a foreign or domestic corporation, wherein the complaint demands judg- ment for a sum of money only, or to recover one or more chat- tels, with or without damages for the taking or detention thereof. 2. An action to foreclose or enforce a lien upon real prop- erty in the city of New York, created as prescribed by statute, in favor of a person, who has performed labor upon or fur- nished materials to be used in the construction, alteration or repair of a building, vault, wharf, fence, or other structure ; or' who has graded, filled in, or otherwise improved, a lot of land, or the sidewalk ot street in front of or adjoining a lot of land. 34 Lien Law — Aeticle III, Sec. 42. 3. An action to foreclose or enclose a lien, for a sum not needing two thousand dollars, exclusive o"f interest upon le or more chattels. c. In view of the fact however, that the City Court of the ty of IN'ew York, is a court of record, the provisions of § 46 : the Lien Law, as to the mode of service of the summons id complaint in such actions, can not apply to actions begun I the City Court, because the provisions of § 46 of the Lien aw is limited, in express terms, to courts not of record. d. It will be observed that the jurisdiction conferred by see- on 315 of the Code authorizes an action to foreclose a lien on lal property only if the amount of the lien does not exceed 70 thousand dollars exclusive of interest and costs. There is ) express provision, however, under this section which con- irs jurisdiction to foreclose a lien upon moneys belonging to vQ State or a municipal corporation. Such jurisdiction, how- ler, is expressly conferred by section 42 of the Lien Law hieh is a re-enactment of section 3400 of the Code of Civil rocedure which was enacted as a supplement to the Lien aw of 1897. It was held in the O'Connor case that the Lrisdiction, subdivision 1, against a foreign or domestic irporation is not broad enough to embrace an action against municipal corporation and such jurisdiction will not be im- ied. The Consolidation Act (Laws 1882, chap. 410, § L03) gave the Supreme Court, the Court of Common Pleas id the Superior Court exclusive jurisdiction in actions ;ainst the mayor, aldermen and commonalty of the city of ew York. In 1897, when the Greater New York charter as enacted (Laws 1897, chap. 378), by section 1345, thereof, e City Court and its justices were expressly continued with the same powers and jurisdictions as are now conferred pon them by law." Section 262 of the charter gave to the iipreme Court with which the Common Pleas and Superior ourts had been consolidated, " exclusive jurisdiction over 1 actions or special proceedings, wherein the city of Ifew ork is made a party defendant, and the section also pro- des that all such actions shall be tried in the county wholly ■ partly embraced within the city of New York, in which le cause of action arose or in the county of New York, sub- ct to the power of the court to which the place of trial," etc. I JUEISDICTION CiTT CoUET. 335 When the Greater New York charter was enacted, therefore, the jurisdiction of the City Court as continued, was only- such as had been conferred upon it by the provisions of the Consolidation Act of 1882 which did not include actions against the city. Section 262 of the charter of 1897 was amended in 1901 by which the clause relating to exclusive jurisdiction of the Supreme Court was omitted. This omis- sion from section 262, however, did not repeal the grant of exclusive jurisdiction to the Supreme Court, nor did it grant to the City Court equal jurisdiction to that conferred upon the Supreme Court. O'Connor v. City of New York, 191 IST. Y. 238. d.d. When the Lien Law of 1897 was passed, however, it was supplemented by section 3399 and 3400 of the Code, which are now embraced in sections 41 and 42 of the Lien Law, which confer jurisdiction to enforce liens on real prop- erty and municipal liens on all courts having jurisdiction in an action on contract for a sum of money equivalent to the debt sued upon, for which such lien is filed. It follows there- fore that a municipal lien can be enforced in an action brought in the City Court of the city of New York where the amount of the lien does not exceed two thousand dollars exclusive of interest and cost, notwithstanding the fact that the city of New York is a party defendant in such an action. e. Although the City Court of the city of New York has no general equity jurisdiction, it is a court of record and not an *' inferior local court " within the meaning of article VI, sec- tion 18, of the State Constitution, which forbids the legisla- ture to confer upon such courts " any equity jurisdiction." The language of the section is that no inferior or local court of civil and criminal jurisdiction hereafter created (after 1846) shall be a court of record. The Marine Court, now the City Court of the city of New York (Laws 1883, chap. 26), was declared to be a court of record, with a seal, in 1813 (Laws 1813, chap. 86; Laws 1872, chap. 629). It would seem to follow, therefore, that the legislature may confer equity jurisdiction on the City Court of the city of New York, especially where it creates an equitable remedy and confers upon the court jurisdiction to enforce it. 336 Lien Law — Article III, Sec. 42. /. This conclusion seems to be further justified by the deci- sion of the Appellate Term in the case of Krugman v. Han- over Fire Ins. Co., 90 IST. Y. Supp. 448, which arose upon a motion for interpleader under section 820 of the Code, which authorized the court to make an order t>f interpleader. Chief Justice O'Dwyer denied the motion •(94 JST. Y. Supp. 399) solely upon the ground that in the case of Wells v. Com Ex- change Bank (87 IST. Y: Supp. 480), the Appellate Term held (March, 1904) that the City Court had no general equity jurisdiction, and as the granting of the order would have the effect of converting the plaintiff's action at law into one in equity (Clarh v. Masher, lOY JST. Y. 118 ; Dinley v. McGul- laugh, 9S Hun, 454, 36 JST. Y. Supp. 1007) the granting of the motion would oust the City Court of jurisdiction. Law- rence V. Lawrence, 32 Misc. 503, 66 JST. Y. Supp. 393. g. In view of this decision, Chief Justice O'Dwyer felt con- strained to deny the motion, but in his opinion observed that while the City Court had no general equity jurisdiction, it had equity powers when the legislature expressly conferred them upon the court and that section 820 was made applicable to that court by section 3347 of the Code. (Citing Smith v. Emigrant Industrial Savings Bank, 2 "N. Y. Supp. 617.) Upon appeal the Appellate Term declined to follow the Wells case, reversed the order, and sustained the views expressed in the opinion of the chief justice in denying the motion upon the ground that section 820 of the Code by express provision of the statute (Code, § 3347, subds. 4-6 ; Jacobs v. Leiberman, 51 App. Div. 542, 64 N. Y. Supp. 953) was made applicable to the City Court, and that it was competent for the legisla- ture to confer such equity jurisdiction as attached, either expressly or by necessary implication. Krugman v. Han- over Fire Ins. Co. (Nov. 10, 1904), 90 K Y. Supp. 448. See also Schultz v. Teichman Engineering Co., 79 Misc. 357. h. The law conferring jurisdiction upon the City Court to foreclose a mechanic's lien is contained in section 315 of the Code of Civil Procedure. This jurisdiction is not limited in section 316 of the Code, except in the cases therein specified, where the complaint demands judgment for a sum of money only, in which case the judgment rendered cannot exceed the sum of $2,000, exclusive of interest and costs as taxed. In an JumSDICTION ,ClTY CoUET. 337 action to foreclose a lien the complaint does not demand judg- ment for a sum of money only, but for a judgment of fore- closure and sale of the property against which the lien is filed. i. The jurisdiction conferred by sections 41 and 42 of the Lien Law is couched in general language. These sections de- clare that the lien may be enforced " in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt." In an action in the City Court " founded on a contract " judgment may be entered for $2,000, together with interest and costs. The question presented is whether the City Court in an action to foreclose a mechanic's lien is limited to rendering simply a money judgment, or whether the legislature, having conferred general jurisdiction to enforce a mechanic's lien, may exercise whatever equity jurisdiction is incidental and necessary to enforce the remedy to which the lienor is entitled, and may pass upon the question of priorities and enter a decree in equity directing a foreclosure and sale of the land and a distribution of the proceeds among the respective lienors as may be adjudged in the decree. ;". This specific question has not as yet been finally adjudi- cated, nor has it been passed upon by the Court of Appeals. Mr. Justice Seabury, in his work on City Court Practice, says, that the remedy of one who seeks to enforce a mechanic's lien is equitable in its nature. " It follows," says Justice Sea- bury, at page 96, " that the court may be called upon to ex- ercise equitable powers in carrying out the jurisdiction con- ferred." On the question of jurisdiction in this record we quote from "Seabury on City Court Practice," page 95, as follows : " The Legislature has limited the City Court to a legal jurisdiction of a common-law nature (Lynch v. Bowling, 1 City Ct. Eep. 163), except in actions to foreclose mechanics' liens and liens upon chattels. (Rich- a/rds V. Littell, 16 Misc. Eep. 33; Code, §§ 315, 317; Dunn v. Wehle, 12 Misc. Rep. 653). In these cases the jurisdiction conferred is of an equitable nature, and is governed by equitable rules and principles. The City Court has the same power in mechanic's lien cases that the other courts of record possess. All of such courts proceed alike, under the same statute, to attain the same end. Where the defendant in an ac- tion in the City Court pleads a transfer of property, a general release, or other document, in bar of a recovery, the court may, in a proper 338 Lien Law — ■ Article III, Sec. 42. case, and even in a common-law action, adjudge such instruments to be void, so as to destroy their eflfeet as a defense. In an action to fore- close a lien, the adjudging as fraudulent a transfer intended to defeat the lien is an incident to the jurisdiction necessary to make it effective. {Murray v. Gerety, 32 N. Y. St. Eep. 240.) The jurisdiction being equitable in its nature, it follows that the court may be called upon to exercise equitable powers in carrying out the jurisdiction conferred. Thus the validity of a conveyance given by an owner in fraud of the rights of a lienor may be determined in the action. {Meehan v. Wil- liams, 36 How. Pr. 73; Limneman v. Bieber, 85 Hun, 477; N. T., L. & W. Co. V. Seventy-third St. Bldg. Co., 5 App. Div. 87). It would seem that, under the above principles, an injunction may be Issued, or a re- ceiver appointed, where such action is necessary to preserve the rights of the 'parties. {Webb v. Yam, Zand, N. Y. Common Pleas, 1863. See 1 Abb. Pr. 314, note; Devlin v. Hope, 16 Abb. Pr. 314; Leahy v. Parke, N. Y. Law Jour., February 1, 1902. But see Meyer v. Seebald, N. Y. Common Pleas, 1871. See 11 Abb. Pr., N. S., 326, note.)" 5. Jurisdiction — Municipal Court of the city of New York. — On April 15, 1915, the legislature passed as act entitled " An Act in relation to the Municipal Court of the city of New York," known as chapter 279, Laws of that year, which took effect September 1, 1915, the statute designated the Municipal Court Code (section 1), expressly declares that the Municipal Court " shall be a court of record," and its jurisdiction is increased from $500 to $1,000, exclusive of interest and costs. The jurisdiction is defined in § 6 of the Act and embraces : "An action upon a contract express or implied, other than a contract to marry; and action to recover a fine or penalty; an action to establish a mechanic's lien on real property, and to recover a personal judgment for the amount due ; and ac- tion to foreclose a lien on a chattel. * * * " Of actions * * * by or against the city of New York; by or on behalf of the people of the state of New York ; by or against a domestic corporation or a foreign corporation; by or against a domestic or foreign executor or administrator in his representative capacity ; by or against a committee of an incompetent." a. Since the Municipal Court of the city of l^ew York has been made a court of record, its jurisdiction in actions to foreclose mechanic's liens is limited, so far as service of pro- cess is concerned, to the boundaries of the city of New York. Prior to September 1, 1915, service of the summons and com- JuEiSDiGTioN — Municipal CotrRT. 339' plaint in lien actions, commenced in the Municipal Court, it not being then a court of record, was governed by § 46 of the Lien Law, which authorizes such service anywhere within the State. h. It has been held that § 46 of the Lien Law is a general statute applicable to all courts not of record in the State. It provides a specific remedy for the foreclosure of mechanic's liens on real property, and enlarges the jurisdiction of local and inferior courts, so as to allow the process of such courts to run anywhere within the state. The provisions of § 46 of the Lien Law, are therefore supplemental to the remedy prescribed by the Municipal Court Act. Bogopoler Realty Co. V. Schwartzmarij 59 Misc. 495. c. The special jurisdiction conferred by the Municipal Court Act, however, makes no provision for the foreclosure of a municipal lien. In this respect, therefor, the provisions of § 42 of the Lien Law creates a new remedy, which it would seem is not applicable to the Municipal Court of the city of l^ew York. See Drall v. Gordon, 51 Misc. 618. d. While it is true that the jurisdiction conferred on Muni- cipal Courts of the city of New York by chap. 279, Laws 1915, embraces actions by or against the city of New York, yet in defining the jurisdiction of the Court as to lien actions, the statute confines such actions in express terms to liens on real property. It is significant in this connection that the statute makes no reference to liens " for the construction of a public improvement " upon " the moneys of the State or of such corporation," as defined in § 5 of the Lien Law. Jurisdiction — Conditional sale — Chattel mortgage. — The jurisdiction of the Municipal Court of the city of New York in actions arising upon a contract of conditional sale or upon a chattel mortgage given to secure the purchase price of chattels, which was formerly governed by § 139 of the Muni- cipal Court Act, is now governed by § 70 of the Municipal Court Code (Laws 1915, chap. 279), which provides as fol- lows: § 70. What deemed lien on chattel. — For the purpose of this article [Municipal Court Code, Article Fourth] a chattel mortgage to secure the purchase price of chattels as well as a contract of conditional sale 340 Lien Law — Aetioi.e III, Sec. 42, of personal property and a hiring of personal property, where title is not to vest in the person hiring until papraent of a certain sum, shall be deemed a lien upon a chattel; and an action to foreclose such a lion may be maintained. a. Where goods sold subject to a chattel mortgage are aband- oned by the mortgagor, the mortgagee may retake possession, sue for the amount unpaid, hold the goods as security for his claim, and sell them under his execution, it' the latter is not satisfied. Bloomingdale v. Qaudio, 85 Misc. 389. Plaintiff sued to recover $437, on account of unpaid in- stallments upon the purchase price of a piano, on which de- fendant executed a chattel mortgage to secure the purchase money, which was payable in installments at the rate of $8.00 per month. After the sale defendant moved to Philadelphia, and plaintiff found the piano in the possession of a stranger. The vendee had paid only $38 of the purchase money, and plaintiff took the piano into its custody. The mortgage pro- vided that in case of default, or in c-nso the piano should come into the possession of a third party, the mortgagee was au- thorized to take the chattle, sell it at public or private sale with or without notice, and render any overplus to the mort- gagor, who covenanted to pay any deficiency. Plaintiff notified defendant that the piano had been placed in storage for his account. The trial justice dismissed the complaint, upon the ground that the chattel mortgage did not authorize plaintiff to take the piano, and store it for defendant's ac- count, and sue for the balance of the purchase price. Held, error. That the action was not upon a contract of conditional salei where the title vested in the vendee, only upon full pay- ment, but being an action to recover installments due on a chattel that the Muiiicipal Court had jurisdiction. lb. h. Prior to the enactment of the Municipal Court Code, (Laws 1915, chap. 279), the words in § 139 of the Municipal Court Act, refer to " a hiring of personal property, where title is not to vest in the person hiring, until payment of a certain sum " and provided further that " for the purpose of this section an instrument in writing as above stated shall be deemed a lien upon a chattel," The Municipal Court, thf/refore, had jurisdiction to foreclose a lien for unpaid in- stallments of the purchase price of a piano, or for rentals then due and unpaid on the instrument, in view of the fact Jurisdiction — Municipal 'Cotjet. 341 that the statute expressly declared that the agreement of hiring shall he deemed a lien upon a chattel. Gruenberg v. Schol, 83 Misc. 39. c. It was held further under the Municipal Court Act, that in an action brought by a conditional vendor to recover a balknce due for goods sold under a contract of conditional sale, the Municipal Court had jurisdiction. Section 131 of the Act provides that no action arising on a written contract of conditional sale of personal property shall be maintained in that Court but that " an action may be maintained to recover a sum or sums due and payable for installments, payments or hiring, but in such cases no order of arrest shall issue." Toledo Computing Scales Co. v. Borah, 64 Misc. 63. d. Section 141 of the old Municipal Court Act gave the judge power to render a money judgment in an action to fore- close a lien on a chattel. He had power also to award a money judgment for the amount of the lien, or any part thereof, against the defendant liable for the debt, if he was personally served with a summons. Held, that under § 141 of the Act, no power was vested in the court to render a money judgment, unless it can render a judgment to foreclose a lien on a chattel. In a ease where plaintiff had no lien, a personal judgment could not be sustained. Jacobs v. Fein- stein, 133 App. Div. 416. e. It was held also, under the old Municipal Court Act, that the court had no jurisdiction in actions to recover the amount paid under a contract of conditional sale as provided by § 65 of the Personal Property Law. Lefkojf v. Bauch, 90 Misc. 294; Seabott v. Wannamaker, 164 App. Div. 531; Edelson v. Wagman, 88 Misc. 514. Section 74 of the Municipal Court Code (Laws 1915, chap. 279), now expressly declares what the judgment must provide in an action to foreclose a lien on a chattel as follows : § 74. Judgment. — In an action to foreclose a lien, the judgment in favor of the plaintiff must specify the amount of the lien and, when the chattel is not in the custody of the marshal by virtue of a warrant, must command the marshall to seize the chattel. The judgment must direct a sale by a marshal of the chattel after fifteen day's personal service of the notice of sale upon the defendant, unless such service shall be dispensed with by order of the court, to satisfy the lien and the costs, if any, in like manner as where a marshal sells personal 34'3 Lien Law — ■ Article III, Sec. 42. property by virtue of an execution, and the application by him of the proceeds of the sale, less his fees and expenses to the payment of the amount of the lien and the costs of the action. It must also provide for the payment of the surplus, if any, to the owner of the chattel, and for the safekeeping of the surplus, if any, by the clerk of the court, until it is claimed by him. If a defendant upon Vfhom the summons is personally served is liable for the amount of the lien or for any part thereof, the plaintiflF may also have judgment for the deficiency, if any. The execution to be issued to the marshal shall be in accordance with the terms of the judgment. [A.CTIO]SrS COTJET OF Recobd, 343 § 43. Action in a court of record; consolidation of actions. — The provisions of the Code of Civil Proce- dure, relating to actions for the foreclosure of a mort- gage upon real property, and the sale and the dis- tribution of the proceeds thereof apply to actions in a court of record, to enforce mechanics' liens on real property, except as otherwise provided in this article. If actions are brought by different lienors in a court of record, the court in which the first action was brought, may, upon its own motion, or upon the appli- cation of any party in any of such actions, consolidate all of such actions. Oode of Civil Procedure, § 3401, re-enacted as § 43 of the Lien Law, Laws 1909, Chap. 38. 1. Confusion as to procedure in suits to foreclose liens and mortgages on realty. — Some confusion has arisen under the provisions of section 43 (formerly section 3401) of the Lien Law by reason of the language of that section, which de- clares that the provisions of the Code relating to actions to foreclose mortgages on realty and the sale and distribution of the proceeds " apply to actions in a court of record, to enforce mechanic's liens on real property, except as otherwise pro- vided in this article." The fact that the remedies in the two actions are radically different has given rise to some diiBcul- ties. It will be necessary, therefore, in order to ascertain the rights of a lienor, under this section, to point out whereii^ actions to enforce liens, and suits to foreclose mortgages differ, and in what respect the provisions of the Code relating to the foreclosure of mortgages can have no application in suits to foreclose mechanic's liens. 2. Code provisions as to mortgages not applicable in lien actions. — Section 43 (formerly section 3401) of the Lien Law declares that the provisions of the Code relating to ac- tions to foreclose mortgages apply to actions to enforce me- chanics' liens on real property " except as otherwise provided in this article." The provisions of the Code relating to ac- tions to foreclose mortgages are embraced in sections 1626- 1637. In view of the difference in the nature of the remedies 34'4 Lien Law — ■Article III, Sec. 43. prescribed in actions to foreclose mortgages and actions to foreclose liens, the provisions of three of the sections ap- plicable to the former are inapplicable to the latter. The remedy to foreclose a mortgage is made exclusive by the pro- visions of section 16-28 of the Code. The remedy in 'an action to foreclose a lien is cumulative and miay be pursued concur- rently with any other remedy which the lienor may have. Power V. Onward Construction Co., 39 Misc. 708 ; Raven v. Smith, 71 Hun 179 ; Matter of Gould Coupler Co., 79 Hun 206 ; Smith v. Fleischman, 23 App. Div. 358 iRobinson v. Fay, 19 IST. Y. Supp. 120. This distinction in the nature of the remedy as between an action to foreclose a mortgage and an action to foreclose a lien renders sections 1628, 1629 and 1630 relating to mort- gage suits, wholly inapplicable in suits for foreclosure of liens. The sections referred to are as follows : § 1628. While an action to foreclose a mortgage upon real property is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of hte mortgage debt, without leave of the court in which the former action was brought. § 1629. The complaint, in an action to foreclose a mortgage upon real property, must state, whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part thereof has been collected. § 1630. Where final judgment for the plaintiff has been rendered, in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been Issued, upon the judgment, to the sheriff of the county where he resides, if he re- sides within the State, or if he resides without the State, to the sheriff of the county where the judgment-roll is filed, and has been returned wholly or partly unsatisfied. a. These provisions, it will be observed, are repugnant to and inconsistent with the reanedy of a lienor, who may pur- sue as many remedies ^as he has simultaneously, and the pen- dency of an action at law to collect the debt, which is the foundation of the lien, is no bar to his action in equity to fore- close the lien. h. The Code gives a remedy to the martgagee which Is practically an exclusive remedy. That is to say, the remedy lat law upon the bond cannot be pursued simulaneously with an action in equity to foreclose the mortgage. The reason is clear. When a mortgagee applies to a court of equity for £^ Remedy Cumulative. 345 decree to sell the land to pay the debt evidenced by the bond he cannot litigate the question as to the validity of the bond or the amount due thereon. If the mortgagor should set up an answer denying the validity of the bond or the amount due thereon he would be entitled to a jury trial on that issue. McKellar v. Rogers, 109 IST. Y. 478. c. In like manner if the plaintiff should fail to establish his mortgage, the court would be obliged to dismiss the com- plaint because it would have no power to render judgment in personam upon the bond. Dudley v. Congregation of 8t. Francis, 138 N. Y. 451. Section 3412 of the Code of Civil Procedure, now section 54 of the Lien Law, expressly pro- vides that in an 'action to foreclose a lien, if the plaintiff should fail to establish a valid lien, the court may neverthe- less render judgment in personam against the person liable for the debt. d. In an action to foreclose a mortgage, the debt is always admitted, because if it is disputed a court of equity cannot try the question. The bond is under seal and acknowledged so that there can be no question about the debt. In an action to foreclose a lien, however, the debt is always disputed, and if the debt is established, and the lien is declared to be valid, the court has power to sell the land to pay the debt and fore- close the interest of all parties. An action to foreclose a lien is an action in equity. If, however, the lienor chooses to sue upon the debt he can bring an action in a court of law. The action at law upon the debt would be no bar to the dction in equity to foreclose the lien. Powers v. Onward Construction Company, 39 Misc. 708. e. The complaint, in an action to foreclose a mechanic's lien, therefore, must set forth the debt and allege how much of the inddbtedness has been paid and how much remains due. It must set forth the lien. As the remedy in equity to foreclose the lien is cumulative and not exclusive, a lienor is entitled to all the remedies he can resort to, but he can have but one satisfaction. Rohinson v. Fay, 19 E". Y. Supp. 120 ; Raven v. Smith, 87 Hun, 90. /. The remedies in an action upon the debt land the fore- closure of the lien are cumulative and concurrent and the creditor may pursue all until he obtains satisfaction. This 34'6 Lien Law — Article III, Sec. 43. rule is in harmony with all the authorities. The plaintiff in an action to foreclose a mortgage, however, is not entitled to concurrent remedies. In such an action the statute expressly declares that the remedy of the mortgagee in an action at law upon the bond shall not be pursued concurrently with a suit in equity to foreclose the mortgage, and if the mortgagee sues on the bond, he cannot at the same time pursue his remedy in equity to foreclose the mortgage. (Code, § 1628.) And if he pursues the remedy in equity to foreclose his mortgage, the statute forbids him to pursue simultaneously his remedy at law upon the bond. The remedies of a mortgagee, there- fore, are not concurrent, but remedies of a lienor are. g. The court, in construing section 3401, will recognize the distinction between an action to foreclose a lien and an ac- tion to foreclose a mortgage so far as the procedure ia con- cerned. In the case of a lien the defendant in order to defeat the lien must defeat the debt. In an action to foreclose a mortgage the debt evidenced by the bond cannot be litigated. The law distinctly declares that the mortgagee if he seeks a remedy upon the bond must do so in a court of law, while if he seeks a remedy to foreclose a mortgage in a court of equity the question as to the validity of the bond cannot be deter- mined. , The reverse of this proposition applies to an action to foreclose a mechanic's lien. The defendant in the lien suit must of necessity, if he would defeat the lien, litigate the debt upon which the lien is based. In view of these vital dis- tinctions the courts have construed section 3401 of the Code so as to require that the practice to foreclose a mortgage upon real property and the provisions of the Code applicable there- to shall conform as near as may be to actions to foreclose me- chanics' liens. h. The language of section 3401 directs that the practice in actions to foreclose mechanics' liens and in actions to fore^ close mortgages should be assimilated, " except as otherwise provided " in the Lien Law. The fact that the remedy in the two classes of actions differ radically, the section should be construed so as to preserve all the rights of the lienor, and if the nature of the remedies of the latter require a departure from some of the provisions of the Code relating to the pro^ cedure in actions to foreclose a mortgage, the practice should be allowed in lien suits so as to preserve the rights and reme- dies which the Lien Law prescribes. Hemedy Cumulative. 347 i. The provisions of section 1629 of the Code, therefore, which declares that in a mortgage suit plaintiff must state in his complaint " whether any other action has been brought to recover any part of the mortgage delht, and if so whether any part thereof has been collected," can have no application in an action to foreclose a mechanic's lien. Cagliostro v. City of New York, K Y. Law Journal, March 8, 1906. j. In the case cited, plaintiff sued to foreclose a municipal lien. Defendant set up in his answer as a separate defense the pendency of a suit at law to recover upon the same con- tract alleged in the complaint. Plaintiff demurred on the ground that the matter pleaded constituted no defense to the action. The demurrer was sustained. Mr. Justice Leven- TEiTT, in his opinion, said : " An action in equity to fore- close a mechanic's lien, and an action at law upon the con- tract debt being concurrent and cumulative remedies may be pursued simultaneously {Powers v. Onward Const. Co., 39 Misc. Y08 ; Smith v. Fleischman, 23 App. Div. 358, and cases cited). It was unnecessary, therefore, to 'allege in the com- plaint the pendency of an action at law upon the contract. Section 1629 of the Code applies to mortgage foreclosures where the remedy upon the bond cannot be pursued concur- rently with an action on the mortgage. It follows that the pendency of the action upon the contract is no defense to this action to foreclose the lien. Demurrers to fifth and sixth separate defenses sustained, with leave to defendant to serve amended answer within twenty days after payment of costs." h. The authorities are uniform which hold that in an ac- tion in equity to foreclose a mechanic's lien, it is not neces- sary to allege in the complaint whether any action at law is pending to recover the debt which is the subject of the lien. In Abbott V. Easton, reported below, 122 App. Div. 274, 106 i^. Y. Supp. 970, the Appellate Division, Third Department, by a divided court held inter alia that it was necessaiy that the complaint in a lien action should conform to section 1629 of the Code, and should state whether any other action had been brought to recover any part of the lien debt, and if so, whether any part thereof had been collected, but in its opin- ion, the Court did not cite any of the authorities above re- ferred to, nor discuss the questions there decided. The ques- tion arose on a motion to strike the cause from the calendar on the ground that the complaint did not state facts sufficient 348 Lien Law — Aeticle III, Sec. 43. to constitute a cause of action. The motion was granted and the judgment afErmed. There was a dissenting opinion, how- ever, to the effect that although the suit was to foreclose a lien, it stated at least a good cause of action for goods sold and delivered. The Court of Appeals reversed the judgment on the ground assigned in the dissenting opinion, but did not discuss the question as to the necessity of pleading whether an action at law was pending to collect any part of the lien debt. Abbott V. Boston, 195 N. Y. 372, May 18, 1909. I. In the Abbott case the complaint did not contain a suffi- cient averment as to the making and filing of a notice of lien, and it was conceded that the complaint did not state a cause of action for the enforcement of a mechanic's lien. The Court said that where a complaint in a lien suit does not set forth a cause of action to enforce the lien, but sets forth a cause of action for goods sold and delivered, personal judg- ment may be recovered in the action on the contract, and that a motion to dismiss, which is equivalent to a demurrer, can not be sustained. Citing with approval Schenectady Cons. Go. V. Schenectady B. R. Co., 106 App. Div. 336, post page 352. In the case of Abbott v. Easton, however, defendant did not demand a jury trial. In Schwartz v. Klar, 144 App. Div. 37, a jury trial was demanded in season. The motion was denied. On appeal, held error. That the motion for a jury trial should have been granted and as the complaint failed to- allege, that no other action or proceeding had been brought to recover any part pf the debt, which is the subject of the lien, the complaint failed to state a cause of action in equity to foreclose the lien. Schwartz v. Klar, 144 App. Div. 37. Compare Shaw v. WilJce, 137 App. Div. 513. See also on this point infra paragraph 14, page 355, "Com- plaint — Another Action Pending." 3. Foreclosure of lien and mortgage further distinguished. — The procedure in actions to foreclose mortgages upon real property are by the above section made applicable to actions to foreclose mechanics' liens. There is, however, a marked distinction between the two actions. They are 'similar in their nature, in that in both a decree is sought to sell the land and apply the proceeds to the payment of the debt. The remedy in both is a statutory remedy. But here the simi- larity ends. FOBECLOSUKE OF LlEK. 349' a. The right to foreclose a mortgage rests upon the debt, which is evidenced -by a bond under seal, which has been duly ' acknowledged by the debtor. A mortgagee cannot litigate the validity of the bond or the existence of the debt in the equity suit to foreclose the mortgage. The right to a deficiency judgment upon the bond, in an action to foreclose a mortgage, is predicated upon the fact that the validity of the debt and the bond by which it is evidenced is admitted and acknowl- edged. The right to foreclose a lien must be determined upon the establishment of a debt upon contract due to the lienor or to a principal contractor by the owner of the land. In an action to foreclose a niortgage, as a rule, the bond and the debt are never in dispute. In an action to foreclose a lien, the debt is never evidenced by a bond and is always in dis- pute. One holding a bond and mortgage has two remedies. He may sue at law upon the bond, or he may proceed in equity to foreclose the mortgage and sell the land to pay the debt evidenced by the bond. He cannot pursue these reme- dies simultaneously. While an action is pending to foreclose the mortgage, or after a final judgment therein^ an action at law upon the ;bond is prohibited without leave of court. (Code Civ. Proc, § 1628.) In an action to foreclose, the complaint must state whether any other action has been brought to recover any part of the mortgage debt, and if so, whether any part thereof has been collected. (Code Civ. Proc., § 1629.) If plaintiff has recovered judgment on the debt he cannot maintain an action on the mortgage, unless an execution has been issued and returned unsatisfied in whole or in part, (Code Civ. Pro., § 1630.) In an action to fore- close a mechanic's lien, .plaintiff may in the same action pur- sue h's remedy on the debt for a personal judgment and his remedy against the res to sell the land. If for any reason he fails to establish his lien, he may have a judgment in per- sonam against the person liable for the debt. In action to foreclose a mortgage, if plaintiff fails to establish his mort- gage, he cannot recover judment in personam upon the bond. Dudley v. Congregation of St. Francis, 138 'N. Y. 451. h. In an action to foreclose a lien which has been assigned, and the foreclosure is brought by the as=ignee of the lien con- tract, and cause of action, the owner cannot avail himself, by way of counterclaim, of a cause of action resulting from a breach of contract by the plaintiff's assignor, upon a contract 35'0 Lien Law — Aeticle III, Sec. 43. made after the assignmeoit of the lien and contract to plain- tiff. Lawrence v. Congregational Church, 164 N. Y. 116. 4. Consolidation. — The foregoing provisions of section 3401 of the 'Gode as to consolidation of lien suits are a sub- stantial re-enactment of the Lien Law of 1885 (Laws 1885, chap. 342, § 17). It has been held that the provisions of the Lien Law of 1885, with respect to consolidation of actions, are no broader than the provisions of the Code of Civil Pro- cedure (§§ 817-819) authorizing consolidation of actions generally, and should be construed in harmony therewith. A motion to consolidate in a lien suit, as in any other, should be made in season, before the trial. If such a motion is made after an action has been partly tried, it will be too late to grant the relief, and the motion must fail. Echenroth v. Egan, 20 Misc. 508. a. It has also been held thait where the court in which the first action was brought was the City Court of the city of New York it had power to consolidate subsequent actions, although commenced in the Supreme Court. Boyd v. Stewart, 30 Abb. N. C. 127. I. Pleajdiitg and Peactice. 1, Action to establish lien. — Where the intent is to give a lien, and what is done to that end is so defective as to fail to create it, but is consistent with its creation, and not a contract for something else, equity will treat as done what was in- tended to be done and the lien may ibe established and fore^ closed in the same action. One cannot mortgage what he does not have, but he can agree to mortgage it or to give a lien upon it as soon as he gets it, and equity will enforce the agreement and establish the lien. Nat. BanTe of Deposit v. Rogers, 166 N. Y. 380. See also Zartman v. First Nat. Bank. 2. Pleading and practice. — The pleading and practice in actions to foreclose mechanics' liens are goveirned, under sec- tion 43, by the provisions of the Code of Civil Procedure relating to actions to foreclose mortgages upon real property. The distinction between actions to foreclose liens and mort- gages has been pointed out. See ante, page 343. 2a. Examination of defendant before trial. — Where plain- tiff seeks to foreclose a mechanics lien and unites in his com- Pleadings in Peactice. 351 plaint a cause of action for loss of anticipated profits arising out of the contract upon whicli the lien is founded, plaintiff may have an order directing that the defendant he examined hefore trial. Cooper, Etc., Co. v. Manhattan Bridge Three Cent Line, 164 App. Div. 64. 3. The complaint. — A contractor was adjudged bankrupt during the progress of the work, and filed a lien, which he assigned to the trustee in bankruptcy, and the latter, pur- suant to an order of the court, finished the work and filed a lien therefor, which facts were pleaded. Held, that the com- plaint stated but a single cause of action, although each lien is termed a separate cause of action. Davis v. City of New York, 75 App. Div. 518. a. A defendant is entitled to a complaint which concisely states all the facts upon which the plaintiff relies, in order that the court may determine whether, assuming all the facts stated to be true, the complaint states a cause of action. A complaint, in an action by a materialman, which fails to state who was the owner at the time the materials were fur- nished, or what interest defendants had in the property, or what the relations of the owner were, with the person to whom plaintiff furnished materials, or that the materials were fur- nished with the consent or at the request of the owner, or his agent, contractor, or subcontractor, is demurrable. Enterir man v. Anderson, 106 App. Div. 149, 94 N. Y. Supp. 45. b. In an action to foreclose a mechanic's lien, the plaintiff set forth the builder's contract showing when the payments were to be made and further alleged, in conformity with § 533 of the Code, that the plaintiff did the work and fur- nished the materials and " has duly performed all the condi- tions of said contract on his part". Held, on demurrer that the complaint was sufficient. Smith v. Cary, 160 App. Div. 119. 4. Complaint — Excuse for nonperformance. — In an ac- tion to foreclose a mechanic's lien where the complaint al- leged that the contract had been performed except work of the value of $250, the plaintiff must allege excuse for non- performance with respect to the work unperformed. Unless such excuse is pleaded the complaint is fatally defective and a demurrer thereto will be sustained. Paturzo v. Shuldiler, 125 App. Div. 636, 110 N. Y. Supp. 137. 352 Lien Law — ^Article III, Sec. 43. 5. Complaint — Architect's Certificate. — A complaint in action to foreclose a mechanic's lien must allege e'ther that plaintiff procured the architect's certificate as provided by the contract, or that such certificate was refused or unreasonably withheld. Bell v. Fox, 138 App. Div. 569. 6. Complaint — Extra work — Beveling brick. — Plaintiff asked to be allowed for grinding brick to make the comer of the building correspond with an irregular street corner. Held, untenable. Plaintiff knew when he took the contract that the corner of the building did not form a right angle, and that he could not do his work without beveling the cor- ner bricls and must be deemed to have included this work in his estimate. Murphy v. Number One Wall Street, 142 App. Div. 835. 7. Complaint — Personal judgment. — The complaint set forth a notice of lien which on its face was invalid, prayed for a foreclosure and sale of property, and judgment for defi- ciency against the contractor, and for " such further judg- ment, decree, or or deer as may be necessary to protect its rights in the premises." Defendant contractor demurred. Held, reversing Special Term, to be sufficient on demurrer at least to sustain the complaint, as a demand for personal judg- ment; pursuant to section 3412 of the Code of Civil Pro- cedure, which allows personal judgment, if the lien fails for any reason. Schenectady Contracting Co. v. Schenectady Railway Co., 106 App. Div. 366, 94 N. Y. Supp. 401. 8. Complaint — Failure to allege — No other action pend- ing. — Under section 723 of the Code, the court has ample power to permit a pleading to be amended, in order to do jus- tice between the parties, even if such amendment may operate to change the cause of action from an action at law to one in equity. Kalt Lumber Co. v. Dupignac, 150 App. Div. 402. a. In a suit to foreclose a mechanic's lien, the com- plaint failed to state that " no other action has been had for the recovery of said sum of money or any part thereof." Upon a motion to amend the complaint, so as to insert this allegation, the Court at Special Term denied the motion, upon the theory that the 'amendment would change the eaus« of action from an action at law, to an action in equity. Held, error. That the court has inherent power to permit a plead- ing to be amended, in order to do justice between the parties, Complaint. SSS whether the result of the amendment changes the cause of action or not. lb. b. It is not necessary in order to make such an amendment to delay the proceedings by sending the ease to Special Term. The court has the power at the trial to amend a pleading by " inserting an allegation material to the case". Douglass v. Carlin Construction Co., 149 App. Div. 856. c. Where the evidence discloses the fact that a jury trial is proper, it is error for the court to deny a motion for such jury at the opening of the case, after the court has denied a motion to dismiss the complaint. Schwartz v. Klar, 144 App. Div. 37. 9. Complaint — Failure to properly describe premises. — The court, in an action to foreclose a mechanic's lien, dis- missed the complaint, which did not accurately describe the lands subject to the lien. The premises were properly de- scribed in the answers of other lienor defendants, who proved their respective liens. Held, that judgment in favor of these defendant lienors was proper. The fact that plaintiff fails in a lien suit, does not rob the court of jurisdiction to foreclose subsequent liens of defendants which are properly pleaded, and supported by evidence. Nor can a subsequent purchaser reject title to the lands, because of plaintiff's failure in the lien suit, to properly describe the premises in his complaint. Hill V. Flatbush Consumer's Ice Co., 143 App. Div. 559. 10. Complaint — Something due when action begun. — The complaint of a subcontractor need not allege as against the owner that there is anything due plaintiff, at the time the notice of lien was filed, if it contains an allegation that plain- tiff's claim had not been paid when the action was com- menced and there was a sum due from the owner to the con- tractor, equal to the amount of plaintiff's claim. Palmer Lumber Co. v. Stem, 140 App. Div. 680. 11. Complaint — Something due. — The complaint must allege that a particular sum was due the plaintiff when he abandoned the work, and set up an excuse for nonperform- ance, or it must show facts from which it can be inferred that there was a specific sum then due and unpaid. Where the complaint merely alleges as a conclusion that the tenant for whom the work was done failed to pay sums due the eontrac- 23 354 Lien Law — Aeticlb III, Sec. 43'. tor, no cause of action is stated against tlie tenant for the abandonment of the work for there is nothing in the com- plaint to show that plaintiff was justified in the abandon- ment. Mitchell V. Dunmore Realty Co., 126 App, Div. 829, 111 K Y. Supp. 322. * a. Upon the trial, plaintiff, a, subcontractor, failed to estab- lish a valid lien, and obtained a personal judgment against the owner. The latter moved to dismiss as to him. The mo- tion was denied. The plaintiff failed, also, to show that there was anything due from the owner to the contractor, either be- fore or after the lien was filed. Held, that the motion to dismiss as to the owner should have been granted, as the no- tice of lien was invalid, and nothing was shown to be due from the owner to the contractor; personal judgment, there- fore, against the owner under section 3412 was unauthorized: Alexander v. Hollender, 106 App. Div. 404, 94 JST. Y. Supp. 796. See also Siegel v. Ershowshy, 46 Misc. 605 ; Gibbon v. Hoare, 54 Misc. 245 ; La Pista v. Weil, 20 Misc. 555, and authorities cited under § 4 at page 106, ante. a. A person furnishing materials to a subcontractor who files a lien therefor must, as to the owner, in an action to fore- close the lien, allege in his complaint that at the time of filing the notice of lien there was a sum due or earned, and remain- ing unpaid, from the owner to the contractor or subcontrac- tor. The owner is not liable in a sum greater than the value or agreed price of the labor or materials remaining unpaid at the time of filing the notice of lien. A complaint which fails to state that anything is due from the owner is demurr- able. Ball & Wood Co. v. Clark, 31 App. Div. 356 ; Siegel V. Ershowshy, 46 Misc. 605 ; Qribben v. Hoare, 54 Misc. 245. 12. Complaint — Extra work. — In an action to foreclose a mechanic's lien, no recovery can be had for extra work not set forth in the contract, unless the extra work is alleged in the complaint, and proved on the trial. Clonin v. Lippe, 121 App. Div. 466, 106 IST. Y. Supp. 58. a. The plaintiff's claim was for 342,000 hard brick at $5.90 per 1,000. The plaintiff sought to recover in addition to the amount due for the brick delivered 150,100 brick by Complaint — Anothee Action Pjeinbing. 355 truck loads, instead of by barge, it being claimed that the extra charge of eighty-five cents per 1,000 was occasioned by the fact that defendant obstructed the place where the bricks were to be piled, so that plaintiff could not deliver in large lots. The testimony was objected to as not within the issues. No attempt was made to amend the complaint. Held, that no recovery could be had for the extra work as the same was not pleaded. Ih. 13. Complaint — Payment in instalments. — Where the contract for which a mechanic's lien was filed provided for payment by instalments as the work progressed, the plaintiff in an action to enforce a lien for failure to pay the first in- stalment under the contract must allege that the material and labor necessary to entitle plaintiff to such instalment had been actually furnished and performed. 14. The complaint — Another action pending. — A com- plaint in an action to foreclose a mortgage must state whether any other action has been brought to recover any other part of the mortgage debt, and, if so, whether any part thereof has been collected. (Code Civ. Proc, § 1629). A lienor sued at law to recover the debt, and also sued in equity to fore- close the lien. In the foreclosure suit plaintiff alleged in his complaint that the action at law upon the debt was still pend- ing undetermined. Held, on demurrer, that the action at law upon the debt was not the same action as the one in equity to foreclose the lien, and that there was not " another action pending between the same parties for the same cause," within the meaning of section 487 of the Code of Civil Pro- cedure, and the demurrer was overruled. Power v. Onward Construction Co., 39 Misc. 708. a. It is no defense to an action to foreclose a mechanic's lien that there is an action pending by the owner against plaintiff to recover damages for an alleged breach of the con- tract which is the subject of the lien. The relief and pro- cedure in the two actions being radically different, the action at law for damages is no bar to the suit in equity to foreclose the lien. Smith v. Fleischman, 23 App. Div, 355. h. The remedy of the lienor to foreclose his lien against real property is a cumulative remedy, and not exclusive, and 356 Lien Law — Aeticle III, Sec. 43. the statute giving the remedy is a remedial statute. The lienor, therefore, is not barred from pursuing any other or further remedy which he may have, independent of the sta- tute. The creditor may always pursue as many remedies as he has unless expressly forbidden by the statute. He may. have dual or plural remedies, but he ckn have but one satis- faction. An action in equity, therefore, to enforce a me- chanic's lien hj a sale of the land and the application of the proceeds to the payment of the lien debt, is noi bar to an ac- tion at law against the contractor or any other party liable for the debt. The remedies are not only cumulative but con- current and may be pursued simultaneously. Power v. On- ward Construction Co., 39 Misc. 708 ; Raven v. Smith, 71 Hun, 179 ; Matter of Gould Coupler Co., 79 Hun, 206 ; Rob- inson V. Fay, 19 N. T. Supp. 120, s. c, 46 St. Eep. 369 ; Raven v. Smith, 87 Hun, 90. And see Cagliostro v. City of New York, N. Y. Law Journal, Miarch 8, 1906, opinion of Leventritt, J., ante, page 347. c. An action to foreclose a mortgage differs radically from an action to foreclose a lien for the reason that the foreclosure of a mortgage is predicated upon a bond under seal. The 'amount due upon the bond is never in dispute in the fore- closure action. If the defendant should raise the question in the foreclosure suit that there was nothing due upon the bond, he would be entitled to a jury trial. For this reason the Code (§ 1630), will not permit a party foreclosing a mortgage to bring an act'on at the same time upon the bond to recover the amount of the debt. He may resort to the mortgage as col- lateral security for his debt, and after he has exhausted his remedy, he may, by leave of the court, bring an action upon the bond but he cannot pursue his remedy upon the bond and his remedy on the mortgage simultaneously. If he has recov- ered judgment on the debt, he cannot foreclose the mortgage unless an execution has been issued and returned unsatisfied in whole or in part. Dudley v. Congregation of St. Francis, 138 ]Sr. Y. 451. In an action to foreclose a mechanic's lieu, liowever, the pla'ntiff in the same action may pursue his remedy on the debt for a personal judgment and his remedy -against the res to sell the land, and if for any reason he fails ■to establish his lien, he may have a judgment in personam against the person liable for the debt. In an action to fore* Complaint — Substantial Pekformance. 357 close a mortgage, the debt is evidenced by a bond under seal duly acknowledged, which is rarely, if ever, disputed. An action to foreclose a lien is predicated upon a contract and the question whether there is anything due the lienor is always in dispute and is the subject-matter of the litigation. 15. Complaint —:- Performance. — After abandonment by the principal contractor the work was finished by the owner. A subcontractor sue to foreclose a lien for work on the premises, which was sublet after abandonment. The com- plaint alleged that plaintiff performed his subcontract at the special instance and request of the owner, who promised and agreed to pay the subcontractor therefor. Held sufficient. Clarke v. Heylman, 80 App. Div. 572. a. By the terms of the contract plaintiff was not entitled to recover until the work had been accepted by defendant's engineer. The complaint failed to allege such acceptance but alleged that plaintiff " had duly fulfilled and performed all the conditions of said contract on his part to be performed," pursuant to section 533 of the Code of Civil Procedure. Held, on demurrer, that the complaint stated a good cause of ac- tion. Vandergrift v. Berton, 83 App. Div. 548. 16. Complaint — Substantial performance. — Under an allegation of substantial performance in an action . to fore- close a mechanic's lien, if it appears that more than 10 per cent, of the work was not completed and no waiver of sub- stantial performance is alleged or proved, there is no sub- stantial performance and no recovery can be had. Hochhind V. Jacobson, 126 App. Div. 357, 110 N. Y. Supp. 583. a. Plaintiff had judgment in an action to foreclose a me- chanic's lien up a contract for $3,100. The court a.t Special Term allowed to the defendant $314 for work which had not been performed in order to complete the contract, the work undone being more than 10 per cent, of the contract price, and no waiver of substantial performance having been pleaded in the complaint or proved by any satisfactory evi- dence. Held, substantial performance was not shown. Judgment reversed. Ih. 358 Lien Law — Article III, Sec. 43. 17. Complaint — Excuse for nonperformance. — If plain- tiff relies upon excuse for nonperformance he must allege it in the complaint. If the issue joined involves only the ques- tion of performance, evidence tending to show excuse for non- performance was properly excluded. Lindblad v. Lynde, 81 App. Div. 603. a. Where plaintiff claims that the owner has been guilty of a breach of contract, and that by reason of such breach plaintiff was excused from further performance, and seeks to recover for labor performed and materials furnished to the time of the breach upon a quantum meruit, the complaint must allege part performance, the breach, and a legal excuse for nonperformance. Bohinson v. Chinese Charitable Assn., 47 App. Div. 69. h. Where the complaint alleges absolute performance, the cause of action is based upon the performance, and no de- fense tending to show excuse for nonperformance is admiss- ible. An allegation in a complaint that the terms of the con- tract had been fully complied with does not authorize proof that it has not been complied with, because of certain facts in respect to which no mention is made in the pleadings. The only issue tendered by a pleading containing the allegation that the contract has been completed does not set forth a cause of action based upon excuse for nonperformance. Where a plaintiff pleads full performance of a contract he cannot re- cover unless he establishes that fact. liecla Iron Worhs v. Hull, 115 App. Div. 126, 100 N". Y. Supp. 696 ; Schnaier V. Nathan, 31 App. Div. 225 ; Elting v. Dayton, 17 N. Y. Supp. 849 ; McEntyre v. Tucker, 36 App. Div. 53 ;' La Chi- cott V. Richmond R. & L. Co., 15 App. Div. 384; Stern v. McKee, 70 App. Div. 142. 18. Complaint — Certificate withheld. — If plaintiff claims performance, and the contract provides for an architect's certificate as a condition precedent to payment, plaintiff, in the absence of such- certificate,, cannot recover unless he pleads that the certificate was unreasonably withheld. Dwyer V. The Mayor, 77 App. Div. 224. 19. Complaint — Personal judgment. — If plaintiff seeks a personal judgment, in an action to foreclose his lien and Complaint — Personal Judgment. 359' sell the land, he must allege in his complaint the facts which will entitle him to such judgment. And he must demand such judgment affirmatively in the complaint. a. If plaintiff fails to plead facts which entitle him to a personal judgment and fails to demand such judgment affirm- atively, a defendant who might be liable personally for the lien debt cannot be held. As no issue was tendered in the complaint authorizing personal judgment, defendant is not bound to litigate it, and cannot be said to have waived a jury trial upon an issue not tendered. Deem Steam Pump Co. v. Glarlc, 84 App. Div. 450; Kane v. Hutckoffj 81 App. Div. 10.5. b. A subcontractor who had furnished materials to a con- tractor accepted an order upon the owner. Payment of the amount for which the order was given was refused. The subcontractor filed a mechanic's lien ai^d made the owner and contractor defendants. Held, that personal judgment against the contractor was proper even although the latter filed no lien and did not ask for the enforcement of the plaintiff's lien. Freidenrich v. Condict, 124 App. Div. 807, 109 IST. Y. Supp. 526. c. Where a complaint in an action to foreclose a me- chanic's lien fails to demand a personal judgment as au- thorized by section 3412 of the Code of Civil Procedure, plaintiff is not entitled to personal judgment under his pleadings. Murphy v. City of Watertown, 112 App. Div. 670, 99 N. Y. Supp. 6. 20. Complaint — Causes of action improperly united. — In an action to foreclose a Mechanic's lien, it appeared that the owner agreed with the contractor, as part of his compen- sation, to convey to the latter a portion of the lands described in the building contract. The fact that the complaint alleged the agreement to convey, and demanded specific performance as part of the relief prayed for, can not be construed to set forth two separate causes of action, for the reason that the court may disregard the demand for specific performance, and award judgment for foreclosure of the lien. Cehio v. Fisher, 143 App. Div. 577. 360 Lien Law — Article III, Sec. 43. 21. Complaint — Plaintiff bound by issues tendered. — The plaintiff alleged in his complaint that he had performed all the conditions of his contract, except so far as they were waived or prevented by defendant Burke, so as to entitle him to the first payment and also to the second payment, under the contract. The first payment was for $1,600 and was payable " when all cornices, leaders, leader heads, gutters, flashings and gravel roof is finished." When plaintiff laid the gutters it was discovered that the wooden frame to which they were attached which had been furnished by defendant Burke was wrong as to grade, necessitating a tearing up and relaying. A controversy arose as to who should bear the ex- pense, which resulted in the plaintiff abandoning his con- tract. He filed a lien for upwards of $4,000 for work per- formed and materials furnished at their quantum meruit value. Complaint was dismissed. Held, no error, as plain- tiff did not put the" abandonment of his contract upon the refusal of defendant Burke to bear the expense of relaying the copper gutter, which was wrong, because of defendant's mistake. This excuse for nonperformance should have been alleged. In view of the fact that the complaint alleged as excuse for nonperformance failure of defendant Burke to make payments when they fell due, and no amendment was asked for, the complaint was properly dismissed. Brandt v. City of New Yorlc, 110 App. Div. 396, 97 JST. Y. Supp. 280. 22. Supplemental complaint. — The contract provided that no moneys should become due the contractor until the com- pletion of the work. The court granted an order to the plain- tiff, a materialman, permitting him to file a supplemental complaint, setting forth that after the action was begun, plaintiff completed the work with the consent and at the re- quest of the city and some of the lienors, in order to reach a fund that might become due, to which plaintiff's lien and that of other contractors might attach, and demanded judg- ment that the work so performed be paid out of such funds before the mechanic's liens should be paid. Held, no error. In his supplemental complaint plaintiff was not claiming to increase the amount of his lien as set forth in the original complaint, but sought to assert a lien or claim upon the fund, superior in equity although subsequent in time, to his own lien, and those of the other lienors, upon the ground that Pleadings Amended. 361 plaintiff with knowledge and consent and at the request of other lienors, expended certain moneys to establish a fund to which such lienors may resort, and which, but for his action might have been lost. Muggier Iron Co. v. City of Neiu York, 131 App. Div. 702. 23. Complaint — When dismissal proper. — Where the notice of lien is insufficient, and fails to comply with the statute (Section 9 of the Lien Law) and there was no other controversy in which plaintiff and the other defendants were interested, the court is justified in dismissing the complaint. Leske v. Wolf, 154 App. Div. 233. But see Fenichel v. Zichertnann, 154 App. Div. 471. 24. Pleadings — Amendment of, on the trial. — The only limitation upon the authority of the court or a referee upon the trial to permit amendments to pleadings seems to be that the amendment shall not change substantially the cause of action, or embrace a new one. Perry v. Leveson, 82 App. Div. 94. a. In an action to foreclose a mechanic's lien, it appeared that the contract contained a provision, that " should the owner, at any time during the progress of said building, re- quest any alteration, deviation, addition or omissions from said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valua- tion." The answer set up that plaintiff substituted materials for those specified in the contract. On the trial the plaintiff was allowed to amend his complaint by alleging that under the contract the parties modified it by authorizing the use of the substituted materials. Defendant pleaded surprise, and that he did not come into court to try any such issue. Held, by a divided court, that the court had power to allow the amendment upon the trial, because it did not change the cause of action. Held further that it was not error to allow the trial to proceed, notwithstanding defendant asked for an ad- journment, and for leave to amend his answer to meet the allegations of the amended complaint. Poerschhe v. Horo- witz, 84 App. Div. 443. 362 Lien Law — ^Akticlb III, Sec. 43. h. In an action brought to foreclose a mechanic's lien, the complaint alleged performance. Plaintiff failed to show per- formance, and attempted to show substantial performance. The evidence established the fact that there were substantial deviations from the contract some of which lead to the filing by the bureau of buildings of violations of the Building Code. One deviation consisted in the fact that when certain beams were inserted there was a bearing or purchase of one or two inches only on the flange, whereas the specifications required a four-inch beam. Plaintiff claimed that this was cured by rivettihg an iron plate four inches in length to the beam. This was not sanctioned by the department of buildings, and after several inspections, the violation remained in force. At the end of the trial, defendant moved to dismiss the com- plaint on the ground that neither performance nor sub- stantial performance had been shown. Plaintiff moved to amend to allege in substance a substantial compliance and waiver by the defendant of strict performance. Defendant claimed surprise. Motion to amend was denied and the com- plaint dismissed with costs. Fraenkel v. Friedman^ 58 Misc. 451. The judgment dismissing the complaint was reversed by the Court of Appeals upon the ground that a clause in the contract permitting the owner to terminate the employment and complete the contract himself, in which case he must pay the contractor the amount of the contract price less the amount necessary for the completion thereof, and as the de- fendant did not request the court to find what amount was expended by him to complete or would be required to com- plete, and as there was no finding that defendant cancelled or terminated the contract, there should be a new trial. Fraenkel v. Friedmann, 199 IST. Y. 351. 25. Amendment of complaint to conform to the proof. — Where the complaint of a subcontractor fails to allege that the contractor and owner completed the work, it may be amended at the trial to conform to the proof in that respect. The trial judge had power to amend it at the trial and if he had failed to do so, it could have been amended in the Appellate Divi- sion to uphold the judgment. Martin v. Flahive, 112 App. Div. 347, 98 N. Y. Supp. 577. Pleadings not Coubt of Recokd. 363 26. Complaint — Court not of record. — Section 46 of the Lien Law (formerly § 340.4 of the Code) with respect to proceedings to enforce mechanics' liens in courts not of rec- ord, requires that the action must be commenced by service " upon the owner, anywhere within the state of a summons and complaint verified in the same manner as a complaint in an action in a court of record." Under this requirement it would seem that in minor courts not of record, oral pleadings caimot be had in lien suits, as section 48 requires issue to be joined by a verified answer. Section 46 further declares that the complaint must set forth " substantially the facts con- tained in the notice of lien, and the substance of the agree- ment under which the labor was performed or the materials were furnished." a. Whether this rule is applicable to the Municipal Court of the city of New York has been questioned, and it has been ex- pressly held that the provisions making the summons return- able in not less than twelve nor more than twenty days, and providing for the personal service of the summons and com- plaint " anywhei*e within the state " are repugnant to the pro- visions of the Municipal Court Act, which was adopted prior to the enactment of section 3404 of the Code, now section 46 of the Lien Law, and that the provisions of the Municipal Court Act, and not the provisions of the lien Law,, governed lien actions brought in such courts. Bogopoler Realty Co. v. Schwartsman, 59 Misc. 495. See also §§ 41 and 42 of the Lien Law, ante, pp. 239, 243, and authorities there cited. 27. Answer. — A defendant, if he desires to avail himself of an affirmative defense, must plead it specially in his an- swer. The rules of pleading in this regard are the same in actions to foreclose mechanic's lien, as in actions generally. All affirmative defenses must be pleaded. a. A subcontractor alleged in his complaint that when the lien was filed the contractor had so far performed its contract as to become entitled to an instalment of $1,082.77, which was then due and owing to it by the owner. The answer set up a breach by the contractor, which breach occurred after the in- stalment claimed by the subcontractor became due. Held, on demurrer to the answer, that plaintiff's claim was not affected 364 Lien Law — ^Aeticlb III, Sec. 43. by any breach which arose after the instalment claimed by plaintiff became due. Anisansel v. Coggeshall, 83 App. Div. 491. 28. Answer — Service of on codefendant. — Plaintiff, a materialman agreed with the contractor *to furnish the mar- ble for a school building. The material was not paid for and plaintiff filed a lien and commenced an action to fore- close it, making the owner and the principal contractor, par- ties. The contractor in his answer admitted that the plain- tiff's claim was valid, but alleged that the owner refused to accept the plaintiff's claim, and the architect refused to issue a certificate to the contractor, and alleged further that the refusal of the owner to accept was not warranted, and the re- fusal of the architect to issue a certificate was unreasonable, and prayed that it be so adjudged. The answer was served on the owner, a co-defendant, and on motion the service was set aside at Special Term. Held, error. That the owner was a necessary party and the contractor was a proper party, and there could be no foreclosure and sale if the owner was not made a party, and there could be no personal judgment against the contractor unless he was joined as a defendant, and it was proper that one defendant should serve his an- swer on a co-defendant. Malthy and Sons v. Boland Co., 152 App. Div. 596. It is the policy of the court to avoid the multiplicity of actions and in the foreclosure of mechanic liens, the courts have always favored and often compelled by the bringing on of additional parties, a settlement of the whole controversy in one suit. Hilton Bridge Co. v. N. Y. Central B. B. Co., 145 App. Div. 390 ; Mellen v. Athena Hotel Co., 149 App. Div. 543, affirmed Oct. 16, 1915; Hinkle v. Sullivan, 108 App. Div. 316; Malthy and Sons v. Boland Co., 152 App. Div. 596. 29. Answer — Remedy when pleading is frivolous. — The remedy for a frivolous pleading is not by motion for judg- ment on the pleadings under § 547 of the Code, but to strike out the pleading as sham or frivolous and for judgment, un- der §§ 537 and 538 of the Code. Harley v. Plant, 210 K Y. 405. Supplemental Answee. 365 SO. Answer — Defenses by surety. — In action against a surety to reeovey for work done under the contraict of the principal, the surety, if he wishes to plead any matter claimed to operate so as to discharge the surety, as, for example, changes and alterations in contract without the consent of the surety, he must plead them affirmatively in his answer. HenricJcus v. Englert, 137 IST. Y. 488. 31. Answer — Lien of defendant. — In an action to fore- close a mechanic's lien, a subcontractor, unless his lien is ad- mitted in the complaint, must, in his answer, set up his lien affirmatively, and if he fails to do so he will be deemed to have waived his lien. McConologue v. Larhms, 32 Misc. 16'6. 32. Answer — General denial — What defendant may show. — In an action brought to recover a final payment alleged to be due on a building contract upon which the de- fendant agreed to advance money in instalments from time to time, which contract required that the defendant should have five days' notice of the completion of the work required upon any instalment, the work to be approved by the de- fendant before payment, and requiring that materials or fix- tures should be paid for before defendant should receive payment of any instalment, plaintiif pleaded full perform- ance of the contract. The defendant set up a general denial. Held, that he was entitled under this answer to show nonper- formance of the contractand that fixtures and materials were delivered upon the property under conditional contracts of sale or subject to chattel mortgages and that materials had been taken from the premises with the knowlegde and con- "sent of the plaintiff, after giving notice of the completion of the work and during the five days allowed the defendant by the contract to inspect the premises before making final pay- ment. Adams v. Lawson, 188 N. Y. 460. "33. Supplemental answer. — It is proper to allow a defend- ant contractor to set up a supplemental answer setting forth that since the original answer was served there was a judg- ment dismissing the complaint as to the owner and that plain- tiff had failed to appeal from that judgment, that the time to do so had expired, and that the owner had subsequently paid the defendant contractor the balance due him. The 366 Lien Law — Aeticle III, Sec. 43. court said that these facts showing that the plaintiff had no lien on the land of the owner would be a complete defense to the foreclosure suit against the owner, and contractor, unless plaintiff could establish that the money paid by the owner to the contractor was impressed with a trust for the benefit of the plaintiff, which could only be shown in the action, and not upon a motion. Tan Kannel Revolving Door Co. v. Shane, JSTo. 2, 122 App. Div. 613, 107 N. Y. Supp. 507. 34. Answer — Court not of record. — Section 48 of the Lien Law (formerly § 3406 of the Code) requires that the ansewer in lien actions must be verified, " and contain a gen- eral denial of each allegation of the complaint" (which must in like manner be verified as required by section 46 of the Lien Law), " or a specific denial of one or more of the ma- terial allegations thereof, or any other matter constituting a defense to the lien, or to the claim upon which it is founded." a. Three provisions abolish oral pleadings in minor courts in lien actions. It has been held that as these provisions conflict with the requirements of the Municipal Court Act of the c'ty of New York, the latter statute prevails. Bogopo- ler Realty Company v. Schwofrtzman, 59 Misc. 495. 35. Demurrer. — The defendant cannot demur to the prayer for relief. He must demur to the facts alleged ; and, to sustain his demurrer, he must show that upon those facts the plaintiff cannot have any relief at the hands of the court. It is not sufficient for him to show that the relief upon such facts could not be that ^asked by the complaint. The court does not confer upon a defendant the right to demur upon the ground that the complaint does not state facts which entitle the plaintiff to the reKef demanded therein. A demurrer is authorized only when the complaint does not state facts suf- ficient to constitute a cause of action, that is, any cause of action. Schenectady Contracting Co. v. Schenectady Rail- way Co., 106 App. Div. 336, 94 K Y. Supp. 401. Cited with approval in Abbott v. Boston, 195 N. Y. 372. a. A demurrer interposed before answer should not be sus- tained if the facts alleged in the complaint constitute a cause of action, but are insufficient to sustain the particular judg- Demueeee. 367 ment demanded in the complaint. Section 1207 of the Code of Civil Procedure declares that the judgment shall not be more favorable to the plaintiff than that demanded in the complaint. The right to demur is not conferred by reason of the fact that the plaintiff fails to demand the specific judg- ment to -which he is entitled. Ih. b. The plaintiff brought an action to foreclose a mechanic's lien against the owner and contractor, setting forth in the complaint the notice of lien, -which was not verified. The notice, however, was acknowledged before a notary. A prayer for relief demanded judgment of foreclosure and sale, and the application of the proceeds to the payment of the lien debt -witJi interest and costs. Plaintiff then asked for judg- ment againjst the contractor for any deficiency remaining after such sale. It then asked for " such further judgment, decree, or order as may be necessary to protect its rights in the premises." On demurrer, the court, reversing Special Term, held that although the lien was invalid, the failure of the plaintiff to demand the specific judgment to which he was entitled did not authorize the demurrer. .Section 3412 of the Code of Civil Procedure provides that if the lienor shall fail, for any reason, to establish a valid lien, he may nevertheless recover judgment for sums due him, which he might recover on contract against any parties to the action- Plaintiff in addition to his prayer for judgment for fore- closure and sale also demanded such further judgment as may be necessary to protect its rights. On demurrer, such a demand in the prayer for relief should be held to fairly in- clude a demand for personal judgment, pursuant to section 3412 of the Code. That the complaint stated facts sufiicient to constitute a cause of action against the defendants liable for the debt, and as a demurrer did not lie to the prayer for relief, the demurrer was bad. li. 36. Demurrer by bondsman — Municipal lien. — Plaintiff filed a lien for work done for the construction of a public im- provement. The lien was discharged pursuant to subdivision .*> of section 20 of the Lien Law upon an undertaking " con- ditioned for the payment of any judgment which may be re- covered in an action to enforce the lien." Plaintiff sued to enforce the lien, making the bondsman parties. It appeared upon the face of the complaint that the notice of lien was 368 LrEN Law — Aeticle III, Sec. 43. filed in tlie county clerk's office when it should have been filed with the head of the department or bureau, having charge of the construction and with the comptroller or financial officer of the municipal corporation charged with the custody of the corporate funds applicable to the contract. The bondsman demurred. Held, distinguishing Hayihrns v. Mapes-Reeves Construction Co. (178 ~E. Y. 236), that as to the bondsmen, the complaint did not state facts sufiicient to constitute a cause of action, although the complaint was good as to the contractor against whom plaintiff was entitled to a personal judgment, yet as to the bondsman no cause of action was stated, because the lien could not be enforced, it never having been filed as required by the statute. If the lien is not estab- lished, no recovery can be had against the surety, although judgment may be had against the party liable for the debt. Casey V. Connors Cons. Co., 53 Misc. 101. See also section 21, subdivision 5, page 293, ante, and au- thorities there cited. 37. Counterclaim. — A counterclaim pursuant to section 501 of the Code, must set forth (1) a cause of action arising out of the contract or transaction set forth in the complaint; (2) in an action on contract, any other cause of action on contract, existing at the commencement of the action. In an action to foreclose a mechanic's lien, defendant set up a counterclaim, alleging that he had been damaged by the falling of a roof owing to the negligence of plaintiff who had constructed the buildings in which the roof fell, pursuant to a contract independent of the contract in suit. The counter- claim, however, did not set forth that defendant had a claim against plaintiff, on another job, for $3,356.30, and there was no allegation that such sum equalled or exceeded the amount due to plaintiff upon the contract in suit ; nor did the answer allege that any balance was due plaintiff when the lien was filed. Held, that the counterclaim was not properly pleaded, and no recovery could be had thereon. Demurrer thereto was properly sustained. Root v. N. Y. Central R. R. Co., 166 App. Div. 137; s. c, 151 K Y. Supp. 702. a. Where the amount due a subcontractor for finishing and completing painting work which aggregated the sum of $15,030.69 and was set up by way of counterclaim, of which $6,336.69 remained due, such lienor is entitled to judgment Counterclaim. 369 on his counterclaim, but in view of the fact that the amount was unliquidated, the court declined to allow interest thereon. Richmwn v. City of New York, 89 Misc. 213 ; s. c, 151 JST. Y. Supp. 744. 38. Counterclaim against codefendant. — Section 44 of the Lien Law, subdivision 3, requires that every defendant, who is a lienor shall by answer set forth his lien and he will be deemed to have waived it unless the lien was admitted in the complaint and not contested by another defendant. Sec- tion 45 requires that the court shall adjust and determine the equities of all parties in the action and the order of priority of the different liens and all questions raised by any defense or counterclaim in the action. Section 43 of the Lien Law also requires that if more than one action was brought all shall be consolidated. Section 5'21 of the Code provides that the judgment may determine the ultimate rights of two or more defendants as between themselves, and a defendant who requires such a de- termination must demand it in his answer and serve the pleadings twenty days before the trial, upon the attorney for each of the defendants, to be aifected by the determination. The proposition, therefore, that there can be no such thing as an answer to an answer is untenable. As between the co- defendants setting forth conflicting claims, the pleadings of such defendants although termed answers are in the nature of a complaint. A defendant in a mechanic's lien- action is entitled to assert a counterclaim in his answer against a co- defendant, in view of the fact that such counterclaim must be passed upon and disposed of in the action. A defendant therefore is entitled to serve an answer upon a codefendant and the latter will be required to receive it. Mellen v. Athens Hotel Co., 149 App. Div. 534. See also Malthy & Sons v. Bland Co., 152 App. Div. 596. a. A defendant in an action to foreclose a mechanic's lien, may interpose an answer denying the allegations in the an- swer of a codefendant, and setting up a counterclaim against such codefendant and such defendant will be obliged to ac- cept such answer when served upon him. The issues thus raised between the defendants must be tried in the action. lb. 370 Lien Law — Aeticlb III, Sec. 43. i. Where the time of performance has been waived and the contractor has been permitted to fully perform, the owner cannot interpose as a defense, the failure of the contractor to perform within the time required. In the action to recover the contract price of the work, he may interpose a counter- claim for the damages he sustained, qr he may sue in an in- dependent action to recover such damages. General Supply tSk Construction Co. v. Goelet, 149 App. Div. 80. 39. Counterclaim against architect. — In an action to fore- close a lien filed by architects who supervised the erection of a building, the owner interposed a counterclaim upon the ground that the architects performed their services so negli- gently and unskillfully that the owner suffered loss and dam- age thereby. Heldj that the amount of damage sustained by the owner in excess of the architects' claim should be ascer- tained, and judgment rendered upon his counterclaim against the plaintiff. Held further that the fact that the owner set- tled with the builders and paid them for their services, al- though they were negligent in the performance of their work, did not operate to defeat the owner's counterclaim. Schwartz V. Kuhn, 71 Misc. 149. 40. Counterclaim — Jury trial. — A counterclaim in an equity suit in which defendant demands judgment for a sum of money only, does not create an issue where the right to a jury trial existed at common law. It follows that the right to a jury trial, upon a counterclaim interposed by defend- ant's answer is discretionary. If the defendant desires a jury trial upon the allegations presented by his answer set- ting up a counterclaim, he must apply to the court at special term, within ten days after joinder of issue, for such jury trial as required by rule 31 of the Supreme Court rules. Gersinann v. Walpole, 79 Misc. 49. 41. Counterclaim against assignee. — Where a contractor has assigned his contract, lien, and cause of action against the owner, and makes a new contract with the same owner, and a counterclaim arises on the new contract in favor of the owner, the latter cannot avail himself of such counterclaim as against the assignee of the first contract, the counterclaim having arisen subsequent to the assignment. Lawrence, v. Congregational Church, 164 N. Y. 116. Counterclaim. 371 42. Counterclaim. — In an action to foreclose a mechanic's lien, on the issue of substantial performance, the court found that the contractor failed to substantially perform for the reason that subcontractors refused to perform their part of the contract. Held, that a counterclaim set up against the subcontractors by the contractor, for work done by them which should have been done by the suboontractors, must fail with the failure of the general contract. Kohl v. Fleming, 21 Misc. 690. a. A subcontractor filed a lien. In an action to foreclose it the contractor set up by way of counterclaim the cost of removing stone which defendant claimed had been placed I near the work by plaintiff. The contract was with the city, and it owned the land where the stone was dumped. The city engineer notified the defendant to remove the stone and refused to give him a certificate if he failed to do so. Held, that the cost of removal could not be charged to plaintiff. That the city had its remedy to compel plaintiff to remove the stone. If the engineer refused a certificate to defendant for failure to remove it, such refusal was unjust, as there was no legal obligation on defendant to remove it. Cwnavan v. Nally, ^4 App. Div. 147. h. In an action by a subcontractor under a municipal con- tract to set new curb and repair old curbstones in the city street, the defendant contractor can counterclaim against the plaintiff only such damages as have been recovered against the subcontractors and paid by them. The general contractor may also counterclaim for damages arising from the negli- gence of the subcontractor which have been voluntarily paid before judgment upon proof of their liability therefor, and of the reasonableness of the amount paid. Such liability arises under the implied contract that the subcontractor will indemnify his employers against any liability or loss arisirg from the negligent performance of the work which he was employed to do. Dunn v. Uvalde Asphalt Paving Co., 175 ISr. Y. 214. c. The contract of indemnity implied by law in favor of one who is legally liable for the negligence of another covers loss or damage and not mere liability. Such loss or damage may be voluntarily paid by the innocent party who is legally liable without waiting for judgment. But in that event he 372 Lien Law — Aeticle III, Sec. 43. undoubtedly assumes the risk of being able to prove tke ac- tionable facts upon which his liability depends as well as upon the reasonableness of the amount which he pays. lb. d. A contractor must comply with the provisions of his contract, in accordance with the plans and specifications. The owner is entitled to recover his damages where the con- tractor in violation of his contract, puts water pipes in a partition. Bell v. Fox, 138 App. Div. 569. 43. Counterclaim — None in absence of contractual rela- tions. — The contractor, a construction company, failed to prepare the foundation within the time specified, and thereby prevented the plaintiff, a subcontractor, from proceeding with the iron work. When the foundations had been com- pleted, plaintiff was permitted to proceed with the iron work and completed the same without undue delay and within a reasonable time. In an action by the subcontractor the owner set up a counterclaim against the plaintiff for $80,000 dam- ages for loss of rents. The contractor offered no proof of its counterclaim against plaintiff for delay, which it appears was caused by its own failure to prepare the foundations, and the owner, instead of counterclaiming against the general con- tractor and introducing the contract in evidence, erroneously interposed his counterclaim against the plaintiff," which was under no contract obligation to the owner. The owner also failed to show the terms of the contract between him and the contractor upon which the rights of the owner must be based. Held, that the owner could not as between himself and plain- tiff reserve any balance owing to the general contractor after proof of completion of the work without having his damages fixed and established as between him and the general contrac- tor. The owner's remedy was a counterclaim for damages against the contractor. Phoenix Iron Co. v. Metropoh Con- struction Co., 125 App. Div. 479, 109 N. Y. Supp. 858. 44. Counterclaim — Slander — Filing a lien to injure de- fendant's credit. — In an action to foreclose a mechanic's lien and for personal judgment, the defendant, the contrac- tor, set up the contract and plaintiff's subcontract and al- leged, by way of counterclaim, that after plaintiff had en- tered upon the performance of the subcontract " it began in every way it could to annoy and injure the defendant, Mot- COUNTEECLAIM. 373' gan Contracting Company;" liat the plaintiff was paid from time to time under its contract all moneys it oould justly and reasonably demand, but, nevertheless, the plain- tiff filed a mechanic's lien against the property for the pur- pose of injuring the claim of the Morgan Contracting Com- pany ; that after the lien was discharged by the giving of a bond, the plaintiff filed another lien for the same claim for the same purpose; and that with the same end in view, the plaintiff, through its representatives, agents, and officers, cir- culated stories of the lack of financial responsibility of the defendant, Morgan Contracting Company, among its debtors and induced many of them to default in payments due the said defendant. Defendant further alleged that the state- ments were false, and known to be false by plaintiff when made, and were for the purpose of injuring the Morgan Con- tracting Company to its damage. The plaintiff demurred to the counterclaim upon the ground that it did not arise out of the contract or transactions set forth in the complaint as the foundation of plaintiff's claim and was in no wise con- nected with the subject of the action, and did not tend to diminish or defeat the plaintiff's recovery. Held, that the •demurrer was properly sustained. That the matter set up in the counterclaim was in no wise connected with the subject ■of plaintiff's action and did not arise out of the subcontract and had nothing to do with the manner or extent of its per- formance, the acceptance of work done under it, or the pay- ment of moneys therein provided. "As well might a defend- ant sued for money loaned allege a counterclaim that plain- tiff, in seeking to enforce his claim, slandered the defendant in respect to his business or profession, as that the coun- terclaim of the defendant here should be permitted." The ■complaint was on contract and the counterclaim was in tort. Uvalde Asphalt Paving Co. v. Morgan Constructing Co., 120 App. Div. 498, 104 N. Y. Supp. 1118. 45. Counterclaim — Jury trial. — In an action to foreclose a mechanic's lien, defendants, who were principal contrac- tors, set up a counterclaim on notes made to defendants by plaintiff, and for damages for alleged breach of contract by plaintiffs. Heldj that defendants should have moved for a jury trial within ten days after issue joined under Eule 31 (in force in 1899), and for failure so to do waived their right to a jury trial. Anot v. Nevins, 44 App. Div. 61. 374 Lien Law — Akticle III, Sec. 43. 46. When action for accounting premature. — A contrac- tor entered into a building contract with the City of 'New York, and was thereafter adjudicated bankrupt and a re- ceiver was appointed. The defendant with the consent of the creditors undertook to complete the contract of the bank- rupt. It was agreed that defendant«should take over the con- tract with all rights to payments and plaintiff should release all liens and that the receiver and all creditors joining in the contract should not permit them, or the bankruptcy proceed- ings, to impede the defendant's undertaking or defeat its title to the property, and that the defendant should have the use of the plant for the purpose of the work. It was agreed that "the net surplus remaining included the 5% reserved by the City of New York, shall when and as received be di- vided as follows, 60% shall be held or paid to the party of the first part, and 40% shall be divided among the parties of the third part pro rata, according to the amounts (with in- terest) now due each respectively for and on account of said contract work." Plaintiff brought an action charging waste by defendant in doing the work and alleged " although a large surplus has been or should have been realized . . . the defendant, its agents or re^jresentatives have converted to their own use, or divided, or both, or have wasted or squandered, or bothj, a large part of the money." Held', that the action was premature and did not state a cause of action in equity. That the agreement was that the defendant should do the work and distribute what was real- ized as profit. That the defendant could not distribute the surplus until it had been received and that the 5% of the en- tire price due from the city had not come into the hands of the defendant. Eiche v. Greenwich Bank, 153 App. Div. 425. 47. Issues between codefendants must be tried. — The provision of section 521 of the Code of Civil Procedure which provides that in any action where the ultimate judgment may determine the rights of two or more defendants as between themselves, answers may be served upon the codefendants, and the controversy thus raised determined, but that such con- troversy shall not delay a judgment to which the plaintiff is entitled, unless the court otherwise directs, was designed to Bill of Paeticulaks. 375 prevent multiplicity of actions in whicli conflicting rigiits of defendants can be determined, and is particularly applicable to actions for the enforcement of mechanic's liens where such rights must be determined. Hinkle v. Sullivan, 108 App. Div. 316, 95 ]Sr. Y. Supp. 788. a. Plaintiff, Hinkle, sued to foreclose a mechanic's lien and made the owners, Sullivan and Kraus, parties and also de- fendant Adler, a subsequent lienor. The latter served his an- swer not only upon the plaintiff, but also upon his codefend- ants, the owners, Sullivan and Kraus, setting up his lien and claims thereunder. The case was placed on the calendar, and when reached, plaintiff's lien having been satisfied, the de- fendants Sullivan and Kraus, the owners, moved to dismiss the complaint, which motion was granted. Defendant Adler moved to vacate such dismissal as to himself, and restore the action, so that he might try the issues existing between him- self and his codefendants, Sullivan and Kraus. Motion granted. Held, no error. That defendant Adler, having served his answer setting up his demand upon his codefend- ants, Sullivan and Kraus, was entitled to have the issues thus raised determined. 'No notice of trial having been served upon him either by the plaintiff or his codefendants, the lat- ter were not in a position to dismiss the action and thereby prevent him from having his rights determined. lb. 48. Court not of record. — In a court not of record the . complaint need not allege in an action by a subcontractor to foreclose a lien, the existence of an indebtedness from the ovmer to the contractor. But plaintiff must prove that there is something due from the owner to the contractor upon the trial to sustain his lien upon the property. Keavey v. De Rago, 20 Misc. 105. 49. Bill of particulars. — In an action to foreclose a me- chanic's lien the complaint not only set forth the value of work done and materials furnished, but also alleged an account stated between ovnier and contractor, A copy of the account was furnished on demand. Held, that defendants were en- titled also to a verified bill of particulars, specifying the work done and materials furnished and their value, but were not entitled to a statement of the evidence by which plaintiff 376 Lien Law — Article III, Sec. 43. would prove his cause of action. Bhinelander v. Haan, 66 App. Div. 505. a. Plaintiff alleged a breach of contract on defendant's part and a new agreement that plaintiff should continue to per- form and receive notes from defendant. He also set up waiver of conditions of contract by owner, fixing time for completion, under supervision of architect, and that value of additional work should be in writing. Held, that defendant is entitled to a bill of particulars stating time and place of making new agreement and showing acts or statements constituting al- leged waiver. Fox v. Davidson, 44 App. Div. 283. 50. Trial — Examination of defendant before trial. — A bill of particulars is ah extension of the complaint or answer and necessarily part of the pleadings, but it does not aid a plaintiff in determing the question of the necessary cost of completing a building. In a case where plaintiff was re- quired to show the cost of completion as part of his affirma- tive case, he is entitled to an examination of the defendant before trial, although the latter made admissions and state- ments in his answer of the facts to which such examination was sought. Tisdale Lumber Co. v. Drogue, 147 App. Div, 55. 51. Evidence — Burden of proof. — A subcontractor who seeks to impose a lien upon the property must show affirma- tively that there is a fund in existence to which his lien can attach. The burden is not upon the owner to prove that he has already paid the general contractor in full for the work. While the lienor in such an action derives his rights from the general contractor, and in that sense his rights are measured by the rights of the general contractor under his contract, nevertheless he derives these rights not by assign- ment, but by operation of law, and is obliged to prove that there is due and unpaid some sum of money by the owner to the contractor. Grossman Bros. v. Dunaif Building Co., 83 Misc. 101. a. In an action to enforce a lien for labor and materials furnished a subcontractor, the burden of proof is upon the plaintiff to show that there is a sum due or to become due to the contractor on which the lien will attach, and the law, in EviDEircE — Prior Adjudication. 377 such a case, will not presume that the work was completed for the amount or balance stipulated in the contract. Brain- ard V. County of Kings, 155 N. Y. 538. See also Beardsley V. Cooh, 143 ]Sr. Y. 143 ; Haswell v. Ooodchild, 12 Wend. 373; Smyth v. Marsich, 4 App. Div. 171; Linneman v. Bie- her, 85 Hun, 477. 52. Evidence — Finding on conflicting. — A finding of fact by the trial court on conflicting evidence which has been unanimously affirmed by the Appellate Division is con- clusive in the Court of Appeals, and is not open to the inquiry as to whether the finding is contrary to the evidence, or with- out evidence to support it. Lawrence v. Congregational Church, 164 N. Y. 115. 53. Evidence — Prior .adjudication. — Plaintiff brought an action to foreclose a mechanic's lien on premises located in Sullivan street, city of New York. Plaintiff's action was to foreclose the fourth lien against said premises. Arthur L. Panoff owned the first lien, and brought an action in which he joined as defendant, the plaintiff, Callahan, now seeking to foreclose his lien. The summons, complaint and notice of pendency of action were filed by Panoff, in the County Clerk's office. It appeared that plaintiff's lien was discharged by the giving of an undertaking after the action was begun by Pan- off. Panoff interposed an answer to Callahan's complaint, setting up the pendency of his action, and in his answer al- leged that the summons and complaint in his action were served upon Callahan, the plaintiff in this action. Panoff proceeded to judgment. The judgment roll contained an affidavit of service upon Callahan, who made default in appearing and pleading. On the trial of the action brought by Callahan to enforce his lien defendant offered in evidence the judgment roll in the Panoff action. Plaintiff then of- fered evidence to impeach the affidavit of service, and to show that service was never made upon him but on his son Joseph Callahan. The evidence was excluded. Held, error. That plaintiff had a right to show that he had not been per- sonally served with the summons and complaint in the Pan- off suit. Callahan v. Levin & Levin Contracting Co., 153 App. Div. 71. 378 Lien Law — Aeticle III, Sec. 43. 54. Evidence — Purpose for which materials were used. — A lien was filed by materialmen, for lumber for making al- terations and improvements. On the trial tbe lienors sought to show the purpose for which the materials furnished were used. The evidence was excluded. Held, error. That the lienors were clearly entitled to sho'v^, that the materials so furnished were either in whole or in part used for the specific work for which the owners had given consent under the terms of the lease to the defendant lessee. McNulty Brothers v. Offerman, 152 App. Div. 181. 55. Evidence — Conversation at time of signing contract inadmissible. — Where a written contract sued upon is plain and unambiguous, the contract itself is the best evidence of the meaning of the parties, and testimony offered of any conversation had at the time the contract was executed is wholly immaterial. If the evidence is intended to controvert or change the terms of the written contract, then it is incom- petent, and if not intended for such purpose, it is wholly ir- relevant and immaterial. Pinucane Co. v. Board of Educor tion, 190 N. Y. 76. 56. Evidence as to agreement to arbitrate. — An agree- ment in a contract that arbitrators shall be appointed in case a controversy arises is subject to revocation at any time, be- fore a final submission to the arbitrators for their decision, and this is so although the agreement to arbitrate provides against any revocation, and by its terms the party seeking to revoke for a valuable and executed consideration expressly waived and abandoned the right to revoke. Such stipulation, like other executory agreements, if broken, simply leaves the other party to seek redress by action for damages. This rule applied at common law and under the Code of Civil Proced- ure, section 2383. People ex rel. Ins. Co. v. Nash, 111 If. Y. 310 ; Pinucane Co. v. Board of Education, 190 N. Y. 76. a. A refusal by the defendant to select an arbitrator in a case where the contract sued upon contains an arbitration clause, does not justify the exclusion of affirmative evidence on behalf of the defendant for the reason that before it could maintain a defense, it must show compliance with the arbi- tration clause as a condition precedent to introducing such EviDBifCE — Loss OF Peofits. 379 defense. A refusal to comply with the arbitration clause might subject the defendant to an action for damages, but such refusal cannot preclude defendant from presenting any evidence material to the issues joined by the pleadings. Finu- cane Co. v. Board of Education^ 190 N. Y. 76. 57. Evidence — Loss of profits — When inadmissible. — In an action brought by plaintiff upon a building contract, evidence of loss of profits alleged to have arisen from plain- tiff's inability to work for other parties, which work it was prevented from doing by reason of the crowded condition of its shops, arising from the storage of doors, window casings, and other interior finish intended for the school, was excluded. It appeared that the plaintiff knew or should have known when the doors, window casings, and other interior finish to be made in its shops would be required in the building, which was under plaintiff's control, and it should have so directed the making of such interior finish as not unnecessarily ^o have interfered with its other shop work, and testimony of- fered to show such loss of profits under the circumstances was inadmissible. Finucane Go. v. Board of Education, 190 :N^. Y. 76. 58. Evidence — Counterclaim — Profits arising from change in specifications belong to the contractor. — The contract provided that finished floors should be thoroughly kiln dried and taken directly from the kiln to the building. This pro- vision was waived and the contractor was allowed to have the flooring kiln dried in the Southern States, and shipped to him for use in the building. By this arrangement the expense to the plaintiff for such floors was reduced by $7 per thousand feet. One hundred and one thousand feet of floor- ing was used in the building and defendant sought to counter- claim against the plaintiff for this profit to the extent of $707, with interest. The consent to the change as to the flooring was unconditional and there was no claim that it did not comply in every respect with the specifications. Held, that the profit under the circumstances, plaintiff having com- plied in every respect with the plans and specifications, be- longed to him, and that the counterclaim interposed by de- fendant for these profits could not be sustained. Finucane Co. V. Board of Education, 190 N. Y. 76. 380 Lien Law — Aeticle III, Sec. 43. 59. Evidence — Quantum meruit. — If the owner has been guilty of a breach of contract the contractor is not bound ta complete but may file a lien for work done and materials fur- nished to the time of the breach. In such an action he must prove the reasonable value of the work and materials, and the agreed price as evidenced by the contract will not be sufficient to support the judgment. a. But if the plaintiff claims that he has performed the con- tract, or that he has substantially perf ormed^ proof of the rea- sonable value of the labor and materials is not necessary, and a recovery will be sustained upon the agreed price of the labor and materials as shown by the contract. Lennon v. Smith, 23 App. Div. 293; Wyckoff v. Taylor, 13 App. Div. 240; Mc- Eveney v. Pasquini, 23 App. Div. 120, affirmed, 163 ~k. Y. 575. h. Where the objection is raised for the first time on appeal that there is no evidence of the value of the work and ma- terials other than is furnished by the contract, and that the ac- tion is based on quantum meruit and not on agreed price, the objection cannot prevail. Beatty v. S earls, 74 App. Div.. 214. 60. Evidence based on another's testimony. — It is im- proper to allow a witness to base his evidence on the testimony of another. Defendant claimed to be allowed the cost of a defective corner post. Plaintiff's witness was allowed to testify over an objection and exception that he heard the evi- dence of plaintiff as to the manner in which the corner post had been spliced and set, and that if it was so set the work was properly done. Held, error. Tibhiits v. Phipps, 30 App. . Div. 274. 61. Evidence — Excuse for noperformance. — Defendant agreed under written contract that he would keep the build- ing insured for his own benefit and for the benefit of the contractor as the work progressed against damage by " fire, lightning, earthquake, cyclone, or other casualty," but he only insured against fire. The high wind blew the frame work off the foundations the second time. Plaintiff did not quit for this. He went back to work and quit because the inspector Evidence — Estoppel. 381 of the building department told him he must put in bolts deep enough to hold the frame structure on to the foundation, and defendant refused, on plaintiff's request, to agree to pay for the extra bolting. The court below denied foreclosure for the frame work as it was not there, having been blown off. He gave judgment of foreclosure for $250, the value of founda- tion, and a personal judgment of $1,000 against the defendant for the frame work, by reason of his failure to insure against hurricanes. Held, that there was no action for a breach of the contract in that respect before the court. Judgment re- versed. Paturzo V. Schuldiler, 125 App. Div. 636, 110 N. Y. Supp. 137. 62. Evidence — Estoppel. — " The provisions of the char- ter of the city of New York," says Scott, J., " were designed to protect the city and must be observed ; but they were not intended to enable the city to get the benefit of work done in good faithwithout paying for it." While a municipal building was being erected, it became necessary to sink a caison, not called for by the contract. The city authorities approved a supplemental contract authoriz- ing the caison. Meantime the contractor failed to perform, and his sureties were notified to complete. The sure- ties completed both contracts, and demanded payment. The city refused on the ground that it had no power to contract with the sureties, as the city authorities au- thorized the contract for the casion only with the contractor. Held, that the sureties took the place of their principal, and the city having received the benefit of full performance, was estopped from asserting that the supplemental contract was unauthorized. O'Rourhe Engineering Co. v. City of New York, 140 App. Div. 498. a. Where a contractor agrees to erect a building or expend labor and material upon lands under a conract with the person in possession, it is incumbent upon him to inquire and to assure himself that the person with whom he contracts has such an estate or interest in the land as will enable him to assert his lien. If such inquiries are made, a defendant, with knowledge of all the facts, who permits an innocent party, believing that he has title, to make improvements without objection, the owner will be estopped form raising 382 Lien Law — Article III, Sec. 43. the question of title against one with whom he acted in bad faith. The maxim applies that " he who is silent when equity requires him to speak will not be allowed to speak when equity requires him to be silent." Bpruck v. McBoheriSj 139 K Y. 193. • h. The New York Public Library, Astor, Lenox and Tilden Foundation, a corporation, acquired a site for Public Library No. 12, at St. George, Staten Island, and contracted with defendant, Vreeland Building Co., for the erection of a li- brary thereon. Plaintiff, a subcontractor, filed a lien against the property and recovered judgment. The contractor, Vree- land Co., alone appealed. It appeared that before beginning the performance of his contract, the plaintiff inquired of the Vreeland Co. and was told by it that The New York Public Library was the owner. The latter did not appeal from the judgment. Held, that as between the appellant, the Vree- land Co., and plaintiff, the former was estopped from assert- ing that The New York Public Library was not the owner. Reiser v. Commeau, 129 App. Div. 490 ; aiBrmed 198 N. Y. 560. 63. Evidence — Usage — Custom. — The contract provided that the contractor should lay brick and furnish the scaffold- ing and mortar, for which he was to be paid $5.25 per thous- and. The contract and specifications were silent as to the size or kind of brick to be laid. Held, that it was competent for plaintiff to show a general custom or usage in the trade that one cubic foot of solid wall of masonry should be regarded as twenty-two and one-half brick, and that one-half of the open- ings, such as the doors and windows, should be included in making the measurement. Brunold v. Glasser, 25 Misc. 285. ft. The contract contained no specification as to the size or kind of brick, and was not free from ambiguity on the point as to whether $5.25 per thousand meant that the brick to be laid should be determined by numerical count. Ih. h. The court, on the point as proof of usage and custom, cited Walls v. Bailey, 49 N. Y. 464 ; Hinton v. Locke, 5 Hill, 437; Lowe v. Lehman, 15 Ohio St. 179; White v. Town of Ellishurg, 18 App. Div. 514. _ ' Evidence — 'Usage and Custom. 383 c. In his work on contracts Mr. Paesons observes that if parties enter into a contract under which something is to be done by one or both, and the thing is often done in their neighborhood, or by persons of like occupation with them- selves, and is always done in a certain way, it will be supposed that the parties intended it should be done in that way. An established custom may add to a contract stipulations not contained in it, as the law presumes the parties had these stipulations in their minds as part of the agreement. Custom must be proved ; usage is the evidence of the custom. Whether there be a custom is a question of fact. If many men testify to a uniform usage within their knowledge and no contradictory evidence is offered, it is for the court to say whether the evi- dence is sufficient to establish custom, and instruct the jury to pass on the credibility of the witnesses, who, if they are believed, have proved the custom. If a custom is illegal, or unreasonable, it cannot operate upon the contract. But cus- tom will not be permitted to operate a written contract, if its terms are plain. No custom, however old or universal, unless it has actually passed into law, has any force over parties against their will, and no custom will be permitted which the parties have seen fit expressly to exclude. 64. Custom in plumbing trade. — Evidence as to whether there is a custom in the plumbing trade when specifications include ranges, for the plumber to furnish and put up the ranges, is incompetent. But an expert may testify as to whether " ranges " are considered " plumbers' materials." Cassiday v, Fontham, 14 N. T. Supp. 151 ; s. c, 28 St. Kep. 75. 65. Custom — Expert testimony — Cannot be resorted to to nullify contract. — One who contracts with another to build a house is entitled not to a house, but to the house for which he contracted. Where the contractor has departed from the plans and specifications, and has used materials not speci- fied, but which the contractor says are " just as good," he will not be permitted to invoke the abilities of " an expert " to justify the breaches of his contract. Schultz- v. Goodstein, 180 ]Sr. T. 248. a. Plaintiff filed a lien for plumbing work. In an action to foreclose, it appeared that plaintiff had used one and one- 384: Lien Law — Aeticle III, Sec. 43. half-inch pipe, when the contract called for two-inch. He was permitted to show that one and one-half-inch pipe con- formed to the regulations of the building department. The contract called for iron pipe and earthen pipe was used. Plaintiff claimed that defendant's architect authorized the change and that the nature of the soil was such that iron pipe would rust more quickly. The court at Special Term held that plaintiff was guilty of a deviation not caused by in- advertence or unintentional omission, and a willful and in- tentional departure from his contract, without the authority of the owner and architect, and dismissed the complaint. The Appellate Division reversed. The Court of Appeals reversed the Appellate Division, and sustained the Special Term. lb. b. Justice Vann commenting on the resort to expert testi- mony to bolster up or excuse a willful violation of the con- tract observes: "A contractor may not deliberately violate his contract by the use of earthen construction instead of iron, and small pipes instead of large ones, and yet claim that be has done as he agreed because the result is just as good. Unless the owner had the right to contract for what he wanted and to get what he contracted for, there was no use in making a contract. A building contract is like any other; it is to be fairly performed according to its terms, and any substantial change, unless authorized by the owner or architect, is made at the risk of the contractor. In order to avoid injustice the law tolerates unsubstantial deviations made in good faith but it exacts full com- pensation therefor and permits a recovery on the theory of substantial performance, only after the proper deductions have been made. The contractor had no right to substitute his own judgment for the stipula- tions of the contract or to recover on the basis of complete perform- ance, when, as the court found, he willfully and intentionally used in- ferior and less expensive materials in the place of those agreed upon. When the owner stipulated for iron pipe he had the right to iron pipe, regardless of whether some other kind according to the opinion of the contractor or experts would do as well. He agreed to pay upon the condition that iron pipe was used and he is not obliged to pay unless that condition is performed." c. The questions which were put to the expert and ex- cluded at Special Term, which the Court of Appeals held were improper, were as follows: Q. In your estimation is a pipe of the diameter of one and one-half inches preferable under laundry tubs to one of two inches, where the drain is two inches in diameter? ExPEET Testimony. 385 Q. Do you know of any case where earthen pipes would be preferred over sewer pipes made of iron? Commenting on this line of expert testimony, the court observed: " By these questions the plaintiff sought to show that the materials used by the contractor would answer the purpose as well as those called for by the contract, although they were of a different kind and cost less. The court concluded that the contractor could not thus de- liberately violate his contract and seek to justify such violation, by expert testimony as indicated in the questions asked." lb. 66. Expert testimony — Cost of keeping plumbing work in repair. — The specifications, which were part of the con- tract, required the contractor " to warrant all the plumbing and gas fitting to remain in perfect working order for one year after the completion thereof, during which time be will have to make all necessary repairs free of charge." The con- tractor filed a lien and the owner defended upon the ground that the contractor failed to perform his contract for the plumbing work and materials and that he procured the certi- ficate of the architect required thereby through misrepresen- tation and fraud. Upon the trial the owner introduced evi- dence tending to show that he was compelled, at various times during the first year, to expend over $300 for temporary re- pairs to the plumbing after due notice to the contractor, who neglected to remedy the defects. The plaintiil called the contractor as a witness and asked him the following questions which were excluded as incompetent : " What would be the true and reasonable value to keep the plumbing in such a house in good repair for one year? What would be the proper cost to keep in repair the plumbing work which was done by you in those Sixty-second street houses for one year after completion by you ? What is the true cost to keep all the plumbing and gas fixtures put in by you in those houses in perfect working order for one year, after they were com- pleted by you ?" a. The Court of Appeals held that the questions were prop- erly excluded. On this point the court observed : " These questions were unfortunate in form and defective in sub- stance. They did not call for any fact relating to the actual cost of the repairs, nor for an opinion as to how much it was reasonably worth to make them as they were made, or to make such as were necessary. No safe opinion could be given upon 25 386 Lieu Law — Aeticle III, Sec. 43. the subject by tlie most skillful and intelligent expert, unless the defects were described or in some way included in the question. The expense of making the repairs depended upon what they were and what there was to be done, which was not submitted to the witness. So far as appeared he did not know their nature or extent, nor how much labor and material were necessary to make them. He had seen the houses but once after they were completed and that was very early in the year to which the covenant to repair related. The actual cost was a fact and the reasonable expense was a fact, and evidence bearing upon either of these facts could not be met by an opinion as to what the fact should be, without anything to base it on. The expense necessarily depended upon the condition of the plumbing and the defects which appeared as time passed. It would be less if the materials and workman- ship were good when the plumbing was first put in than if they were bad. There might be few defects or many, depend- ing on circumstances, and an opinion as to what the expense would be or should be without describing what was needed was abstract and incompetent." Schultze v. Ooodstein, 180 ]Sr. Y. 248. 67., Cost of building — Evidence of experts — When ex- cluded. — An architect sued upon a contract for the amount due him for services for preparing the plans and specifica- tions for a building. The agreement provided that plaintiff was to receive 3 per cent, of the cost of the building. Upon the trial the issue was what was the cost of the building. Defendant claimed it was $275,891.45. Plaintiff claimed it was $400,000. The court excluded testimony of experts as to what the cost would be. Heldj no error. That the actual cost could be proved, and, therefore, the case was not one for the opinion, calculation, or estimate of experts. Israels v. McDonald, 123 App. Div. 63, 107 K Y. Supp. 826. Nor in such an action is the testimony of experts compe- tent to show the reasonable cost. Plaintiff, in order to re- cover architect's commissions on the cost of the building, must show its actual cost. Lawton v. Boseno, 125 App. Div. 628, 110 W. Y. Supp. 14, a. Where a contractor makes default and the owner or other contractors undertake to complete the work under the de- WoKDS AND Pheases. 387 faulted contract, they become trustees for all concerned and must render an account of all expenditures under their trust on demand, which account would bind all unless excepted to and impeached. The burden of proof is on a plaintiff who claims a balance over and above the cost of completion to show the actual cost of completion. That is not a question for opinion evidence, but the actual amounts necessarily ex- pended by the trustee to complete the contract must be shown. Martin v. Flahive, 112 App. Div. 347, 98 IST. Y. Supp. 577. 68. Term " to the satisfaction." — A municipal contract provided that the work should be done " to the satisfaction " of the officer or engineer in charge of the work. Such a clause must be reasonably construed and cannot be held to confer upon the engineer or other official arbitrary power to reject the work for mere whim or caprice, and without reasonable ground to support his action. Gearty v. The Mayor, 171' N. Y. 61. See also Snyder v. City of New York, 74 App. Ddv. 421. 69. Term " excavating." — The contract provided that the contractor should do " all the excavating," and rock was sub- sequently discovered. It was then agreed that the expense of blasting should be borne equally by the contractor and owner. Held, that the laat agreement constituted a separate contract, and in view of this fact the words " all excavating " did not necessarily include blasting. Hellwig v. Blurnberg, 7 K Y. Supp. 746 ; s. c, 28 St. Rep. 75. 70. Term " trenches." — Plaintiff called a civil engineer, who testified on cross-examination that the word " trenches " as used in the building trade included all excavating work below the level of the bottom of the cellar of the building, and that the term included also " pipe tunnels," elevator and boiler pits, heat ducts and service entrance, all of which were included within the meaning of the term " trenches." De- fendant's expert testified that none of the excavating work, excepting for the walls of the building, were " trenches." The reason assigned "Viras that a higher rate is allowed for trench work owing to the fact that the material has to be handled several times, as the trenches ordinarily are too nar- row to admit the vehicle by which the earth is to be carted 588 LiEsr Law — Aeticle III, Sec. 43. •away. Held, that the meaning of the word " trencli " pre- sented a question oi fact aiid not a question of law. Aviarma a. Carvel, 167 App. Div. 557; s. c, 152 K Y. Supp. 796. 71. Term " mason work." — The contract provided that plaintiff should do the " mason work." Held, that he might -show by expert testimony that the mason work did not in- •clude " plastering and whitewashing." Highton v. Dessau, 19 IST. Y. Supp. 395 ; s. c, 46 St. Rep. 922, affirmed, 139 K Y. 607. 72. Term " brick work " — " Fire proof partitions."— Plain- tiff agreed to provide materials and perform labor " for the brick work, from the curb level up, terra cotta, cut granite, fire proof partitions, and plastering." Plaintiff refused to erect the tile partitions in the basement upon the plea that the contract applied to work above the curb level. Held, un- tenable, that the language of the contract, should be con- strued to mean that the works " from the curb level up " ap- plied only to the brick work, and defendant's counterclaim for erecting tile partitions should be allowed. Murphy v. Number One Wall Street, 142 App. Div. 835. 73. Term " plumbing work." — The contract provided that plaintiff should " furnish all materials and labor for plumb- ing and gasfitting " in two houses. Held, that plaintiff could ■show by experts that ranges were not " material for plumb- ing," nor was setting ranges " labor for plumbing." Cassidy V. Fontham, 14 N. Y. Supp. 151 ; s. c, 28 St. Rep. 75. 74. Term " interior sheet metal work." — The contract be- tween the parties consisted of a written proposal by plaintiff and its acceptance by defendant. Smith & Dorset Co. Plain- tiff's proposal was as follows, " this company hereby agrees to do the following- described metal ceiling work, covering in accordance with the speciiication following, those parts or portions of the building above referred to, which may be more particularly described as follows, to vnt, to do all the stamped, crimped and corrugated sheet metal work, consist- ing of ceilings, side walls and wainscoting where required, <5alled for in plans and specifications." The defendant ac- -cepted plaintiff's proposal in a letter which stated " we ac WoEDS AND Phrases. 389' cept your estimate to do all the interior sheet metal work called for in plans and specifications, for the new ferry house." Held, that the proposal covered only the interior work and did not include exterior walls. JSlew York Metal Ceiling Co. v. City of New York, 133 App. Div. 110. 75. Term " ground floors." — The contract was to con- struct a building having a cellar, basement, and four stories- above the basement. The subcontract required plaintiff to do certain work except the "ground floors." Held, that the subcontractor was not obliged to set arch block between the beams of the " basement floor." That the words " ground floor " did not mean the " cellar floor," but related also to the " basement floor," and that work done between the beams of the " basement floor " was extra work, for which plaintiff was entitled to recover. Isaacs v. Dawson, YO App. Div. 232. 76. Sheet piling. — A subcontractor agreed to do excavat- ing in the cellar of a building. He failed to properly sheet pile the trenches, and by reason of his failure to do so the earth caved in on the side. Held, that the principal con- tractor, whose duty it was to sheet pile the outer side of the trenches, was not liable to the subcontractor who did the ex- cavating work, for the cost of removing the earth which caved in, because the excavation was not properly sheet piled, and it was the duty of the subcontractor to sheet pile such trenches if necessary. Amanna v. Carvel, 167 App. Div. 55'7;152N. Y. Supp. 796. 77. Term " legally compelled " to pay. — The contractor was induced by the subcontractor to sublet part of the work called for by the subcontract, and agreed to pay the contrac- tor whatever he should be " legally compelled " to pay for the work. Held, that defendants were not bound to pay any- thing that was demanded for the work thus performed with- out regard tp the reasonaibleness of the charge. That plain- tiff should have permitted himself to be sued, and called on defendants to defend the action. Weeks & Son v. Wehh, 140 App. Div. 450. 78. Term "alterations in plan of construction." — The contract provided for alterations in the plan of construction. After a portion of the building was completed water over- 390 Lien Law — ■ Aeticle III, Sec. 43. flowed, through no fault of the contractor, damaging the area walls, so that they had to he taten down and rebuilt. Held, that such rebuilding was not embraced within the term " al- terations in plan of construction " in the contract, but was separate, independent work. Fay^ v. Muhlher, 20 iN". Y. Supp. 671. 79. Term " liable to pay."— The words " liable to pay " in the Lien Law of 1885 (Laws 1885, chap. 342, § 1) have been construed to mean liability to pay under and by virtue of the owner's contract, and in accordance with its terms. Hechman v. Pinckney, 81 N". Y. 217. a. An owner, in the absence of an agreement making him- self personally liable to a subcontractor, is liable to the latter only to the extent of the amount remaining unpaid on the contract at the time of the filing of the lien. Hutton Bros. v. Gordon, 2 Misc. 267; s. c, 23 N. Y. Supp. 770. b. A contractor agreed to erect in a public school in the as- sembly-room of the building " the platform and desk and all cabinet work connected therewith." As to what constituted such cabinet work, held not to include doors leading from the assembly-room to an adjoining corridor, nor the transoms above them, nor a music board separate and distinct from desk and platform. Held v. Oily of New York, 83 App. Div. 510. 80. Delays — Contract may provide that delays be appor- tioned. — The contract provided substantially that delays in its execution should be apportioned, and that each should be responsible for the delays occasioned by it respectively. Un- der such a contract, it was held, that unless the defendant was alone responsible for all delays, he is entitled to recover for such damages as he sustains in consequence of delays for which he was not responsible. New York State Bank v. Whitehall Water Power Co., 140 App. Div. 739. 81. Evidence of value. — The amount for which personal property is struck off to a vendor at public auction, fairlv oonducted upon notice to the vendee, with no suspicion of fraud or undue advantage, is lawful evidence of the value of the property, for the consideration of the jury. Ackerman v Bubens, 167 N. Y. 405. Damages. 391 82. Evidence received without objections. — The city was allowed to amend its answer on the trial as to its right to re- tain moneys due the contractor to indemnify claims against the city. Evidence offered under the amended answer was received without objection. Held, that this evidence could not he objected to as erroneous upon the appeal. Cranford V. City of Brooklyn, 13 App. Div. 151. 83. Damages. — A contractor who claims a lien for dam- ages arising from the failure on the part of the owner to allow him to perform his contract must seek his remedy at law. In such an action, where it was claimed there wasi a balance due for work performed and materials furnished, a finding that there was nothing due on the contract warrants a dismissal of the complaint. The issue as to damages for a breach in preventing performance cannot be tried in an equity action to foreclose the lien. Doll v. Coogan, 48 App, Div. 121. See also McKee v. Rapp, 35 K Y. Supp. 175 Morgan v. Taylor, 5 'N. Y. Supp. 920 ; Dennistown v. Mc- Allister, 4 E. D. Simith, 729 ; Nolan v. Gardner, 4 E. D: Smith, 727 ; Hoyt v. Miner, 7 Hill, 525 ; McCarthy v. Galla- gher, 4 Misc. 188; Horgcm v. McKenzie, 17 N. Y. Supp, 174. a. Where the contractor is guilty of a breach in deliber- ately abandoning his contract, he must be prepared to show that the owner has made default which excuses his further performance. If it be shown that the contractor was not ex- cused from performance, the owner is entitled to recover from the contractor the damages he suffered by the breach, to wit: compensation for the loss reasonably and proximately resulting from the breach. Citing Heckla Powder Co. v. Sigua Iron Co., 157 'S. Y. 453 ; Friedland v. Myers, 139 ]^. Y. 432 ; McGrath v. Horgan, 72 IST. Y. 152. h. But if it be shown that the oontraetor acted in good faith in ceasing to work, in the honest belief that he had fully performed the contract on his part, when in fact slight omis- sions existed, the rule of substantial performance prevails and the contractor may recover the contract price less proper deduction for such omissions. lb. c. An action to enforce a mechanic's lien is an equitable remedy and must be confined to the provisions of the statute, 392 Lien Law — Article III, Sec. 43. "wBich authorizes a sale of the premises only for me " price and value " of labor performed and material furnished. A jury trial may be demanded. The action is of an equitable nature, and where the plaintiff claims Iobs of profits, or dam- ages for a breach of contract, because the owner refused to allow him to perform, his remedy is at law, and he cannot recover any damages in an action to foreclose a lien. O'Reilly v. Mahoney, 123 App. Div. 275, 108 N. Y. Supp. 53. d. Where the owner contracted for shingles to be used in the erection of a building, and the materialman failed to furnish them as agreed, the measure of damages to which the owner is entitled, in an action to foreclose the lien, for such breach by plaintiff is the difference between the contract price of the shingles and the market price at which they oould have been obtained at the time and place of delivery. Woolf V. Schafer, 103 App. Div. 567. 84. Liquidated damages — Clause as to cannot be enforced by one in default. — Plaintiff's assignor contracted with the village of Oneonta to pave certain streets in the village and to set the curbing and furnish all labor and material except the curbing which was to be funished by the village. The contract provided in case the work was not completed by No- vember 1, 1901, the contractor should pay to the village $50 a day as liquidated damages for eadi day, Sundays and holidays excepted, after that date during which said work should remain unfinished. The contract provided further than on Chestnut street it might be necessary to defer the work until 1902, in which event it was stipulated that notice should be given the contractor. This notice was given in August, 1901, and the work on Chestnut street was com- menced on April 20, 1902, and completed August of that year. The work on the other streets was completed June 20, 1902. Plaintiff sought to recover the contract price, plead- ing as excuse for nonperformance that the defendant failed to finish the curbing which it agreed to furnish, and for that reason plaintiff was unable to complete his contract as to Main and Broad streets prior to November 1, 1901, as no curbing at all was furnished prior to tha.t time. Some of the curbing was not furnished until 1902. ISTo part of the eon- tractor's work except excavation could be performed until Liquidated Damages — Penalty. 393 the curbing was finished. Held, that the failure of the de- fendant to perform established a waiver on its part as to the provisions for liquidated damages. Defendant not merely- delayed performance of the contract, but made performance impossible within the specified time. Plaintiff performed his contract in every respect except as to time of completion. As defendant alone was responsible for the delay, it could not insist on recovering liquidated damages by reason of its own failure to perform. CaUanan Road Improvement Co. v. Village of Oneonta, 117 App. Div. 332, 101 N. Y. Supp. 1056. Where one party demands strict performance as to time by another party, he must perform on his part all the conditions which are requisite in order to enable the other party to per^ form his part, and a failure on the part of the party demand- ing performanoe to do the preliminary work required in or- der to enable the other party to complete it within the time limited operates as a waiver of the time provisions in the contract. Citing Dannat v. Fuller, 120 N. Y. 558. lb. The claim for liquidated damans is highly penal in its nature, and whenever a party attempts to enforce such claim he must be certain that he is himself without fault and has fully observed on his part the requirements of his contract. Ih.' 85. Evidence — Rule of damages. — Parties may, by ex- press stipulation or otherwise, agree upon a rule of damages in a particular case. If, upon a trial of a mechanic's lien ac- tion, an erroneous theory as to the correct rule of damages is permitted without objection, the parties will be deemed to have acquiesced in the erroneous rule, and cannot claim a re- versal of the judgment on that ground. Person v. Stall, 72 App. Div. 141, affirmed, 174 1*1". Y. 548. 86. Damages — Liquidated damages — Penalty. — The damage clause in a contract provided that for failure to com- plete the work within the time specified, the contractor will pay as liquidated damages, to the party of the second part, " fifty dollars for each and every day that the said party of the first part shall be in default." Such a clause contem- plates a completion and performance of the contract, with damages for delay. The contractor abandoned the work and never completed. In an action upon a bond given to secure 394- Lien Law — ^ Article III, Sec. iS. the contract, held] that the contract did not furnish the meas- ure of damages; that the plaintiff was entitled to recover whatever damages he susitained by reason of the breach, not as damages for. delay, but as damages for the breach. Oalla- gher v. Baird, 54 App. Div. 398. a. Ordinarily the measure of damage for a breach of con- tract to furnish an article is the difference between the con- tract price and the market price of the article at the time and place of delivery. But where there is no open market in which to procure the article (granite of a specific color and quality dressed in a specified manner), the rule has no ap- plication. Ih. h. The principle of law with regard to liquidated damages is applicable not only to building contracts, but to all con- tracts. If a man agrees to do something by a particular day or in default to pay a sum of money as liquidated damages, the other party to the contract must not do anything to pre- vent him from doing the thing contracted for within the specified time. Mosler Safe Co. v. Maiden Lane Safe De- posit Co., 199 N. Y. 479. c. Parties cannot avail themselves of events happening subsequent to the making of the contract to determine whether an amount to be paid under a contract is to be con- strued as a penalty, or as liquidated damages. Where a sum agreed upon is designated as liquidated damages, it will be so construed, where the sum is not so excessive as to shock the moral sense. Dunn v. Morgenthau, IS App. Div. 147. 87. Damages — Liquidated damages — Quantum Meruit, — ^Where an owner by his acts in effect cancels the contract in which the contractor acquiesces, the contract no longer gov- erns. It may be resorted to, however, to show how long the contractor was in default in completing the work. The owner is entitled in such case, to offset from the contractor's claim, the damages sustained by the owner, by the loss of the use of the building intermediate the time when the contract was completed and the time when the owner took charge of the uncompleted building. In such case, if the contractor recovers upon the theory of a quantum meruit he is not en- titled to interest.. General Supply & Construction Co. v. Ooelet, 149 App. Div. 80. Fraubulent Conveyance. 395 88. Damages — Liquidated damages — waiver of. — The eontraetors made an agreement with the plaintiffs, the own- ers, and agreed to pay a specified amount, as liquidated dam- ages for each day required to complete the contract after a day certain. The contractors failed to complete in time. Liens were filed, hut no action was commenced to enforce them. The owners brought this action, as plaintiffs, for a judicial determination with respect to the amount due from them to the lienors and for a distribution, of the funds in their hands and for cancellation of the liens. The action in form was as if it had been brought by a lienor to foreclose a lien. Upon the evidence it appeared that the plaintiffs agreed with the various lienors to waive any claim for liqui- dated damages. The amount in the hands of the plaintiffs was sufficient to pay all the liens in full. The lienors claimed that they were induced by the plaintiffs to refrain from filing liens, plaintiffs agreeing to waive any claim for liquidated damages. Held, that the waiver was based upon good and sufiicient consideration and was valid. Schloss v. Troman, 154 App. Div. 645, affirmed, 214 N. Y. 641. a. Where amount due as liquidated damages has been waived, an action may be maintained by the owner to deter- mine the amount due to the respective lienors, and for a can- cellation of their liens. Id. 89. Fraudulent conveyances. — Where the right to a lien has been acquired in the mode prescribed by the statute, a conveyance of the property made by the owner will not defeat the lien, unless the conveyance is hona fide and the validity of the transfer may be tested in an action to forclose the lien. Meehm v. Williams, 36 How. Pr. 743; Gross v. Daly, 5 Daly, 540 ; Amidown v. Benjamin, 126 Mass. 276 ; Mahoney V. McWaUers, 3 App. Div. 248 ; Linneman v. Bieier, 85 Hun, 477 ; s. c, 66 N. Y. State K. 739, 33 N. Y. Supp. 129 ; New York Lumber & Wood Working Co. v. Seventy-third St. B. Co., 5 App. Div. 87. If a transfer of the property has been made to defeat the lien and the plaintiff seeks to set it aside, he must set forth in his complaint the facts relied upon to establish that fact, so that proof as to the fraudulent nature of the transfer may be admitted. Meehan v. Williams, 36 How. Pr. 743 ; Tisdale V. Moore, 8 Hun, 19; McAuley v. Mildrum, 1 Daly, 396; 396 LiEH- Law — Aeticle III, Sec. 4S. Oross V. Daly, 5 Daly, 540 ; BierchencJc v. King, 38 App. Div. 360; Gilmour v. Colcord, 96 App. Div. 358. The burden of proof is on the purchaser to relieve himself from the effect of a fraudulent intent of his grantor, by prov- ing that he was a purchaser for a valuable consideration, and if it appears that the owners of the fee are mere dummies and that the consideration for the transfer proceeded from the third party, who was insolvent, who procured the owners of record to transfer the premises to secure to himself the bene- fit of the transaction and to procure the transfer of the prop- erty to hinder, delay and defraud creditors, the presumption will arise that such was also the intent of the purchaser and' upon him will devolve the burden of showing that he was not only a purchaser for value and in good faith, but had no notice or knowlege of facts which puts him upon inquiry as to the in- tent of the real owners in having property transferred. Oil- mour V. Colcord, 96 App. Div. 358. 90. Fraudulent grantee may attack validity of lien. — The owner of lands against which a notice of lien has been filed may assail the validity of a lien thereon, even although such defendant may be fraudulent grantee of the original owners. Toop v. Smith, 181 N. Y. 283. 91. Reference. — The right to a compulsory reference in actions to foreclose mechanic's liens seems to be finally set- tled, and the power of the court to grant a compulsory order of reference in a proper case can no longer be questioned. Cassidy v. McFarland, 139 IST. Y. 201 ; Beeves v. Metropoli- tan Co., 6 Misc. 91, affirmed, 141 JST. Y. 587; Tooher v. Bindlo, 11 Hun, 154. a. Where the pleadings show that plaintiff must recover upon a quantum meruit, and is not entitled to recover the agreed price as shown by the contract and plaintiff claims a general balance of $22,090.34, and the examination of a long account is necessarily involved, a compulsory reference is proper, although there are other issues of fact not relating to the account. Weher & Co. v. Hearn, 1 App. Div. 306. h. In view of the fact that an action to foreclose a me- chanic's lien is a suit in equity, the court at Special Term Findings. 39T should not direct the trial by a referee of the main issues, which should be tried first, unless the only issue will require the examination of a long account, and will not require the decision of difficult questions of law. O'Brien v. New York Butchers' Dressed Meat Co., 54 Misc. 297. 92. Findings not against weight of evidence. — Where the court below found that the plaintiff did certain work for which the court allowed compensation, such findings will not be disturbed on appeal, where it appears that they are not against the weight of evidence. Amanna v. Carvel, 167 App. Div. 557; 152 N. Y. Supp. 796. 93. Findings when inconsistent with the judgment.— Where the findings made by the trial justice, are inconsistent with the judgment rendered, a party is entitled to urge in- consistencies for the purpose of reversing the judgment. Mc- Nulty Brothers v. Offerman, 152 App. Div. 181. 94. Findings as to facts not in issue. — The findings in an action, to foreclose a mechanics lien, were to the effect, that the owner made advance payments in fraud of the claims of the lienors, and that the latter forebore to file liens on the owner's promise to retain funds sufficient to discharge the liens. The findings were duly excepted to. On appeal the ex- ceptions were sustained and the judgment reversed, on the ground that there were no allegations of fraud or breach of promise to pay in the pleadings. Dinhel v. Roman Catholic Church of St. Theresa, 150 App. Div. 848. 95. Findings — ^When conflicting. — Under section 1317 of the Code the Appellate Division "may reverse^ or affirm, wholly or partly, or may modify, the judgment or order ap- pealed from." The appellate court is relucant to order a new trial in mechanic lien actions, if the record is such that a new trial may be avoided. In a case however where the findings are contradictory and the evidence is unsatisfactory the court must reverse the judgment and order a new trial. Schreiher v. Stem, 156 App. Div. 196. a. When findings are conflicting or inconsistent, the ap- pellant is entitled to have the appeal decided on the basis of 398 Lien Law — Aeticle III, Sec. 43, those findings which are most favorable to hini. Johnson Service Co. v. Hildelrand, 149 App. Div. 680, affirmed 210 N. Y. 574. 96. Findings — Unnecessary findings in an action to fore- close a mechanic's lien. — Where issues not raised by the answer of the assignee of a bankrupt contractor are unneces- sary, they are not res adjudicata as between the parties and may be stricken out. A judgment will not be reversed at the instance or upon the appeal of a bankrupt's trustee because unnecessary findings as to the amount due from the bank- rupt to his assignee in an action in which the courts held that the claim of the assignee of the bankrupt is superior to that of the lienor. American Radiator Go. v. City of New York, 123 App. Div. 483, 107 K T. Supp. 1098. 97. Findings unwarranted by evidence. — The Appellate Division in an action to foreclose a mechanic's lien may ana- lyze the testimony for the purpose of finding as to whether the findings were contrary to the evidence, or unwarranted by the evidence, and where it appears that the findings of the referee are not sustained by such evidence, the judgment must be reversed. Shall v. Old Forge Co., 109 App. Div. 907, 96 N. Y. Supp. 75. Pabties in Contbact. 399 § 44. Parties to an action in a court of record. — ^In an action in a court of record the following are neces- sary parties defendant: 1. All lienors having liens against tlie same property or any part thereof. 2. All other persons having subsequent liens or claims against the property, by judgment, mortgage or otherwise, and 3. All persons appearing by the records in the office of the county clerk or register to be overseers of such property or any part thereof. Every defendant who is a lienor shall, by answer in the action, set forth his lien, or he will be deemed to have waived the same, un- less the lien is admitted in the complaint, and not con- tested by another defendant. Two or more lienors having liens upon the same property or any part thereof, may join as plaintiffs. 4. The state, in the same manner as a private person, when the lien is one filed against funds of the state for which public improvement is constructed. In such a case, the summons must be served upon the attorney- general, who must appear in behalf of the people. Code of Civil Procedure, § 3402, re-enacted as § 44 of the Lien Law, Laws 1909, chap. 38. 1. Parties. — All persons who have acquired rights or claims subsequent to the filing of plaintiff's lien, down to the time of filing the lis pendens, should be made parties to the foreclosure. After judgment, the court cannot grant a writ of assistance to remove persons from the premises sold in foreclosure, if such persons were not made parties to the ac- tion. Matter of Bumhwm, 64 App. Div. 596; Mulligan v. Vreeland, 88 Hun, 183. a. In an action to foreclose a municipal lien, the plaintiff must make parties to the action all lienors whether their liens are prior or subsequent to the plaintiff when the action is brought in the court of record. This rule applies also even 400 Lien Law — Aeticle III, Sec. 44. although the lien has been discharged by the giving of a bond or undertaking. Maneely v. City of New York, 119 App. Div. 376, 105 K Y. Supp. 976. b. After a lien has been discharged by the owner giving a bond as required by the statute, the lienor may establish his lien in an action on the bond. In such action, the owner is not only a proper, but a necessary party. If he is without the jurisdiction he must be served by publication in the same manner as in an action to foreclose a mortgage. Von Den Driesch v. Rohrig, 45 App. Div. 526. c. The owner gave a mortgage as security for moneys due and to grow due under a building contract. A subcontractor filed a lien after the mortgage was given and thereafter the mortgage was assigned. In the suit to foreclose the mortgage, the lienor was not made a party. One answer set up that the lien had been filed. Held, that the lienor was a proper and necessary defendant and should have been made a party when it appeared that his lien had been filed. Gass v. Souther, 46 App. Div. 256. 2. Parties — Prior incumbrances. — Only subsequent lien- ors and incumbrancers should be made parties in an action to foreclose a mechanic's lien, and a prior mortgagee is not a proper or necessary party, even where such mortgagee agreed to advance moneys to the owner, which moneys were secured by the mortgage. Alyea v. Citizens' Savings Bank, 12 App. Div. 574. a. Plaintiff claimed that when his lien was filed the mort- gagee, under his contract with the ovsmer, was obliged to ad- vance the latter $4,000. Held, that the lienor could not compel the mortgagee to make this payment to the owner, to enable the lienor to reach it to satisfy his lien, as the lienor was no party to the agreement between the owner and mort- gagee. Ih. b. In an action to foreclose a mechanic's lien the plaintiff should make parties only those whose incumbrances by mort- gage or otherwise are subsequent to the lien of plaintiff. Plaintiff included in his summons holders of three mortgages, all made and recorded long prior to the filing of plaintiff's Pakties — Sureties on Undektakiwg. 401 lien, and demanded a foreclosure of their interests. Held, that as to these senior incumbrances' the complaint was de- murrable as they were not proper or necessary parties. Brown V. Danforth, 37 App. Div. 321 ; Alyea v. Citizens' Savings Bank, 12 App. Div. 577. 3. Parties — Intermediate grantee. — Plaintiff sued to fore- close a lien for work done for one Thomas B. King. After the work was performed King and his wife conveyed the premises to Bailey, who in turn conveyed them to Mary T. C. King, the wife of the party who contracted for the work. The com- plaint alleged that the conveyance to the wife was in fraud of plaintiff's right and constituted no bar to his lien. Held, that Bailey, the intermediate grantee, was not a proper or necessary party to the action. Bierschenk v. King, 38 App. Div. 360. 4. Parties — Sureties on undertaking. — Sureties on an un- dertaking given to discharge a municipal lien, are not un- der any statutory provision, or because of their interest in the subject of the action, necessary parties to the action to foreclose the lien. They were, proper parties, but the plain- tiff had the right to refrain from applying to the court, as he might have done, for an order bringing them into the action as parties. Harley v. Plant, 210 N. Y. 405. Judgment in an action establishing a lien, when valid and enforceable, in a fixed amount is conclusive as an adjudica- tion, in an action upon the undertaking, against the sureties, although the latter were not parties to the action to foreclose the lien. Ih. 5. Parties — Guarantor of contractor a proper party. — Plaintiff sued to foreclose a mechanic's lien against Kellogg, the owner, Carlier, the contractor, and Malcolm, who in writ- ing guaranteed the performance by Carlier of his contract. A demurrer to the complaint was interposed upon the theory that a cause of action against one party on a contract cannot be united with a cause of action against another party on a sepa- rate guarantee of such contract. That, therefore, causes of ac- tion were improperly united. Held, that the complaint stated but one cause of action. That under the provisions of section 402 liEN Law — Aeticle III, Sec. 44. 3399 of the Code (now section 42 of the Lien Law), plaintiff, in an action to foreclose a lien, may pursue his remedy against a person liable for the debt upon which the lien is founded. That the contractor was liable for the debt and defendant Malcolm was liable on his guarantee for the same debt and Kellogg, the owner, was affected by the cause of action. As the contractor had defaulted, Malcolm, who guaranteed his contract, was liable for the loss sustained by plaintiff by the reason of such default. Demurrer overruled. Whisten v. Kel- logg, 50 Misc. 409. 6. Parties — Joint promise of husband and wife. — Matilda E. Wegenaar owned the land. Plaintiff, in an action to fore- close his lien, joined the husband, J. L. Wegenaar, and al- leged that the labor and materials furnished and used in the improvement of the real property were so furnished under an agreement between plaintiff and the defendants by which de- fendants bound themselves to pay therefor. On demurrer, the court below held that the husband was not a proper party, and could only be made a proper party by showing that he was either a contractor for the owner or a guarantor liable for the debt on which the lien was founded. Held, error. That the allegations of the complaint render the defendants jointly liable upon the debt on which the lien was founded. That plaintiff's cause of action was not only to establish a lien against the property, but also to enforce a personal claim against the defendants as persons primarily liable for the debt. The relief prayed for was a personal judgment against both defendants for any deficiency after an application -of moneys arising from the sale of the property. Such relief was justified by the allegations of the complaint. Seary v. Wegenaar, 120 App. Div. 419, 104 IST. Y. Supp. 1055. 7. Parties — Trustee in bankruptcy. — Where the principal contractor was adjudicated a bankrupt prior to the filing of liens by subcontractors and materialmen, such trustee is a proper and necessary party in an action commenced by sub- contractors and materialmen to foreclose their liens. Such trustee may set up any defense that the insolvent contractor could have set up in an action, and may plead that the plain- tiff failed to commence an action within one year from the Beih-ging in New Parties. 403 filing of his notice of lien, and is therefore not entitled to recover. Martin v. De Koppet, 64 Misc. 385. a. Where a subcontractor during the progress of the work is adjudicated bankrupt, and a trustee is appointed by the Bank- rupt Court, who obtains an order from the court directing him. to complete the contract of the bankrupt, the trustee may complete the contract and file a lien for all moneys due there- under and enforce it for the benefit of the creditors. Davis V. City of New York, 75 App. Div. 518. The bankrupt contractor may also file a lien for the labor and materials which he has furnished in order to protect the interests of creditors, and assign it to the trustee in bank- ruptcy for the benefit and protection of the creditors. lb. 8. Parties — Waiver of defect. — If the defendant pleads a defect of parties in failing to join a prior assignor of the con- tractor, and fails to advert to this defense upon the trial and does not call the attention of the court to it in any way, nor refer to it in his motion for a nonsuit the defense is as effect- ually waived as if it had not been pleaded. Lawrence v. Con- gregational Church, 164 N. Y. 115. a. The Court of Appeals in Hawhins v. Mapes-Reeves Con- struction Co. (178 N. Y. 236), has reiterated the rule as stated in Lawrence v. Congregational Church (164 N. Y, 115), that the defense of defect of parties may be waived by failing to call attention of the court to this particular defense at the trial. Hawhins v. Mapes-Reeves Construction Co., 178 K Y. 236. 9. Bringing in new parties. — The remedy prescribed by the Code of Civil Procedure, § 452, which gives the court power to direct proper or necessary parties to be brought into the action where a complete determination of the controversy cannot be had without their presence may be invoked in an action to foreclose a mechanic's lien. Williams v. Edison Il- luminating Co., 16 N. Y. Supp. 857. 404 Lien Law — Aeticle III, Sec. 45. § 45. Equities of lienors to be determined. — The court may adjust and determine the equities of all the parties to the action and the order of priority of differ- ent liens, and determine all issues raised by any defense or counter claim in the action. Code of Civil Procedure, § 3403, re-enacted as § 45 of the Lien Law, Laws 1909, chap. 38. Execution — Municipal Court, city of New York. — An ex- ecution in an action to foreclose a lien in a court not of record, may be issued pursuant to § 50 of the Lien Law. See post, page 409. When the action is brought in the Municipal Court of the city of New York, which is a court of record, the execution must be issued pursuant to § 130 of the Municipal Court Code, in effect September 1st, 1915, which provides as fol- lows: An execution may be issued upon a judgment either by the clerk of the court in the district where the judgment was ejitered, within six years thereafter, the execution being directed to a marshal, or by the judgment creditor or his attorney after filing a transcript of the judg- ment with a county clerk as provided in section one hundred and thirty- one, the execution being directed to a sheriff. But no execution shall issue out of this court after a transcript has been issued, and no tran- script shall be issued while an execution of this court remains out- standing, except a transcript showing that the judgment has been modi- fied, vacated or set aside. When the execution is issued to a marshal the prospective fees of the county clerk and sheriff must be omitted. An execution issued to the sheriff upon a judgment in an action to establish a mechanic's lien shall authorize and direct the sheriff to sell the right, title and interest of the owner of the premises upon which the lien set forth in the complaint existed when the notice of lien was filed. Actions — Courts not of Recoeb. 405 § 46. Action in a court not of record. — ^If an action to enforce a meclianic's lien against real property is brought in a court not of record, it shall be commenced by the personal service upon the owner, anywhere within the state, of a summons and complaint verified in the same manner as a complaint in an action in a court of record. The complaint must set forth sub- stantially the facts contained in the notice of lien, and the substance of the agreement under which the labor was performed or the materials were furnished. The form and contents of the summons shall be the same as provided by the Code of Civil Procedure for the com- mencement of an action upon a contract in such court. The summons must be returnable not less than twelve nor more than twenty days after the date of the sum- mons, or, if service is made by publication, after the day of the last publication of the summons. Service must be made at least eight days before the return day. Code of Civil Procedure, § 3404, re-enacted as § 46 of the Lien Law, Laws 1909, chap. 38. 1. Courts not of record. — Courts not of record have no inherent powers and have no jurisdiction except such as is specially conferred by the statute, and can exercise no powers not expressly conferred by statute. The Constitution of the State of New York now contains a prohibition forbidding the l^slature to confer equity jurisdiction upon local inferior courts. Article 6 of section 18 of the Constitution now de- clares that " the legislature shall not hereafter confer upon any inferior or local court of its creation any equity jurisdic- tion." a. The question has been raised whether the legislature had power to confer upon courts not of record power to foreclose mechanic's liens, upon the ground that such actions involved the exercise of equity jurisdiction which could not be confer- red upon such courts. They have not even control over their own judgment, if in exercising such control it becomes nec- essary to exercise equity jurisdiction. People ex rel. Taffe v. 406 Lien Law — Aeticle 111, Sec. 46. < Fitzpatrich, 35 App. Div. 456. On tiis ground it was claimed in the early cases that courts not of record had no power to foreclose mechanic's liens. Smith v. Silsbej 53 App. Div. 462. b. But the statute does not give to courts not of record power to foreclose liens, in the same manner in which a court of record is authorized to foreclose them. The legislature in conferring upon local inferior courts the right to foreclose liens, clearly intended to limit the remedy to a simple money judgment to be enforced by an execution authorizing the sheriff to sell the right, title, and interest which the judgment debtor had in the land at the time the lien was filed. This power, it has been held, does not involve any equity jurisdic- tion. Kotzen v. Nathanson, 33 Misc. 299; Eadie v. Wald- ron, 64 App. Div. 424. c. The statute does not, and the legislature could not, confer on a local inferior court power to make a decree of foreclosure and sale, and direct lands to be sold, and direct a distribution of the proceeds because such power is wholly an exercise of equity jurisdiction. All that can be done in a court not of record is to get a money judgment in personam, and sell un- der it, by virtue of an execution, whatever interest the judg- ment debtor had in the land when the lien was filed. 2. Municipal Court of city of New York. — The district Court of the old city of New York and the Justices' Courts in the three districts of the former city of Brooklyn were not abolished by the Greater New York charter, but were con- tinued, consolidated, and reorganized under the name of the Municipal Court of the city of New York. Worthingion v. London G. & H. Co., 164 N. Y. 81. a. Prior to 1915 it was not a court not of record. It has no equity jurisdiction. But jurisdiction is especially con- ferred by the Lien Law upon courts not of record to foreclose mechanic's liens by awarding a money judgment for the amount of the lien, and providing for its enforcement by a sale of the right, title, and interest of the owner in the land under an execution issued out of such court. Kotzen v. Nath- anson, 33 Misc. 299 ; Eadie v. Waldron, 64 App. Div. 424. JUEISDICTION OF MUNICIPAL GoUET. ' 407, h. The jurisdiction, conferred by section 3404 of tlie Code, now section 46 of the Lien Law, and also by section 41 and 42 of the Lien Law, formerly sections 3399 and 3400 of the Code, on courts not of record in actions to enforce mechanic's liens, is supplemented by Laws 1915, chap, 279, in effect September 1, 1915, known as the Municipal Court Code, which declares that the Municipal Court of the City of New York, shall be a court of record, and increases its jurisdiction from $500 to $1,000 exclusive of interest and costs. Its territorial jurisdiction, under the Greater New York Charter embraces the boroughs of Manhattan, the Bronx, Kings, Queens and Richmond. For the provisions of the statute (Municipal Court Code, § 6) as to jurisdiction in lien actions, see ante, page 338. c. The statute specially limits the jurisdiction to a judg- ment for money only due upon the lien. As the lien binds the realty from the time of filing, the execution can direct only a sale of the right, title, and interest which the judgment debtor had in the land when the lien was filed. See also § 50, post, page 302. 3. Jurisdiction — None to order sale of property. — Plaintiff brought an action in the Municipal Court of the city of New York, to foreclose a mechanic's lien, prior to enactment of the Municipal Court Code in effect September 1, 1915. He pro- cured judgment not only for the amount due on his lien, but also for a sale of property in foreclosure. Held, that the Municipal Court, had jurisdiction only to render a money judgment, but had no power to direct a sale of the premises in foreclosure, and that the provision ordering such sale should be treated as surplusage, and stricken from the judg- ment, which in other respects was affirmed. Boyton Furnace Go. V. Thorn, 141 App. Div. 773. 4. Jurisdiction — Municipal Court — Parties, — An action to foreclose a mechanic's lien in a Municipal Court is confined to rendering money judgment for work, labor, and services or materials furnished against the defendant. The judgment cannot be enforced by a sale of the property and payment of the amount due from the proceeds, but must be enforced by virtue of an execution issued to the sheriff, who can sell the 408 ' Lien Law — Aeticle III, Secs. 47, 48. right, title, and interest which defendant had in the property when the notice of lien was filed. Drall v. Gordon, 51 Misc. 618. A Municipal Court is without any equity jurisdiction whatever and cannot adjust the rights and priority of the lienors among themselves nor permit another lienor who is made a party defendant to enforce his lien. Such subsequent lienor is not a proper or necessary party to an action to fore- close a mechanic's lien in a Municipal Court. Ih. § 47. How summons served, when personal service cannot be made. — If personal service of the summons cannot be made upon a defendant in an action in a court not of record, by reason of his absence from the state, or his concealment therein, such service may be made by leaving a copy thereof at his last place of residence and by publishing a copy of the summons once in each of three successive weeks in' a newspaper in the city or county where the property is situated. Code of Civil Procedure, § 3405, re-enacted as § 47 of the Lien Law, Laws 1909, chap. 38. § 48. Proceedings on return of summons; answer; judgment by default. — At the time and place specified in the summons for the return thereof, in a court not of record, issue must be joined, if both parties appear, by the defendant filing with the justice a verified answer, containing a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; or any other matter constituting a defense to the lien or to the claim upon which it is founded. If the defendant fail to appear on the return-day, on proof by affidavit of the service of the summons and complaint, judgment may be ren- dered for the amount claimed, with costs. Code of Civil Procedure, § 3406, re-enacted as § 48 of the Lien Law, Laws 1909, chap. 38. Appeal — Court not of Kecoed. 409 § 49. Issue; how tried; judgment. — ^it issue is joined in such action in a court not of record, it must be tried in the same manner as other issues in such court, and judgment entered thereon, which shall be enforced, if for the plaintiff, in the manner provided in the follow- ing section. If for the defendant, in the same manner as in an action on contract in such court. Code of Civil Procedure, § 3407, re-enacted as § 49 of the Lien Law, Laws 1909, chap. 38. § 50. Executions. — ^Execution may be issued upon a judgment obtained in an action to enforce a mechanic's lien against real property in a court not of record, which shall direct the officer to sell the title and in- terest of the owner in the premises, upon which the lien set forth in the complaint existed at the time of filing the notice of line. Code of Civil Procedure, § 3408, re-enacted as § 50 of the Lien Law, Laws 1909, chap. 38. § 51. Appeals from judgments in courts not of record. — An appeal may be taken from such judgment ren- dered in a court not of record, according to the provi- sions of the Code of Civil Procedure, regulating ap- peals from judgments in actions on contract in such courts. Code of Civil Procedure, § 3409, re-enacted as § 51 of the Lien Law, Laws 1909, chap. 38. § 52. Transcripts of judgment in courts not of record. — ^When a judgment is rendered in a court not of rec- ord, the justice or judge of the court in which it is tried, or other person authorized to furnish transcripts of judgments therein, shall furnish the successful party a transcript thereof, which he may file with the clerk of the county with whom the notice of lien is filed. The filing of such transcript has the same effect as the 410 Lien Law — Ajiticle III, Secs. 52, 53. filing of a transcript of any other judgment rendered in such courts. Code of Civil Procedure, § 3410, re-enacted as § 52 of the Lien Law, Laws 1909, chap. 38. § 53. Costs and disbursements. — If an action is brought to enforce a mechanic's lien against real prop- erty in a court of record, the Costs and disbursements shall rest in the discretion of the court, and may be awarded to the prevailing party. The judgment ren- dered in such an action shall include the amount of such costs and specify to whom and by whom the costs are to be paid. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court. The expenses incurred in serv- ing the summons by publication may be added to the amount of costs now allowed in such court. Code of Civil Procedure, § 3411, re-enacted as § 53 of the Lien Law, Laws 1909, chap. 38. 1. Costs. — Extra allowance. — ^This provision will regard to costs is a substantial re-enactment of section 14 of the Lien Law of 1885. Under that section it was held that a plaintiff might also have an extra allowance in addition to his taxable costs. Lawson v. Reilly, 13 Civ. Pro. Eep. 290; Horgom v. McKenzie, 11 N. Y. Supp. 174; s. c, 43 N. Y. St. Eep. 131. a. A plaintiff is entitled to costs and an allowance in an action to foreclose a mortgage. It is just also that plaintiff in an action to foreclose a mechanic's lien, should in addition to his costs, also have an extra allowance, aiS prescribed in section 3252 of the Code. Plaintiff must carry the burden of preparing the com- plaint, of bringing in parties and the examination of the record for such purposes, and there is also the duty in case he succeed of entering the judgment, procuring the sale, and reporting the same to the court. McLaughlin v. Mendelson, 160 App. Div. 37. 2. Costs against municipal corporations. — In actions to foreclose liens on account of public improvements the court, Costs. 411 as to costs, is bound hj the provisions of section 60 of the Lien Law (formerly section 3418 of the Code of Civil Pro- cedure) which provides that in an action to foreclose a lien on account of a public improvement, if the court finds that the lien is established, it shall render judgment directing the municipal corporation to pay over to the lienor entitled thereto " so much of the funds or money which may be due from the state or municipal corporation to the contractor, as will satisfy such lien, with interest and costs not exceeding the amount due to the contractor." Rockland Lake Co. v. Port Chester, 102 App. Div. 360, affirmed, 185 IST. Y. 590. The provisions of the Code of Civil Procedure, § 1235, and § 53 of the Lien Law, as to costs in an action to foreclose a lien, must be considered, subject to the expressed limitations contained in the Consolidation Act and subsequent enact- ments relating to liens against municipal corporations, to the effect that in no case shall judgment be entered against them, for more than the amount due to the contractor. Moran v. The Mayor of New York, 162 App. Div. 377. The remedy of the plaintiff in such case is to enter judg- ment, on the report of the referee or the decision of the court, in which case interest would run from the entry of the judg- ment, lb. In an action to foreclose a lien upon funds belonging to the State of New York where there were a large number of defendant lienors and where it appeared that the plaintiff was obliged to do a large part of the work in establishing liens of which the State had due notice but against which it did not protect itself and the amount of the liens of all the defend- ants are necessarily involved in the litigation, the plaintiff will be entitled to his taxable costs and an extra allowance of 5 per cent, in addition thereto upon all the claims established at the trial, as the action within the meaning of the statute is both difficult and extraordinary. Newman Lumber Co. v. Wemple, 56 Misc. 182, 107 K Y. Supp. 318. In such an action where the contract was enacted by the State before the completion of the work and it appeared that such cancellation was unauthorized and unwarranted, the at- torneys who appeared for a large number of labor lienors and who were compelled to perform a great deal of labor inde- pendent of making proof of their various liens will be awarded the usual costs for each lienor represented by them up to the time of the trial and one trial fee. lb. 412 Lien Law — Article III, Sec. 53. But one bill of costs can he allowed to one party in an action to foreclose several mechanics' liens filed by different persons. In such an action it is improper to allow the owner separate bills of costs against unsuccessful lienors who filed separate liens. Woolf v. Schaefer^ 103 App. Div. 567. 3. Costs discretionary. — Costs under section 3411 of Code of Civil Procedure may be awarded in the discretion of the court. There are cases where it would be equitable to charge the owner with costs. But where the owner litigates nothing, but admits his liability and offers to pay the amount due on the contract according to the direction of the court, it would be unjust and inequitable under the circumstances to charge such ovsmer with the costs, and where one of several lienors takes no active part in the action save to make proof of his lien or to observe some other formalities he should not as a general rule be awarded costs. Ottman v. Schenectady Co- operative Co., 119 App. Div. 736. 4. Costs — When not authorized against subcontractor. — Costs, in an action to foreclose a mechanic's lien, are in the discretion of the court. In such an action brought by a con- tractor against a religious corporation, the Church of St. Au- gustine, and against Miller and Robinson, subcontractors, who filed a lien, the complaint was dismissed against St. Au- gustine church, and a money judgment entered in favor of Miller and Robinson, subcontractors, against the plaintiff, the contractor, Patrick J. Condon, with costs and disburse- ments to the church corporation against the subcontratitors. Held, error. That all the costs and disbursements should have been awarded against the plaintiff. " It was an erro- neous exercise of judicial discretion," says PAXTEEsoisr, 3., " to charge the immense bill of costs taxed in this case against defendants, who were merely standing upon their "legal rights, dependent upon the fate of the claim which the plain- tiff sought to establish against the owner of the property. The costs should have been charged only against the plain- tiff." Condon v. Church of St. Augustine, 112 App. Div. 168, 98 ]Sr. T. Supp. 253. 5. Costs— Amount of— Court of record. — Section 3401 declares that the provisions of the Code of Civil Procedure, relating to actions for the foreclosure of a mortgage upon real Costs. 413 property, and the sale and the distribution of the proceeds thereof, apply to actions to enforce mechanics' liens in a court of record. The provisions of the Code of Civil Pro- cedure with regard to costs in actions to foreclose a mortgage upon real property are as follows : § 3351. Amount of costs. — Costs, awarded to a party to an action, must be at the following rates: 1. To the plaintiff: For all proceedings, before notice of trial, in an action specified in section 420 of this act, fifteen dollars; in every other action, twenty- five dollars. For each additional defendant served with the summons, not exceed- ing ten, two dollars; and for each necessary defendant, In excess of that number, served with the summons, one dollar. For procuring the appointment of a guardian or guardian ad litem, for one or more infant defendants, ten dollars. For procuring an order directing the service of the summons by pub- lication thereof, or personally, without the state, on one or more de- fendants, ten dollars. For procuring an injunction order or an order of arrest, ten dollars. 2. To the defendant: For all proceedings before notice of trial, except as otherwise pre- scribed in this article, ten dollars. 3. To either party: For all proceedings, after notice of trial, and before trial, except as otherwise prescribed in this article, fifteen dollars. For taking the deposition of a witness or of a party, as prescribed in section eight hundred and seventy, section eight hundred and sev- enty-one, or section eight hundred and ninety-three of this act, ten dollars. For drawing interrogatories, to be annexed to a commission, or to letters rogatory, issued as prescribed in sections eight hundred and eighty-eight, nine hundred and twelve, nine hundred and thirteen, and three thousand one hundred and seventy-one of this act, ten dollars. For the trial of an issue of law, twenty dollars. For the trial of an issue of fact, or the assessment of damages pur- suant to section one hundred and ninety-four of this act, thirty dollars; and, where the trial necessarily occupies more than two days, ten dol- lars in addition thereto. For making and serving a case, twenty dollars; and, when the case necessarily contains more than fifty folios, ten dollars in addition thereto. For making and serving amendments to a case, twenty dollars. Upon a motion for a new trial, upon a case, or an application for judgment upon a special verdict, the same sums as upon an appeal, as prescribed in subdivision fourth of this section. Upon any other motion, or upon a reference specified in section three thousand two hundred and thirty-six of this act, to each party to whom costs are awarded, a sum fixed by the court or judge, not exceeding ten dollars, besides necessary disbursements for printing and referee's fees. 414 Ljzh Law — Anti' s.y. Ill, Hkc. .vv. VVher<; A n«w trial » }>^ purMUUit Ut "it order urasA'ittg the mim, ta an aMMsmivint of damage*, purmiafit to a» •r/rd«r gnoiiing itie «jiiii«, «r ^r> sum^mmmA 'A mietUm y/( on« tmudred nttuatf-Umr of thto a«t, twfartyfire dollar*. fCT- one t«nn '/f t>)« eitjr eonrt of tW «ity of X^w York, at l»}ifeb the «a»« H n«««sMaTiljr on the ealr»da*, aia4 for *a*l( trtaj t«rM or nynaiA Uirta^ > to t)»* Mipr^me «ottrt fro« the e eitjr of Xe«f York, taken frow a» ir/terlo^torjr '/,• Aaal jtuU^ment, 'jr fr«m an orjer gravtmjf '/r I'^mm-/: a Mew trial, r,- made at a trial term of iim mpT^rii' «oBrt or of the eity eoart /-' the eHy of Tiew York; or upon an appli«atio« to the appeUale 4ivi**M '/f the v};,Tiiiif. e/foti. Vir a new trial, or for jti<%in«»t tipMi a ir*-/4i»4, rm4ered leahjeet to tlie opinion (tf the «oart, of the appelate diviMAK, mot taoMtdmg £re, of the *,>i%i!^,!ii^. «oart, at whtiA the «a«Me i» «e««iiarily on the tA\e»dat, '^x/:>'>-:.n'^^ Xu-. Xurm at, iih'M^ it «• arjiMed, or othef' vi«e finally d«qm*ed of, tM dollani. in all appeal* takes imder «eetioM thirtj'ose hundred and «3^My'iiti>e ^^t« awarded to the Mt«e««»fo: fiarty iribil) not eweed t«« dollar* is addition t*/ tik taxaMe di«idki«ni!' nent*. -v. To e^-t^jitr party, npr/n an appeal to the eotirt of appeal*: B^ore ari^mnent, thirty d«dtar*. Fv,- ar^maent, Mxty ,. ¥m taitik terns, r«ot eseeediii^ ten, at irhidi the ean«e j* on the eakw' dar, exelndii^ !''>« term at whidb it '» arji^tA, r3i;-3 damaj^, hy iray of «o«t«, for the del^, not 'rrA*'-.'. ,-.z ten >«^r e«trt«ni npon the aisaoiwt of the joi^weiit; or, tr^ere .1 va« r2:. IMatitmA aXUmamte. — Wittrr-. iit*-, aetion f* hrows^ t« foKeliMe a K>vi.y*?> -j;/v» ,"5-«; yr^-^;\y ; or for the partition of real >?'^>^rtT; (M* to prouBre an adj«d>«stion apMi » will or other mttnt' M*ent >n vr}t;;i;; -,- V> OMHfitJ t.-^ deterMO«ati<« of a «laini to r^' property; '^r nc^^., 'm amy zfity/m, a »sir,-s:,-'. of attaekwuent j^i i lt ^'.-^r.j .-^» -^t^n ' m i mA ; t,-^ fjaintiff, if a iKnal jMdiiMent i* rewder«d in t fii'/r- aad he reswrer* eente, i» ewtjtied fo r*)t»ii«f, m »4iiHiim to tv^ w,«t» firem!^ilm4 3* t;^ i-*. mieii«m, the f'^fiowktii; perewrt*)^, to he «9rtiMat»4 "^^.w tbe a«erovst fonijtd to be 4ims iqim the rmtttt^tinti't 'f tl* Ta5«ft of the yrr^.-'.j fwrtitltwed, aMvMi ty the adj*di«9iti«w iqwi ti* nrfl or other i n rfmiff, v.- t:.* daiai to «U«li i* deterMMef ; or Cost*. 415 ♦be rahui of Hhtt property siitadie Upon a ):ufi;, not exeeedsn^ tw« haaiiiei ioVUn, tot per e^itoia. Upon an additional et^.ti, not exim«4ing fonr Irnndred dollar*, fire p«' Upon an additvcmal cam, not «»ie«diog on« thotuand doHara, two per ttatvm. "Wlat-.m %ti/:h an aHum if settled liefore jn/%BieBt, the plaintiff i« «n- titlad to a pereenta^e upon tbe araotint paid or «e«itrcd npon tbe cet* tlement, at one-half of tb«»e rat««. In an aetion to foreelo«« a iaort;jaif<; npon real property, where a part 'jf the nortga^ debt i« not dne, if tbe final judgment dir«et« the «ale of the whole propniy, a* prei^bed ^n ceetion 1437 of thus aet, tbe pereentagesi, npeeHieA in thi» •eetion, mii«t be eomputed upon tbe whole sum, ijwpaid upon tfte mort' gage. But if it direet* the «ai« of a part only, a« pr^Kribed in «eetion 1434 of tbia aet, tbey nnirt be eomputed npon the sum aetually doe; and if tbe eonrt tbereatter grant* an order, directing tbe aale of the remainder, or a part thereof, tbe percentage isjij>.t be eomputed upon the amount tb^i dne; but tbe ag^egate of tbe pere The plaintiff in an action to foreclose his lien was awarded a judgment establishing only the amount due upon the lien, but the court held that the plaintiff could not recover in that action the profits which he would have realized had he been permitted to complete the work under the contract, or for the materials which were delivered on the premises, but not used in the buildings. The court de- cided that such claims were elements of damage in an action for breach of contract, and declined to pass upon, or adjudi- cate them, in the foreclosure action. Plaintiff subsequently sued at law to recover the profits she might have realized on his contract in the lien suit, and for the materials delivered on the premises but not used in the building. The defendant claimed that the adjudication in the judgment to foreclose the lien was a bar, and the court below sustained the plea, and dismissed; upon appeal the court held that in the lien action the court might have de- cided the matters embraced in the second suit, but that as it expressly declined to do so, the judgment in the lien suit could not be held to constitute a bar to the second action. The issues in the second suit were not decided in the me- chanic's lien action, and that action, therefore, did not con- clude the trial of the issue.3 in the second action. Koeppel V. McBetJi, 97 App. Div. 299. 6. Personal judgment on demurrer to answer. Plaintiff commenced an action to foreclose a lien as a subcontractor of one Strong, against the contractor, and the village of Nassau, Peesoital Judgment — Court Mat Modify. 427 with whom Sltrong contracted to construct a reservoir and warter system. The village demurred to the complaint, and the plaintiff should have set out this contract, as it would have to be set that plaintiff's lien was invalid as against the village. The complaint demanded personal judgment against Strong. Both demurrers were sustained. The demurrer by the village was sustained because the complaint failed to set forth all the elements of the contract between Strong and the village. Plaintiff should have set out this contract, as it would have to be set forth in an action by Strong against the village. Nor did the complaint show that the services per- formed by plaintiff were performed under any contract be- tween the two defendaaits. Breuchaud v. Mayor, 61 Hun, 564; Goodrich v. Gillies, 62 Hun, 479; WatroiLS v. Elmen- dorf, 55 How. Pr. 461; Screho v. Smith, 16 Msc. 102, were cited. Clapper v. Strong, 41 Misc. 184, .affirmed, 90 App. Div. 536. The court held, however, that as between plaintiff and de- fendant Strong, the complaint stated a cause of action which entitled him to a personal judgment against Strong. That defendant Strong could not set up by way of defense that the lien was invalid as to his codefendant, the village of Nassau. The defense, if true, was not available to defendant Strong. It will be sufficient if, as between plaintiff and Strong, the complaint states a cause of action. Clapper v. Strong, 41 Misc. 184, affirmed, 90 App. Div. 536. 7. Personal judgment — Court of Appeals may modify de- cree, and insert judgment of foreclosure in lieu of personal judgment. — The Court of Appeals has power to modify a decree awarding a personal judgment, strike from the decree such provision, and substitute in lieu thereof a judgment of foreclosure and sale. Gilmore v. Colcord, 183 N". Y. 342. The court at Trial Term in an action to foreclose a me- chanic's lien awarded & judgment of foreclosure and sale and denied the plaintiff's request for a personal judgment against the defendant. On appeal, the Appellate Division (96 App. Div. 358) struck out of the decree the judgment of fore- closure and sale and substituted a personal judgment against the defendant. The Court of Appeals modified the order and judgment of the Appellate Division by restoring the decree to the form in which it was made at the Trial Term. As to its right to so modify a decree, the court said : " The Ap- 428 Lien Law — Aeticle III, Sec. 54. pellate Division struck out of the judgment a provision to which the plaintiff was entitled and lias substituted in its place another provision to which lie was not entitled. I think that this court has power to correct the judgment in this- respect by striking out the provision for a personal judg- ment and restoring the provision for the foreclosure of the lien." (Oode Civ. Proc, § 1337) ; Gilmore v. Colcord, 183 N. Y. 342. 8. Personal judgment — Municipal contract — Right of surety, — Where the surety of a subcontractor who com- pletes the work of his principal, in order to protect himself against liability, such completion by the surety is deemed to be a completion by his principal and whatever rights at- tached to the fund in case the subcontractor had completed inure to the benefit of the surety, who completes in his stead. He is entitled to receive whatever his principal would have received had the latter completed the contract. Maneely v. City of New York, 119 App. Div. 376, 105 N. Y. Siupp. 976. a. Such surety, however, cannot, if he files no lien against the fund and is made a party defendant in an action to fore- close by a lien creditor, recover a personal judgment against the original contractor of the surety upon the theory that the surety was to receive the balance unpaid upon the contract of his principal. The action being equitable in its nature, a de- fendant subcontractor cannot have a personal judgment at law unless the other parties waive the right to a jury trial. h. Where plaintiff brings an action to foreclose a munici- pal lien and makes the surety of a defaulting subcontractor, who completed the contract of his principal, a party defend- a.nt, it is error for the court to dismiss the lien of the plain- tiff, and of the other defendants, where the court found that the surety completed the subcontract of his principal, under a new and independent contract, where such finding is against the weight of evidence. Ih. •c. Plaintiff furnished lumber for the erection of a review- ing stand upon the occasion of the dedication of Grant's monument. The contractor's lease of the land on which the stand was erected commenced April 19 and expired May 6, 1897. The lien was filed after the leas© expired. The lessee Peesonal Judgment — When not Authorized. 429 was obliged to erect and remove the stand and was to own the materials. The owner of the fee had no interest in the stand. The allegations of the complaint showed that plaintiff oould not sustain a lien upon the land. Held, that though the com- plaint was in form to foreclose a lien, the allegations therein contained failed to allege a valid lien. That plaintiffs could recover only a personal judgment for the price of the lumber and that defendant had a right to strike the cause from the equity calendar and have it tried before a jury. Johnson v. Alexander, 23 App. Div. 638. 9. Personal judgment — When not authorized. — Plaintiff failed to establish a valid lien but sought to recover a per- sonal judgment against defendant. Plaintiff agreed to re- pair defendant's property, which had been damaged by fire, for $2,600. The contract was not completed. Plaintiff sought to prove his case by showing the value of the work which he performed, which he alleged was $350 and sub- tracting that sum from the contract price of $2,600. The court below found the value of the work to be $625, that plaintiff had received $1,000 on account and gave judgment for $975. The court held that a personal judgment could not be sustained on the record, and reversed the judgment be- low and ordered the plaintiff to bring an action in personam. Levin v. Hessberg, 135 App. Div. 155. a. Plaintiff's assignor, a subcontractor, furnished extra work at the request of the contractor and there having been no new contract between the owner's husband and the eon- tractor a personal judgment was not authorized against the husband. Tradesman's National Bank v. Boldt, 155 App. Div. Y2. h. Plaintiff brought an action to foreclose a mechanic's lien. The evidence showed that he had no lien and never could have had a lien. The action being in equity and there being no evidence that plaintiff was entitled to any lien, the complaint must be dismissed. Thompson-Starrett Co. v. Brooklyn Heights Realty Co., Ill App. Div. 358, 98 K Y. Supp. 128. ^c. The facts in the above case differ materially from one where the plaintiff was entitled at some time to a lien but which lien he was not able to establish upon the trial of the 430 LiBN Law — ^Aeticle III, Sec. 54. action. Ih. See also Mowbray v. Levy, 85 App. Div. 68 ; Alexander v. Gostello, 59 Misc. 491. d. Where the issues in an action to foreclose a mechanic's lien involve the performance of the contract, the parties are bound by the issues, and if it appears that the contract was not performed at the time of the commencement of the ac- tion, the complaint must be dismissed. In such an action the referee received evidence offered by plaintiff to show that after the action was begun, he completed his contract. Upon this testimony it appearing that the lien had failed, personal judgment was rendred against the defendant. Held, error. That the referee had no power to consider evidence as to what had been done after the commencement of the action. That plaintiff's remedy was to apply for leave to interpose a supplemental complaint, setting forth that the contract has been performed, and for failure to do so was not entitled to a personal judgment, although he had completed his contract after the suit was begun. Aex v. Allen, 107 App. Div. 182, 94 ISr. Y. Supp. 844. 10. Notice of lien must be filed. — The authorities hold uniformly that there can be no personal judgment in favor of any party to an action to foreclose a lien, unless such party has filed a notice of lien. It matters not whether such notice shall have been ^adjudged to have been good or bad. If the party filed a notice the fact of filing will entitle him to personal judgment against the party indebted. But if no notice of lien has been filed, the party failing to file such notice cannot be awarded a personal judgment in his favor. Dudley v. Congregation of St. Francis, 138 ]Sr. Y. 451 ; Castelli v. Trahan, 77 App. Div. 472 ; Nussherger v. Wasserman, 40 Misc. 120 ; Burroughs v. Tostevan, 75 IST. Y. 567; Weyer v. Beach, 79 N. Y. 409; Crouch v. Moll, 8 N. Y. Supp. 183; Altieri v. Lyon, 13 K Y. Supp. 617; Smith V. City of New York, 32 Misc. 380. a. In an action to foreclose a lien by a subcontractor against the owner and the assignee for tbe benefit of creditors of the general contractor, plaintiff claimed that when his lien was filefi there was due from the owner to the contractor a sum in excess of plaintiff's claim. This was denied by the owner. The assignee of the contractor set up in his arswer that when plaintiff's lien was filed there was due on the con- Peesonal Judgment — When Atithoeized. 431 tract a sum in excess of plaintifF's claim. The assignee filed no lien, and his answer was not served on his codefendant. The court found that there was due plaintiff a sum in excess of his lien and directed the owner to pay such excess from the proceeds of sale to the contractor's assignee. Held, error as to the lasaignee, as he, having filed no lien, was not a " lienor," and as his answer had not been served on the at- torney for the owner the court had no power to grant an af- firmative judgment against the owner. Masons' Supplies Co. V. Jones, 58 App. Div. 231. h. If a lienor has allowed the time within which to file a lien to expire, and files a notice after the statutory period of ninety days, he was not entitled to any lien at the time of filing, and the paper filed was null and void. The court, in an action to foreclose the void lien, has no power to render a personal judgment. Cody v. White, 34 Misc. 638. c. If it appears that plaintiff not only had no lien, but never could have had a lien, a court of equity has no jurisdic- tion to render a personal judgment against the party liable for the debt. Mowhray v. Levy, 85 App. Div. 68. 11. Filing in wrong department. — Plaintiff sued to fore- close a lien on a schoolhouse. The lien failed because it had not been filed with the board of trustees and the treasurer of the school district. Held, that as the complaint alleged facts authorizing personal judgment and demanded it, the court had power to determine the rights of the parties to the fund in controversy and to award personal judgment against the parties liable for the debt. Terwilliger v. Wheeler, 81 App. Div. 577. 12. Personal judgment — When authorized. — Plaintiffs did work and furnish materials for a railroad corporation, under Laws 1875, chapter 392 ; also upon bridges and trestle work for a railroad company under Laws 1870, chapter 529. The liens under the statute expired within one year, unless within that time judgment was recovered thereon. The liens having expired before judgment, held, that the plain- tiffs were entitled to recover judgments against the corpora- tions liable for the debt. Wich v. Fort Plain & Richfield Springs R. Co., 27 App. Div. 577. 432 Lien Law — Aeticle III, Sec. 54. a. If, upon the trial, the whole amount claimed has not been established, but only part of the claim, and if there has been no surprise and no one has been misled, plaintiff is en- titled to personal judgment against the party liable for the debt for the amount shown to be due. Stapleton v. Mayer, 17 Misc. 67. 13. Personal judgment — Complaint must demand. — To authorize personal judgment in an action to foreclose a lien the complaint should allege and the proof should show the facts whieh established the liability of the defendant against whom such judgment is asked, and the complaint must demand such personal judgment. If the allegations and proofs fail in this regard, and the liem also fails, the court has no power to award a personal judgment and the complaint should be dismissed. Kane v. Hutkoff, 81 App. Div. 105. a^ If personal judgraeat is not demanded in the complaint against a defendant, it cannot be said that such defendant waived his right to a jury trial of that issue by failing to de- mand it, as the pleadings disclosed no issue on which a per- sonal judgment could be awarded. Dean Steam Pump Co. V. Clarki 84 App. Div. 450. 14. Personal judgment — When demand for sufficient. — Plaintiff in addition to demanding judgment of foreclosure of his lien and sale of the property also demanded judgment against the contractor for " lany deficiency that may remain due after such sale " and also for " such further judgment, decree, or order as may be necessary to protect its rights in the premises." The notice of lien set forth in the complaint was acknowledged, but was not verified. The contractor de- murred, on the ground of failure of complaint to state a cause of action. The court below sustained the demurrer, because plaintiff did not plead a valid lien, as it was not verified, and had not in terms asked for a personal judgment, pursuant to section 3412. Held, error. That the demand in the com- plaint for such further judgment as may be necessary to pro- tect plaintiff's rights sbould be held, on demurrer at least, to fairly include a personal judgment under section 3412 of the Code. Schenectady Contracting Co. v. Schenectady Rail- way Co., 106 App. Div. 336, 94 K Y. Supp. 401. Peesonal Jtjdgmek-t — Deposit of Secueities. 43 S 15. Personal judgment — Judgment for. — The proper remedy for any defect in the judgment, for example, where it fails to provide for the payment of laborers and material- men, parties to the action, out of funds due from the sureties in 'am action on the bond, should be corrected by motion and not on appeal. D' Andre v. Zimmerman, 17 Misc. 357. § 55. Offer to pay money into court, or to deposit Securities, in discharge of the lien.— At any time after an action is brought under the provision of this article, the owner may make and file with the clerk with whom the notice of lien is filed, if in a court of record, and if in a court not of record, with the court, an offer tp pay into court the sum of money stated therein, or to exe- cute and deposit securities which he may describe, in discharge of the lien, and serve upon the plaintiff a copy of such offer. If a written acceptance of the offer is filed with such clerk, or court, within ten days after its service, and a copy of the acceptance is served upon the party making the offer, the court, upon proof of such offer and acceptance, may make an order, that on depositing with such clerk, or court, the sum so offered, or the securities described, the lien shall be discharged, and that the money or securities deposited shall take the place of the property upon which the lien existed, and shall be subject to the lien. If the offer is of money only, the court, on application and notice to the plain- tiff may make such order, without the acceptance of the offer by the plaintiff. If such action is brought in a court not of record, such order may be made by the county court of the county where such action is brought upon notice, and upon filing such order and depositing such sum of money or securities with the county clerk of such county, he shall forthwith discharge said notice of lien, by writing upon the margin of the record thereof, the words " discharged by payment." Money or securities deposited upon the acceptance of an offer 434: Lien Law — ^Aeticle III, Sec. 55. pursuant to this section shall be held by the clerk or the court until the final determination of the action, including an appeal. Code of Civil Procedure, § 3413, re-enacted as § 55 of the Lien Law, Laws 1909, chap. 38. 1. Offer of judgment. — An offer of judgment in a me- chanic's lien action should be in such form as to authorize judgment establishing plaintiff's lien against the real prop- erty described in the complaint for a certain sum, and au- thorize him to enter a judgment in rem and also in personam for any deficiency. Solerno v. Vcgt, 78 Misc. 64. a. The Lien Law (Laws 1885, chap. 342) contains no pro- vision which will preclude 'a party from making an offer of judgment in an action under it, in conformity with the pro- visions of the Code of Civil Procedure (§ 738), if he desires. Section 19 of the law does not relate to offers of judgment. Kennedy v. McKone, 10 App. Div. 88. b. There is no provision in the Lien Law of 1897 which forbids .a party, if he so desires, to make an offer of judg- ment pursuant to section 738 of the Code of Civil Procedure. See also, ante, page 291, et seq. and authorities there cited. 2. Offer of payment. — An offer of payment, as distin- guished from an offer of judgment, is expressly authorized by the foregoing section. This provision enables an owner to stipulate in writing what mofleys or securities may be de- posited to discharge the lien. When the amount is agreed upon and accepted, the lien may be discharged without the time and expense involved on a motion to fix the amount. a. See also Burton v. Ringrose, 63 Hun, 163 ; s. c, 17 N. Y. Supp. 665 ; Hall v. Dennerlein, 14 N. Y. Supp. 796 ; s, c, 39 K Y. St Eep. 67 ; Pfister v. Stumm, 7 Misc. 526. 3. Offer to pay into court. — After an action has been commenced to foreclose a mechanic's lien, the owner may make and file with the clerk with whom the notice of lien is filed, an offer to pay into court the sum of money stated therein and serve upon the plaintiff a copy of such offer. If within ten days the offer is accepted the court may order that Matekialman — Pkefeeence ovee Conteactoks. 435 the lien be disdiarged, and the money deposited to take the place of the property. This is the only provision of the Lien Law, applicaible to an offer after the commencement of an action and takes the place of the offer of judgment in actions generally under section 738 of the Code. Ball v. Doherty, 144 App. Div. 277. § 56. Preference over contractors. — When a laborer or a materialman shall perform labor or furnish, ma- terials for an improvement of real property for which, he is entitled to a mechanic's lien, the amount due to him shall be paid out of the proceeds of the sale of such property under any judgment rendered pursuant to this article, in the order of priority of his lien, be- fore any part of such proceeds is paid to a contractor or subcontractor. If several notices of lien are filed for the same claim, as where the contractor has filed a notice of lien, for the services of his workmen, and the workmen have also filed notices of lien, the judgment shall provide for but one payment of the claim which shall be paid to the parties entitled thereto in the order of priority. Payment voluntarily made upon any claim filed as a lien shall not impair or diminish the lien of any person except the person to whom the payment was made. Code of Civil Procedure, § 3414, r&«nacted as § 56 of the Lien Law, Laws 1900, chap. 38. 1. " Materialman " preference over contractors. — The statute classifies liens under four heads, namely : (1) Labor- ers; (2) materialmen; (3) contractors, and (4) subcontrac- tors. Section 2 of the Lien Law defines a materialman as " any person other than a contractor who furnishes material " for the improvement of real property. Section 3414 of the Code (now section 56 of the Lien Law) declares that the amount due a laborer or materialman shall be paid in the order of priority before any part of the proceeds of sale is paid to a contractor or subcontractor. Section 3400 of the Code (now section 52 of the Lien Law) declares that a muni- 436 Libit Law — Aeticle III, Sec. 56. : eipal lien can be enforced to the same extent and the same manner as a lien against private property. " The plain mean' ing of this section (3414)," says Scott, J., " appears to be that materialmen are now included in the favored class which formerly comprised laborers alone, and are awarded a pref- erence over other lienors irrespective of the date of the filing of their liens. (See Hedden Cons. Co. v. Proctor & Gamble Co., K Y. Law Journal, September 11, 1908, 62 Misc. 129.) All of the lienors in this case dealt directly with the principal contractors and in that regard stand upon an equality. If the materialman had based his claim on materials delivered to a subcontractor, its recovery would, of course, have been limited to the amount due that subcontractor, but no such question is presented here." The judgment below was modi' fied so as to award the materialman a preference over a sub- contractor, although the lien of the latter was filed prior to that of the materialman. Herman & Grace v. City of New York, 130 App. Div. 531; afiirmed 199 N. Y, 600. a. In the case cited the firm of Williams & G-restle con- tracted with the city of New York for installing a heating and ventilating apparatus in a public school in the borough of Manhattan for the sum of $23,995. The contractors on the 7th of February, 1905, abandoned the contract. Prior to the abandonment, liens were filed in the following order: April 9, 1904, Herman & Qvwe, $2,200; June 27, 1904, Johnson Service Co., $3,090 ; July 9, 1904, American Radia- tor Co. (materialman), $1,007.02. The liens first in order were filed by subcontractors and no question was raised as to the lien of Herman & Grace. The Johnson Service Company ceased to work under their con- tract November 23, 1904, and set up in their answer excuse for nonperformance. A claim was made upon the trial by an attaching creditor but the claim was disallowed upon the ground that there was nothing that the attachment could reach. Upon the trial, the American Radiator Company, which sold radiators to the contractor, claimed priority over the lien of the Johnson Service Company upon the ground that the latter was a subcontractor and, under section 3414 of the Code, its lien was subordinate to that of the American Radiator Company, which was a materialman. The court at Special Term directed payment to the lienors in the order of filing. The American Radiator Company appealed upon ' Mateeialmait — Defined. 437 tke ground that tie court below erred in not giving priority to its lien. Judgment modified by awarding to the Ameri- can Radiator Company, materialmian, priority over the lien of the Johnson Service Company, who was a subcontractor. Ih. 2. Materialman defined. — Section 2 of the Lien Law de- fines a materialman as " any person other than a contractor who furnishes material " for the improvement of the realty or for a public improvement. The distinction between a sub- contractor and materialman is that while the former may fur- nish materials, he contracts also to perform labor for the im- provement of the property, while the materialman furnishes only materials, and does not perform labor of any kind upon the land. Herman & Grace v. The City of New Yorle, 130 App. Div. 531; affirmed 199 K Y. 600; Hedden Cons. Co. V. Proctor & Gamble Co., 62 Misc. 129. If one furnishes " oak flooring " of a certain grade and quality pursuant to orders made by the contractor, and ac- cepted by the materialman, such orders do not constitute a contract for the improvement of real property within the meaning of the Lien Law. The acceptance of the contractual obligation under which it was bound to deliver certain lum- ber at a certain time and place for a specified price consti- tutes simply a sale of lumber, and the party so furnishing it is not a subcontractor but a " materialman." " It is doubt- less true," says Blackmae, J., " giving an acceptance of the orders constituted a contract, and it may, therefore, be said that the lumber company did contract with Milliken Broth- ers, the general contractors. But every sale is the consumma- tion of a contract, express or implied, and if it can be suc- cessfully contended that a sale to a contractor makes the sel- ler a subcontractor on the theory that a sale is a contract, it is difficult to say what state of facts or what transaction would constitute a person a ' materialman'." Hedden Cons. Co. v. Proctor & Gamble Co., 62 Misc. 129. See also as to " materialman," ante, page 20 et seq., para- graph 14 and cases there cited. 3. Preference of " materialman " who dealt w^ith subcon- tractor. — The New England Brick Company furnished brick to one Sloan, a subcontractor, to be used in the construction of a schoolhouse. The contract was made by the school dis- 438 Lien Law — Aeticle III, Sec. 57. trict of the town of Schoharie, as owner, with Austin Simkins, as contractor. Simkins sublet a portion of the work to the de- fendant Sloane. When the work was completed, the contrac- tor owed Mr. Sloane $1,000. The owner, however, was in- debted to the contractor in upward of $3,000. Held, that the lien for materials furnished to the subcontractor could be en- forced only to the extent of the moneys found to be due to the latter from the contractor, and that the lien of the ma- terialman did not attach to any additional sum due from the owner to the contractor which was not payable to the subcon- tractor. The question as to the priority of a materialman un- der section 3414 of the Code of Civil Procedure is not dis- cussed in the opinion. Wright v. Schoharie Valley Railway Co., 116 App. Div. 542, 101 N. Y. Supp. 801. 4. Preference — Subcontractors over contractors. — A judgment obtained to foreclose a mechanic's lien, under the Lien Law of 1897, must provide, and the court in the judg- ment shall direct, that the amount due subcontractors be paid out of the proceeds of sales before any part of such proceeds are paid to the contractors, in the same manner as was pro- vided in the Lien Law of 1885 (Laws 1885, chap. 342, § 20). McConologue v. Larkins, 32 Misc. 166. § 57. Judgment may direct delivery of property in lieu of money. — If the owner has agreed to deliver bills, notes, securities or other obligations or any other species of property, in payment of the debt upon which the lien is based, the judgment may direct that such substitute be delivered or deposited as the court may direct, and the property affected by the lien cannot be sold, by virtue of such judgment, except in default of the owner to so deliver or deposit within the time directed by the court. Code of Civil Procedure, § 3415, re-enacted as § 57 of the Lien Law, Laws 1909, chap. 38. See as to order, directing securities to be deposited, § 55, ante page 433. 1. Judgment — Surplus money. — After a sale of premises pursuant to a judgment of foreclosure, the surplus money, if Judgment foe Dbficienct. 439 any, stands in the place of the land, and the right of a party to share therein must be founded upon some lien existing at the time of the sale. Taylor v. Butcher, 60 App. Div. 531, citing Ellis V. Solomon, 57 App. Div. 118. a. Where mechanics' liens were filed upon lands which were sold in foreclosure of a prior mortgage, it was shown that the lienors consented in writing to satisfy their liens if the mort- gagee should pay out the surplus moneys as directed in the agreement. Held, that the execution and performance of the written agreement constituted a waiver of the liens, and that such lienors having relinquished their claims could not share in the surplus moneys. Taylor v. Butcher, 60 App. Div. 531. 2. Writ of assistance will not lie to remove parties from preniises after judgment recovered in an action to foreclose a mechanic's lien if such parties acquired rights intermediate the filing of plaintiff's lien and the commencement of his ac- tion, if plaintiff failed to make them parties to his f orcelosure suit. Matter of Bumham, 64 App. Div. 596. a. The court has power to issue a writ of assistance to en- able a purchaser to be let into possession of the premises sold in forecloure as in an action to foreclose a mortgage, if the person against whom the writ is sought was a party to the action. O'Connor v. Schaeffel, 11 N. Y. Supp. 737. And see Lang v. Everting, 3 Misc. 530. § 58. Judgment for deficiency. — It upon the sale of the property under judgment in a court of record there is a. deficiency of proceeds to pay the plaintiff's claim, judgment may be docketed for the deficiency against any person liable therefor, who shall be adjudged to pay the same in like manner and with like effect as in judgments for deficiency in foreclosure cases. Code of Civil Procedure, § 3416, re-enacted as § 58 of the lien Law, Laws 1909, chap. 38. Deficiency judgment authorized. — "Although a defend- ant," says Jenks, J., " has paid money into court to discharge a mechanic's lien, the character of the action is not thereby 440 Lien Law — ^Aeticle III, Sec. 59. changed. It continues as a suit in equity to enforce the me- chanic's lien." The prayer for relief was that the lien be adjudged, that the money in court be applied to discharge the lien, and that plaintiff have judgment for any deficiency that might remain. This judgment for deficiency provision, which was formerly embraced in section 3416 of the Code, is now incorporated in section 58 of the Lien Law. A defendant in such an action, sought to be charged with the deficiency, may set up a counterclaim growing out of another contract between himself and the plaintiff. Valett v. Baker, 129 App. Div. 514. § 59. Vacating of a mechanic's lien, by order of court. — A mechanic's lien on real property may be vacated and cancelled by an order of a court of record. Before such order shall be granted, a notice shall be served upon the lienor, either personally or by leaving it at his last-known place of residence, with a person of suitable age, with directions to deliver it to the lienor. Such notice shall require the lienor to com- mence an action to enforce the lien, within a time speci- fied in the notice, not less than thirty days from the time of service, or show cause at a special term of a court of record, or at a county court, in a county in which the property is situated, at a time and place specified therein, why the notice of lien filed should not be vacted and cancelled of record. Proof of such service and that the lienor has not commenced the action to foreclose such lien, as directed in the notice, shall be made by affidavit, at the time of applying for such order. Code of Civil Procedure, § 3417, re-enacted as § 59 of the Lien Law, Laws 1909, chap. 38. Contractor may move to vacate lien. — Under the Lien Law of 1885 the right to give notice to the lienor to commence an action within a time specified, or show cause why the lien should not be discharged, was conferred upon the owner of the premises. Under the Lien Law of 1909 this notice may be PowEE TO Cancel Liett. 441 given by a contractor who employed the lienor, or by any per- sons whose interests are affected by the lien. Matter of Me- chanic's Lien v. N. Y. Queens Electric Co., 73 Misc. 242. A contractor who moved to discharge the lien of a sub- contractor is not bound to wait until an action at law against him by the contractor, has been decided, especially where a motion made by the lienor to advance his case was denied. An action in equity to foreclose the lien will not be held to await the trial of an action at law to recover the debt. lb. 1. Notice to commence action. — If notice has been served on the lienor to commence an action to foreclose the lien within thirty days, service of a summons within the period is sufficient. An action is begun by service of a summons, and if a lis pendens is filed within a year after the notice of lien is filed, it will be sufficient. The filing of the lis pendens is not essential to begin the action. Matter of Cattabery v. Knox, 17 App. Div. 372. See also authorities as to lis pen- dens, ante, pp. 255-261. 2. Power to cancel lien discretionary. — The power con- ferred by section 3417 of the Lien Law, Code of Civil Pro- cedure, which authorizes the court to make an order cancel- ling a notice of lien for failure of the lienor to begin suit to foreclose after thirty days' notice on the owner, is not manda- tory, but permissive only. The power being discretionary, must be exercised in view of all the surrounding facts and circumstanoes presented on the motion to cancel the lien. Jackson Co. v. Haven, 86 App. Div. 236. Where a lienor showed in answer to the motion to cancel his lien that he had begun an action to foreclose within the thirty days, and served one of the defendants, but was unable, after diligent affort, to get service on the owner within the thirty days, although such service was made shortly there- after, the motion to cancel the lien was properly denied. The court cited In re Pool, 38 N. Y. St. Kep. 806 ; s. c, 14 IST. T. Supp. 790; Equitable Life Ins. 8oc. v. Stevens, 63 N. Y. 341. a. The intention of the statute was clearly to enable the owner to require the lienor to test the validity of his lien speedily, and to give the court the power to vacate or discharge the lien in case the action was not commenced or sufficient reason presented to the court excusing the lienor from com- mencing the action at the tinie named in the notice. lb. 442 Lien Law — Aeticle III, Sec. 60. < 3. Lien cannot be canceled after undertaking given.— The provisions of section 3417 of the Code of Civil Procedure were designed to afford relief against existing and undis- charged liens. They were not designed to serve the purpose of a short Statute of Limitations except in so far as that was deemed necessary to bring about a speedy decision concern- ing the validity of a lien, which, while it remained the lien upon real property, might embarrass or prejudice the owner. It follows that once the premises are released from the lien and the land is discharged and the undertaking substituted therefor, the lienor has one year within which to recover a judgment against the property on the claim contained in the notice of lien, and this period of time cannot be shortened by an application to cancel the lien after an undertaking has been given under section 3417 of the Code. Matter of Uris V. BracJcett Realty Co., 114 App. Div. 29, 99 IST. Y. Supp. 642. a. For authorities under this provision as contained Lien Law of 1885, see In re Poole, 14 K Y. Supp. 790; s. c, 38 K. Y. St. Eep. 806 ; Townsend v. Work, 79 Hun, 381 ; s.' c, 29 K Y. Supp. 791. § 60. Judgment in action to foreclose lien on ac- count of public improvement. — ^If, in an action to en- force a lien on account of a public improvement, the court finds that tbe lien is established, it shall render judgment directing the state or the municipal corpo- ration to pay over to the lienors entitled thereto for work done or material furnisbed for such public im- provement, and in sucb order of priority as the court may determine, to the extent of the sums found due the lienors from the contractors, so mucb of the funds or money which may be due from the state or munici- pal corporation to the contractor, as will satisfy such liens, with interest and costs, not exceeding the amount due to the contractor. Code of Civil Procedure, § 3418, re-enacted as § 60 of the Lien Law, Laws 1909, chap. 38. The above section was repealed June 26, 1911, by chap. 450, Laws 1911. It was re-enacted without change on Octo- ber 6, 1911, by chap. 873, Laws of that year. Judgment — Municipal Court. Ho 1. Judgment against sureties alone. — After a municipal lien has been discharged by the giving of a bond as required by the statute, the lien attaches to the funds belonging to the contractor and still in the hands of the city, and n judgment for the amount of the lien dirot-ting payment by the city of New York, the Board of Education or the Comptroller is improper, as the plaintiff is entitled to judgment only against the sureties, and the contraotov liable for the debt. Coleman i\ City of Kcw Tori-, 162 App. Div. 134. 2. Judgment may be modified on appeal. — The court has power to strike out from the judgment in a lien action, con- clusions of law inserted as part of the judgment, where there is no evidence and no facts upon which to base some conclu- sions and to aiSrm the judgment as so modified. Coleman v. City of New York. 162 App. Div. IIU. In the case cited the court struck out the entire final para- graph beginning with the words '' And it is further Ordered, Adjudged and Decreed, that upon the trial of this action, no evidence was given as to any of the forty items claimed by plaintiff." It seems that the items stricken out were in the nature of damages for a breach of contract, which could not be included in a municipal lien, or recovered in an equity action. 76. 8. Judgment — Cottected by motion. — Where the judg- ment fails to expressly provide which of the lienors is en- titled to the balance remaining in the hands of the comp- troller of the city of New York, the omission may be cor- rected by motion, in a case where the Appellate Division cannot give final judgment in the basence of necessary find- ings, and because the proper parties are not before the court. Coleman and Krause v. Security Banl-. 161 App. Div. 715. 4. Judgment — Interest from entry of. — In actions to foreclose a meehauic's lien on account of a piiblic improve- ment, the amount of the lien is expressly limited to the amount due from the state or municipal corporation to the contractor for work or materials furnished in a sum Avhieli shall satisfy the lien with interest and costs '" not exceeding the amount due the contractor." In such a case the only remedy is for the plaintiff to enter judgment upon the decis- ion of the court or the report of the referee. In that case he would be entitled to inteivst from the day of its entry. 4:44 Lien Law — Aeticle III, Sec. 61. Bochland Lake Co. v. Port Chester, 102 App. Div. 360, af- firmed 185 ]Sr. Y. 590; Moran v. The Mayor of New Yorh, 162 App. Div. 377. See also ante, under § 53 of the Lien Law, page 410. 5. When contractor cannot recover. — To entitle a lienor to judgment under a municipal contract, it is ipcumbent upon him, to show either that the contract was performed, and that by reason of such performance, some amount became due and owing thereon, or that by reason of some special provision of the contract there was, when the lien was filed something due the contractor, or that something became due him, applicable to the payment of his lien. Herman & Grace v. Hillman> 203 'N. Y. 435. Where the contract provides that in case of default of contractor, the owner can proceed to finish the work and fur- nish the materials required by the contract so as to fully execute the same in every respect, and that the costs and ex- penses thereof shall be charged against the contractor, who shall pay to the owner the excess thereof, over and above the unpaid balance and that " the contractor shall have no claim or demand to such unpaid balance, or by reason of the nonpayment thereof," the contractor, after forfeiture, has no rights whatever under the contract. lb. § 61. Judgment in action to foreclose a mechanic's lien on property of a railroad corporation. — If the lien is for labor done or materials furnished for a railroad corporation, upon its land, or upon or for its track, rolling stock or the appurtenances of its railroad, the judgment shall not direct the sale of any of the real property described in the notice of the lien, but when in such case, a judgment is entered and docketed with the county clerk of the county where the notice of lien is filed, or a transcript thereof is filed and docketed in anf other county, it shall be a lien upon the real prop- erty of the railroad corporation, against which it is obtained, to the same extent, and enforceable in like manner as other judgments of courts of record against such corporation. Code of Civil Procedure, § 3419, re-enacted as § 61 of the Lien Law, Laws 1909, chap. 88. LIEN LAW— ARTICLE IV. [Laws 1909, Chap. 38.] LIENS ON VESSELS AND ENFORCEMENT THEREOF. Section 80. Liens on vessels. 81. Lien on vessel causing damage. 82. Notice of lien, when to be filed. 83. Duration of lien. 84. Assignment of lien. 85. Enforcement of lien. 86. Application for warant. 87. Undertaking to accompany application. 88. Warrant; execution thereof. 89. Order to show cause; contents; service. 90. Notice of issuance of warrant to be published and served. 91. Proceedings upon return of order to show cause; trial of issue. 92. Order of sale, when made. 93. Sale and proceeds. 94. Notice of the distribution of the proceeds of sale. 95. Liens for which no warrants are issued. 96. Contested claims. 97. Trial of issues and appeal. 98. Distribution of proceeds. 99. Payment of uncontested claims. 100. Distribution of surplus. 101. Application for a discharge of warrant. 102. Undertaking to accompany application for discharge. 103. Discharge of warrant. 104. Action on undertaking. 105. Costs of proceeding. 106. Sheriff mu.st return warrant. 107. Discharge of lien before issue of warrant. § 80. Liens on vessels. — ^A debt whicli is not a lien by the maritime law, and wbich amounts to fifty dollars or upwards, on a sea-going or ocean-bound vessel, or fifteen dollars. or upwards on any other vessel shall be a lien upon such vessel, her tackle, apparel and furni- ture, and shall be preferred to all other liens thereon, except mariners' wages, if such debt is contracted by the master, owner, charterer, builder or consignee of (445) 446 LiEW Law — Aeticle IV, Sec. 80. such ship or vessel, or by the agent of either of them, within this state, for either of the following purposes: 1. For work done or material or other articles fur- nished in this state for or towards the building, repair- ing, fitting, furnishing or equipping of such vessel. 2. For such provisions and stores, furnished within this state, as are fit and proper for the use of such vessel, at the time when they were furnished. 3. For wharfing and the expense of keeping such vessel in port, and for the expense of employing per- sons to watch her. 4. For loading or unloading such vessel, or for the advances made to procure necessaries therefor, or for the insurance thereof. 5. For towing or piloting such vessel, or for the in- surance or premium of insurance of or on such vessel or her freight ; but no lien exists for a debt contracted for any purpose specified in this subdivision, unless it amounts to the sum of twenty-five dollars or more. Lien Law of 1897, § 30, re-enacted as § 80, Laws 1909, chap. 38. 1. When State courts have no jurisdiction. — The State legislature has power to create a statutory lien for work done or supplies furnished to a vessel in a home port, which would not be a maritime lien. But such a lien, though created by the State legislature, cannot be enforced in a State court, and State tribunals have no jurisdiction to enforce them. The Federal courts, however, will take cognizance of such liens, although not recognized by the maritime law, and will en- force them in admiralty, as maritime contracts. The Lotta- wanna, 21 Wall. 558 ; The Catherine Whiting, 99 Fed. Kep. 445 ; s. c, 39 C. C. A. 592 ; The Arctic, 22 Fed. Eep. 126. a. The only exception to this rule seems to be in case a lien is claimed for construction under the Lien Law which au- thorizes a lien for work done or materials furnished for constructing or building a vessel. Work done or materials furnished in the original construction of a ship or vessel are Leex ox Vessei^s. 44:7 not maritime in their nature. Thej are not liens by the mari- time law, and do not give rise to a maritime contract. A libel in rem, on snch a contract, will be dismissed in the Fed- eral court, and the lienor will be obliged to seek his remedy in the State eonrt. The Pacific, 9 Fed. Eep. 120. 2. Statute as to vessels to be strictly construed. — The pro- Tisions of the Lien Law (§ 22), which requires that the statute must be liberally construed to secure the beneficial purposes of the act, applies only to the first article relating to mechanic's liens. Article 2 of the law relates to liens on vessels and contains no such provision. This article, therefore, being in derogation of the common law, must be strictly con- strued. Matter of Froment, 110 App. Div. 72. 96 X. T. Supp. 1061, modified, 184 X. Y. 568. a. Section 30 (now section 80) of the Lien Law gives a lien on the vessel to one who furnishes materials or other articles for or toward the huilding, repairing, fitting, fur- nishing, or equipping of a vessel. Held, that where materials are furnished but are not actually used in the construction of a vessel, it cannot be said that such materials are furnished for or toward building a ship, when no part of them enter into or become a part of the ship. lb. 3. Lien on vessel — Debt when due. — Section 82 (for- merly section 32) of the Lien Law provides that a "debt" shall cease to be a lien upon a vessel unless a notice of lien be filed by tiie lienor within thirty days after such debt " is contracted." The debt was contracted Xovember 14, 1903, and iiie lien was filed within thirty days thereafter, to-wit, December 2, 1903. A credit of thirty days was given after the lien was filed. Defendant contended that section 32 (now section S2), of the Lien Law. in the latter part of the section, requires that the notice of lien shall contain " a state- ment of the amount claimed to be due." That the notice was insufficient because an extension of credit was given, and, 4erefore, the lien could not truthfully state the amount claimed to be due, because there was nothing due until the credit expired. Held, that the provisions of section 32 (now section 82) requiring the notice to be filed within thirty days after the debt is " contracted " must govern. Matter of Fromerd, 125 App. Div. 647, 109 X. Y. Supp. 1073. 448 Lien- Law — Aeticle IV, Sec. 80. a. See also section 85 of the Lien Law, post, page 348, •which declares that if the lien is founded upon a maritime con- tract it must be enforced in the Federal courts. 4. Maritime liens — Federal jurisdiction exclusive. — Only debts which are not liens under the maritime law can be en- forced under the provisions of the Lien Law. It becomes important in this connection to examine briefly the law with respect to maritime liens in order to determine what claims may be enforced under the State law in the State court. The ocean is the great highway of nations. It must of necessity be used by all countries on a globe which is three-fourths water in order to conduct the commerce of the world, as dis- tinguished from domestic trade. As the ocean must be used in common by all nations engaged in foreign trade and inter- state commerce, the general principles which govern the law of the ocean, or maritime law throughout the world, present almost universal similarities. a. The Constitution of the United States confers upon the Federal courts exclusive jurisdiction in " all cases of ad- miralty and maritime jurisdiction" (TJ. S. Const., art. 3, § 2). Jurisdiction in this class of cases extends not only to the cea and waters governed by the ebb and flow of the tide, "but to all the navigable waters of the United States, or border- ing on the same, whether land-locked or open, salt or fresh, tide or no tide." Insurance Co. v. Dunham, 1 Wall. (U. S.) 1. But this jurisdiction as to maritime liens is confined strictly to an enforcement of the lien by a proceeding in rem, and not by an action in personam against the party liable for the debt. A maritime lien, except in case where a lien is claimed by salvors, must, like any other lien, have its origin in contract. But if the creditor wishes to preceed to enforce his lien under the maritime law he must proceed against the vessel, her sails, tackle, apparel, and furniture, and in such a proceeding the Federal courts have exclusive jurisdiction. The mariner, who sues for wages, or the materialman who furnishes supplies is not bound to resort to a proceeding in rem against the vessel in navigable waters. He may, if he sees fit, sue the owner or debtor in the State court and enforce his debt in an action upon contract. h. Section 9 of the Judiciary Act of 1789, under which the Federal courts are organized, recognizing the common-law Maritime Liens. 449 remedy of a mariner or materialman to proceed at law to en- force his claim, if he desires, declares that proceedings to en- force maritime liens shall not constitute an exclusive remedy, and expressly saves to the suitor his common-law remedy in personam against the party liable for the debt. 5. Admiralty rules. — The Supreme Court of the United States has formulated admiralty rules as authorized by the Judiciary Act, by which the rights of suitors to proceed at law in a State court, if they desire, by an action in personam^ either for wages due or for supplies furnished, are clearly set forth as follows: Rule 12. Material men. — In all suits by material men for supplies or repairs or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. Rule 13. Mariner's wages. — In all suits for mariner's wages, the libellant may proceed against the< ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam. Rule 14. Suits for pilotage. — In all suits for pilotage the libellant may proceed against the ship and master, or against the ship, or against the owner alone, or the master alone in personam. a. Similar provisions are made in rules 15, 16, 17, and 18 with respect to suits for collision, assault and battery (which is a marine tort and the remedy must be in personam), hy- pothecations, and bottomry bonds. These rules will be found Tinder section 81, post, page 345. Kule 19 relates to suits for salvage, and will be found under paragraph 8, relating to salvor's liens, post, pages 342, 343. h. Under the Judiciary Act and the Admiralty Rules of the Supreme Court of the United States, although all cases of ad- miralty and maritime jurisdiction, if the remedy sought is by a proceeding in rem, must be brought in a District Court of the United States ; yet, if the suitor desires to sue upon the contract in a State court or in a Circuit Court of the United States, in an action at law in personam, he is not precluded from so doing, if he is willing to forego the strict foreclosure or enforcement of the lien by a proceeding in rem. 6. Maritime liens. — Strictly speaking, maritime liens exist solely in admiralty by virtue of the maritime law. The State legislature has no power or authority to create by statute a 29 450 Lien Law — Article IV, Sec. 80, maritime lien. The exclusive jurisdiction conferred by the Constitution upon the Federal courts to enforce maritime liens doubtless led Congress, in promulgating the Judiciary Act, to save to the suitor his remedy in the State courts by an action in personam. On this point Judge Cliffoed, in The Belfast, 7 Wall. (TJ. S.) 624, observes: a. "State legislatures have no authority to create a mari- time lien, nor can they confer any jurisdiction upon a State court to enforce such a lien by a suit or proceeding in rem, as practiced in the Admiralty Courts. Observe the language of the saving clause under consideration ( § 9 of the Judiciary Act of 1789). It is to suitors and not to the State courts, nor to the Circuit Courts of the United States. Examined care- fully, it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty, if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem- in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into the admiralty at all and may resort to his common-law remedy in the State courts, or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of his 7. Canal boats exclusively within admiralty jurisdiction of Federal courts. — The Supreme Court of the United States, reversing the Court of Appeals of the State of New York, October 26, 1903, has held that canals and canal boats are within the exclusive admiralty jurisdiction of the Federal courts, and that a contract to repair a canal boat, where the work was done at an inland point in Niagara county, was a maritime contract within the meaning of the Lien Law of 1897 (§§ 30-35), which could be enforced only in the Federal court. Eeported in the official reports as The Rohert W. Par- sons, 191 tJ. S. 17; s. c. reported as Perry v. Haines, 24 Sup. Ct. Eep. 8, U. S. Supreme Court Kep., Law Edition, book 48, p. 73. a. The Court of Appeals held that a canal boat engaged in the carrying trade between New York city and points on the Erie canal, which is wholly within the State, and which boat must be towed through the Hudson river, which is navigable Admiealty Jurisdiction. 451 water of the United States flowing into the Atlantic ocean, was not a vessel which could navigate the high seas, and that a lien for repairs to the boat could be enforced in the State court. Matter of Haines, Perry v. Haines, 52 App. Div. 550 ; s. c, 57 App. Div. 636, affirmed without opinion, 168 N. Y. 586. The United States Supreme Court reversed the Court of Appeals holding that the boat was a vessel within the admiralty jurisdiction of the Federal court, and that the cantract for repairs was a maritime contract, and the lien thereon was enforceable only in the District Court of the United States. The court by Mr. Justice Brown observed that canal boats are ships within the meaning of the Admiralty Law, and that, therefore, the case is one in which only the Federal courts have jurisdiction. That admiralty jurisdiction extends to canals, and the fact that canal boats are drawn by horses and not propelled by steam did not alter the case. He declared that the line could be drawn only at rowboats. The fact that the contract for repairs made in the case under consideration was drawn on land and that the repairs were made in a dry dock could not affect the validity of the Federal jurisdiction, and added : " Neither size, form, equipment, nor means of propulsion are determinative factors upon the question of jurisdiction, which regards only the purposes for which the craft was constructed, and the business in which it is engaged." &. The employment of horses was merely an incident, and the motive power was likely to be changed with the contem- plated enlargement of the canal. c. " The only distinction between canals and other navig- able waters," the court said, " is that they are rendered navig- able by artificial means, and sometimes, although by no means always, are wholly within the limits of a particular State. d. " We fail to see, however, that this creates any distinc- tion in principle. Canals, though frequently within the limits of a single State, generally connect waters lying outside the State. In this case, the Erie canal, though wholly within the State of New York, is a great highway of commerce between ports in different States and foreign countries, and it is navig- able by vessels which also traverse the waters of the Hudson 452 Lien Law — Article IV, Sec. 80. e. Justice Beewee^ in his dissenting opinion, observed that the maritime law was originally meant to cover the sea only, and that its extension to navigable streams was meant to cover only streams which are navigated by ocean-going vessels. "I do not believe," he said, " that under the true interpretation of the Constitution the admiralty jurisdiction of the Federal courts extends to contracts for the repair of vessels engaged wholly in commerce within a State. /. " The Erie canal was built by the State, is owned by the State, and it cannot for one moment be assumed that the l^ational government can interfere to restrict the State as to the size of the canal, the depth of the water, the construction of bridges, or other things in respect to which it has full con- trol over the natural navigable waters. It seems an anomaly that when the State builds a waterway and owns a waterway, and has general control over that waterway, it cannot provide as it sees fit for enforcing claims for work on vessels navigat- ing such highway, when the vessels are of a character which prevents their being used for any foreign commerce." g. Section 30 of the Lien Law of 1897 (now sectioii 80) and subsequent sections were intended as a re-enactment and revi- sion of Laws 1864, chap. 412, applicable to liens upon boats navigating the canals in the State of JiTew York. 8. Salvor's lien. — If a lien is claimed for salvage, it must exist, in the absence of any contract, express or implied. In ■every other case a lien must rest upon a contract, and the value of the labor or services or the stipulated price agreed to be paid therefor constitutes the extent of the lien. a,. A contract, if pleaded in a case of salvage, would, if es- tablished, constitute a bar to the claim. Hennessy v. Ship Versailles, 1 Curtis C. C. 353. If it appears, however, that labor, in connection with salvage services, were performed pursuant to an express contract for a price agreed upon, the person so performing would not be precluded from asserting a lien upon the property upon which the labor was expended. Such a claim would not constitute a salvor's lien. If the claim is for salvage, it must appear that the services were rendered voluntarily, not upon request, and independent of any con- tract. The amount of salvage must always be fixed by the -court for there is no contract upon which it can be based. In Salvoes Liens. 453 fixing the award in a claim for salvage the court must be guided hy the following elements established by the evidence : (1) The value of the property; (2) the peril; (3) the risk incurred by the person, or the property employed; (4) the duration and severity of the labor; (5) the promptness and skill exhibited. Hennessy v. Ship Versailles, 1 Curtis C. C. 353. b. It will be observed that a lien for salvage is not measured as payment for mere work and labor. The services are specu- lative wholly. If the property is not saved there can be no re- covery in persona?!!, for the labor expended in the effort to save, because there is no agreement and no request. It is al- together a maritime service and must be rendered: (1) On the sea; (2) on the coast, or (3) on a public navigable river or lake where interstate or foreign commerce is carried on. The amount awarded must be sufficiently liberal to encourage prompt and humane action, but not so great as to provoke avarice, or to enable the salvor " to devour what the ocean has spared." c. A lien for salvage is governed by the law of the ocean, which recognizes a principle which does not exist and finds no recognition in remedies to recover for labor and services rendered on land. A lien or claim for services rendered upon land must rest upon an agreement or upon a request. On this point Chief Justice Marshall says : d. " If the property of an individual on land be exposed to the greatest peril and be saved by voluntary exertions of any person whatever, if valuable goods be rescued from a house in flames at the imminent hazard of life by the salvor, no re- numeration in the shape of salvage is allowed." The Blaireau, 2 Cranch (U. S.), 266. e. Nor can a recovery be had even upon a quantum meruit or for the cost and expense actually incurred in saving prop- erty, upon land, unless a request, either express or implied, on the part of the owner be shown. This principle is clearly illustrated in the famous " Wheat Stack case." Jackson v. Bartholomew, 20 Johns. 28. /. But under the maritime law a claim for salvage is based solely upon voluntary services in the absence of any request or legal obligation to render service or assistance. Compensation 454- Lien Law — Article IV, Sec. 81. to the salvor must be secured by a proceeding in rem against the property saved, and from proceeds of its sale, compensa- tion and reward will be allowed by the court to compensate those who have risked their lives and property to preserve it. Where a claim for preserving wrecked or derelict property is based upon contract there can be no claim for salvage, strictly speaking, but a claim for money due upon the contract in an action in personam. In the absence of a contract, ex- press or implied, a salvor's lien will be established only in ad- miralty in a proceeding in rem.. The nineteenth admiralty rule adopted by the United States Supreme Court with respect to claims for salvage provides as follows : Rule 19. Salvage. — In all suits for salvage, the suit may in rem against the property saved or the proceeds thereof, or in personam against the party at vphose request and for vi^hose benefit the salvage service has been performed. g. If compensation for salvage, however, is fixed by a con- tract dependent on success, such a contract, though it does not, strictly speaking, create a purely salvor's lien, is recognized within the nineteenth admiralty rule, and will be enforced as a maritime contract in admiralty. The Elfrida, 172 L'. S. 186. h. Where ^derelict property off shore has been saved undei' an agreement with the owner, there can be no claim for sal- vage in admiralty, because the agreement precludes a techni- cal claim for salvage. But the contract for labor and services in rescuing the wrecked vessel may be enforced in an action in personam in the State court. Merritt & Chapman D. Co. V. Tice, 77 App. Div. 326. § 81. Lien on vessel causing damage. — When a vessel shall have sustained damage by any other vessel through the negligence or willful miscondut of the person navigating such vessel, to the extent of fifty dollars, the owner of the damaged vessel shall have a lien, unless a lien is given therefor by maritime law, upon the vessel causing the damage, her tackle, apparel and furniture, to the extent of such damage, which shall be deemed a debt for the purposes of this article, and the master, owner, agent or consignee of the dam- Damages by 'Collision-s. 455 aged vessel may enforce such lien in like manner and witli like effect as in case of other liens created by this article; but a notice of the lien must be filed in the office of the clerk of the county in which such damage is sustained, and proceedings to enforce the lien must be commenced within ten days after the damage has been done, or such damages shall cease to be a lien upon such vessel. But if such damage is sustained in either of the counties of New York, Kings or Queens such notice shall be filed in the office of the clerk of the city and county of New York, and if the vessel causing such damage is built, used or fitted for the navigation of any of the canals or lakes of the state, a certified copy of such notice shall be filed in the office of the superin- tendent of public works as provided in the next section. (As amended by Laws 1910, chap. 182.) Lien Law of 1897, § 31, re-enacted as § 81, Laws 1909, chap. 38. 1. Suits for damages by coUision.^ — Where a lien is given by the Maritime Law to a vessel which has sustained damage by another vessel through the negligence or willful misconduct of the person navigating such vessel, the remedy is exclusively within the Federal jurisdiction and the libelant must seek re- lief in the District Court of the United States. If, however, the injury was not sustained upon the high seas, or within the tide waters of the United States, and the circumstances are such that the libelant has no remedy under the Maritime Law, he may seek relief in the State court pursuant to the provi- sions of section 81 of the Lien Law, which provides that where a vessel has been injured through the negligence or misconduct of the person navigating the vessel causing the damage and the extent of the damage is $50 or more, the Lien Law gives such owner a lien upon the vessel causing the damage, her tackle, apparel, and furniture, to the extent of such damage, which is deemed a debt within the meaning of the Lien Law. The Maritime Law provides a remedy where the collision takes place on the high seas or within the tide waters of the United States, and the owner of the vessel injured has a lien 456 LiEsr Law — Article IV, Sec. 82. on the offending vessel of equal rank with those of material- men. Waring v. Clarh, 5 How. 441 ; Steamboat America, 16 Law Eep. IST. S. 264, Fed. Cas. JSTo. 288. The sixteenth admiralty rule in such cases provides as fol- lows: Rule 15. Suits for damage by collision. — In all suits for damage by collision, the libelant may proceed against the ship and master, or against the ship alone, or against the master or owner alone, in per- sonam. a. The admiralty rules relating to assault and hattery, hy- pothecations, and bottomry bonds are as follows: Rule IG. Suits for assault and battery. — In all suits for an assault or beating on the high seas, or elsewhere within the . admiralty and maritime jurisdiction, the suit shall be in personam only. Rule 17. Suits for hypothecation. — In all suits against the ship or freight founded upon a mere maritime hypothecation, either express or implied, of the master, for moneys taken up in a foreign port for supplies or repairs, or other necessaries for the voyage, without any claim of marine interest, the libelant may proceed either m rem or against the master, or the owner alone, or in personam. Rule 18. Suits on bottomry bonds, when in rem and when in per- sonam. — In all suits on bottomry bonds, properly so called, the suit shall be in rem only against the property hypothecated, or the pro- ceeds of the property, in whosesoever hands the same may be found, unless the master has, without authority, given the bottomry bond, or by his fraud or misconduct has avoided the same, or has subtracted tlae property, or unless the owner has, by his own misconduct or wrong, lost or subtracted the property, in which latter cases the suit may be in personam, against the wrong-doer. § 82. Notice of lien, when to be filed. — ^Every debt specified in section eighty shall cease to be a lien upon such vessel unless the lienor shall, within ninety days after the debt becomes due, except as hereinafter pro- vided, file a notice of lien, containing the name of the vessel, the name of the owner, if known, the particu- lars of the debt and a statement of the amount claimed to be due from such vessel, and verified by the lienor, his legal representative, agent or assignee, to be true and correct. If the debt is based upon a written con- tract, a copy of such contract shall be attached to such notice. The notice shall be filed in the office of- the clerk of the county in which the debt is contracted. Delay of Lien. 457 But if the debt was contracted in the city of New York, such notice shall be filed in the office of the clerk of the county of New York. If the vessel is built, used or fitted for the navigation of any of the canals or lakes of the state, the lienor shall immediately after filing the notice in the county clerk 's office, file a copy thereof in the office of the superintendent of public works of the state, duly certified by the county clerk in whose office the original notice is filed, provided, however, that whenever any debt specified in section eighty is contracted by the master, owner, charterer, builder or consignee of any ship or vessel navigating the western and northwestern lakes, or any of them, or the river Saint Lawrence, or by the agent of such master, owner, charterer, builder or consignee, such debt shall not cease to be a lien upon such ship or vessel if the per- son to whom such debt may be owing shall, by the first Tuesday of February next succeeding the time such debt becomes due cause to be drawn up, verified and filed, specifications of such debt in the form and com- prising the statements in this section prescribed. (As amended Laws 1904, ch. 246, Laws 1908, ch. 238; Laws 1910, ch. 182.) Lien Law of 1897, § 32, re-enacted as § 82, Laws 1909, chap. 38. See also section 80 and authorities there cited. § 83. Duration of lien. — Every lien for a debt shall cease if the vessel navigates the western or northwest- ern lakes, or either of them, or the Saint Lawrence river, at the expiration of six months after the first of January next succeeding the time when the debt was contracted, and in case of any other vessel, at the expi- ration of twelve months after the debt was contracted. If, upon the expiration of the time herein limited in either of such cases, such vessel shall be absent from the port at which the debt was contracted, the lien shall 458 LiioN Law "- Ai!Ti(!iac IV, Sioch. SI, 8B, 80. continiKi ujil.il ilui cxpinitioii of thirty diiyH iil'l,(n' tbo return ol' such vcshc^I to such port. 11" pntcccMlinKH iiro institui(Hl for tlio (niCorcKuruMit oi" the I'kmi wiUiiu tlio time luu'tdn liuiiicd, hucIi l'un\ sliall coiitiinut until tlio termination of such proccc'diiiga. Lion Law <>( 180Y, § .'i^, ni-(iii;icl;(Ml an § HI!, Lftws 1009, chap, ;58. § 84. Aasignment of lien. — A li(*n, a notioo of wliioh has been fihul pursuant to th(! provisions of this tirticlc, may be assigned by a wriitoji instrintiont duly acknowl- edged and lil(Ml in tlui Hiuno place whoro the notice of the lien was fihui. The assignment shall speoil'y tiio debt upon which tlio lien is Coundisd, tlni dato of the filing of the notice tliorcu)!' and the assignee. Such as- signment and tlio iiatno of the assigiKio shall bo (niiorod by the clerk opposite tlio original entry of such lion, and after the lilinj,' of such assignment, but not other- wise, the assignee may (inforco the lion in like manner as the assignor could have done. Lion Law of 1897, § .'54, ro-onactod as § 84, Laws 1900, chap. 38. § 85. Enforcement of lien.— If a lion, created by- virtue of this articlo, is foumhul upon a maritime con tract, it can bo ((nforccul oidy by yjroc.fuidings in tho courts of the TJnilcul SiniciH, and in any othor cnso, in thn courts of tluH Hliiio, in iiu! manner prescribed in tlio following sections ol' thin articlo. Liciii Law of 1.S07, § .'in, nioiiuctod as § 8.^, LnwH 1009, chap. 38. § 86. Application for warrant.— The lienor mny mak(i a written at)[)li<'.ation to a juHtifus of the Huprmrw^ court, at cliarrib(!rH, in the juilicial diHtrlct in which tin* lienor rowidcs or in a county udjoinin;,'' such diHtrict, TJndertakin-q. 45f) for a warrant to enforce a lion on a vessel and to collect the amount thereof. The application shall specify: 1. By whom and when such debt was contracted and for what vessel; and the name and residence of the owner of the vessel, if known. 2. The items composing the debt and the amount claimed. 3. That the debt is justly due the applicant over and above all payments and just deductions. 4. Any assignment or transfer of the debt which may have taken place since it was contracted. 5. When and where the notice of lien was filed. The application shall be verified in the same manner as a pleading in a court of record. Code of Civil Procedure, § 3420, re-enacted as § 86 of the Lien Law, Laws 1909, chap. 38. § 87. Undertaking to accompany application. — Such application shall be acconrpanied by an undertaking in the sum of at least one hundred dollars, to be ap- proved by such justice and filed in the office of the clerk of the county where the notice of lien is filed, with at least one surety, who shall be a resident and free- holder within the state, to the effect that if it is finally adjudged that the applicant was not entitled to the warrant, he will pay all costs which may be awarded against him, not exceeding the amount specified in the undertaking, and any damages sustained by reason of the seizure of the vessel under such warrant, not to exceed fifty dollars. Code of Civil Procedure, § 3421, re-enacted as § 87 of the Lien Law, Laws 1909, chap. 38. § 88. Warrant; execution thereof. — Thereupon, such justice shall issue a warrant to the sheriff of the county 460 LiEisr Law — Aeticle IV, Sec. 89. where such vessel may be, or, generally to the sheriff of any county, specifying the amount of the claim, and the names of the persons making the claim and com- manding him to seize and safely keep such ship or ves- sel, her tackle, apparel and furniture, to satisfy such claim, if established to be a lien upon the vessel accord- ing to law, and within ten days after the seizure to make return of his proceedings under the warrant to such justice. The sheriff shall forthwith execute such warrant, and keep the vessel, her tackle, apparel and furniture to be disposed of according to law. In his return the sheriff shall state also whether he has seized such vessel by virtue of any other warrant, and if so, in whose behalf and for what sum such warrant was issued and the time of its receipt by him. Code of Civil Procedure, § 3422, re-enacted as § 88 of the Lien Law, Laws 1909, chap. 38. § 89. Order to show cause; contents; service. — At the time of issuing such warrant the justice shall grant an order to show cause, why the vessel seized by virtue of such warrant should not be sold to satisfy the lien specified in the application. Such order shall be re- turnable not less than eight days after the service thereof, as required in this section, before the justice and at the time and place mentioned therein. It shall be directed to the master or other person in charge of the vessel seized and to the owner and consignee thereof, if known. A copy of such order and the ap- plication for the warrant shall be served personally upon the master or other person in charge of such ves- sel at the time of the execution of such warrant; and personally upon the owner and consignee of such ves- sel if a resident of the state, or if not a resident of the state, by mail addressed to such owner or consignee at Waeeant Agaikst Vessels. 461 his last known place of residence, within ten days after the execution of such warrant. Code of Civil Procedure, § 3423, re-enacted as § 89 of the Lien Law, Laws 1909, chap. 38. § 90. Notice of issuance of warrant to be published and served. — Within three days after the issue of the warrant, the applicant shall cause a notice to be pub- lished once in each week for two consecutive weeks, in a newspaper published in the county where the vessel was seized, stating the issuance of the warrant, the date thereof, the amount of the claim specified therein, the name of the applicant, and the time and place of the return of the order to show cause granted as pre- scribed in this article. If the vessel seized is used to navigate any of the canals or lakes of the state, a copy of such notice shall be served personally, or by mail, within ten days after the first publication, upon all persons who have filed claims or liens against such vessel, by mortgage or otherwise in the office of the superintendent of public works of the state. (As amended by Laws 1910, chap. 182.) Code of Civil Procedure, § 3424, re-enacted as § 90 of the Lien Law, Laws 1909, chap. 38. § 91. Proceedings upon return of order to show cause; trial of issue. — At the time and place mentioned in the order to show cause, the master or other per- son in charge of such vessel, the owner or consignee thereof or any other person interested therein, may apply and contest the claim of the lienor as contained in the application for a warrant, by filing with the justice an affidavit controverting any material allega- tion contained in the notice of lien or the application of the lienor. The issue so raised shall be tried as are other issues in a court of record,, without a jury, be- 463 Lien LuVW — Article IV, Secs. 92, 93. fore the justice granting the order at a time to be fixed by him, or they may be referred by him to a referee, to be heard and determined. Code of Civil Procedure, § 3425, re-enacted as § 91 of the Lien Law, Laws 1909, chap. 38. § 92. Order of sale; when made. — An order may be made by the justice before whom the order to show cause was returnable, for the sale of the vessel, her tackle, apparel and furniture, in the following cases: 1. In case the master, owner, consignee or other per- son interested in the vessel does not appear upon the return day and contest the claim of the lienor, and proof is made of the service of the order to show cause and the application and of the publication of the notice and the service thereof, as required in this article, and due proof is made of the validity and amount of such claim; 2. In case a trial is had of the issues raised, and it is determined that the lien is valid and the amount claimed by the lienor or some part thereof is due. Such orders shall direct the sheriff who seized the vessel to sell the same and her tackle, apparel and fur- niture, to satisfy the liens established on the hearing, and pay the costs and expenses necessarily incurred in the proceedings as prescribed in this article. The rights of mortgagees whose mortgages have been filed according to law, prior to the filing of the notice of lien, on account of which the order of sale is granted, shall not be affected by the sale of such vessel pursuant to such order. Code of Civil Procedure, § 3426, re-enacted as § 92 of the Li^ Law, Laws 1909, chap. 38. § 93. Sale and proceeds.— Within ten days after the receipt of the order of sale, the sheriff, unless the order be sooner vacated or the lien discharged, shall sell the ^DlSTEIBUTION OF Peoceeds. 463 vessel seized, her tackle, apparel and furniture, upon notice, and in the manner prescribed by law for the sale of personal property upon execution issued out of a court of record. He shall make a return to the justice granting the order, of his proceedings there- under, and shall, after deducting his fees and expenses in seizing, preserving, watching and selling the vessel, pay into court the remaining proceeds of the sale. Code of Civil Procedure, § 3427, re-enacted as § 93 of the Lien Law, Laws 1909, chap. 38. § 94. Notice of the distribution of the proceeds of sale. — The justice granting the order of sale, upon re- ceiving such proceeds, shall order a notice to be pub- lished once a week for three successive weeks in the same newspaper in which the notice of seizure was published, requiring all persons having liens upon the vessel under this article, and the master, owner, agent or consignee thereof, and all other persons interested therein, to appear before him, or a referee appointed by him, at the -time and place specified in such notice, not less than thirty nor more than forty days from the first publication thereof to attend a distribution of such proceeds. Such justice may appoint a referee to make such distribution. • Code of Civil Procedure, § 3428, re-enacted as § 94 of the Lien Law, Laws 1909, chap. 38. § 95. Liens for which no warrants are issued. — ^A person who has a lien under this article against the vessel so sold, and has made no application for a war- rant thereon, may present to and file with the justice or referee at the time and place specified in the notice of distribution of such proceeds, a verified statement of the facts and allegations required to be stated in the application for a warrant. And thereupon such lien 464; Lien Law — Aeticle IV, Sbcs, 96, 97. shall be determined, with the same effect as if a war- rant had been issued to enforce such lien. Code of Civil Procedure, § 3429, re-enacted as § 95 of the Lien Law, Laws 1909, chap. 38. § 96. Contested claims. — The master, owner, agent or consignee of the vessel, or any person having an interest in the proceeds before final distribution thereof, may contest any claim made against the ves- sel or its proceeds, by filing with such justice a written answer, verified as a pleading in a court of record, des- ignating the claims contested and controverting any material allegation of the notice of lien, application for a warrant or statement of lien, and setting up any other matter in defense thereto. A copy of such an- swer shall be served within five days from such filing, upon the person whose claim is contested, or his attorney. If the answer does not contain any matter of de- fense to the claim, it may be stricken out on motion of any person who has filed a notice of lien against the vessel. Code of Civil Procedure, § 3430, re-enacted as § 96 of the Lien Law, Laws 1909, chap. 38. § 97. Trial of issues and appeal. — The issues raised by any such answer shall be teied in the same manner as issues are tried in a court of record without a jury, before such justice at a time and place to be fixed by him, or they may be referred by such justice to a referee, to hear and determine. An appeal may be taken from the decision of such justice or referee as in a civil action in a court of record. On such appeal the decision upon the law and the facts, may be re- versed, modified, or a new trial ordered. Costs, upon appeal, shall be allowed, as in the case of an appeal Complaint — Uncontested Claim. 4'65 from a judgment in a court of record, and judgment may be rendered therefor. Code of Civil Procedure, § 3431, re-enacted as § 97 of the Lien Law, Laws 1909, chap. 38. § 98. Distribution of proceeds. — Upon the determi- nation of all the claims presented, the justice or referee shall make an order of distribution of the pro- ceeds. The order shall direct the payment of the claims found tq be subsisting liens upon such vessel or proceeds, with all costs, expenses and allowances, in the order of the priority of tiling the notices of such liens, as provided in this article. Such costs, expenses and allowances shall be in the discretion of the jus- tice, except as otherwise provided in this article. Code of Civil Procedure, § 3432, re-enacted as § 98 of the Lien Law, Laws 1909, chap. 38. § 99. Payment of uncontested claims. — ^Any uncon- tested claims, entitled to priority of payment over the claims which are contested, shall, on motion of the par- ties interested, be paid with costs, in the order of their respective priorities, without awaiting the determina- tion of such contest. If at any time it is made to ap- pear that after the payment of all prior uncontested claims and their respective costs, and after deducting an amount sufficient to pay all prior contested claims and costs, that there remains a surplus of proceeds ap- plicable to the payment of any subsequent uncontested claims, such claims may be on notice to all the parties interested be paid out of the surplus with costs, with- out awaiting the determination of such contest. Code of Civil Procedure, § 3433, re-enacted as § 99 of the Lien Law, Laws 1909, chap. 38. § 100. Distribution of surplus. — If upon payment of all claims established as liens against the vessel from 80 4&6 Lien Law — Aeticle IV, Secs. 101, 102. the proceeds of its sale, a surplus remains, it may be distributed by the court to the persons entitled thereto, after a hearing and the publication of a notice by the applicants for the same time and in the same manner as the notice of seizure is required by this article to be published. Such notice shall specify the amount of the surplus proceeds, the names of the persons apply- ing therefor, the name of the vessel from the sale of which the same arose, the date of the sale and the time and place when the hearing will be held and the dis- tribution of the surplus made. Code of Civil Procedure, § 3434, re-enacted as § 100 of the Lien Law, Laws 1909, chap. 38. § 101. Application for a discharge of warrant. — The owner, consignee, agent or master of any vessel so seized, or any person interested therein, may at any time before the sale of the vessel under this article, ap- ply in person or by attorney to the justice issuing the warrant, on at least one day's notice to the lienor or his attorney, for an order discharging the same on giv- ing an undertaking therefor. Such notice shall specify the names, places of residence and places of business of the proposed sureties upon such undertaking. Code of Civil Procedure, § 3435, re-enacted as § 101 of the Lien Law, Laws 1909, chap. 38. § 102. Undertaking to accompany application for discharge. — The application shall be accompanied by an undertaking to the lienor executed by at least two sureties in a sum at least twice the amount specified in the warrant, to the effect that the person making the application for the discharge of the vessel will pay the amount of all claims and demands which shall be established to be due to the person in whose behalf the warrant was issued, and to have be^n a subsisting lien on the vessel at the time of its issue. The undertaking DiSCHAEGE OF WarEANT. 467! when found sufficient, must be approved by the justice to whom the application is made as to the sufficiency of the sureties, and the lienor may examine the sureties as to their sufficiency at such time and places as may be fixed by such justice. Code of Civil Procedure, § 3436, re-enacted as § 102 of the Lien Law, Laws 1909, chap. 38. § 103. Discharge of warrant.— When such undertak- ing shall have been executed, approved and delivered to the lienor and the taxed fees of the sheriff upon the seizure and detention of the vessel have been paid, the justice shall make an order discharging the war- rant, and no further proceedings against the vessel seized shall be had under this article founded upon any demand secured by such undertaking. Code of Civil Procedure, § 3437, re-enacted as § 103 of the Lien Law, Laws 1909, chap. 38. § 104. Action on undertaking. — The undertaking may be prosecuted by action in any court having juris- diction thereof, at any time within three months after its delivery, but not afterward. If, in such action it is found that any sum is due the plaintiff which was a subsisting lien upon the vessel at the time the notice of lien was filed, the plaintiff shall have judgment for the^recovery of the same with the costs and disburse- ments of the action and the costs of the proceedings for the seizing of the vessel and shall have execution therefor. If it is found in such action that no such lien existed, judgment shall be rendered against the plaintiff for the costs and disbursements of the action and the costs of the proceedings, including the amount paid the sheriff in the discharge of the vessel from the warrant. Code of Civil Procedure, § 3438, re-enacted as § 104 of the Lien Law, Laws 1909, chap. 38. 4'68 Lien Law — Aeticle IV, Secs. 105, 106. § 105. Costs of proceedings. — The cost of the pro- ceedings in addition to the disbursements shall be: For filing notice of lien, two dollars. For applying for and procuring a warrant if the lien is fifty dollars or under, ten dollars; if the lien exceeds fifty dollars and is not more than two hundred and fifty dollars, twenty dollars; if the lien exceeds two hundred and fifty dollars, and is not more than one thousand dollars, thirty dollars; if the lien exceeds one thousand dollars, forty dollars. For attending proceedings upon the dis- charge of the warrant on the execution of an under- taking, ten dollars. The sheriff shall be entitled in any such proceedings to the following fees and expenses: For serving war- rant, one dollar. For return of the same, one dollar. The necessary sums paid by him for the expense of keeping the vessel in custody, not exceeding two dollars and fifty cents for each day. The sheriif shall not re- ceive any other or greater sums for any service ren- dered by him in any proceeding under this article, nor shall he be allowed expense of custody of the vessel upon more than one warrant at the same time. All costs, disbursements and fees shall be verified by affi- davit and adjusted by the justices issuing the warrant. Code of Civil Procedure, § 3439, re-enacted as § 105 of the Lien Law, Laws 1909, chap. 38. § 106. Sheriff must return warrant. — A sheriff to whom a warrant may have been delivered pursuant to the provisions of this article, may be compelled by an order made by the justice issuing it, to return such warrant with his proceedings thereon and pay over moneys in his hands, and to take any necessary steps for the safety of the vessel, pursuant to any order for that purpose. Obedience to such order may be en- I>ISCHAEGE OF LlEN BeFOEJE WaeEANT. 469 forced by attachment against the sheriff on the appli- cation of any person interested therein. Code of Civil Procedure, § 3440, re-enacted as § 106 of the Lien Law, Laws 1909, chap. 38. § 107. Discharge of lien before issue of warrant. — When any notice of lien shall have been filed under this article and no warrant has been issued to enforce the same, any person interested in the vessel, may apply to any justice of the supreme court for leave to discharge the lien upon giving an undertaking therefor to the lienor. The application shall be in writing, and shall state the amount of the lien claimed and the grounds of the defense thereto, and the names of the persons proposed as sureties on such undertaking, with their respective residences and places of business. Upon presenting such application with proof that a copy thereof, with at least five days' notice of the time and place of presenting the same, has been served upon the lienor, such justice may, if no just cause be shown in opposition thereto, authorize the execution of such undertaking, which shall be to the same effect as an undertaking required in this article upon the applica- tion to discharge a warrant, and an action may be brought thereon in like manner. At the time of the presentation of such application the sureties proposed in such undertaking shall justify before such justice. When such undertaking has been executed and ap-. proved by such justice and delivered to the lienor, the justice shall direct the clerk with whom the notice of lien is filed to make the same as discharged, and it shall cease to be lien upon such vessel. Code of Civil Procedure, § 3441, re-enacted as § 107 of the Lien Law, Laws of 1909, chap. 38. LIEN LAW— ARTICLE V. [Laws 1909, Chap. 38.] LIENS ON MONUMENTS, GRAVESTONES AND CEMETERY STRUCTURES. Section 130. Liens on monuments, gravestones and cemetery struc- tures. 131. Notice of lien. 133. Proceedings to enforce lien. 133. Disposition of proceeds of sale. 134. Duties of ofBcers of cemetery associations. § 120. Liens on monuments, gravestones and ceme- tery structures. — A person furnishing or placing in a cemetery or burial ground, a monument, gravestone, inclosure or other structure, has a lien thereon for the agreed price thereof or the part remaining unpaid, •with interest from the time the amount was due, upon filing with the superintendent or person in charge of such cemetery or burial ground, a notice of lien as pro- vided in this article. Lien Law of 1897, § 40, re-enacted as § 120, Laws 1909, chap. 38. Who may file lien. — The right under section 120 to file a lien, is limited to " a person furnishing or placing in a cemetery or burial ground, a monument, gravestone, enclos- ure or other structure." The provisions of the statute do not apply to a materialman, or to the men who have done the work. It applies only to the man -a/ho took the contract for furnishing and who did furnish the mausoleum. A material- man who furnishes materials to a contractor, who agreed to erect the mausoleum can acquire no lien thereon, and it can be removed only by the lienor. Brown v. City National Banh, 72 Misc. 201. § 121. Notice of lien.— Such notice may be filed at any time after the completion of the work, but must be (470) Extension oe" Ceedits. 471 filed within one year after tlie agreed price for fur- nishing or placing such monument, gravestone, in- closure or other structure becomes due, and shall state that the lienor has a lien on such monument, grave- stone, inclosure or structure for the purchase price thereof, or some unpaid part of such purchase price, with interest, specifying the amount agreed to be paid, and the amount unpaid," with a description of such monument, gravestone, inclosure or other structure, and the location of the plot upon which it stands, and the names of the persons with whom the agreement for the purchase and erection of the structure, or for the performance of such labor was made. The notice shall be signed and verified by the lienor. The lienor shall, within ten days after the filing of such notice, serve a copy personally, or by mail, upon the person with whom the agreement for the purchase and erection of such monument, gravestone, or other structure, or for the performance of labor thereon was made, and upon the owner of the lot upon which such monument, grave- stone or other structure is erected, if the name and residence of such owner can, with reasonable diligence be ascertained. Lien Law of 1897, § 41, re-enacted as § 121, Laws 1909, chap. 38. 1. Filing notice — Extension of credit. — The plaintiff completed work on a monument on November 1, 1900. They extended time of payment on the debt till l^ovember 1, 1901, on condition that the debtor would pay half the amount due, and interest to IvTovember 1, 1901. Plaintiffs filed a lien December 6, 1901. Debtor was adjudged bankrupt Novem- ber 22, 1901. Held, that the credit was extended till Nov- ember 1, 1901, and the year within which to file a lien for a monument under section 41 (now section 121) of the Lien Law expired on that day. Held, that the credit was extended to November 1, 1901, one year after the agreed price for furnishing the work, and that the lien having been filed after 472 Lien Law — Aeticle V, Secs. 122, 123. that period was void, and plaintiff's rights were the same as other creditors. Lazzari v. Havens, 39 Misc. 255. § 122. Proceedings to enforce liens. — After the service of such notice, an action to recover the amount of the debt and to enforce a lien therefor may be main- tained by the lienor against the person with whom the agreement was made, for the purchase and erection of such monument, gravestone, inclosure or other struc- ture or for the performance of labor thereon. If such lienor succeeds in establishing his lien, the judgment recovered may authorize Mm to remove such monu- ment, gravestone, inclosure or other structure from the burial-ground or cemetery and to sell the same at public auction to satisfy the amount of such judgment. Notice of the sale shall be published at least ten days before the time thereof, in a newspaper published in the town or city where such sale is to take place, and if no newspaper is published therein, in a newspaper nearest thereto. Such notice shall state the time and place of the sale, and shall describe the property to be sold. A copy of such notice shall be served personally or by mail at least ten days before such sale upon the persons served with the notice of lien as prescribed in the preceding section. Lien Law of 1897, § 42, re-enacted as § 122, Laws 1909, chap. 38. § 123. Disposition of proceeds of sale.— The lienor shall, out of the proceeds of the sale, pay the expenses thereof, and the expenses of the removal of such monu- ment, gravestone, inclosure or other structure from the cemetery or burial-ground, not exceeding fifty dollars, if a monument, and ten dollars, if a gravestone, in- closure or other structure, and retain out of sudh pro- ceeds, the amount due upon the judgment recovered in Officers of Cemetery Associations. 473 the action to enforce the lien, and the residue, if any, shall be forthwith paid to the judgment debtor. Lien Law of 1897, § 43, re-enacted as § 123, Laws 1909, ohap. 38. § 124. Duties of officers of cemetery associations. — The superintendent or other person in charge of a ceme- tery or burial ground shall not permit the removal, alteration or inscription of a monument, gravestone, inclosure or other structure, against which a lien exists, after the notice of such lien has been filed and served as prescribed in this article, except pursuant to the terms of a judgment recovered in an action brought to enforce such lien. No officer of a cemetery associa- tion, or other person connected with a cemetery or burial ground, shall hinder or obstruct the removal in a proper manner of any such mounment, gravestone, inclosure or other structure pursuant to the terms of such judgment. Lien Law of 1897, § 44, re-enacted as § 124, Laws 1909, chap. 38. LIEN LAW— AETICLE VI. [Laws 1909, Chap. 38.] LIENS FOR LABOR ON STONE. Section 140. Lien for labor performed in quarrying, mining, dressing and cutting stone. 141. Duration and effect of lien. 142. Discharge of lien. § 140. Lien for labor performed in quarrying-, min- ing, dressing and cutting stone. — A person employed in a quarry, mine, yard or dock at excavating, quarry- ing, mining, dressing or cutting sandstone, granite, cement stone, limestone, bluestone or marble, may have a lien on such sandstone, cement stone, granite, lime- stone, bluestone or marble, for the amount due for the labor expended thereon, upon filing a notice of lien in the office where a chattel mortgage upon such sand- stone, cement stone, granite, limestone, bluestone or marble is required to be filed, as provided in this chap- ter. Such notice must be filed within thirty days after the completion of such labor and must state the amount due therefor, the name and residence of the lienor, and the name of the person for whom the labor was per- formed, the quantity and description of the sandstone, cement stone, granite, bluestone, limestone or marble against which the claim is made. Such notice of lien shall be endorsed, filed and entered by the proper officer, in the same manner as chattel mortgages, and the same fees shall be charged therefor. A copy of the notice so filed shall be served upon the owner of such standstone, cement stone, granite, limestone, bluestone or marble or upon the person in charge of the quarry, mine, yards or docks wherein such services were per- (474) Lien foe Laboe on Stone, 475 formed within five days after the filing thereof. (As amd. by Laws 1899, chap. 322.) Lien Law of 1897, § 50, re-enacted as § 140, Laws 1909, chap. 38. § 141. Duration and effect of lien.— Such lien shall terminate unless an action is brought to enforce the same within three months after the date of filing such notice, as provided in article nine for the etiforcement of a lien upon a chattel. If the labor upon such sand- stone, cement stone, granite, bluestone, limestone or marble is performed for a contractor under a contract with the owner of such quarry, mine, yard or dock, the owner shall not be liable to pay by reason of all the liens filed against such quarry, mine, yard or dock, a greater sum than the amount unpaid upon such con- tract at the time of filing such notices, or in case there is no contract, then the aggregate amount unpaid of the value of labor and services performed, pursuant to the preceding section. The lien created by this article shall not attach to any material which shall have be- come a part of any building or structure, or ceased to be the property of the person from whom such labor was performed. (As amd. by Laws 1899, chap. 322.) Lien Law of 1897, § 51, re-enacted as § 141, Laws 1909, chap. 38. § 142. Discharge of lien. — Such lien may be dis- charged by a payment of the amount due thereon, by a failure to bring an action to enforce the same within the time prescribed in the preceding section, by the written consent of the lienor, duly acknowledged and filed with the proper officer to tlie effect that such lien may be discharged, and by the owner of such sand- stone, cement stone, granite, bluestone, limestone or marble filing with such officer an undertaking in an 470 l>iio.\ Law — Aarivhsi VJ, Skc 142. amount equal to twice the sum HpccififuJ in th(i notice of lien, executed by one or rrion; Hnn^lic^s who shall justify in such amount and approvcnJ by i\u'. offioor with whom the notice of lien is filed, conditioned i'or tli(,' payment of the sum due suchJi(!iJor, by rcviwon of such lien, and the cost and expenses of (iriforciriK the same. (As »md. by Laws 1899, chap. 322.) Lien Law of 1897, § 52, re-enacted as § 142, Laws 1909, chap, 38. LIEN LAW— AETICLE Vn. [Laws 1909, Chap. 38.] LIENS FOR SERVICE OF STALLIONS. Section 160. Lien on mare and foal. 161. Statement and certificate. 162. Copy of statement and certificate to be posted. 163. Penalty. § 160. Lien on mare and foal. — On complying with the provisions of this article, the owner of a stallion shaU have a lien on each mare served together with the foal of snch mare from such service, for the amount agreed on at the time of service, or if no agreement was made, for the amount specified in the statement herein- after required to be filed, if within fifteen months after such service he files a notice of such lien in the same manner and place as chattel mortgages are required by law to be filed. Such notice of lien shall be in writing, specifying the person against whom the claim is made, the amount of the same and a description of the prop- erty upon which the lien is claimed, and such lien shall terminate at the end of eighteen months from the date of such filing, unless within that time an action is com- menced for the enforcement thereof, as provided in sections two hundred and six to two hundred and ten, both inclusive of this chapter, for the foreclosure of a lien on chattels. (As amd. by Laws 1902, chap. 351; Laws 1904, chap. 261.) Lien Law of 1897, § 60, re-enacted as § 160, Laws 1909, chap. 38. § 161. Statement and certificate. — ^A person having the custody or control of a stallion and charging a fee for his services, shall, before advertising or offering 477 478 Lien Law — Aeticle VII, Sec. 162, 163. such services to the public, file with the clerk of the county in which he resides or in which such stallion is kept for service, a written statement giving the name, age, description and pedigree, if known, and if not, stating that the same is unknown, of such stallion and the terms and conditions on which he will serve. On filing such statement, the county clerk shall record the same in a book provided for that purpose and issue a certificate to such person, that such statement has been so filed and recorded. He shall be entitled to receive ten cents per folio for recording such statement and for such certificate. Lien Law of 1897, § 61, re-enacted as § 161, Laws 1909, chap. 38. § 162. Copy of statement and certificate to be posted. — The person having the custody and control of such stallion, shall post a written or printed copy of such statement and certificate in a conspicuous place in each locality in which said stallion is kept for service. Lien Law of 1897, § 62, re-enacted as § 162, Laws 1909, chap. 38. § 163. Penalty. — A person who neglects or refuses to file and post such statement as required in this article, or salsely states the pedigree of such stallion in such statement, forfeits all fees for the services of such stallion and is liable to a person deceived or defrauded thereby for the damages sustained. Lien Law of 1897, § 63, re-enacted as § 163, Laws 1909, chap. 38. LIEN LAW— ARTICLE VIII. [Laws 1909, Chap. 38.] OTHER LIENS ON PERSONAL PROPERTY. Section 180. Artisan's lien on personal property. 181. Liens of hotel, apartment hotel, inn, boarding and lodging housekeepers. 183. Factors' liens on merchandise. 183. Lien of bailee of animals. 184. Lien of bailee of motor vehicles. 185. Lien of manufacturers and throwsters of silk gooda. § 180. Artisans' lien on personal property. — ^A per- son who makes, alters, repairs or in any way enhances the value of an article of personal property, at the re- quest or with the consent of the owner, has a lien on such article, while lawfully in possession thereof, for his reasonable charges for the work done and mate- rials furnished, and may retain possession thereof until such charges are paid. Lien Law of 1897, § 70, re-enacted as § 180, Laws 1909, chap. 38. 1. Statute declaratory of common law. — The provisions of the above section are declaratory of the common law. Prior to the enactment of the Lien Law of 1897, the right of an artisan to a lien upon chattels, who had expended labor upon them, whereby their value was enhanced, existed at common law. Section 70 of the Lien Law of 1897 was the first attempt in the State of New York to formulate the artisan's right to a lien into a statute. Common-law liens are set forth and discussed under the head " liens which ex- isted at common law," infra, page 486. 2. Artisan. — The word " artisan," used in the statute (Lien Law of 1897, § 70), does not include one having no par- ticular trade or profession, employed to perform ordinary manual labor. The term signifies one trained in some me- chanical craft which requires skilled labor or special knowl- edge. O'Clair v. Hale, 25 Misc. 32, 479 480 Lien Law — Aeticle VIII, Sec. 180. "'' 3. Lien lost when credit extended. — Where an artisan makes an express contract that he will deliver the materials or chattels upon which he agrees to expend labor and extend credit to the bailor, making the moneys due for his services payable after the chatties are delivered, he waives his lien. Bauer v. Cohen, 127 App. Div. 194; Morgan v. Congdon, 4 N. Y. 552 ; Bloomenberg Press v. Mutual Merc. Agency, 177 K Y. 362. a. But where the artisan agrees to expend labor upon chat- tels imder a contract to deliver the goods in instalments dur- ing the progress of the work, the owner to pay 50 per cent, of the agreed price of the work on each delivery, and the re- maining 50 per cent, when the work was examined and found to be satisfactory, he is entitled to his lien, for the work ac- tually done. Two deliveries were made, but the owner failed to pay as agreed. The bailee then refused to continue the work and tendered the remainder of the chattels, on condi- tion that payment be made for the work already done. Pay- ment was refused and the bailor brought replevin. Defend- ant pleaded an artisan's lien. Held, that the defense was good to the extent of the amount due and payable on the work that had been finished. Bauer v. Cohen, 127 App. Div. 194. 4. Books — Accountant has no lien on. — In order to au- thorize a lien upon chattels for services performed with re- spect to them such services must be rendered either in alter- ing or repairing the chattel, or they must be of such a charac- ter that the chattel was improved and its value enhanced thereby. Services rendered by an expert accountant in ex- amining books of account for the purpose of preparing a re- port therefrom does not entitle such accountant to a lien on the books. Scott Shoe Machinery Co. v. Broaker, 35 App. Div. 382. 5. Logs — Artisan's lien — Scope and extent of. — De- fendant claimed a lien for the value of labor and services upon personal property, to wit, logs, which lien specified that the labor and services were performed " in and about the busi- ness of cutting, trimming and preparing logs to be sawed, hauling the same from wood lots, in the town of Greenfield to the Cronkheit saw mill in said town, assisting in moving, hauling and sorting said logs and doing all work necessary Artisans Liejst. 481 and requisite to be done in and atont the same in preparing them to be made into lumber at said saw mill." Neither in this notice of lien nor in defendant's answer was there any claim set up for any services in sawing the logs into lumber. The court held, following O'Clair v. Hale, 25 Misc. 31, that section 70 of the Lien Law was not broad enough to include one having no particular trade or profession who performs ordinary manual labor. The word "artisan," the court said, in the ease cited, signifies one trained in some mechanical craft which requires skill, labor, or special knowledge. Cutting logs converts the realty into personalty, as the logs before they were cut were real estate, and the lien for cutting them cannot be enforced after they are cut as a lien on personalty. The Lien Law (§70) does not enlarge the lien of an artisan beyond that given at common law, and the defendant has no lien for cutting and haulding the logs to the saw mill. Brackett V. Piei'son, 114 App. Div. 281. 6. Logs — May be both realty and personalty. — The stat- ute creating a lien in favor of artisans or skilled craftsmen extends only to personal property. One who cuts logs has no lien upon them for the cutting, because before they were cut they were realty. The act of converting the realty into personalty does not, in its initial stages, constitute making, altering, or repairing an article of personal property. It can- not be said that one mowing standing grass would have a lien «n the hay. A lien on logs for cutting them cannot be en- forced after they are cut as a lien on personalty. O'Clair v. Hale, 25 Misc. 32. o. Plaintiff was employed by an incorporated lumber com- pany to cut, skid, and draw logs, which logs were purchased by the company. The company became insolvent and plain- tiff claimed a lien on the logs for his labor. Held, that in the absence of possession of the logs plaintiff's lien could not be enforced and that the possession of plaintiff's employer was not plaintiff's possession. O'Clair v. Hale, 35 App. Div. 77. 7. Cut garments. — Where cut garments were delivered for manufacture, and the bailee has expended labor upon them, he has a lien upon the materials, and is entitled to re- tain possession of them until his claim is paid. Davidson v. Fankuchen, 88 N. Y. Supp. 96. 31 482 Lien Law — Article VIII, Sec. 180. 8. Where the chattel perishes. — If a chattel which has been given to a workman to perform labor upon perishes by internal defect or inevitable accident, without any default of the workman, it perishes as to the master and the bailee is en- titled to compensation for the labor expended upon it by him. In such a case the maxim res periii domino applies. Kafka Vi Levensohn, 18 Misc. 202. a. The maxim res periit domino has no application where the parties have entered into an express contract which im- ports an obligation upon the bailee to return the goods upon which he expends labor, in good order to the bailor. Where such a contract has been entered into the rule of law appli- cable under the circumstances is clearly stated by Schottlee in his work on Bailments (§ 111, chap. 118), as follows: " Where a different obligation is imported by special contract, and a calamity ensues for which neither was to blame, per- venting performance, then let the thing perish to the master and the services to the workman." Stem v. Rosenthal, 56 Misc. 643. h. Plaintiff was a contracting tailor and received materials from the defendant upon which he agreed to perform labor at his own place of business, over which defendant exercised no control. The agreement between the plaintiff and defendant was that the goods should be returned in good order to" the de- fendant, the bailor, viz. : " We agree to pay for work only after delivery in good order to our store." The goods were taken to plaintiff's premises, and while there, a fire ensued without fault of the plaintiff, which destroyed the goods. The jury gave a verdict in favor of plaintiff for the work actually performed by him prior to the fire. Held, reversing the judgment below, that the contract between the parties whereby the defendant agreed to pay for work after delivery in good order to defendant's store, took the case out of the general rule res periit domino and that the proper construc- tion of the contract under such circumstances was that the thing perished as to the master and the services as to the work- man, and that plaintiff could not recover. Ih. 9. Where building in which work was to be performed burns. — Plaintiff, who was a cutter and designer, sued the defendant to recover four weeks' wages at $35 per week, un- der a contract of employment entered into February 4, 1905, Aetisans Lien. 483 ih, by its terms, terminated September 4, 1905. On June L, the building in which plaintiff was employed was de- S^ed by fire. The defendant could not resume work by on of the fire until the 25th day of July, at which time de- lants entered into a new contract of employment for one '. Plaintiff, when he made the new contract, did not. 7e his right to the four weeks' wages, which he was unable srform by reason of the fact that the building was burned, was at all times ready and willing to perform the services which he was employed. If defendants desire to protect aselves from the result of accidents they should have so ulated in the contract. Harmony v. Bingham^ 12 N. Y. It was not shown that the labor was to be performed at particular place or at any particular building, but the sement of defendant was absolutely to pay $35 per week a given period. Held, that plaintiff was entitled to re- sr. Magida v. Wiesen, 114 App. Div. 866, 100 N. Y. p. 268. ). Possession, surrender of. — In an action b ya bailee to iclose a lien on a chattel the court directed the bailee to •ender the chattel to the owner and thereafter the trial ;eeded without objection to ascertain the amount due. d, that defendant cannot thereafter object to the judgment ;he ground that plaintiff having surrendered the chattel his lien and could not proceed thereafter with the fore- ure. Kafha v. Lev&nsohn, 18 Misc. 202. I. Possession — When surrender will not defeat lien. — : rule is well settled that the pledgee of chattels loses his when he returns them to the pledgor. To this rule there exceptions. Where the chattels are delivered to the owner a temporary purpose only and the pledgor agrees to deliver a to the pledgee, the latter may recover the chattels if the er refuses to restore them to the pledgee when the pur- 5 is fulfilled. Hickok v. Oowperthwaii, 210 IST. Y. 137 ; ey V. Cavaroc (96 U. S. 467) ; Sharrett v. Vaughan, 2 int. 266; Storey on Bailments, Sec. 299. )ef endant Aymar held certain shares of stock of two manu- uring companies, which he returned to the pledgor for the purpose of having the stock transferred to the name of ther person as owner on the books of the company, under agreement with the pledgor that the new certificates, when 484: Lien Law — Aeticle VIII, Sec. 180. issued should be immediately delivered to the pledgee. 'No new lien was created intermediate the time when the stocks were delivered and their return sought by the pledgee. Heldj that the pledgee did not lose his lien by such temporary de- livery as against the rights of creditors of the pledgor. Hic- Jcok V. Cowperthwait, 210 ISl. Y. 137. 12. Possession must be by owner's consent. — In order to •sustain a lien of an artisan upon chattels intrusted to him, it must appear that he acquired possession of the chattels, either from the ovmer, or from a person authorized to deliver them to the artisan. An owner cannot be deprived of his property without his consent or unless he creates the bailment. a. Plaintiff employed one Gewirtz to finish thirty-seven coats. The latter, without the knowledge or consent of the owner, delivered the coats to the defendant to pierce them with buttonholes. Plaintiff demanded the coats from defend- ant, who asserted his lien for the work done on the buttonholes .and refused to deliver them. In an action of replevin, held, that defendant acquired no lien in the absence of consent, •express or implied from the owner, authorizing the delivery ■of the coats to defendant. Gluchmcm v. Kleinman, 3 Misc. 97 13. Possession — Waiver of Hen as to part of goods. — The Court of Appeals has affirmed the doctrine laid down in Blumenberg Press v. Mutual Mercantile Agency (77 App. Div. 87), as to what constitutes a waiver of the lien of an artisan who has surrendered part of the property to which the lien attaches, holding that the lien continues as to the prop- erty retained. The judgment, however, was reversed on other grounds. The case arose in an action to enforce a printer's lien. The court said : ■ " The only controversy in the case -arises over the right of the plaintiff to an artisan's lien. Upon this issue the trial court made what is commonly demoninated a short decision, holding that as to the work performed by the plaintiff prior to the 8th day of February, 1901, it had been fully paid for by the defendant, who was entitled to the possession of the property, and that it had been left with the plaintiff as bailee merely, and that no lien attached thereto ; "but as to the material thereafter manufactured by the plain- tiff it had not been paid for, was still in the possession of the Bailment — Tek^dek When Excuse. 485' tiff, and that its lien attaches thereto, and judgment was ed accordingly. Both parties having appealed, the case' up for review in the Appellate Division, and that court as stated in the opinion, that ' the contract was one, and 3veral, for the printing of the first edition of the def end- reference book. It shows upon its face that the intention e parties was that the plaintiff should do all the work re- id in the way of making the type, printing and correcting- iroof. In fine, everything necessary up to the binding jublication of the book. Although the contract provided 'eekly payments for work performed, this did not effect a ^e, as there was but one contract for the entire work, being so, a lien for the total amount due attached to joods manufactured by the plaintiff and not delivered e defendant, and the plaintiff waived its lien only as to of the goods as were delivered to the defendant.' This ilear, concise, and correct statement of the law governing ■acts of this character, and to this extent we fully concur that learned court." Blumenherg Press v. Mutual Mer- le Agency, 111 K Y. 362. , Bailment — Tender when excused. — A bailee who has tided labor upon chattels which enhances their value has 1 upon them for his services which can be discharged only 1 unconditional tender. But the law does not require a thing, and if the bailee refuses to deliver the chattels, a 3r of the amount due is excused, as it would be useless to 3 it. Zeitlin v. Arhaway, 26 Misc. 761. the bailee does not put his refusal to deliver the goods to 'wner, upon the ground that he has a lien for storage, but L the ground that he owns the goods, and will contest the with the owner, he waives his lien, and the owner will be sed from tendering the amount due for storage, as a con- n precedent to a demand for the goods. Long Island I'ing Co. V. Fitzpatrich, 18 Hun, 389. . Performance of labor — Necessary to create lien. — A d bailment of chattels to an artisan without more, in the ice of any agreement authorizing the workman to detain 3hattels, will not create a lien thereon. The bailee, in r to assert a right to lien, mu^t have expended labor and upon the chattels, unless he can show a right to his lien pecial agreement with the owner. 486 Lien Law — Akticle VIII, Sec. 180. a. Type was delivered to a printer, in order to enable him to print therefrom. Held, that, in the absence of a special agreement, the printer had no lien upon the type for the value of the printing which he had done for the bailor. De Vinne V. Byanhard, 11 Week. Dig. 268 ; s. c, 9 Daly, 406. 16. Printer's lien. — A printer who undertakes to print a book has a lien upon the paper delivered to him for such pur- pose, not only upon such sheets as are actually printed, but upon all the paper delivered. His lien extends not only, to the value of the printing actually done, but also for any act done or labor performed in the execution of his contract, as ex- penses incurred for types, cuts, illustrations, electrotypes, and other things of like nature and object, as such expense was in- curred in the preparation of instrumentalities by which the labor was to be performed. Oonrow v. Little, 115 IsT. Y. 387. a. In the case cited, the printer refused to undertake the contract, unless assured by the paper manufacturers, the plaintiffs, that they would deliver the paper to Branscom, who employed the printers to print the book for Branscom. One of plaintiffs called on defendants, Little & Co., the print- ers, with Branscom and told Little & Co. that they had sold the paper to Branscom and would deliver it to defendants. Thereafter plaintiffs delivered the paper. Branscom, it was subsequently learned, procured plaintiffs to sell him the paper by fraud, he having given plaintiffs a note in payment, which subsequently proved to be forged. Held, that defendants were innocent parties as well as plaintiffs, and under the rule that where one of two innocent parties must suffer from the fraud of a third, the plaintiffs, and not defendants, should sustain the loss. lb. Liens Which Existed at Common Law. 1. Common-law liens. — Liens at common law were con- fined to chattels, and were few. They were such as arose from necessity and were authorized, except as to artisans, by whose skill and labor the value of the chattel was enhanced, in oases where the lienor exercised a public, or gwasi-pnblic calling, which he was obliged to exercise on demand and where Liens at Common Law. 48 T the obligation to render services or furnish materials was com- pulsory. The Anglo-Saxon race were compelled to fight their Iforman monarchs to preserve their rights, to life, liberty, and property. They forced King John to sign the great charter at Runnymede, in June, 1215. In thip instrument the English sovereign stipulated that he would not take the life, liberty, or property of his subjects, without due process of law. The charter was subsequently ratified by succeeding monarchs, and some of its essential features have been in- corporated into the Constitution of the United States. a. The clauses which made the right of property sacred are embraced in four stipulations, for the charter was nothing more than the king's solemn stipulation, given under seal, that he would not interfere with the right of liberty of his sub- jects, nor infringe upon property rights^ nor permit his sub- jects to be deprived of their lawful rights without due process ,of law. The Federal Constitution, as we have seen, declares briefly that no person shall be deprived of life, liberty, or property without due process of law. These provisions, rudely east in the great charter, with respect to rights of property (personalty) , will be found in the following stipulations : " 27. If any freeman shall die intestate, his chattels shall be distributed by the hands of his nearest relations and friends by view of the church ; saving to every one his debts which the deceased owed him. " 28. No constable, or bailiff of ours shall take corn, or 9ther chattels of any man, unless he presently give him money for it, or hath respite of payment by the good-will of the seller. ** * ****** " 30. No sheriff or bailiff of ours, or any other, shall take horses or carts of any freemen for carriage, but by the good- will of the said freeman. " 31. Neither shall we, or our bailiffs, take any man's tim- ber for our castles or other uses, unless by consent of the owner of the timber." ' 6. In the riide age of King John, and Henry III, when all land was vested in the king as lord paramount, and was held under feudal tenures, these stipulations were supposed to be ample guarantees against taking private property without con- sent. But the idea, that right to property was a sacred right, lay at the foundation of these provisions of the charter of the 488 Lien Law — Aeticle VIII, Sec. 180. liberties of the English people. It recognized the principle that it was contrary to a sense of justice and right to allow any person to keep another's property unless sanctioned by some legal process. c. In certain cases, creditors were allowed a lien upon prop- erty ; and possession, in this class of cases, created a common- law lien. Liens had their origin in some consideration of public convenience, making the service of a'party authorized to labor upon chattels compulsory upon demand. Mr. Par- sons, in his work on Contracts, divides common-law liens into two classes : 1. Those created by bailment. 2. Those created independent of bailment. 2. Liens created by bailment. — Liens created by bail- ment exist in favor of tradesmen or artisans, who receive chattels in order to bestow work and labor upon them, whereby their value is enhanced. Liens in favor of common carriers arise where the chattels come into their possession for trans- portation. Liens in favor of innkeepers are authorized where the goods of the guest are placed in their custody, for safe- keeping, or were brought by the guest into the inn. Liens in favor of farriers, or blacksmiths, were authorized where the horse was given into his custody to be shod. A factor, also, had a lien at common law upon goods of his principal for in- cidental charges. A factor's general lien, however, arose from custom and commercial usage. a. Contractual or statutory liens, are subordinate to all prior existing rights in the property on which the lien is claimed, while common-law liens which arise upon considerations of justice and public policy, by operation of law, attach as a general rule to the property itself without any reference to ownership and override all other rights in the property. In the absence of a common-law lien, there can be no lien in favor ' of a bailee, as against the owner of the property. Barrett Manufacturing Go. v. Van Ronlc, 212 N. T. 90. A truck was sold by plaintiff to one Van Ronk who executed a chattel mortgage on the property to the plaintiff, the vendor. Held that no lien could be acquired thereon in favor of a livery stable keeper, who kept the truck in his stable and also five horses belonging to the defendant Van Eonk, unless with the consent of the owner of the chattel Liens not Arising on Bailment. 489 mortgage. This upon the ground that Van Eonk, had no title to the truck, but only an equity of redemption. The vendor's title can only be defeated by payment to him of the purchase price, secured by his chattel mortgage, when the latter has been properly filed pursuant to the statute. Ih. 3. Liens not arising in bailment. — Liens at common law, which existed independent of any bailment, were allowed to vendors or salvors. Custody of animals, taken by the lienor, doing damage, was regulated by statute, such as authorized a poundmaster to keep stray cattle in his pound. a. It will be observed that all the liens referred to, except those in favor of the artisan or tradesman, are created by nec- essity. The innkeeper was compelled to entertain the traveler at his inn, and was liable in damages, if he refused him enter- tainment. When this was furnished, the guest became the deb- tor and the innkeeper, by the compulsory process of law, was bound to give him credit. In other words, the innkeeper was compelled to give credit to a stranger — a transient guest, whom, perhaps, he never saw before, and might never see again. The law, therefore, recognizing the innkeeper's plight, gave him the right to detain the baggage of the guest, as security until the debt was discharged by payment. h. At common-law, an agistor had no lien on animals pastured by him, nor could a livery stable keeper at common- law, acquire a lien upon a horse kept in his stable. A lien is now conferred on an agistor or a livery stable keeper by stat- ute. Barrett Manufacturing Co. v. Van Bonh, 212 iN". Y. 90. ih. But at common law, an innkeeper had no lien on prop- erty not belonging to the guest, which the latter brought to the iim, except in the case of a horse. If the guest brought on the landlord's premises a horse, which was not his property, the innkeeper had a lien on the animal for the value of the provender which the horse had eaten. This for the reason that the food furnished preserved the life of the horse. Kip- with V. Innkeeper, 1 Bulst. 170 ; Bobinson v. Walter, 3 Bulst. 269; Stiet v. Drumgold, 15 Jac. B. E. 650; Yorhe v. Gre- naugh, 2 Ld. Kaym. 866. c. The same thing is true of the common carrier. He was bound to take goods for transportation, no matter who offered them. And when the goods were once in the custody of the 490 Lien Law — Aeticle VIII, Sec. 180. ■ carrier, he became responsible for their conduct against every hazard, except only a vis major, or the act of God, or the public enemy. The necessity of the case authorized a lien in favor of the carrier for the cost of carriage. cc. A common carrier, at a sheriff's sale of the right, title and interest of the shipper, in a quantity of lumber, may bid in the lumber, to protect its lien. And such sale may not be vacated upon the ground that the sheriif refused to credit the amount of the lien upon the carrier's bid. Watson and Pit- inger v. HoboJcen Planing Mill Co. impleaded with Long Island Railroad Co., 156 App. Div. 8. d. The farrier, also, was compelled to furnish shoes and put them on the feet of the traveler's horse, or the horse of any person applying. He might also be required to furnish care and remedies for lame and infirm horses. He was bound to exercise his craft on demand. He dared not refuse under penalty of the law. This was the English rule. But some writers have doubted, whether a farrier, or blacksmith, was compelled to exercise his craft on demand in this country. From necessity, therefore, the farrier was allowed a lien on the horse till his charges for shoeing were paid. e. The artisan, however, was not 'bound to exercise his craft upon demand, or to repair chattels offered, or to manu- facture materials into specific articles. But his labor, and often his own materialsi, were expended upon the property, and its value was thereby enhanced. The law, therefore, gave him a lien upon the chattels upon which his labor was be-, stowed. A lien at common law did not exist in favor of one who pastured sheep or cattle. An agister of cattle had no lien. Nor was a lien given to the stableman for livery. But if the liveryman was given a horse to train or to be covered by a stallion, a lien was authorized. Sevan v. Waters, 3 Car. & P. 520 ; Scarf v. Morgan, 4 M. & W. 270. /. It will be observed that in the case of the trainer, and the owner of the stallion, value accrued to the owner of the animal; in the one case created by the knowledge and skill of the trainer, and iu the other by the production of the foal. In case of the agister and liveryniam who furnished the ani- mals with food, this food being property, is consumed in or- der to sustain the life and strength of the animal. Both labor Liens — Usage and Custom. 491 and materials were bestowed, but tbey were bestowed volun- tarily. It migbt seem illogical, therefore, to draw the line in' favor of the trainer on the one hand, and against the agister and livery-stable-keeper on the other, were it not for the fact that in case of the former training and skill are employed. This distinction, however, is not recognized by the l^slature, and now the livery-stable-keeper has a lien by statute for the keep of the horse. At common law, therefore, the artisan, the carrier, the innkeeper, and farrier were accorded a right to a lien, upon chattels placed in their possession and custody. g. The attorney was also allowed a lien at the common law, upon the papers, deeds, and documents in his possession in connection with any case or matter or proceeding upon which he had expended his time, and concerning which he had rendered professional services and for his costs. h. With the exception of vendors, salvors, or poundmas- ters, the persons above designated had the right to a lien at common law. It will be observed, further, that liens at com- mon law embraced only personal property. 4. Liens by usage and custom. — Liens of warehousemen and wharfingers existed or were allowed by custom and usage. And this custom has now become well-nigh univer- sal. The lien of warehousemen is general and particular. If the goods were deposited by the owner, he has a general lien which extended to all demands for storage and expenses paid. Where the goods are deposited by the agent of the owner, he has a particular lien for charges. But where the goods are stored by a third party without authority or sanction of the owner, the warehouseman has no lien. Boardman v. Hill, 1 Campb. 410. a. The wharfinger has a lien by usage or custom coext^n- sive with that of a factor. His lien extends only to goods actually landed on the wharf. The wharfinger has also a lien by the maritime law, which extends to foreign vessels, and takes priority over a bottomry bond. h. A vendor's lien exists at common law. But if he de- livers the goods to the vendee, he loses his lien, except only in cases where he resorts to his right of stoppage in transitu. If the buyer gets actual possession the vendor loses his lien. 492 LiEW Law — Aeticle VIII, Sec. 180. c. A factor's lien existed at common law, upon goods of tlie principal coming into^ the factoT's possession, for charges in- cidentally iacrising in the course of business with relation to Siuch goods. But the right of a factor to a general lien for the balance due upon all goods of the principal, in their pos- session, is not, strictly speaking, a •common-law lien, but has long been sanctioned as arising from custom and commercial usage. See as to liens of faictors and warehousemen, post, pp. 384-388. 5. Lien of attorney. — At common law the attorney had a lien on the papers, deeds and documents in his possession in connection with any case or matter or proceeding upon which he had expended his time, and ooneeming which he had ren- dered professional services and for his costs. The statute now gives an attorney at law, who appears for a party, a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof in whosoever hands they may come ; and the lien can- not be affected by any settlement between the parties before or after judgment or final order. The court upon the peti- tion of the client or attorney may determine or enforce the lien. The lien attaches from the commencement of an action or special proceeding or the service of an. answer containing a counterclaim. Code of Civ. Proc., § 66 ; Judiciary Law, § 475; Goodrich v. McDonald, 112 N. Y. 157; West v. Bacon, 13 App. Div. 371. This statute gives a lien to an attorney upon a claim or right of the client to an award in Condemnation Proceedings. This lien attaches to the report of the conunissioners and to the final order of confirmation and to the award when paid. Gates V. De La Mare, 142 JST. Y. 307. The right to such an award depends not on ownership of the lands, at the time the proceeding is instituted or at the time the award is made. The lien does not attach to the land, it vests in the owner at the time his title is divested and not until then, and it does not pass to his grantee unless ex- pressly assigned. Matter of Schreirer, 159 App Div. 861 affirmed 211 IST. Y. 548. Where an attorney was retained by the year to conduct a number of cases, his lien attaches to a judgment in any one Lien of Attoewey. 493 of the cases, for the amount due under his contract. Where the retainer cannot be apportioned among the various cases, he is entitled to a lien upon the judgment which he recovered for any balance due under his general retainer, and also for the value of later services rendered by him as special counsel. Matter of Heinsheimer, 159 App. Div. 33. The provisions of section 475 of the Judiciary Law (form- erly Sec. 66 of the Code), does not authorize an attorney's lien for services rendered before the legislature for procur- ing the passage of a special act authorizing the commission- ers of the Land OfHce to act in connection with perfecting defendant's title to certain premises and releasing defendant from payment to the state of the balance of the purchase price unpaid. Morey v. Schuster, 159 App. Div. 602. An attorney's lien may be either general or particular. The general lien of an attorney attaches to all property of every kind and nature belonging to the client, which is in possession of the attorney, or suoh property which may come into his possession. This general lien, as a rule, is unassign- able. The particular lien of an attorney attaches only to specific property, or to a particular fund secured through the efforts of tie attorney. Such particular lien is assignable, provided such assignment is of such nature as to preserve his dient's confidence inviolate. Leshe v. lioaglcund, 64 Misc. 156. Where an attorney died before the litigation was termin- ated, his contract for compensation ceases and his legal rep- resentative cannot recover the amount agreed upon because death terminated the oontriact. The latter, however, may recover the amount of the reasonable value of the services rendered by the deceased attorney, under the contract not to exceed the amount therein specified. A defendant having knowledge of the lien of the attorney under section 475 of the Judiciary Law (formerly Sec. 66 of the Code), is bound to keep and retain a sum sufficient to discharge the attorney's lien. Sargent v. McLeod, 209 IST. T. 360. The lien of an attorney who died before the action was concluded does not spring from the contract, which the at- torney may have made in his life time, but from the statute which secures the compensation of the intestate as payable under correct legal rules. Ih. A client may discharge an attorney and procure the ser- vices of another when he desires to do so, but where the first 494 Lien Law — Aeticlb VIII, Sec. 180. attorney is without fault, the court will not enforce a substi- tution unless the amount due the first attorney is either paid or secured. Matter of Dunn, 205 IST. Y. 398. 6. When amount of attorney's Hen conclusive. — Where an attorney has succeeded in having the amount of his lien for services determined, the amount due him will be con- clusive on the parties, in any subsequent proceeding or ac- tion which he may be advised to bring. Matter of Winkler, 154 App. Div. 532. See also Randall v. Van Wagenen, 115 X Y. 527. 7. When surrogate cannot enforce lien of. — Although the surrogate under section 475 of the Judiciary Law (formerly Sec. 66 of the Code), has power to determine and enforce an attorney's lien, for services rendered to a legatee, he has no power to decree thait stock belonging to decedent shall be sold for the purpose of paying the attorney's lien and the balance of the proceeds paid to the legatee, who is entitled to receive it under the testator's will. Matter of Hasbrouck, 153 App. Div. 394. Whatever legal and equitable powers the surrogate has to enable him to discharge his statutory duties, he has no gen- eral equity jurisdiction. Ih. 8. Lien of attorney — corporation cannot file lien as to. — A corporation has no right to practice law. The practice of law is not a business open to all but a personal right limited to a few persons of good moral character, with specified quali- fications, ascertained and certified. The right to practice law is in the nature of a franchise conferred by the state for merit. It cannot be assigned or inherited but must be earned. One cannot practice law unless he has taken an oath of office and has become an officer of the court subject to its discipline, and in violating his duties as such, is liable to suspension or removal. It is not a lawful business except for members of the bar, who have complied with all the re- quirements of the statute and the rules of the court. As a corporation cannot practice law directly it cannot do so in- directly by employing competent lawyers to practice for it. Quando aliquid prohibetur ex direto prohibetur et per oh- liquium. An attorney's lien can only be successfully ascer- Lieu of Hotel Keeper. 495 tained and maintained by an attorney and oounoellor at law. Matter of Co-operative Law Co., 198 N". Y. 479 ; Matter of Bensel, 68 Misc. 70. § 181. Liens of hotel, apartment hotel, inn, boarding and lodging house keepers. — ^A keeper of a hotel, apartment hotel, inn, boarding house or lodging house, except an emigrant lodging house, has a lien upon, while in possession, and may detain the baggage and other property brought upon his premises by a guest, boarder or lodger, for the proper charges due from him, on account of his accommodation, board and lodg- ing, and such extras as are furnished at his request. If the keeper of such hotel, apartment hotel, inn, board- ing or lodging house knew that the property brought upon his premises was not, when brought, legally in possession of such guest, boarder or lodger, or had notice that such property was not then the property of such guest, boarder or lodger, a lien thereon does not exist. An apartment hotel within the meaning of this section includes a hotel wherein apartments are rented for fixed periods of time, either furnished or unfurnished, to the occupants of which the keeper of such hotel supplies food, if required. A guest of an apartment hotel, within the meaning of this section, includes each and every person who is a member of the family of the tenant of an apartment therein, and for whose support such tenant is legally liable. (As amd. by Laws 1899, chap. 380; Laws 1905, chap. 206.) Lien Law of 1897, § 71, re-enacted. Laws 1909, chap. 38. 1. Section 181 (formerly section 71) of the Lien Law, constitutional. — The Court of Appeals has held that the provisions of section 71 of the Lien Law of 1897, which are now embraced in section 181 of the Lien Law of 1909, are . eonstitutional, and that an innkeeper may detain property brought on his premises by a guest, even though the guest has no title to the property. In the absence of the common 496 Lien Law — Aeticle VIII, Sec. 181. law rule governing an innkeeper's lien, tlie court neverthe- less sustains the law on grounds of public policy, and de- clares that it does not violate the constitutional provision that no person can be deprived of his property without due pro- cess of law. Waters v. Gerard, 189 IST. Y. 302. a. The lien of a 'hotel-keeper tinder section 181 of the Lien Law (formerly section 71) extends to property in possession of a guest under a conditional contract of sale, which pro- vides tJiat the title thereto should remain in the vendor until the purchase price had been paid. The court holds that the lien of the innkeeper is superior to the right of the vendor to retake the chattel upon a breach by the guest of the condi- tions of the contract of sale. Ih. h. Perhaps the only way in which the owner of a chattel in the possession of a guest which has been taken to a hotel, inn, or boarding-house can be protected in his rights, is to serve notice upon the proprietor or innkeeper that the chattel in the possession of the guest belongs to the party giving the notice, if he can find out where the chattel has been taken. c. The decision of the Court of Appeals in the Waters case overrules the earlier decision in Barnett v. Walker (39 Misc. 323), which holds that the law is invalid upon the ground that the owner of a chattel cannot be deprived of his prop- erty without due process of law. d. Prior to the amendment of 1905 (Laws 1905, chap. 206), the proprietor of an apartment hotel had not lien upon the baggage of a guest brought upon the premises as it was held that an apartment hotel was neither an inn, boarding- house, or lodging-house within the meaning of ^e statute. Sherman v. Iroquois Hotel Co., 42 Misc. 217; s. c, 85 N. Y. Supp. 365. In that case the defendant, the Iroquois Hotel and Apart- ment Company, leased to plaintiff's husband certain apart- ments for a term of one year. The lease was in writing and the rent was payable monthly in advance, the defendant, the hotel company, being therein designated as the landlord and plaintiff's husband as the tenant. The apartments were un- furnished and were leased as a dwelling for himself and family. Defendant, under the lease, had no right to enter the premises except to make repairs. The plaintiff, the ten- Lien of Innneepee. 497 ant's wife, owned the furniture with whidh the apartments were furnished. Defendant seized the furniture claiming a lien thereon under section 71 of the Lien Law (as amended by Laws 1899, chap. 380), for rent of the apartments. Plain- tiff brought replevin against the hotel company for the fur- niture. Defendant claimed a lien upon the theory that the plaintiff's husband was a mere lodger. Lien sustained in court below. On appeal held, that the relation between plain- tiff's husband and the defendant, the hotel company, was not that of ■ hotel-keeper and guest, nor hotel-keeper and boarder or lodger within the meaning of section Yl of the Lien Law. That the relation between the husband and de- fendant was that of landlord and teiiant and that defendant had no lien upon the furniture of plaintiff. On this gi-ound, the judgment in favor of the defendant in replevin was re- versed, lb. In view of this decision the legislature in 1905 amended section 71 of the Lien Law, so as to embrace within its pro- visions the keeper of an apartment hotel. Z. Lien of inkeeper, hov(7 enforced. — An innkeeper having^ a lien may enforce it by sale, pursuant to article 9 of the Lien Law (§§ 200-210), or by sale pursuant to the provi- sions of §§ 207-208 of the General Business Law (Laws 1909, chap. 25) formerly embraced in Laws 1837, chapter 300. See post, page 529. 3. Lien — When superior to lien of chatel mortgage. — The lien of a hotel keeper under section 181 of the Lien Law, upon a piano, which a guest brings to the hotel, is superior to the lien of a mortgagee, in a chattel mortgage, given by the owner of the piano. And this rule applies where the mortgage is given after the piano was taken to the hotel, in the absence of laictual notice to the hotel keeper. Matthews v. Victor Hotel Co., 74 Misc. 426. 4. Notice to hotel keeper will defeat lien. — Section 181 of the Lien Law expressly declares that if the hotel keeper knew that property brought upon his premises was not legally in possession of the guest, a lien thereon does not exist in his favor. Plaintiff rented a piano to a guest at defendant's hotel. The truckman, when the piano was de- 32 498 Lien Law — Article VIII, Sec. 182. livered, handed to the clerk of the hotel a notice that the piano belonged to the plaintiff and was rented by the guest. Held, although neither the proprietor nor the manager of the hotel I)ersonally received the notice, yet in view of the fact that it was delivered at the time that the piano was delivered, to the person whose duty it was to receive the piano, the hotel keeper acquired no lien upon the instrument. Lurch v. Brown, 65 Misc. 190. § 182. Factors' lien on merchandise. — A person, in whose name any merchandise shall be shipped, is deemed the true owner thereof so far as to entitle the consignee of such merchandise to a lien thereon, 1. For any money advanced or negotiable security given by such consignee, to or for the use of the per- son in whose name such shipment is made; and 2. For any money or negotiable security received by the person in whose name such shipment is made, to or for the use of such consignee. Such lien does not exist where the consignee has notice, by the bill of lading or otherwise, when or be- fore money is advanced or security is given by him, or when or before such money or security is received by the person in whose name the shipment is made, that such person is not the actual and bona fide owner thereof. Lien Law of 1897, § 72, re-enacted aa § 182, Laws 1909, chap. 38. 1. List of creditors, when goods are transferred in bulk. — On April 23, 1914 (Laws, chap. 507), the legislature amended § 44 of the Personal Property Law to protect cred- itors of the seller, when goods are transferred in bulk. The statute provides that the vendor and vendee, five days before the sale, shall make a complete inventory, showing the cost price of the goods. The purchaser must also demand of the seller a verified list of the names and addresses of the cred- itors of the latter. The purcha.ser, five days before taking posseasion, must notify the creditors of the vendor of the pro- Factok's Lien. 499 posed sale, and " the price, terms and conditions thereof." Failure to comply with the statute entitles the creditors of the seller to a receiver of the property. The statute provides as follows: I 44. Transfer of gotfdi in bulk. — 1. The sale, transfer or assignment in bulk of any part or the whole of a stock of merchandise, or mer- chandise and of fixeures pertaining to the conducting of the business of the seller, transferrer or assignor, otherwise than in the ordinary course of trade and in the regular prosecution of said business, shall be void as against the creditors of the seller, transferrer or assignor unless the seller, transferrer or assignor and the purchaser, transferee or assignee shall a* least five days before the sale make a full and detailed inven- tory, showing the quantity and, so far as possible with the exercise of reasonable diligence, the cost price to the seller, transferrer or as- signor of each article to be included in the sale; and unless the pur- chaser, transferee or assignee demand and receive from the seller, transferrer or assignor a written list of names and addresses of the creditors of the seller, transferrer or assignor with the amount of the indebtedness due or owing to each and certified by the seller, trans- ferrer or assignor under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and unless the purchaser, trans- feree or assignee shall at least five days before taking possession of Kuch merchandise, or merchandise and fixtures, or paying therefor, no- tify personally or by registered mail every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof. 2. Sellers, transferrers and assignors, purchasers, transferees asd as- signees under this section shall include corporations, associations, co- partnerships and individuals. But nothing contained in this section shall apply to general assignments for the benefit of creditors or to sales by executors, administrators, receivers, trustees in bankruptcy, assignees under a voluntary assignment for the benefit of creditors or any public oflScer under judicial process. 3. Any purchaser, transferee or assignee who shall not conform to the provisions of this section upon application of any of the creditors of the seller, transferrer or assignor become a receiver and be held ac- countable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, transfer or assignment; provided, however, that any purchaser, trans- feree, or assignee, who shall conform to the provisions of this act shall not be held in any way accountable under this section to any creditor of the seller, transferrer or assignor or to the seller, transferrer or as- signee for any of the goods, wares, merchandise or fixtures that have come into the possession of such purchaser, transferee or assignee by virtue of such sale, transfer or assignment. (Laws 1914, chap, 507, in effect April 23, 1914.) 2, Factor's lien, hov7 protected. — A factor's lien for ad- vanct* which have been made, or which shall be made upon the security of merohandise, and the payment of com- 500 LiioN Law — AuTioj.K VllI, Sec. 183. missions or other cluirgcs ivrovidod for in tlic agrecnicnt., in the abfltaico of ckilivory to, or possession on lliu part of tho lienor of tho iiunvliiindia©, whelher in (ixIhIcik'o, or to coiiic into existence in iJio future, ia now pToti!cl(vI by tlie provi- sions of the Laws of 1911, cluiplci- 32'6, amondinK section 45 of the Personal Property Law. 'L'he Htiitiile jn'ovidcH for con- spicuous signs conlainiug tlio naiiin of tlio li(Mior; a desigiiii- tion of the liens, olainiod by fiiclora Or (■oiisifj.-noes tdgulliei- with a notice \o bo fiKul, which notice aim II bo vcridod by the lienor or his agent with tlic oflicer dosignaled in section '■2;'>'2 of the Lien Law (post, piigo 577). 'I'lio statute provides furllicr that such notice when liled shall be cniercd in a book provided for that purpoao wiiicli shall contain tho names of the owner and lienor; the number of the noLi(H! and tlu! daio of filing and the general cliaracter of the niercluiiidiao aw therein stated. Tho nanicH of llio owners shall be arranged in alphabetical order. Tho ollit'ors are required also at tho time of filing, upon riH]uost, to give Ibe perHoii tiling the notice a receipt containing the "siuhstanco of the entries made or to be made" as above n(^l. forth. Tho fees of the otfi'cera filing tho notice shall bo the same as tho fees pro- vided for in section 234 of th(! IJon Law (post, pagel 579). The provision made for the execuition of the certificate of satisfaction of tho lion must l)e /lied and the lion discharged of record. The statu l<* provides as follows: 8 45. Notice of liens upon merchandise or the proceeds thereof to secure loans or advances. — Liena upon merchcindiso or llio proceodM tliereof created by agreement for the purpose of securing tho repay- ment of loans or advancoH made or to be made ii|i<)ii the socuril.y of Bald merchandise and Die payment of commissions or oilier eliargeK provided for by such agreement, shall not be void or priwumod to bo fraudulent or void as against crodKorH or otherwise, by reason of want of delivery to or possession on the part of the lienor, wliethor such merchandise shall be in existence at the time of the croiition of the lien or shall come into existence MuliHoquently thereto or HJiali Hiibne- quently tiiereto lie acquiri^d by the person creating the Ii(^n, (irovidod there shall bo placed and maintained in a eonHpienoim plaice at tlie en- trance of every building or place in or which such morchandiHcs or any part thereof, shall be located, kept or stored, a sign on wliiili is printed in legible Knglish, t)ie name of the lienor iind a dcwlKnatlon of said lienor a-a lienor, factor or consignee, and provided furtlier that a notice of the lien is filed, stating: 1. The name of the lienor, and tlie name under which tlio lienor does busincBH, if an assumed names tlio principal place (if busiiii^ss of the lienor within tho state; and if tlie lienor is a partnership or aisoda- Liens foe Loans on Advances. 501 tion the names of the partners, and if a corporation the state under whose laws it was organized. 3. The name of the person creating the lien, and the interest of such person in the merchandise, as far as known to the lienor. 3. The general character of merchandise subject to the lien, or which may become subject thereto, and the period of time during which such loans or advances may be made under the terms of the agreement creating the lien. Such notice must be verified by the lienor or his agent, to the effect that the statements theiein contained are true to his knowledge. It must be filed with the officer designated in section two hundred and thirty-two of the lien law, in every town or city where the merchan- dise subject to the lien, or any part thereof, is or at any time shall be locatfd, keprt or stored, and also in the town or city where the prin- cipal office or place of business of the lienor within the state is or at any time shall be located. Such officers shall file every such notice presented to them for that purpose and shall endorse thereon its num- ber and at tlie time of its receipt. They shall enter in a book provided for that purpose, in separate columns, the names of the parties named in each notice so filed under the head of " owners " and " lienors ", the number of such notice and the date of the filing thereof, and the gen- eral character of the merchandise as therein stated. The names of the persons creating the liens, as stated in the notice, shall be arranged in alphabetical order under the head of " owners ". Such officers at the time of filing such notice shall upon request issue to the person filing the same a receipt in writing, containing the substance of the entries made or to be made as hereinabove provided. Such officers shall be en- titled to receive for their services hereunder, fees at the same rates as provided for in section two hundred and thirty-four of the Lien Law. Such notice may be filed at any time after the making of the agree- ment, and shall be effectual from the time of the filing thereof as against all rights of third parties thereafter arising. Upon the pay- ment or satisfaction of indebtedness secured by any lien specified in this section, the lienor or his legal representative, upon the request of any person interested in the said merchandise, must sign and acknowl- edge a certificate setting forth such payment or satisfaction. The offi- cer or officers with whom the notice of lien is filed must, on receipt of such certificate or a copy thereof certified as required by law, file the same in his office and write the word " discharged " in the book where the notice of lien is entered opposite the entry thereof, and the lien is thereby discharged. If tlie agreement creating such lien shall also give the lienor a right to or lien upon accounts receivable resulting from or which may re- sult from a sale or sales of tlifi merchandise, subject to the lien, or of part of such merchandise, such right or lien shall not be void or inef- fectual as against creditors or otherwise, by reason of want of posses- sion of any such account on the part of the lienor or by reason of failure to make or deliver a further assignment of any such account, provided a bill, invoice, statement or notice shall be mailed, sent or delivered to the person owing such account receivable, stating or indi- cating that the account is payable to the lienor, and such mailing', 502 Libit Law — Aeticle VIII, Sec. 182. sending or delivery of such bill, invoice, statement or notice sliaH have the same effect as a formal assignment of such account to the lienor named therein. (Laws 1911, chap. 326, in effect June 13, 1911.) 3. Factor. — A factor is an agent of the owner of chattels, into whose custody the chattek axe consigned for the purpose of disposing of them by sale for the owner. A factor is dis- tinguished from a broker in that a broker does not take phy- sical possession of property, but is authorized to act as agent of the owner only to negotiate for a disposition of it. a. The fiduciary relation also, which exists between a factor and his principal, is not destroyed by reason of the fact that the relation of debtor and creditor also exists bettveen them. The manner in which a factor keeps his account, the fact that he states periodical balances, the genenal nature of his reonittances, the fact that he renders accounts current, charging and crediting interest, does not change the fiduciary nature of his relation to his principal, because what the factor does he does .as the agent of his principal. Roca v. Byrne, 145 N. Y. 182. &. The factor's compensation is usually a commission on the purchase price of the goods. In some instances the fac- tor guarantees the payment of the purchase money, and thereby makes himself liable to his principal, and assumes all risks as to the solvency of the buyer. In case the factor guarantees the payment of the purchase price, be is said to act under a del credere commission, and usually charges a larger commission in order to compensate him for the risk he assumes as to the financial responsibility of purchasers. The question has been raised, whether a factor, when he guarantees payment, becomes a principal debtor, or remains only the agent of the owner. If a principal debtor he becomes personally liable to the owner; but if he is only an lagent, his liability arises only in case the purchaser fails to pay. See Woljf V. Koppell 5 Plill, 458 ; s. c, 2 Den. 368. 4. Factors distinguished from agent and broker. — An earns his commission when his work is done ; if he is a mere broker his commissions are earned when he produces an ac- ceptable customer. A factor, however, who is an agent to obtain and fill orders earns his commission when he has made delivery. Plaintiff, who was employed by defendant Factot's Lien. 503 to sell wines, wrote to his employer, after his contract was terminated saying : " I shall retain under my factor's lien all property now in my possession, belonging to the Frendi American Wine Co." Held, that plaintiff was not a broker or an agent, but a factor, and was not entitled to recover his eommissions until delivery of the goods of his principal, the delivery being essential to entitle him to his commissions. Ball V. French American Wine Co., 149 App. Div. 609. Orders taken by a factor and accepted by his principal but not filled are not sales, but are ordinary executoiry agree- ments. Ih. 5. Factor's lien. — A factor's lien, as we have seen, existed to a limited extent, at common law, and is designated as a particular lien. Such a lien was authorized upon the goods of the principal coming into the factor's possession, only for such charges as incidentally arose as to the care and custody of the goods, in the usual course of business. a. But the right of a factor to a general lien for llie bal- ance due upon all goods of the principal in the factor's poe- aession has long been recognized and sanctioned as arising from custom and commercial usage. " Where a general ac- count exists between a merchant and factor," says Lord Haedwicke, " and a balance is due to the factor, he may retain the ship and goods or produce, for such balance of his general account, as well as for the charges, customs, etc., paid on account of the particular cargo." Kruger v. Wilcox, Ambler's Eep. 252. 6. Lien, how lost. — A factor's lien for advances is a pos- sessory lien, which will be lost upon parting with the goods without in some way protecting the lien. The reasons which permit the unpaid vendor to stop goods in transitu upon the happening of the insolvency of the vendee apply with equal force to a factor's lien for advances made on goods of his principal. Circumstances under which the factor will not be estopped from asserting such lien discussed. Hollins v. Euhhard, 165 IST. Y. 534. 7. Factors' Act. — The right to pledge goods consigned to a factor for sale did not exist at common law. The rights and liabilities of factors in this regard and the rights of a 504 Lien Law — Aeticle VIII, Sec. 182. vendee or mortgagee deaJing with the factor is regulated by statute, both, in this country and in England. The rights and liabilities of factors in New York, in this connection, were regulated and defined by Laws 1830, chapter 179. The sub- stance of the first two sections of the Factors' Act have been incorporated in the foregoing section of the Lien Law. The remaining sections of the act are now embraced in the Per- sonal Property Law (Laws 1909, chap. 45, § 43), entitled " Factors' Act," which declares when a factor shall be deemed to be the true owner. It also declares that a person who accepts or takes merchandise in deposit from an agent as security for any antecedent debt, shall not acquire thereby or enforce any right or interest in or to such merchandise other than suossession, he cannot be compelled to surrender chattels on fhich he claims his lien until his lawful charges are paid. 'ndusirial Loan Assoc, v. Saul, 34 Misc. 188. a. If goods covered by a chattel mortgage duly filed come nto the possession of a warehouseman without the consent of he mortgagee, the former cannot sustain a lien upon them 'or storage charges as against the mortgagee. i. The mortgage contained a clause prohibiting a removal rf the goods from the residence of the mortgagor without the nortgagee's consent, and the filing of the mortgage was notice o the warehouseman of that fact. The latter, therefore, had 10 right to the possession of the goods, and no lien upon them. Baumann v. Jefferson^ 4 Misc. 147. See also Baumann v. Post, 16 Daly, 385, 12 N. Y. Supp. 213 ; Eisler v. Union Transfer & Storage Co., 16 Daly, 465. c. An assignee of the mortgagee may maintain such an ac- ion for conversion against a warehouse company, although he chattel mortgage was not technically covered by the assign- nent. Baumann v. Jefferson, 4 Misc. 147. 3. Lien of warehouseman enforced by sale under Lien Law. — Prior to the enactment of the Lien Law of 1897, a warehouseman was authorized to sell goods in his custody to satisfy his lien, pursuant to the provisions of Laws of 1879, jhapter 336. This statute was repealed by the Lien Law of 1897, and a warehouseman may now sell property as pro- vided bv article 9 (§§ 200-206) of the Lien Law, q. v. post, jp. 523'-527. 4. Negligence of warehouseman. — Plaintiff in an action :o recover dam'Higes against a warehouseman for trunks, de- ivered to him, upon proof that they were damaged by water, establishes a prima facie case of negligence. It was shown jy defendant that the trunks were stored below the level of ;he street, that the streets were torn up and obstructions placed [hereon by the city. During a rain storm of unusual sever- 516 Lien Law — Aeticle VIII, Sec. 183. ity, owing to the condition of the street and the boiling up of the sewers, the cellar became flooded, and before the trunks could be removed they were damaged by water. Held, that de- fendant having proceeded to remove the trunks promptly, he oould not be held liable for negligence because he failed to provide in advance means by which they could be removed more quickly. Murray v. Hayes, 151 N'. Y. Supp. 1. 5. Warehouseman — Duty of inspection. — A warehouse- man in the exercise of reasonable care, owes a duty to his patrons of making a reasonable inspection from time to time to see that the building remains safe and in a proper condi- tion. Under the common law, a warehouseman is liable for any loss or injury to the goods caused by his failure to exer- cise as to them, such care, as a reasonably careful owner of similar goods, would exercise, but he shall not be liable in the absence of an agreement to the contrary for any loss or injury to the goods which could not have been avoided by the exercise of such care. A warehouseman therefore, must be deemed to have held out to the public that his elevator was a proper and fit building in which to store grain, and for fail- ure to reasonably inspect from time to time he will be liable. Buffalo Grain Co. v. Sowerly, 195 N. Y. 355. 6. Remedies — Creditor of warehouseman. — The statute gives ample remedies to creditors whose debtor is the owner of a negotiable receipt. The creditor may reach it, both at law, and in equity. The General Business Law in this re- gard (§26) provides as follows: Creditors' remedies to reach negotiable receipts.— A creditor whose debtor is the owner of a negotiable receipt shall be entitled to such aid from courts of appropriate jurisdiction, by injunction and otherwise, in attaching such receipt or in satisfying the claim by means thereof as is allowed at law or in equity, in regard to property which cannot readily be attached or levied upon by ordinary legal process. § 183. Lien of bailee of animals. — A person keeping a livery stable, or boarding stable for animals, or pas- turing or boarding one or more animals, or who in connection therewith keeps or stores any wagon, truck cart, carriage, vehicle or harness, has a lien dependent -upon the possession upon each animal kept, pastured Livery Stable Keepee — Lien of. 517 or boarded by him, and upon any wagon, truck, cart, carriage, vebicle or harness, of any kind or description, stored or kept, under an agreement with the owner thereof, whether such owner be a mortgagor remaining in possession or otherwise, for the sum due him for the care, keeping, boarding or pasturing of the animal, or for the keeping or storing of any wagon, truck, cart, carriage, vehicle and harness, under the agreement, and may detain the animal or wagon, truck, cart, car- riage, vehicle and harness accordingly, until such sum is paid. (As amd. by Laws 1899, chap. 465.) Lien Law of 1897, § 74, re-enacted as § 183, Laws 1909, chap. 38. 1. Livery-stable-keeper — Tender. — An owner who offers to pay a livery-stable-keeper all charges for the keep of his animal on which the latter claimed a lien is not obliged to pay an exorbitant bill of items aggregating a sum largely in excess of what is due upon the lien. The offer to pay the lien is sufficient to enable him to maintain an action to re- cover his p'roperty without making a tender of the exact amount of the lien which the livery-stable-keeper refuses to state. Allen v. Corby, 59 App. Div. 1. a. A livery-stable-keeper claimed a lien upon a horse and wagon, and demanded of the owner a sum greatly in excess of what was actually due, and refused to deJiver the prop- erty except upon pa.yment of that sum. Held, in such a case that the owner was not obliged to make an actual physical tender of the amount of the lien. The law requires fair dealing, and obliges each party to give to the other full and fair information upon which to act. If the owner offers to pay all reasonable charges for the animal's keep it is suffici- ent, lb. 2. Livery-stable-keeper — Priority of chattel mortgage. — A livery-stable-keeper under section 183 of the Lien Law can acquire no lien upon a truck kept in his stable, and claim priority over the chattel mortgage given for the purchase price of the truck. This for the reason that the mortgagor acquired no title to the truck which remained the property £18 lim LA-w-^AmiQJM 7111, Sffio. 184. ' ' oi Ao^vrnxdw mQ\mi by &• okMA moftgm, ^9 nn&m hming only m equity of'^dinptiou in tlat Mtttali Bwdiidant Vtn Borak >oiPd@d iw««l hwm wltli drfwil" Mit Wlioftlw, d llv»y mao, and kspli lili teuolc Ji Wlwelw'i . bawi. PlaliiM'f, the vMidof oi' ft® iipneli, demanded It from Whoslap, who refused to deliv8i?4l, nklffllnf & Urn upoa it. Platetiff tlim bwugto an aetion to foMdoia lili mof Ipgi. liTs?!^, that the tlfle to tlis track wmdried ill plairatlC §« vflffldO'i?, trad that the livsa^-iliaWo-kgiBW' could aot slftlm a 11m, hv itowp iuptJ?l0f to the tililo ©if the pkiatif , tlie vin- doft Bamii Mamfaeturhg Co, v, Van Monk Slfl N. ¥, 00. fl. Bailee mbbo* create lien,— It leemi llmt where the ownmr of a ho^e ftltowtd one Drok® to uia the hopie until h& could diipoie of it, the lattM it a mn@ hdlm d the animil. If the bailee, without 1t» knowledge w ©onsent d the ownef, ftgreei with a livepy-»fcaMe^keeper, that the ktttif mm have ft lien m the ho»e Im? M» ke«^', luoh Um eaanot prev til, ai flgalMt the owner, who made no ftgreement fop the keep of the hori®. MamU v. Smhrn, 08 1pp. l>lv. 888. B00, §1 120, 121) pfovldii that a perioa may adm mlmii which hm@ »troy#d upon hli land, and have a Ilea for th«If keep, and if the animali m not redeemed wlthia An Am he may flk bl» notice of lien a provided by the itatute. Em, that the owner eannofc fflaintftla mpkvin foi- the anl- mall, within the flre-day pwlod, without legal offer to redeem thm by paying the eharge*. L^mh v, Ford, 72 App. DIv, 680, a. On® who pa*turei « eow Ii entitled to a Hen agaf n»fc the owner for the amount due for paiturlng and boardlag db ^ animal. Brown v. SutUvm, IM Mipp, mv. 87S, g 184. Um. ot baUM of motor vf biolM.-.A ^mtm k@«s>lng & garage or pine® fop tb« itorag «, mainta- nance, keeijing or wpalr of motor vMdm, u Mm& lyy artld© ©leron of the Mgbway law, and who In ©on* nectlon therewith itorei, maintain!, keepi or repairi any motor veblele or f urnlfhei ga»oline or other inp. Lien on Motoe Vehicles. 519 plies therefor at the request or with the consent of the owner, whether such owner be a conditional vendee or a mortgagor remaining in possession or otherwise, has a lien upon such motor vehicle for the sum due for such storing, maintaining, keeping or repairing of such motor vehicle or for furnishing gasoline or other supplies therefor and may detain such motor vehicle at any time it may be lawfully in his possession until such sum is paid. Added to lien Law of 1897, by Laws 1908, chap. 315, re-enacted as § 184 of the Lien Law, Laws 1909, chap. 38. 1. Possession essential to support lien. — The object of the Lien Law was to give garage owners and those therein speci- fied, a lien; but it was not intended by the legislature, as between a lienor and third parties, to change the common law rule as to the necessity of possession in order to preserve the lien. While continued actual possession may not be neces- sary as between the immediate parties, yet such possession is essential as between the lienor and third parties. Plain- tiff was engaged in the vocation of repairing motor vehicles and performed services and furnished materials in. and upon two motor cabs owned by the Prince George Carriage Com- pany. The cabs were subject to a purchase money mortgage beld by the deefndant, Delahaye Import Co. The carriage company made default in its payments on the mortgage. The mortgagee brought replevin and seized the motor cabs, which were sold at public auction. After repairs were made on the cabs, plaintiff voluntarily delivered possession of them to the Prince George Carriage Company, under an agree- ment that such delivery should not divest plaintiff of his lirau Held, that possession was essential in order to support the lien as between plaintiff and the defendant^ Delahaye Im- port Company, and that plaintiff lost his lien by delivering possession of the cabs to the Prince George Carriage Com- pany. Thourot V. Delahaye Import Co., 69 Misc. 351. 2. Automobile — No lien without consent of owner. — In order to maintain an action against the owner of an auto- mobile for storage, repairs and maintenance, plaintiff must establish by a preponderance of evidence, that he stored and 520 LiEKT Law — Article VIII, Sec. 184. repaired the .automobile, and furnished supplies therefor at the request or with the consent of the owner. Mere knowl- edge that repairs were being made does not necessarily im- ply suchi consent. The knowledge and consent of a lessee or sublessee, to repairs, is not suiEcient to bind the owner. A lessee or sublessee is not ejusdem generis with an owner, a conditional vendee or a mortgagor remaining in possession. Lloyd V. Kilpatrick, 71 Misc. 19. 3. Automobiles — As to liens on. — Prior to 1908 the keeper of a garage where automobiles were cleaned, repaired, and kept in proper condition, and stored for owners, had no lien as an artisan, under section 70' (now section 180) of the Lien Law, for repairs and supplies for an automobile kept in his garage, or for work done or materials furnished for repairing same at the owner's request, where the owner re- served the right to use the automobile at his pleasure. Nor had the keeper of such garage a warehouse lien thereon within the meaning of section 73 of the Lien Law (now section 112 of the General Business Law) . Smith v. O'Brien, 94 N. Y. Supp. 673. For § 112 of the General Business Law see ante, page 511. a. The court Mr. Justice Claek, observed that the gar- age is the modern substitute for the ancient livery stable, and it was always the common law that the livery-stable-keeper had no lien because the owner had and exercised the right to the use of the horse kept, and so the continuous possession was destroyed. As Chief Justice Best observed in Sevan v. Waters (3 Car. & Payne, 520), the horse may be taken out by the owner at any time, " and the first time it goes away, there is an end of the lien." Se also Grenell v. Cook, 3 Hill, 491 ; Jackson v. Cummins, 5 Mees. & W. 342 ; McFarland v. Wheeler, 26 Wend. 474. Ih. i. It is well settled by these authorities that interruption of possession destroys the lien of the livery-stable-keeper, and the legislature, therefore, in 1908, passed the above statute to bring him within the protection of the Lien Law. " The garage-keeper," says Justice Claekb^ " is like unto the livery stable-keeper, but he comes not within the language of the statute." lb. c. In view of this decision in Smith v. O'Brien, the legisla- ture in 1908 (Laws 1908, chap. 315) added section 75 to the Lien Law, re-enacted Laws 1909 as section 184, chap. 38. Bailees eoe Hike. 521 § 185. Lien of manufacturers and throwsters of silk goods. — All persons or corporations engaged in the business of manufacturing, spinning or throwing silk into yarn or other goods, shall be entitled to a lien upon the goods and property of others in their pos- session for the amount of any account that may be due them, from the owners of such silk, by reason of any work and labor performed, and materials fur- nished in or about the manufacturing, spinning or throwing of the same, or other goods, of such owner or owners. Such lien shall not be waived or impaired by the taking of any note or notes for the moneys so due, or for the work and labor performed and mate- rials furnished. Added to Lien Law of 1897, Laws 1908, chap. 395, re-en- acted as § 185 of the Lien Law, Laws 1909, chap. 38. § 186. Lien of bailees for hire. — ^Every person, firm or corporation engaged in performing work upon any watch, clock or jewelry for a price shall have a lien upon any such watch, clock or jewelry upon which such person, firm or corporation performs such work for the amount of any account that may be due for such work. Such lien shall also include the value or agreed price, if any, of all materials furnished by such bailees for hire in connection with such work, whether added to such article or articles or otherwise. If such account remain unpaid for one year, after completing such work, such bailees for hire may, upon thirty days' notice in writing to the owner specifying the amount due and informing him that the payment of such amount within thirty days will entitle him to redeem such property, sell any such article or articles at public or bona fide private sale to satisfy the account. The proceeds of the sale, after paying the expenses thereof, shall be applied in liquidation of the indebtedness se- 522 Lien Law — Aeticle VIII, Sec. 186. cured by sucli lien and the balance, if any, shall be paid over to the owner. Such notice may be served by mail, directed to the owner's last known address, or, if the owner or his address be unknown, it may be posted in two public places in the town, village or city where the property is located. Such notice shall be "written or printed. Nothing herein contained shall preclude the remedy of enforcing such lien by action, as provided in article nine of this chapter. Added to Lien Law, Laws 1914, chap. 241, in effect April 8, 1914. LIEN LAW— ARTICLE IX. [Laws 1909, Chap. 38.] ENFORCEMENT OF LIENS ON PERSONAL PROPERTY. Section 200. Sale of personal property to satisfy a lien. 201. Notice of sale. 203. Sale to be advertised. 203. Redemption before sale. 204. Disposition of proceeds. 205. Remedy not exclusive. 206. Enforcement by action; when and in what courts. 207. Warrant to seize chattel; proceedings thereupon. 208. Judgment. 209. Action in inferior court. 210. Application. § 200. Sale of personal property to satisfy a lien. — A lien against personal property, other than a mort- gage on chattels, and the lien of a keeper of a hotel, apartment hotel, inn, boarding house or lodging-house, except an emigrant lodging-house, if in the legal pos- session of the lienor, may be satisfied by the public sale of such property according to the provisions of this article. (As amd. by Laws 1910, chap. 214.) Lien Law of 189Y, § 80, re-enacted as § 200, Laws 1909, chap. 38. Remedy by sale. — The remedy of a lienor, to enforce his lien by a sale of chattels (other than one holding a chattel mortgage), pursuant to article 7 of the Lien Law, is declared not to be exclusive. See § 205, post, page 527. A lienor may foreclose his lien by sale in other modes, where the statute prescribes the mode, as in case of railroads, common carriers, express companies, pawnbrokers, innkeepers, and others, or a lienor may, if he desires, foreclose his lien by action, unless the statute prescribes an exclusive remedy for a particular lien, pursuant to the provisions of sections 206-210 of the Lien Law (formerly embraced in the Code of Civil Procedure^ sections 1737-1741) . (523) 524- Lien Law — Akticle IX, Sec. 201. For the provisions of law as to other modes of sale or fore- closure and the statutes applicable thereto, and the sections of the Code governing foreclosure by action, see under section 85 of the Lien Law and statutes there cited, post, page 458 et seq. § 201. Notice of sale. — Before such sale is held the lienor shall serve a notice upon the owner with due diligence within such county, if such owner can be found when such lien arose, if not then to the person for whose account the sanae is then held personally, provided such service can be made with due diligence within the county where such lien arose, but if such person cannot with due diligence be found within such county, then such notice shall be served by mailing it to him at his last known place of residence, or to his last known post office address. A like notice shall be served in the same way upon any person who shall have given to the lienor notice of an interest in the property subject to the lien. Such notice shall contain a statement of the following facts: 1. The nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due; 2. A brief description of the personal property against which the lien exists; 3. The estimated value of such property; 4. The amount of such lien, at the date of the notice. It shall also require such owner or person to pay the amount of such lien, on or before a day mentioned therein, not less than ten days from the service thereof, and shall state the time when and place where such property will be sold, if such amount is not paid. If the agreement on which the lien is based provides for the continuous care of property the lienor is also entitled to receive all sums which may accrue under the agreement, subsequent to the notice and prior to Sale to be Advertised. 525 payment or a sale of the property; and the notice shall contain a statement that such additional sum is de- manded. Such notice shall be verified by the lienor to the effect that the lien upon such property is valid^ that the debt upon which such lien is founded is due and has not been paid and that the facts stated in such notice are true to the best of his knowledge and belief. (As amd. by Laws 1899, chap. 369.) Lien Law of 1897, § 81, re-enacted as § 201, Laws 1909, chap. 38. Sale without notice, void. — A. bailee who sells chattels stored with him, to satisfy his lien for storage, must serve the notice on the owner as prescribed by section 81 of the Lien Law, and the service of such notice is a condition precedent to his right to sell the chattels. A sale, in the absence of such notice, is void as against the owner. Robinson v. Wappans, 34 Misc. 199. § 202. Sale to be advertised. — Each sale of personal property to satisfy a lien thereon shall be at public auction to the highest bidder, and shall be held in the city or town where the lien was acquired. After the time for the payment of the amount of the lien speci- fied in the notice required to be served by the preced- ing section, notice of such sale, describing the prop- erty to be sold, and stating the name of the owner or person for whose account the same is then held and the time and place of such sale, shall be published once a week, for two consecutive weeks, in a newspaper published in the town or city where such sale is to be held, and such sale shall be held not less than fifteen days from the first publication; if there be no news- paper published in such town, such notice shall be posted at least ten days before such sale in not less than six conspicuous places therein. (As amd. by Laws 1899, chap. 369.) Lien Law of 1897, § 82, re-enacted as § 202, Laws 1909, chap. 38. 526 Lien Law — Article IX, Secs. 203, 204. Validity of sale — Notice to owner. — If a lienor desires to foreclose his lien on chattels in his possession, not secured by a chattel mortgage, he must, before he can lawfully sell the chattels, serve upon the owner and parties in interest a veri- fied notice as prescribed in § 201 of the Lien Law, showing the nature of the debt, description and value of property, amount of lien and demand for payment at a time and place specified. He must also, if he sells the chattels, serve a notice of sale as prescribed in § 202 of the Lien Law. The notice of the amount due and demand for payment under § 201 can not be served concurrently, with the notice of sale pursuant to § 202. The latter must be served " after the time for the payment " of the amount of the lien, as specified in the demand for payment, pursuant to § 201. The notices can not run concurrently. Froohs Engine Co. v. Greenstein, 153 IsT. Y. Supp. 1080. § 203. Redemption before sale. — At any time before such property is so sold, the owner thereof may re- deem the same by paying to the lienor the amount due on account of the lien, and whatever legitimate ex- penses have been incurred at the time of such payment in serving the notice and advertising the sale as re- quired in this article. Upon making such payment, the owner of such property is entitled to the possession thereof. Lien Law of. 1897, § 83, re-enacted as § 203, Laws 1909, chap. 38. § 204. Disposition of proceeds. — Of the proceeds of such sale, the lienor shall retain an amount suffi- cient to satisfy his lien, and the expenses of adver- tisement and sale. The balance of such proceeds, if any, shall be held by the lienor subject to the demand of the owner, or his assignee or legal representative, and a notice that such balance is so held shall be served personally or by mail upon the owner of "the property sold. If such balance is not claimed by the owner or his assignee or legal representative within Disposition of Peooeeds. ' 527 thirty days from tlie day of sale, such, balance shall he deposited with the treasurer or chamberlain of the city or village, or the supervisor of the town, where such sale was held. There shall be filed with such deposit, the affidavit of the lienor, stating the name and place of residence of the owner of the property sold, if known, the articles sold, the prices obtained therefor, that the notice required by this article was duly served and how served upon such owner, and that such sale was legally and how advertised. There shall also be filed therewith a copy of the notice served upon the owner of the property and of the notice of sale published or posted as required by this article. The officer with whom such bala,nce is deposited shall credit the same to the owner of the property, and pay -the same to such owner, his assignee or legal repre- sentative, on demand and satisfactory evidence of identity. If such balance remains in the possession of such officer for a period of five years, unclaimed by the person legally entitled thereto, it shall be transferred to the general funds of the town, village or city, and be applied and used as other moneys belonging to such town, village or city. Lien Law of 1897, § 84, re-enacted as § 204, Laws 1909, chap. 38. § 205. Remedy not exclusive. — The preceding pro- visions of this article do not preclude any othejr remedy by action or otherwise, now existing, for the enforce- ment of a lien against personal property, or bar the right to recover so much of the debt as shall not be paid by the proceeds of the sale of the property. Lien Law of 1897, § 85, re-enacted as § 205, Laws 1909, chap. 38. 528 Lien Law — Article IX, Sec. 205. Sales to Satisfy Liens. 1. Other modes of enforcing liens. — One having a lien on personal property is not bound to enforce it by sale pursuant to article 9 of the Lien Law, as the remedy therein prescribed is not exclusive, nor is he obliged to resort to the remedy by action as prescribed in that article, as the statute expressly declares that the remedy by action is not exclusive. Other modes of sale are prescribed by various acts of the legislature in favor of persons having specific liens on personalty which they are not obliged to enforce under sections 200-205, nor are they obliged to bring an action to enforce the lien as pro- vided in sections 206-210 of the Lien Law. Those having specific remedies for enforcing liens by sale include railroad companies, who have liens upon freight and unclaimed bag- gage; also express companies, proprietors of stage coaches, canal boats and steamboats, innkeepers, traven-keepers, and pawnbrokers. The right of a transportation company to sell freight and unclaimed baggage is contained in the Railroad Law (Laws 1896, chap. 565, § 46) which includes railroads and transportation companies. Pawnbrokers are given au- thority to sell unclaimed pledges by the General Business Law (Laws 1909, chap. 25, being chapter 20 of the Con- solidated Laws, Art. 5, §§ 48-50). Hotel, inn, or traven- keepers have a right to sell unclaimed articles after one year pursuant to sections 207-208 of the General Business Law above referred to. Proprietors of stages and canal boat lines, and proprietors of steamboats are given the right to sell un- claimed trunks, boxes, or baggage, pursuant to sections 280- 287 of the General Business Law. 2. Pawnbrokers. — The law with respect to the right of a pawnbroker to sell pledges was formerly embraced in Laws 1883, chapter 339, and is now contained in section 48 of the General Business Law (Laws 1909, chap. 25), which provides as follows : § 48. Sale of unclaimed pledge by pawnbroker. — No pawnbroker shall sell any pawn or pledge until the same shall have remained one year in his possession, and all such sales shall be at public auction and not otherwise and shall be conducted by licensed auctioneers of the city where the business shall be carried on or of an adjoining city. § 49. Notice of such sale. — Notice of every such sale shall be pub- lished for at least six days previous thereto, in at least two of the Hotel Keepee — Liew of. 520 daily newspapers printed in the city where the business shall be car- ried on, and also in two daily newspapers of the city where the sale ia to take place and to be designated by said mayor, and such notice shall specify the time and place at which such sale is to take place and the name of the auctioneers by whom the same is to be conducted and a description of the goods or articles to be sold. § 50. Disposition of proceeds. — The surplus money, if any, arising^ from any such sale, after deducting the amount of the loan, the in- terest then due on the same, and the expense of the advertisement and sale, shall be paid over by the pawnbroker to the person who would be entitled to redeem the pledge in case no such sale had taken place. Pawnbrokers, when they act in good faith are also protected by tha Factors Act. See authorities under § 182, page 498, ante. 3. Hotel-keepers. — The right of hotel, inn, or tavern- keepers to sell unclaimed articles, goods, or things which have been in their possession for a period of one year was formerly embraced in Laws 1837, chapter 300, amended Laws 1901, chapter 313, and is now contained in sections 207-208 of the General Business Law (Laws 1909, chap. 25), which pro- vides as follows: § 207. May sell articles unclaimed after one year; notice to owner; publication.— Every hotel, inn or tayerne keeper within this state who shall have any unclaimed article, goods or thing in his possession for- a period of one year, at least, whether a receipt or check for the same may, or may not, have been given to the person who left the same, may proceed to sell the same at public auction and out of the proceeds may retain the expenses of advertising and sale thereof; but no such sale shall be made unless, in case the name and residence of the owner shall be known or ascertained, notice of such sale be sent to the owner by mail; nor shall any such sale be made until the expiration of four weeks from the publication of a notice of such sale in a newspaper published at or nearest the place at which such article, goods or thing was left and where such sale is to take place; and said notice shall contain » description of such article, goods or thing and the time and place of sale; and the expenses incurred for advertising shall be a lien upon such article, goods or thing in a ratable proportion, according to the value of each article, package or parcel, if more than one. § 208. Disposition of balance of proceeds of sale. — Such hotel, inn or tavern keeper shall make an entry of the balance of the proceed* of the sale, if any, of each article, goods or thing left by the same per- son, as near as the same can be ascertained, and at any time within five years thereafter shall refund any surplus so retained to the owner of such article, goods or thing, his heirs or assigns, on satisfactory proof of such ownership. In case such balance shall not be claimed by the rightful owner within five years after the sale as above specified then it shall be paid to the county treasurer for the use of the county poor of said county- 34 530 Lien Law — Auticle IX, Sec. 205. 4. Stage companies and carriers by water. — The right of proprietors of stage lines, canal boat lines, and steamboats to sell unclaimed trunks, boxes, or baggage formerly author- ized by Laws 1837, chapter 300, is now contained in sections 280-284 of the General Business Law (Laws 1909, chap. 25), which provides as follows: S 280. Duty of carrier as to unclaimed articles. — The proprietors of the several lines of stages and the proprietors of the several canal hoat lines, and the proprietors of the several steamboats, who shall have any unclaimed trunks, boxes or baggoge within their custody, shall immediately enter the time the same was left, with a proper description thereof, in a book to be by them provided and kept for that purpose. In case the name and residence of the owner shall be ascer- tained it shall be the duty of such person who shall have any such property as above specified, to immediately notify the owner thereof by mail. § 281. Description to be made and published. — In case there shall not be any information obtained as to the owner, it shall be the duty of the person having the possession thereof, to make out a correct writ- ten description of all such property as shall have been unclaimed for thirty days, stating the time the same came into his possession, and publish said description in a newspaper designated by him in his county once a week for three weeks successively. § 282. Packages to be opened and contents sold; proceeds of sale. — In case the said property shall remain unclaimed for sixty days after the said publication, it shall be the duty of the person or company having possession thereof, to apply to a magistrate of the town or city in which said property is retained, in whose presence and under whose direction said property shall be opened and examined, and an inven- tory thereof taken by said magistrate; and if the name and residence of the owner is ascertained by such examination, it shall be the duty of the magistrate forthwith to direct a notice thereof to such owner, by mail; and if said property shall remain unclaimed for three months after such examination, it shall be the further duty of the person or company having possession thereof to apply to a magistrate as afore- said; and if said magistrate shall deem such property of sufficient value, he shall cause the same to be sold at public auction, giving six days' previous notice of the time and place of such sale; and from the proceeds of such sale he shall pay the charges and expenses legally incurred in respect to said property, or a ratable proportion thereof to each claimant, if insufiicient for the payment of the whole amount; and the balance of the proceeds of such sale, if any, the said magis- trate shall immediately pay to the overseers of the poor of said town or city, for the use of the poor thereof; and the said overseers shall make an entry of such amount, and the time of receiving the same, upon their official records, and it shall be subject at any time within seven years thereafter, to be reclaimed by, and refunded to, the owner of such property, his heirs or assigns, on satisfactory proof of such ■ownership. § 283. Lien for expenses of proceedings. — The person making the Express Companies. 531 entry of unclaimed property as above specified, shall be entitled to twelve and a half cents for each trunk, box, bale, package or bundle so entered, and shall have a lien on the property so entered, until pay- ment shall be made; and in case any additional expense shall be in- curred for printing, the lien shall continue until payment shall be made for such additional expense. § 284. Penalty for violation of preceding sections. — In case any per- son shall neglect or refuse to comply with the provisions of the .preced- ing sections of this article, he shall forfeit the sum of five dollars lor each and every trunk, box or bundle of baggage so neglected as above specified, to the benefit of any person who shall sue for the same, in his own name, in an action of debt in any court having cognizance thereof. 5. Express companies. — The right of express companies or persons engaged in express business who have unclaimed articles, goods, or things not perishable in their possession for a period of one year may sell the same at public auction, form- erly authorized by Laws 1855, chapter 523, is now contained in sections 285-287 of the General Business Law (Laws 1909, chap. 25), which provides as follows: §§ 285. Sale of unclaimed articles by express companies; notice thereof; disposition of proceeds of sale. — Every express company, or person engaged in the express business, who shall have had any un- claimed article, goods or things, not perishable, in its or his possession, for a period of one year at least, may proceed to sell the same at public auction, and out of the proceeds may retain the charges of transpor- tation and storage of such article, goods or things, and the expenses of advertising and sale thereof; but no such sale shall be made, until the expiration of four weeks from the first publication of notice of such sale, in a newspaper published at or nearest the place at which such article, goods or thing was directed to be left, and also at the place where such sale is to take place; and said notice shall contain a description of such article, goods or thing, the place at which the same was to be left, as near as may be, together with the name of the person to whom directed, if known, and the expenses incurred for advertising shall be a lien upon such article, goods or thing, in a ratable propor- tion, according to the value of each article, package or parcel, if more than one. In case such unclaimed article, goods or thing shall in its nature be perishable, the same may be sold as soon as it can be, on giving the notice required in this section, after its receipt at the city, town or village to which it was directed. § 286. Surplus to be paid to owner.- — Such express company, or per- son engaged in the express business, shall make an entry of the balance of the proceeds of the sale, if any, of each article, goods or thing di- rected to the same person, as near as can be ascertained, and at any time within five years thereafter, shall refund any surplus so retained to the owner of such article, goods or thing, his heirs or assigns, on satisfactory proof of such ownership. 532 Lien Law — Article IX, Sec. 205. § 287. After five years if unclaimed to be paid to county treasurer. — In case such balance shall not be claimed by the rightful owner within five years after the sale as above specified, then it shall be paid to the county treasurer, for the use of the county poor of said county. 6. Railroad companies. — The right of railroad companies to dispose of unclaimed freight and baggage which have been in their possession for a period of sixty days is contained in the Eailroad Law (Laws 1890, chap. 565, § 46), which pro- vides as follows: Unclaimd freight and baggage — Railroads and transportation com- panies — Delivery to warehouseman. — Every railroad or other transpor- tation corporation, doing business in this state, which shall have un- claimed freight or baggage, not live stock or perishable, in its posses- sion for the period of sixty days, may deliver the same to any ware- house company, or person or persons engaged in the warehouse business, within this state, and take a warehouse receipt for the storage thereof. Upon such delivei-y and upon taking such warehouse receipt, every such railroad or other transportation corporation sihall be discharged of all liability in respect to any such unclaimed freight or baggage from and after such delivery. At any time within two years after such delivery, such railroad or other transportation corporation shall surrender and transfer such warehouse receipt to the owner of any such unclaimed freight or baggage upon demand, and upon payment of all charges and expenses for transportation then due, if any, to any such railroad or other transportation corporation. (Railroad Law, § 46.) Sale after one year. — In case any such railroad or other transporta- tion company shall have had unclaimed freight or baggage, not live stock or perishable, in its possession for a period of one year and shall not have delivered . the same to a warehouse company or person or persona engaged in the warehouse business as above provided, then such railroad or other transportation company may proceed to sell the same at public auction, and out of the proceeds may retain the charges of transportation, handling and storage of such unclaimed freight or baggage, and the expenses of advertising and sale thereof; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale, to be published weekly in a news- paper published in or nearest the town or city to which such unclaimed freight or baggage was consigned, or at which it was directed to be left, and also at the town or city where such sale is to take place; and said notice shall contain a general description of such unclaimed freight or baggage, the name of the shipper thereof, if known, and a statement of the consignment thereof, whether to a designated con- signee or to order, if known, or the place at which the same was to be left, as near as may be; and the expenses incurred for advertising shall be a lien upon such unclaimed freight or baggage in a ratable proportion, according to the value of such article, package or parcel, if more than one. Such railroad or other transportation company shall make an entry of the balance of the proceeds of the sale, if any, of the unclaimed freight or baggage consigned to the same consignee or cov- Sale by Foeeclosube. 533 ered by each consignment, as near as can be ascertained, and at any time within five years thereafter, shall refund any surplus so retained to the owners of such unclaimed freight or baggage, his personal repre- sentatives or assigns, on satisfactory proof of such ownership. In case such balance shall not be claimed by the rightful owner within iive years after the sale as above specified, then it shall be paid to the county treasurer, for the use of the county poor of the county where the sale is made. (Railroad Law, § 46.) Sale of live stock and perishable property. — Unclaimed live stock and perisliable freight or baggage may be sold by any such railroad or other transportation corporation without notice, as soon as it can be, upon the best terms that can be obtained. All moneys arising from the sale of any such unclaimed live stock, perishable freight or baggage, after deducting therefrom all charges and expenses for transportation, storage, keeping, commissions for selling the property, and any amount previously paid for its loss or non-delivery, shall be deposited by the corporation making such sale with a report thereof, and proof that the property was live stock or perishable freight, with the comptroller for the benefit of the general fund of the state, and shall be held by him in trust for reclamation by the person or persons entitled to receive the same. (Eailroad Law, § 46.) 7. Sale by foreclosure. — Sale by foreclosure as provided in the Lien Law (§§ 206-210) may be resorted to by tbe lienor if he deems it advisable. These provisions of the Lien Law, prior to 1909, were embraced in sections 1737-1741 of the Code of Civil Procedure and have now been incorporated in article 9 of the Lien Law. This remedy by foreclosure, however, has no application where a mode of enforcing a lien upon a chattel is specifically prescribed by law, declaring that remedy exclusive. If, however, the statute giving any other remedy does not declare specifically that the statutory remedy is exclusive, the lienor may resort to any other remedy. § 206. Enforcement by action; when and in what courts. — An action may be maintained to foreclose a lien upon a chattel, for a sum of money, in any case where such a lien exists at the commencement of the action. The action may be brought in any court, of record or not of record, which would have jurisdiction to render a judgment, in an action founded upon a con- tract, for a sum equal to the amount of the lien. Code of Civil Procedure, § 1737, re-enacted as § 206 of the Lien Law, Laws 1909, chap. 38. 534 Lien Law — Article IX, Secs. 207, 208, 209. § 207. Warrant to seize chattel; proceedings there- upon. — ^Where the action is brought in the supreme court, the city court of the city of New York, or a county court, if the plaintiff is not in possession of the chattel, a warrant may be granted by the court, or a judge thereof, commanding the sheriff to seize the chattel and safely keep it to abide the final judgment in the action. The provisions of title third of chapter seven of the Code of Civil Procedure apply to such war- rant, and to the proceedings to procure it, and after it has been issued, as if it was a warrant of attachment, except as otherwise expressly prescribed in this article. Code of Civil Procedure, § 1738, re-enacted as § 207 of the Lien Law, Laws 1909, chap. 38. § 208. Judgment. — In an action brought in a court specified in the last section, final judgment, in favor of the plaintiff, must specify the amount of the lien, and direct a sale of the chattel to satisfy the same and the costs, if any, by a referee appointed thereby, or an officer designated therein, in like manner as where a sheriff sells personal property by virtue of an execu- tion; and the application by him of the proceeds of the sale, less his fees and expenses, to the payment of the amount of the lien, and the costs of the action. It must also provide for the payment of the surplus, to the owner of the chattel, and for the safe keeping of the surplus, if necessary, until it is claimed by him. If a defendant, upon whom the summons is personally served, is liable for the amount of the lien, or for any part thereof, it may also award payment accordingly. Code of Civil Procedure, § 1739, re-enacted as § 208 of the Lien Law, Laws 1909, chap. 38. § 209. Action in inferior court. — Where the action is brought in a court, other than one of those specified in section two hundred and seven, if the plaintiff is not ©ALE Actions in Infeeior Courts, 535 in possession of the chattel, a warrant, commanding the proper officer to seize the chattel, and safely keep it to abide the judgment, may be issued, in like manner as a warrant of attachment may be issued in an action founded upon a contract, brought in the same court; and the provisions of law, applicable to a warrant of attachment, issued out of that court, apply to a war- rant issued as prescribed in this section, and to the pro- ceedings to procure it, and after it has been issued; except as otherwise specified in the judgment. A judg- ment in favor of the plaintiff, in such an action, must correspond to a judgment, rendered as prescribed in the last section, except that it must direct the sale of the chattel by an officer to whom an execution, issued out of court, may be directed; and the payment of the surplus, if its safekeeping is necessary, to the county treasurer, for the benefit of the owner. Code of Civil Procedure, § 1Y40, re-enacted as § 209 of the Lien Law, Laws 1909, chap. 38. § 210. Application. — Sections two hundred and six to two hundred and nine inclusive do not affect any existing right or remedy to foreclose or satisfy a lien upon a chattel, without action; and they do not apply to a case, where another mode of enforcing a lien upon a chattel is specially prescribed by law. Code of Civil Procedure, § 1741, re-enacted as § 210 of the Lien Law. Laws 1909, chap. 38. LIEN LAW — ARTICLE X. [Laws 1909, Chap. 38.] CHATTEL MORTGAGES. Section 230. Chattel mortgage to be filed. 331. Corporate mortgages against real and personal property. 232. Where filed. 233. Filing and entry. 234. Fees. 235. Mortgage invalid after one year, unless statement is filed. 236. Duration of lien of mortgage on canal craft. 237. Copies to be evidence of certain facts. 238. Mortgage, how discharged of record. § 230. Chattel mortgage to be filed. — Every mort- gage or conveyance intended to operate as a mortgage of goods and chattels or of any canal boat, steam tug, scow or other craft, or the appurtenances thereto, navi- gating the canals of the state, which is not accom- panied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, is absolutely void as against the creditors of the mortgagor, and as against subsequent purchas- ers and mortgagees in good faith, unless the mortgage, or a true copy thereof, is filed as directed in this article. This article shall not apply to agreements creating liens upon merchandise or the proceeds thereof for the purpose of securing the repayment of loans or advances made or to be made upon the security of said merchan- dise and the payment of commissions or other charges provided for by such agreement, where the conditions specified in section forty-five of the personal property law are complied with. (As amd. by Laws 1911, chap. 326.) Lien Law of 1897, § 90, re-enacted as § 230, Laws 1909, chap. 38. (536) Chattel Moetgage — Filing, 537 The provisions of chapter 326 of the Laws of 1911, amend- ing the Personal Property Law, relating to " liens upon mer- chandise and the proceeds thereof created by agreement for the purpose of securing the repayment of loans and advances upon the security of said merchandise," will be found under § 182 of the Lien Law, relating to " Factor's Liens on Mer- chandise." For the text of the statute, see ante, page 498. 1. Prior statutes. — The Lien Law of 1897, with respect to chattel mortgages, is a substantial re-enactment of the Laws of 1833, chapter 279, section 1, and Laws of 1858, chapter 247, superseded by Laws of 1864, chapter 412, sec- tions 1 and 2, as to canal boats. The provisions of these early statutes are re-enacted without material change, and the early decisions are applicable to the Laws of 1897 and 1909. 2. Filing — Not essential except as to creditors. — The provisions of the Lien Law, § 230, which requires that either the mortgage or a copy be filed, or that it be accompanied by a change of possession, if not complied with, does not affect the validity of the mortgage between the parties. It is a protection only to creditors and to subsequent purchasers and mortgagees in good faith. Accordingly held, that where the original transaction between the parties was intended, not as a pledge of chattels, but as a mortgage, with the result that the creditor after default had legal title to the chattels. He had the right therefore, to gain possession by an action of replevin. Gandy v. Collins, 214 !N^. Y. 293. An agreement to keep and store property in the name of the creditor to secure a loan, which loan was used to purchase the property, does not operate as a pledge of the chattels, but as a chattel mortgage. Ih. a. Plaintiff sold a truck to one Van Eonk and took back a chattel mortgage to secure the purchase money which was properly filed, held, that the title to the truck remained in plaintiff, the vendor, and the vendee had only an equity of redemption in the property. Held, also that defendant Wheeler a livery stable keeper, who kept the truck in his stable with five horses belonging to defendant Van Eonk, could ac- quire no lien on the truck, superior to the title of plaintiff the vendor of the truck. Barrett Manufacturing Co. v. Van Ronlc, 212 K Y. 90. 538 Lien Law — Aeticle X, Sec. 230. Plaintiff's assignor sold to defendant Feinstein twenty-six ranges under a contract which declared that the ranges should remain personal property and that the title should remain in plaintiff's assignor until fully paid for. Vendor knew they were used by the defendant in performing the plumbing contract with defendant Morrison, and that they were to be placed in the house. The contract of sale was not filed, and defendant Morrison did not know of the conditional sale until after his contract was completed. Held, that by reason of the failure to file a contract of conditional sale, plaintiff's assignor could not maintain an action to foreclose a lien on the ranges. Jacobs v. Feinstein, 133 App. Div. 416. 3. Mortgage distinguished from sale. — A mortgage of chattels is governed by the provisions of the Lien Law. A sale is governed by the Personal Property Law (Laws 1909, chap. 45). In case of a sale, of course, the title to the goods becomes absolute in the vendee, unless it is made pursuant to a conditional contract permitting the title to remain in the vendor until paid for, as provided by article 4 of the Personal Property Law, §§ 60-67 (formerly article 9 of the Lien Law, section 110-118). See post, page 587 et seq. a. As to whether an instrument is a bill of sale passing title absolutely, or a chattel mortgage, vesting in the vendor an equity of redemption, depends upon the intent of the parties to be ascertained from the terms of the instrument. Where the meaning of the parties can be determined by the language used, it becomes a question of law for the court, and not a question of fact for the jury. Where the bill of sale contained a provision, that under certain conditions the seller might re- purchase the property, the instrument will be construed to be a chattel mortgage and not a bill of sale. Dickinson v. Oliver, 96 App. Div. 65. Compare Dickinson v. Oliver, 195 ]^. Y. 238. 4. Delivery by conditional vendor essential. — Defendant made a contract of conditional sale, or subscription contract, with plaintiff for a set of law books entitled " American & English Encyclopedia of Law," consisting of 32 volumes and the four volume supplement thereto, as issued, and agreed io pay $7.50 per volume. The contract expressly provided that the " right of property in all volumes unpaid for shall Deliveey — When Question foe Juet. 539 remain in the Edward Thomson Company, until the same are wholly paid for." The contract contained a direction to ship the books to Capake Iron Works, Columbia County, 1^. Y. The purchase price was to be paid in quarterly instal- ments. Plaintiff shipped volume four of the supplement by express to defendant, but the books never reached him. De- fendant demanded the book, and plaintiff refused to send it, on the ground that it had already been delivered. Plaintiff sued to recover on the contract. Defendant set up that the contract was entire and that a breach arose by reason of the non-delivery of volume four of the supplement. A jury found that the express company had not delivered the booi to de- fendant. Held, that the express company was the agent of the plaintiff, and the loss of the volume must be sustained by plaintiff. That defendant was not bound to pay for what he did not get, where it was stipulated, in advance, that he should have no title to the book at the time of its loss. Plaintiff might have inserted in the contract a clause "goods delivered to customer, when delivered to transportation com- pany." In the absence of such stipulation, the risk was on plaintiff, and title to the goods was in plaintiff, as the con- tract was entire. That plaintiff was liable therefore for a breach of the contract, and could not recover. Thomson Co. v. Vacheron, 69 Misc. 83. 5. Delivery — When question of fact for the jury. — When the question as to when a quantity of wine was to be delivered by the vendor, depends on correspondence from which it is possible that different inferences may be drawn, the question presented, should be left to the jury. Gourd v. Healy, 206 X. Y. 423. a. If chattels are mortgaged the mortgagee acquires a pres- ent title subject to be defeated by the mortgagor's compliance with the terms of the mortgage. The purpose of referring to a sale of chattels in this connection is to throw light upon questions involving rights of creditors where there has been no actual or continued change of possession. If goods are sold and remain thereafter in the possession of the vendor, such possession makes the sale presumptively fraudulent as to creditors and subsequent vendees, under section 45 of the Personal Property Law. In such case the burden of proof is on the vendee to show the bona fides of the transaction. 540 Lien Law — Article X, Sec. 230. h. If chattels are mortgaged and remain thereafter in the possession of the mortgagor, and the mortgage is not filed as required by the statute, the mortgage is void absolutely as to creditors and subsequent purchasers in good faith. The pos- session of the chattels by the mortgagor if the instrument is not filed does not raise merely a«presumption of fraud as in case of a sale, but the presumption is conclusive and the in- strument has no validity, because the statute declares it shall be void absolutely. The provision of the Personal Property Law as to sales is as follows: 1. Sales and charges, other than chattel mortgages, without delivery and change of possession. — Every sale of goods and chattels in the pos- session or under the control of the vendor, and every assignment of goods and chattels by vt^ay of security or on any condition, but not constituting a mortgage nor intended to operate as a mortgage, unless accompanied by an immediate delivery followed by actual and con- tinued change of possession, is presumed to be fraudulent and void as against all persons who are creditors of the vendor or person making the sale or assignment, including all persons who are his creditors at any time while such goods or chattels remain in his possession or under his control, or subsequent purchasers of such goods and chattels in good faith; and is conclusive evidence of such fraud, unless it appear on the part of the person claiming, under the sale or assignment, that it was made in good faith, and without intent to defraud such creditors or purchasers. (Personal Property Law — Laws 1909, chap. 45, § 33.) c. An absolute sale and transfer of all of his property by an insolvent debtor to pay a debt due and owing by the vendor to the vendee is not an assignment for the benefit of creditors, and creates no preference under the State law (Laws 1887, chap. 503) prohibiting preferences in assignments exceeding one-third of the debtor's assigned estate. Tompkins v. Hunter, 149 ISr. Y. 117 ; Dodge v. McKechnie, 156 IST. Y. 514. 6. Sales to hinder, delay, and defraud creditors. — Sales to hinder, delay, and defraud creditors which were formerly governed by the Revised Statute are now governed by the pro- visions of section 35 of the Personal Property Law, which provides as follows : Transfers and charges with fraudulent intent. — Every transfer of any interest in personal property, or the income thereof, and every charge on such property or income, made with the intent to hinder, delay, or defraud creditors or other persons of their lawful suits, dam- ages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, or decree or judgment suflfered, with Sale by Mortgagee. 541 such intent, is void as against every person so hindered, delayed, or defrauded. (Personal Property Law — ^Laws 1909, chap. 45, § 35.) ** *»**»* Bona fide purchasers. — This article does not affect or impair the title of a purchaser or incumhrancer for a valuable consideration, unless it appear that such purchaser or incumbrancer had previous notice of the fraudulent intent of his immediate vendor, or of the fraud render- ing void the title of such vendor. (Personal Property Law — Laws 1909, chap. 45, § 40.) a. Under this section it was held that a creditor, who sur- rendered a time note, and accepted in lieu thereof from his debtor, who was insolvent, a demand note, secured by a chattel mortgage, was a bona fide purchaser, for a valuable considera- tion, within section 29 (now § 40) of the Personal Property Law. One creditor has a right to accept payment of his claim in full, or security, or a confession of judgment therefor, if done "without knowledge on his part of the fraudulent intent of his debtor or participation therein. New York County Nat. Bank v. American Surety Co., 69 App. Div. 153, affirmed, 174 'N. Y. 544. h. Such surrender and acceptance creates a present indebt- edness, sufficient to sustain the mortgage, notwithstanding the fact that the note surrendered was given to secure an anteced- ent debt, the extension of credit having been withdrawn and extinguished by mutual consent. li, 5. Sale of chattels by mortgagee. — A chattel mortgage is a bill of sale, with a condition rendering it void if the mort- gagor shall pay the indebtedness therein described, with a power of sale in case of default. This power must be exer- cised in order to extinguish the equity of redemption of the mortgagor. The usual power is in substantially the following form: Power of sale. — And I, the said party of the first part [mortgagor], for myself, my executors, administrators, and assigns, do covenant and agree to and with the said party of the second part [mortgagee], his executors, administrators, and assigns, that in case default shall be made in the payment of the said sum above mentioned and interest thereon as above specified, then it shall and may be lawful for, and I, the said party of the first part, do hereby authorize and empower the said party of the second part, his executors, administrators, and as- signs, with the aid and assistance of any person or persons, to enter my dwelling-house, store, and other premises, and such other place or places as the said goods or chattels are or may be placed, and take and carry away the said goods or chattels, and to sell and dispose of 542^ Lien Law — Article X, Sec. 230. the same for the best price they can obtain; and out of the moneys arising therefrom, to retain and -pay the sum above mentioned, with the interest due thereon, and all charges touching the same; rendering the overplus, if any, unto me, or to my executors, admisistrators or assigns. And until default be made in the payment of the said sum of money and interest, I am to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. a. The power of sale given above does not specify how the sale shall be conducted, and what notice, if any, shall be given to the mortgagor. It is sometimes provided that the party of the second part may sell the chattels either at public or private sale, with or without notice to the mortgagor. Such power to sell at private sale without notice, if given, is of doubtful validity, and, if exercised, may subject the mortgagor to an action for an accounting of the proceeds at the suit of the mortgagor, or his creditors, and will cast upon the mortgagee the burden of showing that the property was sold for its fair market value. h. While it is true that the mortgagee has title to" the chat- tels, and may give a good title to the vendee, if the power of sale is lawfully exercised, nevertheless, the instrument makes the mortgagee a trustee for the mortgagor, so far as the sur- plus proceeds of sale are concerned, if any there be. As to such surplus remaining after payment of the mortgage debt, interest, and charges, 5ie mortgagee holds it in trust for the mortgagor, and must account and pay over to him such sur- plus. And creditors of the mortgagor may require such ac- counting. c. Judge Eakl, in defining the rights of a mortgagee after default under such a power says : " This right of redemption can be cut off by a sale, public or private, fairly made. If sold at public sale after notice to the mortgagor, the mortgagee can be made to account only for what the property brought at such sale. If sold at private sale, the mortgagee could probably be compelled to account for the value of the property, if sold for less than its value." Coe V. Cassidy, 72 N. Y. 133. d. While a private sale of chattels by a mortgagee may be upheld, as indicated in the above case, the safe rule would be to sell the chattels at public auction, upon due notice to the mortgagor or his legal representatives. Sale by Judgment Ceeditoe. 543 e. A sale would be beyond criticism if it were conducted as suggested by How. Abnee C. Thomas^ in his work on Mort- gages, in the manner in which property is sold by the sheriff under an execution as prescribed by the Code of Civil Proced- ure. The provisions of the Code in this regard are as fol- lows: Sale on execution — When and how conducted. — A sale of real or personal property, by virtue of an execution, or pursuant to the direc- tions contained in a judgment or order, must be made at public auc- tion, between the hour of nine in the morning and sunset. The sheriff to whom an execution is issued shall at any time before the sale of the personal property levied on by him, on the written request of any person who is a creditor of the person against whom the writ was issued undier which the sheriff levied upon the property, exhibit to such creditor the personal property so levied upon under said writ and permit an inspection thereof by such creditor or his agent. (Code Civ. Proc, § 1384.) Sale of personal property — How made. — Personal property must be offered for sale, in such lots and parcels, as are calculated to bring the highest price. Except where the officer is expressly authorized, by this article, to sell property not in his possession, personal property shall not be offered for sale, unless it is present, and within the view of those attending the sale. (Code Civ. Pro., § 1428.) Notices of sale to be posted. — ^At least six days' previous notice of the time and place of a sale of personal property, by virtue of an execu- tion, must be given, by posting conspicuously written or printed notices thereof, in at least three public places of the town or city, where thfr sale is made. (Code Civ. Proc., § 1429.) 6. Sale by judgment creditor of mortgagor when illegal. — The mortgagor made default and the mortgagee took posses- sion of the chattels. Thereafter a judgment creditor of the mortgagor issued execution and the sheriff having received a bond of indemnity from the execution creditor, sold the chat- tels. Held, that such sale constituted conversion and the de- fendant and his sureties became liable as principals for the original wrongful seizure, as well as the sale. Defendant, by giving a bond, induced the sheriff to do an unlawful act in which he participated and all became jointly and severally liable with the sheriff for the damages sustained. Sloan v. National Surety Co., Ill App. Div. 94, 97 JST. Y. Supp. 561. a. See also Byett v. IIyman> 129 N. Y. 351 ; Ball v. Loomis,. 29 N. Y. 412 ; Herring v. HoppocJc, 15 N. Y. 411 ; Gassani v. Dunn, 44 App. Div. 248 ; Posthoff v. Bauendahl, 43 Hun,. 544 Lien Law — Abticle X, Sec. 230. 570 ; Davis v. Newhirk, 5 Den. 92 ; Well v. Butler, 61 N. Y. 245 ; Van Dewater v. Gear, 21 App. Div. 221 ; Bose v. Oliver, 2 Johns. 365. 7. Sale — Bondsmen — Liability where sheriff sells chat- tels in possession of mortgagee. — When the mortgagor makes default in payment of the debt, the mortgagee may take possession of the chattels. Such possession is sufficient to sustain a title of the mortgagee, and he becomes the absolute owner of the property, subject to the equity of redemption of the mortgagor. A judgment creditor of the mortgagor, after the mortgagee had taken possession, issued an execution and gave a bond to the sheriff, who sold the chattels. Held, that the sheriff, the judgment creditor, and his bondsmen were jointly and severally liable for all damages sustained by the mortgagee who could maintain an action against all parties, including the bondsmen, jointly or severally. Sloane v. Nor tional Surety Co., Ill App. Div. 94, 97 N. Y. Supp. 561. 8. Liability of auctioneer. — The holder of a second mort- gage, before proceeding to a sale upon the foreclosure of his instrument, procured the consent of the holder of the first mortgage to such sale. The consent was accompanied by an agreement to transfer the claim for the amount due on the first mortgage, in the proceeds, in a sum specified. It was also agreed that the auctioneer should pay such sum out of such proceeds. In a suit against the auctioneer to recover the pro- ceeds by the assignee of the first mortgage, held that the claim of the first mortgagee was limited to the amount specified in the consent. Blumherg v. Maries, 87 N. Y. Supp. 512. Held further, that plaintiff, in order to make a prima facie case, was bound. to prove that the auctioneer had full knowl- edge of the agreement between the first and second mortgagees, and that the auctioneer specifically- agreed to pay over the pro- ceeds to the plaintiff. Also the amount of proceeds realized on the sale, and the amount due plaintiif remaining unpaid on the first mortgage. Ih. 9. Taking possession without sale. — Whether the taking of a chattel by a mortgagee, will be construed as a taking to satisfy the debt, is a question of intent. One who sold a piano and took from the vendee a chattel mortgage to secure the purchase money, may retake the chattel where the. mortgagor Mortgage by I:xsoi.vext Debtoe. 545 . has abandoned possession, and notify him that the piano has been stored for his account, and may sue for the amount of the purchase money. Bloomingdaie v. Gaudio, 85 Misc. 389. a. A mortgagee who took the note of the mortgagor, and took also a chattel mortgage as security for the amount due thereon cannot satisfy the debt by taking possession of the chattels under the mortgage when the note becomes due. If, hoTPever, the value of the chattels is equal to the amount due on the note, the court will construe the act of taking possession as a payment of the note, and the mortgagee will be precluded from a recovery in an action on the note. Groh's Sons v. F eld- man, 40 Misc. 301. 10. Merger — Question of merger a question of intent. — Where the mor^agor executed to the mortgagee a bill of sale of personal property which contained a provision that such sale was subject to an indebtednses of $210 secured by chattel mortgage held by the Independent Brewing Company, and the mortgagee claimed that the object of this clause was to show that the parties did not intend to merge the bill of sale and the mortgage, that the intention of the parties governed, and as the transfer was " subject " to the mortgage it could not operate to create a merger. Independent Brewing Co. v. D-UTston, 55 Misc. 498. 11. Mortgage by insolvent debtor. — A mortgage of chat- tels by an insolvent debtor as security for a debt due and ow- ing by the mortgagor to the mortgagee, in the absence of fraud and without intent to hinder, delay, and defraud other credi- tors, does not create an unlawful preference and is not in violation of the State law, and is valid. a. A chattel mortgage, made by a debtor upon a portion of his property to secure some of his creditors thereia mentioned as mortgagees, if made in good faith and not to hinder, delay, and defraud creditors, is valid, although the mortgagor was in- solvent. Such an instrument is not a general assignment for the benefit of creditors and creates no preference in violation of chapter 503, Laws of 1S87. relating to general assignments. Delaney v. Valentine, 154 :N^. T. 692; Fidelity Trust Co. v. BeU, 63 App. Div. 523. 35 546 Lien Law — Article X, Sec. 230. h. A chattel mortgage to a trustee whicli provided for the payment of the debts secured by the mortgage from the pro- ceeds of the sale of the property, and payment of the surplus over to the mortgagors, vrhere the debts are largely in excess of the property mortgaged, is not void by reason of the clause relating to the payment of the gurplus. Fidelity Trust Oo. V. Bell 63 App. Div. 523. , 12. Mortgage, pledge, and conditional sale distinguished. — One chief distinction with reference to the disposition of chattels relates to vesting of title. Possession, whether the chattels are mortgaged, pledged, or sold conditionally, is with the mortgagor, pledgee, or vendee. Title in case of a pledge remains in the pledgor. The pledgee has a lien upon the thing for the debt. He has no right to sell or dispose of it unless the pledgor on demand, refuses to pay the debt. Upon such re- fusal and upon due notice, the pledge may be sold to satisfy the lien, and upon such sale the title vests in the purchaser and the owner's equity of redemption is thereby extinguished. The title as well as the equity of redemption remains in the pledgor until the equity of redemption is cut off by a legal sale. The pledgor may redeem the pledge by paying the debt for which the pledgee has a lien, at any time prior to sale. His equity of redemption can only be extinguished by a sale of the pledge on notice, as required by law. See also article 9 of the Lien Law, ante^ page 523 et seq. a. When chattels are mortgaged, the right of possession is in the mortgagor until default, but the mortgagee acquires a present title to the chattels, which is subject to be defeated or divested by payment of the mortgage debt. After default the mortgagor still has a right to redeem the chatties, and this equity of redemption can only be extinguished or cut off by a sale of the chattels in accordance with the terms and conditions of the mortgage. h. If the chattels are sold conditionally, the title remains in the vendor until the vendee complies with the conditions of sale, and until default the right of possession is in the ven- dee. But the statute gives the vendee a sort of equity of redemption or a period within which he may comply with the terms of the contract of sale after default. This" period of grace, under the statute (Personal Property Law, § 65. post, page 624, is limited to a period of thirty days. If Chattel Mortgage — Force of. 547 the chattels are sold within this statutory period, the equity of redemption in the vendee is not cut off. c. Under a contract of conditional sale the vendor usually reserves an option to treat particular acts of the vendee or a failure on the part of the vendee to comply vsrith certain terms and conditions of the contract, as an acceptance, and to treat the sale as absolute. The vendor, in case he elects to treat the sale as executed, may sue for the purchase price and the ven- dee will thereby lose the right to return the chattels to escape liability for the unpaid purchase price. 13. Deed when held to be a mortgage. — Whenever prop- erty is transferred, no matter in what form or by what con- veyance, as a security for debt, the transferee takes merely as mortgagee, and has no other rights or remedies than thpse the law accords to mortgagees. A deed of conveyance, absolute on its face, if given only as security for a debt, is deemed in law and equity to be only a mortgage. Barry v. Hamhury- Bremen Fire Ins. Co., 101 IST. Y. 1 ; Horn v. Keteltas, 46 N. Y. 605. 14. Form — Chattel mortgage may be embodied in a promissory note. — The object and purpose of a mortgage is to create a lien in favor of the mortgagee. This may be ac- complished by inserting the intent in a promissory note, given for the purchase of a horse, which may be enforced in an ac- tion upon the note. In such an action, the judgment will authorize the sheriff to sell the horsei on execution, although it might otherwise be exempt, upon the ground that the creation of the lien was a waiver of exemption. Emerson v. Knapp, 129 App. Div. 827. a. Plaintiff made an ordinary promissory note for $50 and wrote upon the face thereof, the following clause : " One black horse named Bill is holding until this note is paid." Defend- ant recovered judgment on the note, issued execution, and the sheriff sold the horse referred to in the note. Plaintiff then brought an action of conversion, claiming that the horse was exempt from levy and sale on execution. Held, that the clause in the note constituted a chattel mortgage between the parties and the maker of the note was thereby estopped from claiming exemption for the horse. The parties clearly intended to give the payee a lien upon the horse. The latter was not obliged 648 Lien Law — Article X, Sec. 230. to bring a formal foreclosure action, but migbt elect to sue upon the note and sell the horse upon execution in order to •enforce the lien. The debtor by creating the lien was estop- ped from asserting the exemption. (Citing McMahon v. Cook, 107 App. Div. 150.) lb. » 15. Recitals in mortgage govern. — A mortgage executed and delivered contained a clause that the property described in the instrument was free from all liens except a certain prior mortgage therein particularly described. Heldj that the mortgagee who accepts such an instrument had actual no- tice that it was a second mortgage and is deemed to have no- tice of the first mortgage and all its provisions. Independent Brewing Co. v. Durston, 55 Misc. 490. 16. Safety clause. — Chattel mortgages sometimes contain a provision known as the " safety clause," which provides that " in case the mortgagee should at any time deem himself un- safe, he may take possession of the property and sell the same." This provision is inserted for the benefit of the mort- gagee, to be exercised when he deems it best for the safety of ills demand. This power, however, can only be exercised when the mortgagee acts in good faith. He must show that he has reasonable ground for believing the security unsafe, and that the indebtedness is not secured. The question of good faith is a question of fact for the jury. Oppenheimer v. Moore, 107 App. Div. 301, 95 K Y. Supp. 138. Where a mortgagee takes possession of property in bad faith, and from motives not contemplated or provided for in the chattel mortgage, or connected with the fact or feeling of the security or insecurity of the property or debt, to wit, for Tnalice or from a pressing need for money, he will not be protected under the safety clause contained in the mortgage. Hyer v. Sutton, 59 Hun, 40. 17. Chattel mortgage — Bill of sale. — As to whether an instrument is a bill of sale passing title absolutely, or a chattel mortgage, vesting in the vendor an equity of redemption, de- penids upon the interest of the parties to be ascertained from the terms of the instrument. Where the meaning of the parties can be determined by the language used, it becomes a question of law for the court, and not a question of fact for the jury. Where the bill of sale contained a provision, that Desceiption Off Chattel Moetqage — Sufficiency of. 5i9 under certain conditions the seller might repurchase the prop- erty, the instrument will be construed to be a chattel mortgage and not a bill of sale. Dickinson v. Oliver, 96 App. Div. 65. Compare Dickinson v. Oliver, 195 'N. Y. 238. 18. Lien of chattel mortgage. — The lien of chattel mort- gage attaches only to the property described therein. A junior mortgagee who holds property which is described in the senior mortgage, but which is not described in the junior mortgage, and who claims a lien upon it by virtue of such junior mort- gage, has no right to retain the same in an action brought by the senior mortgagee to foreclose his lien. Lenibeck, etc.. Brewing Co. v. Serton, 96 App. Div. 613. 19. Validity — How tested. — Where a mortgagor has the right under a power of sale in a chattel mortgage to foreclose without action, the validity of the instrument can only be tested in an action by the mortgagor in which he seeks to have the mortgage declared null and void or in which he pleads payment. In such an action the mortgagor may properly attack the foreclosure of the instrument, and pend- ing the determination of such action the mortgagee may be properly restrained from enforcing the power of sale in the instrument. Haywood v. Lockwood, 152 N. Y. Supp. 483. 20. Description of chattels — Sufficiency of.— The de- scription of chattels sought to be mortgaged must be suffi- ciently definite to enable the property to be located and spe- cifically pointed out. Mortgages aire frequently given to secure property in mass, in bulk, or upon a stock of goods in a store or warehouse. If the description is sufficiently defi- nite to indicate the character of the goods, and the place of their location is definitely set forth, it will be sufficient. a. A mortgage described the chattels as " all the dry goods, boots and shoes, millinery goods, and gentlemen's furnishing goods, and stock in trad© now in the store occupied by the said parties of the first part at the Village of Niagara City. The sheriff levied on the stock under executions against the mortgagor. The mortgagee brought replevin. Defendants attacked the mortgage upon the ground that the description of the chattels therein was so indefinite and uncertain as to render identification impossible. Held, that the description 550 Lien Law — Auticle X, Sec. 230. was sufficient. " The description, although general, "_ said the court, in its opinion, " could be rendered sufficiently definite by evidence of the facts as to the goods in the store at the time, and would convey whatever in fact answered to the description. Conkling v. Shelley, 28 N". Y. 360. h. The property in the mortgage was described- as " all my flagging, curb, and bridge stones ; also all my platform, gut- ter, and coping stones, and all other stones belonging to me, and all other goods and chattels now in my yard, store, and docks at West Gamp and Eves Port and at Saugerties, all in the town of Saugerties." The court sustained the mortgage as to description, but declared it to be void for fraud. Bus- sell V. Winne, 37 IST. Y. 591. 21. Validity — Sales by mortgagor. — A clause in a chat- tel mortgage which permits a mortgagor not only to retain possession, but to dispose of the mortgaged property at his discretion and apply the proceeds to his own use, will render the instrument void as to creditors, as such a provision per- mits the chattels to be sold and the proceeds to be applied to a purpose other than the payment of the debt secured by the instrument. And such an agreement dehors the instriiment which permits the mortgagor to continue in possession of a stock of goods and dispose of them and with the proceeds re- plenish the stock from time to time, and also to apply the proceeds to his own uses and to payment of debts other than the mortgage debt, is fraudulent and void as to creditors. Oonhling v. Shelley, 28 IST. Y. 360 ; Southard v. Pinckney, 5 Abb. ISr. C. 184; Russell v. Winne, 37 IST. Y. 591. a. But if the agreement permits the mortgagor to sell at his discretion and apply the proceeds to the satisfaction of the debt for which the mortgage was given, the agreement is not unlawful for fraudulent per se. Such an agreement malces the mortgagor the agent of the mortgagee to do the things which the mortgagee himself has a right to do. Such proceeds, when received, extinguish the mortgage debt pro tanto, whether the money is actually paid over to the mort- gagee or not. But such sales must be for cash and not upon credit. Conkling v. Shelley, 28 K Y. 360; Chatham Nat. Bank v. O'Brien, 6 Hun, 231 ; Southard v. Bermer, 7 Daly, 43; Dolson v. Saxion, 11 Hun, 565; City Bank v. Wesi- herry, 16 Hun, 458 ; Frost v. Warren, 42 N. Y. 209. '^' " ' Mortgage Void as to Part. 551 6. If the agreement permits the mortgagor to remain in possession and sell part only of the property mortgaged and apply the proceeds to his own use, the entire instrument is tainted. It cannot be good in part and bad in part, as it is a single instrument, and being void in part is void in toto. Russell V. Winne, 37 IST. Y. 591 ; But see Chemung Canal Bank V. Payne, 164 N. Y. 252. c. A clause in the mortgage which permits the mortgagor not only to retain possession of a stock of goods which he purchased, and upon which he gave a chattel mortgage, but to sell the goods from time to time, and with the proceeds either make payments upon the mortgage debt, or replenish the stock, so as to keep the amount of goods equal in value to the amount of the mortgage, but which expressly forbids the mortgagor to use any of the proceeds for his own benefit, is not void as to creditors. Shilton v. Codington, 86 App. Div. 166. See also Brackett v. Harvey, 91 IST. Y. 214. 22. Mortgage void as to part, sustained as to residue. — The rule that a mortgage which is void in part is void in toto applies only where the instrument is tainted by positive fraud or inherent vice. A mortgage may be void in part, and sustained as to the residue, where the facts which make the instrument partially void are malum prohibitum, and not malum, in se. a. A mortgage was given upon both chattels and real es- tate. It was executed September 3, 1896, and was not filed as a chattel mortgage or recorded as a mortgage of realty until September 30, 1896. It was conceded by the parties that the mortgage as to the personalty was void for delay in filing. The court at Special Term decided that the mort- gage was made in good faith to secure a bona fide debt and was not given to hinder, delay, or defraud creditors. Held, that the instrument being dual in its character was governed by different statutory regulations as to its validity, and was separable unless tainted by actual fraud or inherent vice. The failure to file rendered the instrument void as to the chattels, not for actual fraud, but by the provisions of the statute. As a mortgage of realty, it having been recorded before judgments were obtained, it was valid. Chemung Canal Bank v. Payne, 164 N. Y. 252. 552' Lien Law — Akticle X, Seo. 230. 23. Chattel mortgage when void. — ^The owner of a stock of merchandise executed a chattel mortgage on the goods, and thereafter remained in possession of the property as if no mortgage had been executed, and rep'lenishing the stock from time to time, -with the knowledge of the mortgagea Such mortgage is fraudulent and void as to creditors. Bail- largeon v. Dumoulin, 165 App. Div. 730; s. c, 151 N. Y. Supp. 112. As to the assignee for the benefit of creditors of such mort- gagor, the mortgagee named in the fraudulent mortgage geta no title to the chattels, and the assignee has the right to dis- pose of them for the benefit of creditors. Ih, ft. A chattel mortgage will not be rendered void which permits the mortgagor either (1) to sell the mortgaged prop- erty and apply the proceeds of the sale to the payment of the mortgage debt; (2) to sell on credit, provided the mortgagor takes as security good commercial paper, which the mort- gagee agrees to accept, and credit toward the payment of the mortgage debt; (3) to use part of the proceeds of sale to purchase other property, to replenish the stock of the mort- gagor, provided the substituted stock shall be made subject to the lien of the mortgage. Brccchett v. Harvey, 91 E". Y. 214. 24. Chattel mortgage — When not enforceable. — Defend- ant's testator sold to plaintiff's assignor, a printing machine on condition that if it proved unsatisfactory to the vendee, it could be returned to the vendor and the amount paid upon the contract recovered. The contract price was $8,000 and the vendee paid upon the delivery of the machine $3,000, in cash upon the agreement that the amount should be refunded to the vendee, if the machine did not prove satisfactory, th© title to the machine to remain in the vendor until fully paid for. While the machine was being tested the vendee executed a chattel mortgage on it to the vendor including other property. The mortgagee was president of the mort- gagor and knew that when the mortgage was executed no satisfactory tests had been made. After its execution testa were continued and the vendee finally notified the vendor that the machine was not satisfactory and must be returned and the $3,000 refunded. The vendor refused payment and thereafter the vendor foreclosed the mortgage, and sold the interest of the vendee in the nmohine to the extent of $3,000. MOETGAGE WhEET NOT EnFOECEABLB. 553 The vendor at the time gave notice of his claim of title. The vendor subsequently took possession of the machine, upon the ground that the vendee had made default in the performance of his contract. The vendee then sued to re- cover the $3,000 paid to the vendor on the contract of sale. The court below dismissed the complaint. The Appellate Division reversed the judgment. Held, no error. That the chattel mortgage was executed subject to the terms of the contract and subject to the right of the mortgagor to complete its test, and to return the machine, if it proved unsatisfactory. There was no intention on the part of the vendee to waive its right to inspection. Hamison v. Scott, 203 !N". T. 369. a. But an agreement between the parties which permits the mortgagor, to use part of the proceeds of sale to meet the expenses of the business and for the support of the mort- gagors and their families, is void. Such an agreement, even by parole or by a writing dehors the instrument, will establish a fraudulent intent, which will render the mortgage invalid. Such an agreement ope'us the door to fraud, and permits the mortgagor to use the property for his own benefit, utilizing the mortgage as a shield against other creditors. But the agreement must be established by competent proof. Ih. h. A chattel mortgage was given to secure $2,680.54, the purchase price of a stock of " boots and shoes and rubber goods." It permitted the mortgagor to pay the mortgagee the purchase price of each item of said stock, amount of each month's sales to be deducted from amount of principal un- paid, as shown by an inventory and to account daily therefor. The inventory, however, was not attached to, or made part of the m.ortgage. In second year, mortgagor was to pay mort- gagee, in addition, enough to make 10 per cent, of whole amount of principal sum unpaid. After a time, the mort- gagee took possession, and sold the chattels for $1,200. The mortgagor having failed, his trustee in bankruptcy attacked the validity of the mortgage. Held, that both mortgages were void as to creditors. Mortgagor was required to .ac- count from proceeds of sales, snoh part as represented the 4>urchase price, at which the property was sold to the mort- gagor. As such purchase price was not named in the instru- ment, 'and could not be ascertained by creditors, the mort- gage was similar to one which permitted the mortgagor to 554 Lien Law — Abticle X, Sec. 230. sell without aocounting to the mortgagee, forany part of the proceeds of sale, and was a mere cover. Pfeiffer v. Boe, 108 App. Div. 54. 25. Validity of as to after-acquired property. — A clause in the chattel mortgage purportyig in terms to cover after- acquired personal property, while good as creating an equi- table lien between the immediate parties, is void as to credi- tors in so far as it relates to shifting stock and materials on hand in possession of the mortgagor when taken possession of by the mortgagee pursuant to tke provisions of the mort- gage, one day after default in payment of interest and three days before the commencement of bankruptcy proceedings against the mortgagor, as to the trustee in bankruptcy sub- sequently appointed therein. Zartman v. First National Banh, 189 N. Y. 267; Titusville Iron Co. v. City of New York, 207 K Y. 203. a. The Waterloo Organ Company, a manufacturing cor- poration, made a mortgage to the First National Bank of Waterloo upon all its pro'perty, real and personal, to secure its negotiable bonds. The mortgage contained a clause pur- porting in terms to cover aftei^acquired personal property, and provided that until default was made, the mortgagor and its successors migbt " hold, use, possess and enjoy the said premises and property within the appurtenances, and re- ceive the income and profits to its own use." The mortgagor was also given unrestricted domain over the property or whatever was subsequently acquired. " It might sell or dis- pose of all the personal property. It is permitted to use the income or profits of the business." It was not required to spend these avails in keeping the stock good nor for the de- velopment of the business, or in management in any way, but could use them for its own benefit, " precisely the same as if no lien existed." Held, that while the record of the mort- gage was notice to all, it was notice of all its terms, which included the right of disposition for the use and benefit of the mortgagor with no duty to apply the avails upon the mortgage indebtedness. An agreement between the parties to mortgage property not yet in existence will be given effect by a court of equity so far as practicable " provided no inter- est is affected except that of the mortgagor and mortgagee, who entered into the stipulation, but equity closes itsdoors ■MoETGAGE — After Acquiebd Peopebtt. 555 and refuses relief if the interest of creditors are involved. Tlie lien of sucli mortgage is invalid; first, because a man cannot grant what he does not own actually or potentially. Qui non habet, ille non dat. Second, because an agreement permitting the motgagor to sell for his own benefit renders the mortgage fraudulent as matter of law as to the creditors represented by the plaintiff. If the contract between the mortgagor and mortgagee falls short of creating a lien, the act of the mortgagee taking possession does not enlarge, per- fect, or complete it. A mortgagee cannot add to his title by his own act." Ih. 26. Validity — When invalid as to after-acquired prop- erty. — A chattel mortgage was given upon a grocery store, and the stock of groceries and provisions and other chattels therein contained, as well as certain fixtures and a horse and wagon used in the business, and covered after-acquired prop- erty, which might come into the possession of the mortgagors in the course of their continuance of the business. The mortgage contained a provision also that the mortgagors might sell the stock of groceries upon the premises " in the usual and ordinary course of business." After the mortgage was made plaintiff sold goods to the mortgagors during Jan- uary and February, 1907. On February 25, 1907, the mortgagee, Koster, took possession of the store and chattels by virtue of the mortgage. Plaintiffs thereafter reduced their claims to judgment and brought a suit to set aside the mortgage as in fraud of their rights and for an accounting and the appointment of a receiver. Held, upon the authority of Zartman v. First National Bank (189 IST. Y. 533), that plaintiffs were entitled to judgment declaring the mortgage void as to property coming into the hands of the mortgagor between the date of the mortgage and the time of the mort- gagee's possession, but not as to property which was actually covered by the mortgage when made. Burmeister v. Koster, 56 Misc. 373. See also Brachett v. Harvey, 91 IST. Y. 214. 27. Validity — Application of proceeds of sale as to new purchasers — When renders mortgage void. — Where the purpose and intent of the agreement between the parties to a chattel mortgage plainly indicates upon its face that the mortgagor was to conduct the business for the term of five 556 Lien Law — Abticle X, Sec. 230. years in the same manner as if he was the absolute owner of the stock in trade, and is authorized to sell and buy stock at his pleasure and discretion and pay the expenses of the busi- ness out of the sales, while if at any time he should be un- successful and be pressed by his creditors, the whole stock was to be subject to the lien of thp' mortgage as against the creditors from whom the very goods might have been pur- chased, the instrument is fraudulent and void as matter of law. SJcilton v. Goddington, 185 JST. Y. 80. a. A court distinguished the authority of Brachett v. Harvey (91 IST. Y. 214), where it was held that an agree- ment tiiat the mortgagor should apply the proceeds of sales of the mortgaged chattels to new purchases and also provided that new mortgages should be given from time to time on the chattels subsequently purchased was valid. The court said that when these new mortgages were given, the mortgagee was a creditor of the mortgagor whatever may have been the misapplication of the proceeds of sales under the earlier , mortgages, and the parties had the right to contract on the then existing status, because there was no creditor in a position to question the validity of the contract. It was claimed that this did not injuriously affect the rights of creditors, as the substituted property would represent the property sold and that, therefore, it was not necessary to hold the agreement fraudulent. The court, however, in the Skilion case, regards this statement as obiter and suggests that the substituted property might or might not equal in value the property released from the lien of the mortgage by sale; that it would give the mortgagor unlimited power of speculation in the disposition of mortgaged property. The property might be wasted by iU-judged speculation, even ibough the mortgagor acted in good faith. The court held in any event, that where the mortgage does not require all the proceeds of the mortgaged chattels to be applied either on the mortgage debt or to the acquisition of new property, but only the surplus after deducting the expenses of carrying on the business, the mortgage was illegal. That it was not necessary to consider whether the expenses of the business which the mortgagor was authorized to deduct from the sales would include compensation for his own services or not. It would comprehend rent, derk hire, and similar items. If, therefore, the business proved unsuccessful a large part of Filing Essential. 557 the mortgaged property migiht be sold without the proceeds . being applied, either to the reduction of the debt, or to new property substituted for that disposed of. lb. 28. Fraudulent mortgage — Husband .and wife. — A mort- gage of chattels was made by a husband to his wife. Tt was shown by declarations of the mortgagor made to plaintiff's agent that the mortgage was executed in anticipation of a suit against him ; that it was a mere matter of form and that the mortgagor could " have it taken off at any time." The mortgagor remained in possession of the chattels ; the instru- ment was for $15,000, and the actual indebtedness did not exceed $1,800, which accrued subsequent to its execution. It appeared also that the paper was antedated. Held, Iha.t the instrument was void as against the cerditors of the mortgagor. Levy V. Hamilton, 68 App. Div. 2T7. a. In such a case the hona fide claim of the mortgagee is not protected by the insitrument^ even where plaintiff's in- debtedness arose after the execution of the mortgage. lb. 29. Filing essential. — The only protection afforded by the statute to one who takes a chattel mortgage as security for a debt as against the general creditors of the mortgagor is to file the mortgage as the law requires. The bona fides of the indebtedness and the good faith of the parties is not material if the mortgage has not been filed, since the statute declares that the failure to file renders the instrument void absolutely as against the general creditors of the mortgagor, unless the mortgage immediately takes actual physical possession of the chattels and retains their custody. The same rule prevails in case the mortgage expires. If the debt is not paid and the mortgage has been on file for one year, the creditor to protect himself must refile the mortgage or a statement of its substance within thirty days of the expira- tion of the statutory period of one year from the original fil- ing, or take actual physical possession of the chattels. Fiail- ure to refile or take the chattels renders the mortgage void. Sloan V. Nat. Surety Co., 74 App. Div. 417. a. As against a judgment creditor of the mortgagor a chat- tel mortgage which was never filed, where there was no ac- tual or continued change of possession of the chattels, is ab- solutely void. A judgment creditor whose judgment was ob- 558 Lien Law — Auticle X, Sec. 230. tained by confession has a good and valid judgment until it is impeached for fraud or collusion. Wild, v. Porter, 59 App. Div. 350. 30. Filing — Two mortgages filed same day. — A party- took a mortgage on certain chattc3.s. A mortgage was then outstanding on the same chattels, but was not filed until 2 :30 p. M. of the day on which the second mortgage was delivered. Held, that the filing of the first mortgage, under the circum- stances, was not notice to the party who took the second mort- gage. Huber v. EMers, 16 App. Div. 602. 31. Failure to file — Effect of as to subsequent mortgage. — Two mortgages were executed on the same property, the second mortgage having been executed some five months after the first. The first mortgage was not refiled at the expiration of the year. Held, that the failure to refile rendered the mortgage unenforcible as against subsequent general credi- tors. But that such subsequent creditors in order to assert their rights must invoke the judicial process of the court, either by making a levy upon the property under an execu- tion or by taking the property into custody through la re- ceiver appointed in the action. But the first mortgagee could seize and take possession of the property even though it was unfiled, as the lien thereof was'superior to that of tie second mortgagee. Schwab Manufacturing Co. v. Aizenman, 106 App. Div. 478, 94 N. Y. Supp. 729. 32. Filing renewal — Subsequent incumbrances. — Where the owner of a chattel mortgage failed to file a renewal there- of within the period prescribed by the statute, it was held that such failure to refile did not render his mortgage void as against the subsequent chattel mortgagee, who had actual notice of the existence of the prior mortgage. Cullim, v. Ryder, 44 Misc. 485. 33. Filing renewal of mortgage of corporation without consent of stockholders. — Annie M. Anderson leased cer- tain hotel premises from Gunn & Grant for a period of twenty-one years. She executed a chattel mortgage for $7,500, to secure the purchase money on the furniture therein and agreed to renew said mortgage annually for the term of the lease. Four days after the mortgagor transferred her inter- Delay in Filing. 559 est in the lease to tibie Sterling Hotel Company, and sold land delivered to it, the chattels subject to the mortgage covering the same. The Hotel Company assumed all the obligations of the lease and took title to the chattels, subject to the lien of the mortgage which it covenanted and agreed to renew every year during the term of the lease. These obligations to renew were part of the purchase price of the chattels. Gunn & Grant conveyed the fee of the premises to defendant, Ellis, and assigned to him the chattel mortgage. Thereafter the Hotel Company became insolvent and the plaintiif who was appointed receiver, brought an action to set aside the re- newal mortgage executed by the Hotel Company on the ground that two-thirds of tbe stockholders had not consented to its execution as required by the statute. Held, that the statute related only to new mortgages and had no application to a case where the obligation was to keep alive an existing mortgage subject to which the corporation purchased the property., Blaxh v. Ellis, 197 N. Y. 402. 34. Delay in filing. — The object of the statute in requir- ing the filing of a chattel mortgage is to protect persons ex- tending credit to the mortgagor by compelling a record in a public office which will disclose all mortgages affecting chat- tels in possession of the mortgagior. The publicity afforded by the filing is intended as notice. In case the instrument is not filed there must be aai immediate delivery of the chat- tels to the mortgagee, and this delivery must be followed by an actual and continued change of possession of the mort- gaged chattels. In case there is la record of the mortgage, change of possession is not necessary, and the mortgagoi- may retain possession of the chattels until default, because his mortgage is filed in a public office, which filing operates as actual or constructive notice to creditors and subsequent purchasers. This notice, in case the mortgage is not filed, is presumptively given by a delivery of the chattels by the mortgagor. If the chattels are not in the mortgagor's pos- session the law presumes that that fact alone will constitute sufficient notice. a. A delay of six weeks in filing a chattel mortgage is not a compliance with the act (Laws 1833, chap. 279, re-enacted in Liem Law, Laws 1897, chap. 418, §§ 90-95). "There can be no doubt," says Andrews, C. J., " that if, during the 560 LiEM- Law — Aeticle X, Sec. 230. delay in filing, a lien had been acquired by a creditor, the mortgage as to such lien would be void." A mortgage which is not filed when given becomes void for failure to file it against existing creditors who have no judgment. Creditors obtained judgments and issued executions. Pending their suits and before they obtained judgments defendant filed his mortgage. The sheriff seized the mortgaged chattels un- der executions upon such judgments. The sole question pre^ sented was whether defendant's mortgage was valid against these executions, the chattels having remained in the pos- session of the mortgagor. Held, that the executions took precedence and that the mortgage was void. The court^ by Andrews, C J., said : " The mortgage was, however, filed before the plaintiff's judgments and executions were ob- tained. This did not restore the validity of the mortgage against creditors whose debts were in existence during the default in filing the mortgage, although judgments were not obtained or executions issued until after the mortgage was in fact filed. EoTst v. Gane, 136 JST. Y. 316. h. The plaintiff, Volckers, on Tebruary 3, 1896, received from one Eibs a chattel mortgage on property in a store at 728 Tenth avenue. It was filed February 28, 1896. Eibs, at the time the mortgage was made, was indebted to defend- ant Sturke in the sum of $400, who gave her credit to the extent of $125 more, having no knowledge of the unfiled mortgage. On March 19, 1896, nineteen days after plain- tiff's mortgage was filed, tie mortgagor gave defendant a bill of sale of the mortgaged chattels. On March 23, 1896, de- fendant under his bill of sale took possession of the chattels and sold them at public auction. Plaintiff sued defendant for conversion. Held, that as between the parties plaintiff's mortgage took effect from the time of delivery and against subsequent purchasers from the time of filing. Being valid las against the mortgagor and subsequent purchasers, the mortgagor could not make title to defendant by a bill of sale given nineteen days after the mortgage was filed; that de- fendant got no title thereby and plaintiff was entitled to judgment. Yolckers v. Sturke, 18 Misc. 457. c. Compare above case with the ruling in Karst v. Gane (136 ]Sr. T. 316), in which it was held that delay in filing rendered the mortgage void, and once void the instrument re- Deliveiit of Mortgage. 561 mained void, and did not acquire validity by subsequent fil- ing as against creditors whose debts were in existence during ■tho default in filing. See also Stephens v. Perrine, 143 'E. T. 476. 35. Delivery of mortgage — When question of fact. — A chattel mortgage takes effect from the time of the delivery of the instrument. The date of the instrument is not material, if it is affirmatively shovrn that it was not delivered when it was dated. Where there is a conflict of evidence on the point, the time of delivery presents a question of fact for the jury. Levy v. Horn, 153 N. Y. Supp. 913. 36. Delivery of mortgage — Delivery in escrow. — The deliveiy of a chattel mortgage to a third party to be deliv- ered to the mortgagee at a future time, constitutes an abso- lute delivery within the meaning of the statute, and failure to file the mortgage as prescribed by the statute renders it void as to creditors. Tooker v. Siegel-Cooper Co., 194 N. Y. 442. a. The Hotel Regent Company executed a chattel mort- gage for $56,080.97, to Seigel-Cooper Company on April 25, 1904, which was not filed until May 23, 1904. The instru- ment was delivered to the attorney for the mortgagee to be held by him in order to enable the mortgagor to procure a loan. The mortgagor explained that if the mortgage was at once recorded it would materially affect its getting any money. Held, under the circumstances, that the delivery to the attorney was an unconditional delivery to the mortgagee, ■and the failure to file the instrument rendered it void as to the creditors of the mortgagor. Whether such deliver)' con- stituted an escrow, quaere. Ih. h. " The statute," says Willaed Baetlett, J., citing with approval Leventeitt, J., " has been construed in favor of creditors along the broadest and in accordance with the most liberal principle of statutory construction. Technicali- ties have given way to equities ; limitations to liberality. The statute contemplates protection to creditors against secret arrangement withholding the filing of chattel mortgages. It demands publicity. The recognition of an agreement such as the one upon which the defendant relies, would not only 663 Lien Law — Aeticle X, Sec. 230. circumvent the statute, but would facilitate results which were designed to prevent." Ih. 37. Copartnership mortgage — Filing. — The statute (Laws 1833, chap. 279, re-eniacted in Lien Law of 1897, Laws 1897, chap. 418, §§ 90-95) makes a diatinction between the place where the property is when the mortgage is executed and the place of residence of the mortgagor. A mortgage executed by members of a copartnership upon partnership property, if the mortgagors reside in different cities, is void as to credi- tors, unless it is filed in the city where each mortgagor re- sides. One partner lived in New York, Manhattan, and the other resided in Brooklyn. Held, that the mortgage which was filed only with the register in New York county was void. Bueb v. Geraty, 28 Misc. 134. a. The firm consisted of Burtch & Burgess. Burtch re- sided at Hancock, in the county of Delaware, ;and Burgess resided in the city of Auburn, in the county of Cayuga. They owned a newspaper which was published in the town of Hancock. The firm gave a chattel mortgage to plaintiff, Hussel, which was filed only in the town of Hancock. There- after they gave a second chattel mortgage to defendant, St. Mart, which was properly filed. Plaintiff sought to fore- close his mortgage, and bid in the property at the sale, which took place in the town of Hancock, Delaware county. After the property was sold, plaintiff attempted to remove it, but defendant's second mortgage having fallen due in the mean- time, the latter seized and took possession of the chattels under his mortgage, claiming that as to him plaintiff's mort- gage was void, not having been filed in the city of Auburn, in the county of Cayuga, as required by the statute. Plain- tiff then sued defendant, the second mortgagee, in conversion to recover the property. The case was tried before a referee and resulted in a judgment dismissing the complaint. This judgment was reversed by the Appellate Division (83 App. Diiv. 354). Upon appeal, the Court of Appeals re- versed the Appellate Division, and the judgment entered upon the report of the referee in favor of the defendants was affirmed. The Court of Appeals held that the failure to file the plaintiff's mortgage in the city of Auburn, in the county of Cayuga, where Burgess, one of the mortgagors, re- sided, rendered the mortgage void as to the defendants, who Premature Refiling. ' 5Q3 held a second valid mortgage upon tlie chattels, and were creditors of the mortgagor. That plaintiff, who sought to get possession of the chattels under his mortgage, which was not properly filed, in taking possession of the property under the void instrument was a mere trespasser, and acquired no rights as against subsequent creditors and mortgagees. Rus- sel V. St. Mart, 180 N. Y. 355. 38. Premature refiling. — The statute also must be strictly observed as to the period within which the mortgage must be refiled. If refiled forty-eight days prior to its expiration it will be void. The refiling must be within thirty days of the statutory' period of one year from the original filing. Indus- trial Loan Assoc, v. Saul, 34 Misc. 188 ; Stevenson Brewing Co. V. Eastern Brewing Co., 22 App. Div. 523, a. It is obvious that where the statutory period for refiling is fixed at thirty days prior to the expiration of one year from the date of original filing, a search on la public office should be made from a period commencing thirty days before the date when the first filing would cause the mortgage to expire. If the refiling is not disclosed within that period the search need not be continued over an earlier period. Conse- quently a search during this statutory period would not dis- close a mortgage refiled long before the final thirty days within which the refiling is required. 39. Tender — By junior mortgagee. — A junior mortgagee, where the amount due upon a senior mortgage is in dispute, may tender to the prior mortgagee the amount due upon such prior mortgage at the time of its execution even although the tender may not have been kept good by the payment of the money into court. The fact that the tender was made will, in a court of equity, give the junior mortgagee a cause of action to compel the senior mortgagee to assign or cancel the mortgage upon payment of the debt due thereon. If the plaintiff brings the money so tendered into court accom- panied by an affidavit, offering present payment of that sum and security for the balance in dispute, he will be entitled to a preliminary injunction to enjoin the senior mortgagee from foreclosing. Bernheimer, etc.. Brewing Co. v. Koehler Co., 42 Misc. 377. '564 Lien Law — Aeticle X, Sec. 230. a. The court ordered the junior mortgagee to pay to de- fendant or place at its disposal the amount conceded to he due upon the senior mortgage, and directed it to deposit to the credit of the action the sum of $600 to cover the balance of defendant's claim in dispute, and upon making such pay- ment 'and such deposit, the court.ordered the continuance of the preliminary injunction to restrain the foreclosure of the senior mortgage. lb. 40. Creditors — Includes contract as well as judgment creditors. — The word " creditors " in the Act of 1883 (Laws 1883, chap. 279, § 1, which was re-enacted in Laws 1897, c-hap. 418, § 90), is not restricted or confined in its meaning, and includes those who became such after the execution of the mortgage as well as those whose debts had accrued before the mortgage was made. The word " purchasers " is quali- fied in the statute by the word " subsequent." A simple contract creditor is as much within the protection of the sta- tute as a creditor whose debt has been merged in a judgment. But until a contract creditor clothes himself with a judgment and execution, or with some legal process against the prop- erty, he cannot legally question the mortgage for he has no right to interfere with the property of the debtor without process. Karst v. Gane, 136 N. Y 316; Button v. Rath- bone^ 126 N". Y. 187 ; American Exch. Nat. Bank v. Casino Co., 5 App. Div. 381. a. The same rule is applicable under section 90 of the Lien Law of 1897, now section 230. And a general assignee for the benefit of creditors may maintain an action to test the validity of a mortgage claimed to be void for failure to file it. Harris v. Batjer, 26 Misc. 702. See infra. Personal Prop- erty Law, § 19. b. A creditor, therefore, who has no judgment, runs the risk of having his right to assail the mortgage defeated by a bona fide transfer of the property by the mortgagor \o the mortgagee in payment of the mortgage before he can ac- quire a lien by judgment and execution again.Sit the property. If such judgment is obtained by a contract creditor before the mortgagor disposes of the property to a creditor in pay- ment of a bona fide debt, his judgment and lien relates back to the time of the levy and can be enforced by a receiver in When Co2fTEACT Ceeditob ITay Site. 565 snpplementaiy proceedings. Krast v. Gone, 136 X. Y. 316 ; Stephens v. Perrine, 143 X. Y. 476. If, however, the mortgagor transfers, sells, or assigns his property to a credi- tor who holds an unfiled mortgage to pay the debt due him before a general creditor secures a judgment and levy und r an execution, the transfer will be valid, as the property was not subject to any lien and the debtor can pay the debt of any creditor if there is no lien on the property transferred in payment, Tremain v. Mortimer, 12 S X. Y. 1 ; Kitchen V. Lowery, 127 X. Y. 53 : Delaney v. Valentine, 154 X. Y. 692 ; Fidelity Trust Co. v. Bell 63 App. Div. 523 ; Tomp- kins V. Hunier, 149 X. Y. 117. 41. When contract creditor may sue. — ^The statute (Per- sonal Property Law) makes an exception to the general rule that a creditor cannot bring an action to assail the validity of a sale or mortgage, until he has acquired judgment, and a lien by levy under execution, in favor of an executor, admin- istrator, receiver, assignee, or trustee for the benefit of credi- tors or others interested. Also in favor of a creditor of a de- ceased insolvent debtor whose claim exceeds $100 who may attack such an instrument without obtaining a judgment. The statute in, this regard provides as follows : Disaffirmance of frandnlent acts by executors, and otheis. — An execn. tor, administrator, receiyer, assignee or trustee, may, for the benefit of creditors or others interested in personal property, held in tmst, disafSrm, treat as void and resist any act done, or transfer or agree- ment made in fraud of the rights of any creditor, including himself, interested in such estate, or property, and a person who fraudulently receives, takes or in any manner interferes with the personal property of a deceased person, or an insolvent corporation, association, partner- ship or individual is liable to such executor, administrator, receiver or trustee for the same or the value thereof, and for all damages caused by such act to the tmst estate. A creditor of a deceased insolvent debtor, having a claim against the estate of such debtor, exceeding in amount the sum of one hundred dollars, may, without obtaining a judgment on such claim, in like manner, for the benefit of himself and other creditors interested in said estate, disaffirm, treat as void and resist any act done or conveyance, transfer or agreement made in fraud of creditors or maintain an action to set aside such act, convey- ance, transfer or agreement. Such claim, if disputed, may be estab- lished in such action. The judgment in such action may provide for the sale of the property involved, when a conveyance or a transfer thereof is set aside, and that the proceeds thereof be brought into eonrt or paid into the proper Surrogate's Court to be administrated according to law. (Personal Property Law [Laws 1909, chap. 45], § 19.) 566 Lien Law — Aeticle X, Sec. 230. a. The mortgagee permitted the mortgagor to remain in possession of a stock of goods in the latter's store for a period of fifteen months. During this period the mortgagor con- ducted his business as usual and applied the proceeds of sale to the renewal of stock in carrying on the business. The mortgage was never filed and the mortgagor died insolvent. Held, that a creditor at large under the Personal Property Law (Laws 1897, chap. 417, § 7) could attack the instrument as fraudulent and void as to creditors, and that such a course of dealing pustified the finding that the instrument was not intended to operate as a mortgage and was void as to credi- tors. Boshart v. Kirley, 34 Misc. 241. 42. Creditors of partnership. — A chattel mortgage made by a copartnership to a trustee to pay the partnership debts from the proceeds of the sale of the property and to pay over the surplus, if any, to the mortgagors, where the debts are largely in excess of the value of the property mortgaged, can- not be attacked by creditors of the copartnership on the ground that it was made in fraud of individual creditors of the co- partners, as the mortgage was given only on copartnership property which was primarily liable only for partnership debts. Fidelity Trust Co. v. Bell, 63 App. Div. 523. 43. Bankruptcy — Right of trustee. — A trustee in bank- ruptcy had no greater rights than are possessed by the credi- tors whom he represents, and can assail the validity of a chat- tel mortgage only in cases where such creditors had the right to attack it. Shilton v. Codington, 86 App. Div. 166. a. The rule that a creditor must first recover a judgment before he can attack the validity of a chattel mortgage is a rule of procedure and does not affect the right. An attach- ing creditor has a right to seize goods fraudulently transferred by his debtor. Hess v. Hess, 117 N. Y. 306. Where the re- covery of a judgment becomes impracticable^ it is not an in- dispensable requisite to the enforcement of the rights of the creditor. An assignee in bankruptcy could, for the benefit of creditors, attack a fraudulent mortgage, though if a credi- tor had sought that relief in his own name, it would be nec- essary that his claim be first put in judgment. Southard v. Benner, 72 N". Y. 424. In like manner a trustee in bank- ruptcy of the mortgagor may attack the validitv of the mort- Trustee in Banketjptct. 567 gage made by the bankrupt, in a suit brought against him by the mortgagee to enforce it. An order of the bankrupt court directed that out of the proceeds of sale of the chattels of the bankrupt, which were sold by the trustee in bankruptcy, a sum of money should be reserved by him for the benefit of any liens or claims that might be established on the property, which proceeds were held on deposit by the trustee as pre- scribed by the order. The mortgagee sued the trustee to en- force his mortgage against this fund. Held, that in that action the validity of the mortgage might be attacked by the trustee. Ih. h. Where one who has executed a chattel mortgage is ad- judged bankrupt, the mortgagee may, by an action in a court of plenary jurisdiction, seek to enforce the mortgage against the trustee in bankruptcy of the mortgagor. Section 67 of the Bankrupt Act provides that " claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate." The debtor of a bankrupt, or the man who contests the right to real or personal property with him loses none of those rights by the bankruptcy of his adversary. Accordingly held, that a mortgagee may seek to enforce a chattel mortgage against the trustee in bankruptcy of the mortgagor in a State court. Shilton v. Coddington, 185 K Y. 80. c. A trustee in bankruptcy takes the property of the bank- rupt subject to all liens and charges against it, which might be enforced except for the provisions of a bankrupt act. Sec- tion 67a and 676 of the Bankrupt Law provides as follows : " a. Claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate, b. Whenever a creditor is prevented from enforcing his rights as against the lien created, or attempted to be created by his debtor, who afterwards becomes a bankrupt, the trustee of the estate of such bankrupt shall be subrogated to and may enforce such rights of such creditor for the benefit of the estate." d. A trustee in bankruptcy representing the creditors of a mortgagor may attack the validity of a chattel mortgage void as to creditors because the mortgage was not filed as required 568 Lien Law — Akticle X, Sec. 230. by the statute. Gove v. Morton Trust Co., 96 App. T)iv. 177. e. Where it appears that a chattel mortgage was not filed as required by law, the mortgagee acquires no legal lien upon the mortgaged property or its proceeds. Where such mort- gagee cannot enforce a legal lien Vhich was lost for noncom- pliance with the requirements of the statute through his own neglect, or for any other cause, he cannot go back to the initi- ation of the transaction and claim an equitable lien which would be valid as against the trustee in bankruptcy or the creditors he represented. Ih. See also Zartman v. First National Bank, 189 IST. Y. 267. 44. Chattel mortgage — When valid as against mortgagee. — In an action to foreclose a mortgage, a defendant by his answer claimed an interest in certain plumbing appliances or fixtures, which he sold to the owner of the premises under an agreement that the goods should remain as personal prop- erty until paid for, and took a chattel mortgage on the goods, as security for the purchase price, which was duly filed be- fore the goods were installed. The answer further alleged that plaintiffs knew of the conditions and circumstances and consented thereto. The complaint contained no allegation that the fixtures could not be removed without serious injury to the structure. Their nature however, was such that in or- der to render the building usable for residential purposes, they would need to be replaced with similar appliances. The answer further alleged that the articles in question could be disattached from the real property mentioned in the com- plaint without material injury to said property. Held, that these circumstances did not exclude them from the settled rules applicable to conditional sales. Leibowitz v. Thomson Beat Estate Co., 158 App. Div. 592. 45. Void mortgage — Rights of mortgagee. — If a mort- gage given for a bona fide debt is not filed as required by the statute, it is absolutely void as to existing creditors. A mort- gagee, long after the mortgage was given, filed it, took pos- session of the property under it, sold the property at public auction, and retained the proceeds before the creditors of the mortgagor had obtained judgments. When judgments were obtained, executions were issued and returned unsatisfied, Eights of Moetgagkb. 56^ and a receiver in supplementary proceedings sued the mort- gagee for conversion. The court held that plaintiff could re- cover upon the ground that the mortgagee assumed to act xm- der a mortgage that was void as to the creditors of the mort- gagor. As between the mortgagors and creditors it was the same as if the mortgage did not exist, and the mortgagee could not, as against such creditors, obtain any rights under it. ft. " If," says Peckham, J., " before any lien had been ac- quired by creditors, the mortgagor had delivered the prop- erty to the mortgagee in payment of her debt, she could have then held it, because it would have been, in such a case, a transfer of property by them in payment of their debt, and although it would have been in fact preferring such debt, yet it would have been a preference which the mortgagors then had the right to make." This was not done, but the mortgagee took it under the assumed right given by the mortgage and the mortgage being void could confer no rights. Stephens v. Perrine, 143 N. Y. 476, h. A chattel mortgage was given to secure advances. The instrument was not filed, but the mortgagee, with the consent of the mortgagor, took the chattels and delivered them to the sheriff, who sold them at public auction and delivered the proceeds to the mortgagee. Thereafter judgments were ob- tained against the mortgagor and the judgment creditors stied the mortgagee to recover such proceeds. Trial court found that there was an immediate delivery of the keys of the store and the . property therein followed by an actual and continued change of possession without fraudulent intent on the part of the mortgagor or mortgagee. Held conclusive in the Court of Appeals. Castleman v. Mdyer, 168 IST. Y. 354. 46. Void mortgage — Rights of mortgagor. — If a mort- gage is void because it has not been filed as required by the statute, the mortgagor as between himself and his creditors may treat the mortgage as if it did not exist, and before the creditors obtain a lien on the property he may deal with it in any honest way; he may sell it or assign and transfer it and give an absolute title, or he may deliver the property to the mortgagee in payment of his debt. Wheeler v. Law- son, 103 N. Y. 40 ; Tremcdn v. Mortimer, 128 N. Y. 1. 5Y0 Lien Law — Article X, Sec. 230. 47. Possession by mortgagee essential when mortgage be- comes due. — A mortgagee in order to protect his rights against the creditors of the mortgagor must, when the debt becomes due, either refile his mcrtgf-ge or take actual pos- session of the property. Upon default the title to the chat- tels vests in the mortgagee subject only to the equity of re- demption of the mortgagor, but the title must be protected by possession of the chattels. Sloane v. National Surety Co., Ill App. Div. 94, 97 K Y. Supp. 561. 48. Possession — How proved. — A mortgagee, after the mortgagor has made default in the payment of the mortgage debt, if he does not refile his mortgage within thirty days prior to the expiration of the instrument, must take actual possession of the chattels in order to protect his title. It is not necessary, however, where the chattels consist of ma- chinery, upon leased premises, that the mortgagee remove it to some other room or take it into the street, and then carry it back into the room. It is sufficient if the mortgagee takes possession of the room where the machinery is, and excludes the mortgagor therefrom. The mortgagee went into the room, looked the machinery over and declared that he took possession and that it belonged to him. He leased the room and paid the rent and thereafter the mortgagor ceased to do work there. Held, sufficient to sustain the title of the mort- gagee. Sloane v. National Surety Co., Ill App. Div. 94, 97 N. Y. Supp. 561. 49. Possession must be actual, not constructive. — When the debt becomes due under a chattel mortgage, the mortgagee, to enforce his rights against the property mortgaged, must do one of two things — ^either refile his mortgage or take actual possession and custody of the property. Mere constructive possession by laying the hand on the property and declaring, " I take possession," and leaving it with the mortgagor, is wholly insufficient to satisfy the statute. Sloane v. National Surety Co., 74 App. Div. 417. a. A mortgagee whose mortgage had not been filed at- tempted to defeat a levy by the sheriff by taking possession of the chattels which were on the farm of the mortgagor in pos- session of his tenant, who had three days prior to the levy pointed them out to the attorney of the mortgagee, who said Joint Possession by MoEXGACfEE, 571 he took possession of tliem under the chattel mortgage. Held, that mere words and inspection cannot effect change of pos- session, and there was no actual possession by the mortgagee. Wild V. Porter, 59 App. Div. 350. h. A chattel mortgage was given by a boarding-house-keeper to her principal boarder. It was not recorded and was sub- sequently, attacked by the receiver of the mortgagor. To show " actual and continued change of possession," the mort- gagor claimed that by a separate written instrument of even date, she turned the chattels over to the mortgagee. The mort- gagee then said to the mortgagor : " This is all mine now. I am in possession and you may live here," and took the keys of the house. But the mortgagee continued to board with the mortgagor and the latter continued to conduct her board- ing-house and use the furniture as she did prior to the execu- tion of the mortgage. Held, that change of possession was not shown and the mortgage was void. Watson v. Dealy, 28 Misc. 544. c. An instrument as security for a note provided as follows : " To secure the payment of a note of $300 given this day to Patrick McDonald, payable on demand, I hereby sell and assign ten of my carriage horses, now in my possession in my stable, 163 and 165 West 132nd St. The use of said horses I am to have and enjoy until I fail to pay the note, upon three days' notice or grace of payment. JOHN F. CAMMANN." d. Held, that the instrument as to creditors did not consti- tute a chattel mortgage and was null and void. It failed to comply with the law (Laws 1897, chap. 418) in any respect. It was not filed. It did not describe the property sufficiently to prevent confusion and was not accompanied by any change of possession. Such an instrument, if enforced as a mort- gage, would enable parties by collusion to defeat claims of bona fide creditors. McDonald v. Safe Deposit & Surety Co., 32 Misc. 644. 50. Joint possession by mortgagees. — Chattel mortgages covering the same property were given to secure the indebt- edness of the mortgagor to two banks. The New York County National Bank held the first mortgage and the Col- umbia Bank the second. The holder of the first mortgage de- manded payment of the mortgagor, and payment having been refused, the mortgagee took possession of the chattels. Im- 572 Lien Law — Akticle X, Sec. 230. mediately thereafter the holder of the second mortgage de- manded payment, which was refused. The holder of the first mortgage then allowed the holder of the second to take possession of the chattels, and thereafter the mortgagees held possession jointly, without objection by the holder of the first mortgage; it appearing that the value of the chattels was sufficient to satisfy the claims of both. Held, that the second mortgagee had title to the chattels as well as the holder of the first mortgage and that its possession was sufficient to enable it to maintain an action of conversion against the sheriff and his indemnitors for interfering with the prop- erty upon warrants of attachment issued in suits commenced by other creditors of the mortgagor, on the ground that a sec- ond mortgagee in possession of chattels may maintain an ac- tion against a third party for conversion. Columbia Bank V. American Surety Co., 84 App. Div. 487. 51. Consideration — Antecedent debt. — An unfiled mort- gage is void only against creditors and subsequent mortgagees in good faith. One holding under a mortgage given to se- cure an antecedent debt, without any new or present con- sideration to support it, is not a subsequent mortgagee in good faith, and is not protected against a creditor whose mortgage was not filed. Jones v. Graham, 77 E". T. 628; Button v. Bathbone, 126 N. Y. 187. a. The mortgagors requested the mortgagee to indorse a note for them and promised that if she would do so, and any- thing should happen to the business they would give her a chattel mortgage on their goods. The mortgagee relying on the promise indorsed the note and was obliged to pay it at ma- turity. The note was given June 15, and matured October 18, 1895. The mortgage was given September 16, 1895, as security for the note. Held, that the agreement was execu- tory and contemplated the giving of the mortgage as part of the transaction. That the mortgage was not, therefore, given to secure an antecedent debt, but was based upon a present and valuable consideration and was valid. Bueb v. Geraty 36 App. Div. 161. b. A creditor, with the consent of his debtor, has a right to surrender an unsecured time note before it falls due and to accept from the debtoor a note payable on demand secured by a chattel mortgage. The transaction operates to with- EvroENCE — Burden of Peoof. 573 draw and extinguish by consent the extension of credit for the antecedent debt, which constitutes value, and substitutes security for a present indebtedness arising upon demand. New York County Nat. Bank v. American Surety Co., 69 App. Div. 153, affirmed, 174 N. Y. 544. c. Under the Negotiable Instruments Law (Laws 1897, chap. 612, § 51), "value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value, and is deemed such whether the instrument is payable on demand or at a future time." Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. 52. Evidence — Burden of proof as to good faith. — Under section 90 (now section 230) of the Lien Law, unless the mortgage or a true copy is filed as directed by the statute, it is absolutely void as against creditors of the mortgagor and as against subsequent purchasers or mortgagees in good faith. Under the old Revised Statutes, a chattel mortgage, which is not accompanied by immediate delivery and followed by ac- tual and continued change of possession of the mortgaged property was presumptively fraudulent, which presumption became conclusive unless it was shown by the parties claiming under it that it was given in good faith and without fraudu- lent intent. Under this statute the burden of proof as to fraud was upon the party claiming under it. Where the mortgagor, and mortgagee agreed when the mortgage was given that the mortgagor should retain the possession of the mortgaged property and use the same for their own purposes and for the payment of other debts than that secured by the mortgage, it is simply a cover to prevent other creditors from reaching the property and is illegal, since it was given to hinder, delay, and defraud creditors and, therefore, void. But if it can be shown that no such agreement existed in a ease where the property was largely unfinished knit goods, some in the process of manufacture, and that the value of the property depended upon its being worked up into garments so as to be put on the market and sold, and the agreement was that the property was to be worked up into finished gar- ments and sold and the proceeds, after paying necessary ex- penses to manufacture them, were to be applied exclusively and solely to the payment of the mortgage debt, the mortgage 574 Lien Law — Article X, Sec. 230. will be sustained. Whor(^ the question of bona fides was properly submitted to the jury, an appellate court will not interfere with the verdict. Briggs v. Oelm, 122 App. Div. 102, 106 K Y. Supp. 693. 63. Evidence — Declarations "of mortgagor, — The declara- tions of a mortgagor who had executed a chattel mortgage to his wife, made after the execution of the mortgage while the mortgagor was in full possession of the mortgaged chattels, with the knowledge and consent of the mortgagee, are compet- ent against the mortgagee. Levy v. Hamilton, 68 App. Div. 277. 54. Equity of redemption. — The only right remaining in the mortgagor after default is the right to redeem the prop- erty. This right exists until cut off by a sale of the chattels pursuant to the terms of the mortgage and the power of sale therein contained. It is a right which creditors cannot reach by execution. It can be reached only in an action in equity. Craft V. Brandow, 61 App. Div. 247. 56. Equity of redemption, how reached by creditor.— A creditor of a defaulting mortgagor, whose equity of redemp- tion has not been cut off by a proper sale, must bring an action in equity to set aside the sale, and to be allowed to redeem the chattels. In so doing, he takes the place of the mortgagor, and is entitled to relief on paying the amount due on the mortgage, and indemnifying the mortgagee against any lia- bility he may have assumed in taking over a lease which vas given by the mortgagor of the premises in which the chattels were stored. Cartier v. Pabst Brewing Co., 112 App. Div. 419, 98 K Y. Supp. 516. 56. Equity of redemption, how cut off. — The right of the mortgagor to redeem the property after default in making the payments as required by the mortgage is by a sale of the prop- erty fairly made. Such sale should be at public auction. If the chattels are sold at private sale, the mortgagor might pos- sibly be held to account to the mortgagor or his creditors, if the proceeds realized were less than the true value. Coe v. Oassidy, 72 N". Y. 133 ; Cartier v. Pabst Brewing Co., 112 App Div. 419, 98 N. Y. Supp. 516. See also " Sale, how conducted to cut off equity of redemption." Equity of . Redemption. 575 57. Equity of redemption may be mortgaged. — One who has executed a chattel mortgage, has the legal right to the pos- session of the chattels, until he makes default He has, therefore, a property interest in the chattels, which he has a right to assign or mortgage, subject to the rights of the mort- gagee. This right also enures to a vendee, who hold posses- sion of chattels under a conditional bill of sale. Levy v. Horn, 153 IST. Y. Supp. 913 ; Moore v. Prentiss Tool & S. Co., 133 E". Y. 144. 58. Chattel mortgage — Void in law may be enforced as a contract in equity. — A chose in action of something which is not in existence, but which is subsequently to come into existence, is not a chattel, and cannot be the subject of a chattel mortgage. An instrument was executed as a mort- gage upon a liquor tax certificate and described the right, title, and interest of the mortgagor " to a license to sell beer, or to a renewal thereof." Held, that the instrument was void as a mortgage, but good in equity as a cpntract to assign the new certificate when acquired. The certificate was surren- dered by the mortgagor, who was given a surrender receipt, which entitled him to a rebate of $325. On -refusal of the commissioner to pay the mortgagee or judgment creditors of the mortgagor, a suit in equity was brought by the mort- gagee to enforce payment. Held, that in equity plaintiil ' could enforce his claim to the money, because he had no remedy at law, as the instrument was not a chattel mortgage. McNeely v. Welz, 166 N. Y. 124. 59. Foreclosure against party in possession. — The husband gave a chattel mortgage upon a piano. Thereafter he de- serted the wife. The plaintiff foreclosed the chattel mort- gage against the wife, but did not ask any personal judgment against her. The wife was in possession of the piano when the action was commenced. Held, that the mortgagee was en- titled to judgment of foreclosure irrespective of the fact as to whether the defendant or her husband executed the mortgage. Wuertz V. Brawn, 122 App. Div. 433, 107 K Y. Supp. 429. 60. Agreement to resort in the first instance to realty mort- gage for the same debt. — Defendants executed to plaintiff a mortgage upon real property and also a chattel mortgage to secure the same debt. The chattel mortgage contained a pro- 5T6 LiEW Law — Article X, Sec. 231. vision that tlie mortgagee should resort first to the realty mortgage. He, however, foreclosed the chattel mortgage, and then proceeded to foreclose the realty mortgage in which defendant set np counterclaim for a breach of the condition to resort to the realty in the first instance. The evidence showed that the defendants had no title to the chattels which were mortgaged, and that the sale under the chattel mortgage conveyed nothing, the mortgagee having sold only the right, title and interest of the mortgagors. Held, that the defend- ants were not damaged by resorting to the chattel mortgages in the first instance, and could sustain no counterclaim for alleged damages in the action to foreclose the mortgage on the real estate. McEchron v. Marline, 111 App. Div. 805, 9Y IST, T. Supp. 951. § 231, Corporate mortgages against real and per- sonal property. — Mortgages creating a lien upon real and personal property, executed by a corporation as security for the payment of bonds issued by sucb cor- poration, or by any telegraph, telephone or electric- light corporation, and recorded as a mortgage of real property in each county where such property is located or through which the line of such telegraph, telephone or electric-light corporation runs, need not be filed or refiled as chattel mortgages. Lien Law of 1897, § 91, re-enacted as § 231, Laws 1909, chap. 38. 1. Mortgage on both real and personal property to be filed only as a mortgage of real property. — Under section ninety- one of the Lien Law (Consolidated Laws 1909, chap. 33, § 231) a mortgage was issued by a corporation to secure bonds issued by it, embracing both real and personal property, in- cluding also after-acquired property, acquired under a con- tract of conditional sale. It was filed only as a mortgage of real property in the register's office of King's county. Held, that the mortgage constituted a good and valid lien upon the personal property also, and the -filing and refiling of the in- strument as a chattel mortgage was not necessary. Washing- ton Trust Co. V. Morse Iron WorJes, 106 App. Div. 195 94 N. Y. Supp. 495. See also State Trust Co. v. Casino Co., 18 Misc. 327. CoEPOKATE Mortgage to Secuee PATMEifT. 577 § 232. Where filed. — ^An instrument, or a true copy thereof, if intended to operate as a mortgage of a canal boat, steam tug, scow or other craft, or of the appurtenances thereto, navigating the canals of this state, must be filed in the office of the superintendent of public works, and need not be filed elsewhere. Every other chattel mortgage, or an instrument in- tended to operate as such, or a true copy thereof, must be filed in the town or city where the mortgagor, if a resident of the state, resides at the time of the execu- tion thereof, and if not a resident, in the city or town where the property mortgaged is at the time of the execution of the mortgage. If there is more than one mortgagor, the mortgage, or a certified copy thereof, must be filed in each city or town within the state where each mortgagor resides at the time of the execu- tion thereof. In the city of New York, such instru- ment must be filed as follows, namely: in the borough of Brooklyn in said city, such instrument shall be filed in the office of the register of the county of Kings; in the borough of Queens in said city, in the office of the clerk of Queens county; in the borough of Richmond in said city, in the office of the clerk of the county of Eichmond; in the borough of Manhattan in said city, in the office of the register of the county of New York, and in the borough of the Bronx in said city, in the office of the register of the county of Bronx. In every other city or town of the state, in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it must be filed therein. If the chattels mortgaged are in the city of New York at the time of the execution of the mortgage, the mortgage or a true copy thereof must be filed in the county where the mortgagor alleges to reside at the time of the execution of the mortgage, and in the county where the property is situated. All liens and 37 578 Lien Law — Article X, Sec. 233. mortgages, including books and records pertaining thereto, now on file in the comptroller's office, shall be transferred to the office of the superintendent of public works, who shall preserve the same in his department, and who shall be vested with full power and authority to do and perform any and all things relating thereto in like manner and with the same force and effect as heretofore done and performed by the comptroller. (As amd. by Laws 1901, chap. 217; Laws 1910, chap. 182; Laws 1915, chap. 27.) Lien Law of 1897, § 92, re-enacted as § 232, Laws 1909, chap. 38. 1. Railroad mortgage. — A mortgage given by a railroad corporation covers property subsequently acquired by the corporation for completing, furnishing, or operating its road, whether such after-acquired property be real or personal. But such a mortgage as to personalty need not be filed as a chattel mortgage, as such instrument is governed by the Eail- road Law (Laws 1892, chap. 676, § 4, subd. 10) and is not within the provisions of the Lien Law. Piatt v. N. Y. & Sea Beach B. B. Co., 9 App. Div. 87. 2. Corporate mortgage to secure bonds. — A corporation executed a chattel morgtage which included its leasehold premises where its theater was located, and also theatrical scenery, fixtures, and equipment. The mortgage was given also to secure the payment of the bonds of the corporation. Held, that under Laws 1833, chapter 279 (of which the fore- going section is a re-enactment), the mortgage as to the lease- hold which is " chattels real " need not be refiled annually. State Trust Co. v. Casino Co., 18 Misc. 327. § 233. Filing and entry.— Such officers shall file every such instrument presented to them for that pur- pose, and endorse thereon its number and time of its receipt. They shall enter in a book, provided for that purpose, in separate columns, the names of all the parties to each mortgage so filed, arranged in alpha- Fees on Filing. 5Y9 betical order, under the head of " Mortgagors " and " Mortgagees," the number of such mortgage or copy and the date of the filing thereof; and, if the mortgage be upon a craft navigating the canals, and filed in the oflfice of the superintendent of public works, the name of the craft shall also be inserted. In the city of New York such officers shall in addition to the entry afore- said enter in another book provided for that purpose a statement of the premises in which the chattels mort- gaged are contained, arranged in alphabetical order, under the name of the street or avenue where the premises are situated and giving the number of such mortgage or copy and the date of the filing thereof. In ease no street or avenue is mentioned in the descrip- tion, in the mortgage or copy, of the premises in which the chattels are contained, then a statement of such premises shall be entered imder the title " miscellane- ous." Except in the city of New York such officers at the time of filing of such instrument shall, upon request, issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the mortgage, its date, amount and the date and time of filing thereof. (As amd. by Laws 1900, chap. 248; Laws 1902, chap. 64; Laws 1906, chap. 381; Laws 1910, chap. 182.) Lien Law of 1897, § 93, re-enacted as § 233, Laws 1909, chap. 38. § 234. Fees. — The several clerks and registers are entitled to receive for services hereunder, the follow- ing fees: For filing each instrument, or copy, six cents; for issuing a receipt for the same, six cents; for entering the same as aforesaid, six cents; for searching for each paper, six cents; and the like fees for certified copies of such instruments or copies as are allowed by law to clerks of counties for copies and 580 LiETT Law — Aeticle X, Sec. 235. certificates of records kept by them. The superintend- ent of public works is entitled to receive the following fees for services performed under this article, for the use of the state: For filing each instrument or copy and entering the same, twenty-five cents ; for searching for each paper, twenty-five cents; and the like fees for certified copies of such instruments or copies, as are allowed by law to be charged by the superintendent of public works for copies and certificates of records kept in his office. No officer is required to file or enter any such paper, or furnish a copy thereof, or issue a re- ceipt therefor, until his lawful fees are paid. (As amd. by Laws 1906, chap. 381; Laws 1910, chap. 182.) Lien Law of 1897, § 94, re-enacted as § 234, Laws 1909, chap. 38. § 235. Mortgage invalid after one year, unless state- ment is filed. — ^A chattel mortgage, except as otherwise provided in this article, shall be invalid as against creditors of the mortgagor, and against subsequent purchasers or mortgagees in good faith, after the ex- piration of the first or any succeeding term of one year, reckoning from the time of the first filing unless, 1. Within thirty days next preceding the expiration of each such term, a. statement containing a descrip- tion of such mortgage, the names of the parties, the time when and place where filed, the interest of the mortgagee or any person who has succeeded to his interest in the property claimed by virtue thereof, or 2. A copy of such mortgage and its endorsements, together with a statement attached thereto or en- dorsed thereon, showing the interest of the mortgagee or of any person who has succeeded to his interest in the mortgage, is filed in the proper office in the city or town where the mortgagor then resided, if he is then a resident of the town or city where a mortgage Filing Aftee One Teae. 581 or a copy thereof or sucli statement was last filed; if not such resident, but a resident of the state, a true copy of such mortgage, together with such statement, shall be filed in the proper office of the town or city where he then resides; and if not a resident of the state, then in the proper office of the city or town where the property so mortgaged was at the time of the execution of the mortgage. Where the chattels mortgaged were located in the city of New York at the time of the execution of the mortgage, a copy of such mortgage and its endorsements together with a statement attached thereto, or endorsed thereon, show- ing the interest of the mortgagee or of any person who has succeeded to his interest in the mortgage, must be filed in the same office or offices where the original mortgage or a copy thereof was filed at the time of the execution of the same; provided, however, that where the mortgagor was a resident of the borough of the Bronx in the city of New York at the time of the execution of such mortgage, then a copy of such mort- gage as above described must be filed in the office of the register of the county of Bronx and also in the office of the register or of the county clerk, in case there is no register, of such county in said city in which the property so mortgaged was located at the time of the execution of such mortgage; if not such resident but the property so mortgaged was located in the borough of the Bronx in said city at the time of the execution of such mortgage, then a copy of such mortgage as above described must be filed in the office of the register of the county of Bronx and also in the office of the register or of the county clerk, in case there is no register, of such county in said city in which the mortgagor resided when such mortgage was executed; provided, further, that where the mortgagor was a resident of the borough of the Bronx in the city 682 Lien- Law — Article X, Sec. 236. of New York at the time of tlie execution of such mort- gage and the property so mortgaged was located in the borough of the Bronx at such time, then a copy of such mortgage as above described must be filed in the office of the register of the county, of the Bronx and need not be filed in any other office, and provided, further, that where the vendee of a contract for the conditional sale of goods dnd chattels not attached to a building was a resident of the borough of the Bronx in said city of New York at the time of the execution of such contract, then a copy of such contract, together with a statement as required herein in the case of chattel mortgages, must be filed in the office of the register of the county of Bronx; if not such resident nor a resi- dent of any other borough within the city of New York nor of this state at the time of the execution of such contract but the property so sold was in the borough of the Bronx in said city when such contract was exe- cuted, then a copy of such contract and a statement as aforesaid must be filed in the office of the register of the county of Bronx. Except in the city of New York the officer with whom such a renewal statement, or copy of a mortgage, is filed shall upon request issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the instru- ment filed, its date, amount and the date and time of filing thereof. (As amd. by Laws 1901, chap. 219; Laws 1906, chap. 381; Laws 1915, chap. 608.) Lien Law of 1897, § 95', re-enacted as § 235, Laws 1909, chap. 38. § 236. Duration of lien of mortgage on canal craft. — Every mortgage upon a canal boat or other craft navigating the canals of this state, filed as provided in this article, shall be valid as against the creditors of the mortgagor and against subsequent purchasers MOETGAGE How DiSCHAEGED. 583 or mortgagees in good faith, as long as the debt wMch the mortgage- secures is enforcible. From the time of filing, every such mortgage shall have preference and priority over all other claims and liens, not ex- isting at the time of such filing. Lien Law of 1897, § 96, re-enacted as § 236, Laws 1909, chap. 38. § 237. Copies to be evidence of certain facts.— A copy of any such original instrument, or of a copy thereof, including any statement relating thereto, cer- tified by the officer with whom the same is filed, may be received in evidence, but only of the fact that such instrument, or copy, or statement was received and filed according to the endorsement thereon; and the- original endorsement upon such instrument or copy may be received in evidence only of the facts stated in such endorsement. Lien Law of 1897, § 97, re-enacted as § 237, Laws 1909, chap. 38. § 238. Mortgage, how discharged of record. — Upon the payment or satisfaction of a chattel mortgage, the mortgagee, his assignee or legal represenative, upon the request of the mortgagor or of any person inter- ested in the mortgaged property, must sign and ac- knowledge a certificate setting forth such payment or satisfaction. The officer with whom the mortgage, or a copy thereof is filed, must, on receipt of such certifi- cate, file the same in his office, and write the word " discharged " in the book where the mortgage is en- tered, opposite the entry thereof, and the mortgage is thereby discharged. Lien Law of 1897, § 98, re-enacted as § 238, Laws 1909, chap. 38. 1. Penal statute — Secreting mortgaged property. — A per- son who has executed a mortgage on personal property or any instrument tending to operate as such, who sells, assigns, 584 Lien Law — Article X, Secs. 237, 238. exchanges, secretes, or otherwise disposes of any part of the property upon which the mortgage or other instrument is at the time a lien, with intent thereby to defraud the mortgagee or purchaser thereof, and who violates any provision of the mortgage, may be punished in a criminal proceeding pur- suant to the provisions of section 511 of the Penal Code (now section 940 of the Penal Laws), which provides as follows : § 940. Fraudulently Secreting Personal Property. — A person who, having theretofore executed a mortgage of personal property, or any instrument intended to operate as such, sells, assigns, exchanges, se- cretes or otherwise disposes of any part of the property, upon which the mortgage or other instrument is at the time a lien, with intent therehy to defraud the mortgagee, or a purchaser thereof, is guilty of a misdemeanor. — ^Penal Laws, 1909. 2. Criminal intent — Removal of chattels. — Household goods were purchased to be paid for in instalments. Defend- ant gave a chattel mortgage on the goods, and afterward re- moved them from the State. Held, that in order to sustain a conviction against defendant for his conduct under section 98a of the Lien Law, and section 571 of the Penal Code, the statutes being identical, criminal intent must be shown. Peo- ple V. Siatom, 79 App. Div, 634, LIEN LAW— ARTICLE XI. LAWS REPEALED; WHEN TO TAKE EFFECT. Section 350. Laws repealed. 351. When to take effect. § 250. Laws repealed. — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 251. When to take effect. — This chapter shall take effect immediately. The Lien Law (Laws 1909, chap. 33) was approved and took effect Fehruary 17, 1909. The schedule of repealed laws include the various statutes relating to the subjects embraced in the Lien Law, from 1798 to and including chap. 395, Laws 1908, and the following sections of the Code of Civil Procedure, to wit, §§ 1737-1741, and §§ 3398-3341. 'f585y PEESONAL PEOPEKTY LAW — AETICLE IV. [Laws 1909, Chap. 45, New Section.] LIENS ON MERCHANDISE TO SECURE LOANS OR ADVANCES. The legislature in 1911, chap. 326, added a new sec- tion to the Personal Property Law (Laws 1909, chap. 45) known as section 45, entitled "An" act to amend the personal property law and the lien law, in relation to liens upon merchandise and the proceeds thereof created by agreement for the purpose of securing the repayment of loans or advances upon the security of said merchandise." The law took effect June 13, 1911. This addition to the personal property law, pro- vides for conspicuous signs, containing the name of the lienor, a description of the liens, claimed by factors or consignees, together with a notice to be filed, which notice shall be verified by the lienor, or his agent, with the officer designated in § 232 of the Lien Law, ante page 577, and other details designed to protect per- sons making loans or advances, and for the payment of commissions or other charges provided for in the agreement. The statute further provides such agree- ments shall not be void, or presumed to be fraudulent as against creditors by reason of want of delivery, or of possession on the part of the lienor. The text of the statute will be found under § 182 of the Lien Law, relating to " Factor's lien on merchandise," ante, page 498. (586)' PEKSONAL PEOPERTY LAW. [Laws 1909, Chap. 45.] CONTRACTS FOR THE CONDITIONAL SALE OF GOODS AND CHATTELS. SKjnoN 60. Definitions. 61. Conditional sale of railroad equipment and rolling stock. 62., Conditions and reservations in contracts for the sale of goods and chattels. 63. Where contract to be filed. 64. Endorsement, entry, refiling and discharge of conditional contracts. 65. Sale of property retaken by vendor. 66. Notice of sale. 67. Disposition of proceeds. § 60. Definitions. — The term " conditional vendor," when used in this article, means the person contract- ing to sell goods and chattels upon condition that the ownership thereof is to remain in such person, until such goods and chattels are fully paid for or until the occurrence of any future event or contingency; the term " conditional vendee," when so used, means the person to whom such goods and chattels are so sold. § 61. Conditional sale of railroad equipment and rolling stock. — Whenever any railroad equipment and rolling stock is sold, leased or loaned under a contract which provides that the title to such property, notwith- standing the use and possession thereof by the vendee, lessee or bailee, shall remain in the vendor, lessor or bailor, until the terms of the contract as to the pay- ment of installments, amounts or rentals payable, or the performance of other obligations thereunder, are fully complied with, and that title to such property shall pass to the vendee, lessee or other bailee on full payment therefor, such contract shall be invalid as to any subsequent judgment creditor of or purchaser (687) 588 Peesonal Peopeety Law — Sec. 62'. from such vendee, lessee or bailee for a valuable con- sideration, without notice, unless 1. Such contract is in writing, duly acknowledged and. recorded in the book in which real estate mort- gages are recorded in the office of the county clerk or register of the county in whicli is located the principal office or place of business of such vendee, lessee or bailee; and unless 2. Each locomotive or car so sold, leased or loaned, has the name of the vendor, lessor or bailor, or of the assignee of such vendor, lessor or bailor, plainly marked upon both sides thereof, followed by the word owner, lessor, bailor or assignee, as the case may be. Lien Law of 1897, § 111, re-enacted as § 61 of the Per- sonal Property Law, Laws 1909, chap. 45. 1. Acknowledgment of contract essential. — Section 111 of the Lien Law (now section 61 of the Personal Property Law), which requires that an agreement of conditional sale of rolling stock or railroad equipment must be properly ac- knowledged and recorded is mandatory, and is a condition precedent to the rights secured under such agremeent. Fail- ure to acknowledge and record the agreement as required by the statute renders it void as against subsequent creditors of, or purchasers from, the vendee. Westinghouse El. Co. v. New Paltz Traction Co., 32 Misc. 132. § 62. Conditions and reservations in contracts for the sale of goods and chattels. — ^Except as otherwise provided in this article, all conditions and reservations in a contract for the conditional sale of goods and chat- tels, accompanied by" deliveryf of the thing contracted to be sold, to the effect that the ownership of such goods and chattels is to remain in the conditional ven- dor or in a person other than the conditional vendee, until they are paid for, or until the occurrence of a • Word " immediate " omitted. t Words " and continued possession " omitted. Conditional Conteact of Sale. 589 ' future event or contingency, shall be void as against subsequent purchasers, pledgees or mortgagees, in good faith, and as to them the sale shall be deemed absolute, unless such contract of sale, containing such conditions and reservations, or a true copy thereof, be filed as directed in this article, and unless the other provisions of the lien law applicable to such contracts are duly complied with. Every such contract for the conditional sale of any goods and. chattels attached, or to be attached, to a building, shall be void as against subsequent bona fide purchasers or incumbrancers of the premises on which said building stands, and as to them the sale shall be deemed absolute, unless, on or before the date of the delivery of such goods or chat- tels, at such building, such contract shall have been duly and properly filed and indexed as directed in this article and unless said contract shall contain a brief description, sufficient for identification, of the premises which said building occupies, or upon which said build- ing stands, and if in a city or village its location by street number, if known, and if in a city or county where the block system of recording and indexing con- veyances is in use, the section and block within which it is located. (As amd. Laws 1904, chap. 698.) Lien Law of 1897, § 112, re-enacted as § 62 of the Per- sonal Property Law, Laws 1909, chap. 45. 1. Interpretation of contract — When a question of law. — — Plaintiff sued defendant, a piano dealer, to recover $415, which had been paid to defendant by plaintiff's assignor, one Finkelstein, his predecessor in interest, under a contract of oomditional sale of an automatic player piano. Finkelstein made la new contract with the defendant which recited pre- vious payments on account of the piano aggregating $385. Finkelstein gave notes for the balance due under the con- tract of $598, payable monthly. In default of the pay- ments of any of the notes defendant was authorized to take possession of the piano and keep it. Plaintiff's assignor in 590 Personal Peopeett Law — Sec. 62. the new contract waived " the benefit of all the proTisions of the lien Law and any cause of action thereby given." Plain- tiff defaulted in the payment of the notes and defendant took the piano and kept it in his possession, where it remained at the time of the trial. In the meantime defendant recov- ered judgment against Finkelstein, for the balance of the purchase price. The provisions of the Personal Property Law, prior to 1909, formed part of the Lien Law relating to contracts of conditional sale. In 1909 these sections of the Lien Law were repealed and incorporated in the Personal Property Law. Defendant claimed on the trial that the waiver was mean- ingless, unless it should be held that the Personal Property Law, not the Lien Law, was intended to be referred to. Held, that no question of fact was involved, but a question of con- struction of the contract, which was a question of law. The court at trial term charged that if there was a waiver of a provision of the Lien Law defendant was entitled to a ver- dict, if there was no waiver the plaintiff could recover. Held, error. That there was no evidence of intent before the Court except that to be gathered from the contract itself. As the language of the contract was plain the question involved was one of law. Saitch v. Kelley, 154 App. Div. 864. a. A written contract for the sale of a piano, was in the form of a lease. Defendant hired the piano, the price, of which was $325. Defendant agreed to pay under the lease $10 rent for the piano for the first month and $7 per month thereafter. It was agreed that title to the piano was to pass to defendant when his rental payments aggregated $325, with interest at 6 per cent, per annum on all unpaid balances. Held, that the interest was part of the purchase price of the instrument, and that defendant could acquire title, only upon compliance with its terms, including payment of interest as stipulated. Pease, Piano Go. v. Fishe, 145 IST. Y. Supp. 978. Held further, that as the contract was admitted, no ques- tion of fact was involved, but a question of law only. 76. 2. Attempt to evade the \sw contrary to public policy. — A contract of conditional sale, containing a provision, which seeks to deprive the vendee of his riffhts to redeem under the statute, is contrary to public policy and void. Harley v. Allan Gas Engine Go., 144 App. Div. 300. PuEPOSEs OP Under the Statute. 591 A contract of conditional sale contained a clause providing in case of default in any one of the deferred payments, there- in provided, the vendor " shall have the right to immediately resume possession " of the property ^nd " declare the agree- ment terminated " and retain all moneys paid under it " as liquidated damages and rental." Held, that these provisions of the contract were inoperative, and contrary to public pol- icy. That the vendor having neglected to sell the property within thirty days at public auction, was liable for all sums paid by the vendee, under the contract. lb. For other authorities see post, 'p&ge 624. 3. Waiver of provisions of statute — When contrary to public policy. — Conditional vendors of personal property have adopted various devices, and inserted in contracts of conditional sales, various provisions seeking to repeal the beneficial provisions of the law, as to conditional sales and to defeat the provisions of the statute, which were enacted for the benefit and protection of conditional vendees. In some instances these attempts to evade the statute have been de- clared contrary to public policy and void. Plumiera v. Bricha,, 79 Misc. 468. For a review of the authorities with regard to the right of the conditional vendor seeking to evade the statute, by the terms of his contract, see post, page 624. 4. Purpose of statute — Waiver protecting vendee. — The statute governing conditional sales was designed to protect vendees against overreaching vendors, by preventing a vendor from exacting payments on the purchase price of personal property far in excess of the fair rental value, and then re- taking the property and forfeiting the payments made on account of the inability of the purchaser to complete the pay- ments as agreed. Cases may arise in which it is competent for the vendee to waive the benefits of the statute, in such way as to create an estoppel against such vendee. Fairbanks V. Nichols, 135 App. Div. 298 ; Breakstone v. Buffalo Foun- dry Co., 167 App. Div. 62, 152 N. Y. Supp. 394. 5. Sale when held to be absolute, not conditional. A con- tract for the sale of chattels must be regarded as absolute and not conditional, where it contains no provision showing 593 Peesonal Peopebty Law — Sec. 62. any intent of the parties that the ownership of the chattels shall remain in the vendor. Unless evidenced by the contract, it must be treated as an unconditional sale. Sanitary Carpet Cleaner v. Beed Manufacturing Co., 159 App. Div. 587. 6. Conditional sale — Town authorities cannot make con- tract for. — Under the provisions of the highway law, sec. 50 (Laws 1909, chap. 30), a tovm superintendent is forbid- den to purchase a steam roller except on the condition that the money therefor has been provided by the town, and is immediately available for that purpose. Held, that town au- thorities have no power to make a contract of conditional sale for a steam roller, as the method of purchasing such roller is prescribed by the statute. Gardner v. Town of Cameron, 115 App. Div. 750. 7. When plaintiff may elect to sue for goods sold. — A conditional vendor sold to defendant a set of law books at the agreed price of $80, to be paid in monthly installments of $4.00 each. Defendant made default. Plaintiff waited until all the installments fell due, and then elected to regard the contract as a cash sale and sue for goods »sold and de- livered. Held, that such an action could not be maintained until all the installments fell due, when plaintiff could elect to disaffirm the sale, and replevy the goods, or enforce the sale and sue for the contract price. Taylor v. Esselstyn, 62 Misc. 631. See also KirTc v. Crystal, 118 App. Div. 32. Affirmed without opinion, 193 N. Y. 622. 8. Statute of frauds. — As to the validity of an oral con- tract of conditional sale between the parties, see " Oral Con- tract," post, page 595. 9. Goods to be manufactured. — The statute with regard to conditional sale of goods and chattels, embraces not only property in existence, completed ready for shipment, but also chattels which are not manufactured but which are to be manufactured, and shipped to the vendee. Breakstone v. Buffalo Foundry Co., 79 Misc. 496. a. Section 112 of the Lien Law (now embraced in section 62 of the Personal Property Law), prior to the amendment of 1904, was held to apply only to conditional sales of goods Law iw Foece When Contract Made. 593 and chattels, " accompanied by immediate delivery and con- tinued possession of the thing contracted to be sold." An agreement, therefore, to manufacture in future, chattels, to wit, tanks, pumps, pipes, fittings, and appliances to operate a brewery plant, to be placed in a brew-house, is not within the purview of section 112 of the Lien Law. Such an agree- ment, which provides that the chattels shall be manufactured and put into the brewery, and that the title to the chattels shall continue in the vendor, until the same shall be fully paid for, is good though not filed, and the property, after it has been attached to the freehold, continues to be personalty and not realty. Such chattels wilj not pass under a mortgage of the realty, even though expressly included in the mortgage, if such mortgage was not expressly consented to by the vendor of the chattels. Duntz v. Granger Brewing Co., 41 Misc. 177, affirmed 96 App. Div. 631. In above case the court in its opinion cited Graves' Ele- vator Co. V. Callanan, 11 App. Div. 301 ; Grant v. Griffith, 39 App. Div, 107, affirmed on opinion below, 165 IST. Y. 636 ; Tifft V. Horton, 53 N. Y. 377; Ford v. Cohh, 20 K Y. 344; Sisson V. Hibhard, 75 IST. Y. 542 ; Goddard v. Gould, 14 Barb. 662; New York Investment Co. v. Cosgrove, 47 App. Div. 35. The rule that the provisions of § 62 of the Personal Prop- erty Law, relating to contracts for the conditional sale of goods and chattels, shall apply to property sold, which is not in esse, when the contract is made, but is to be manufactured thereafter, approved and reiterated. Breakstone v. Bujfalo Foundry Co., 167 App. Div. 67, 152 N". Y. Supp. 394. 10. Rights of parties governed by law in force when con- tract was made. — If a statute has been amended after the parties have acted under it, and the amendment relates merely to the remedy, the parties will be governed by the law in force at the time of the trial. But if the amendment relates to the rights of the parties, creating obligations or duties which did not exist under the original statute, their rights will remain as they were prior to the amendment. Haefelein v. Jacob, 106 App. Div. 163, 94 K Y. Supp. 466. a. A conditional bill of sale was executed before section 116 of the Lien Law was amended by providing that the vendor must sell the articles within thirty days after taking 39 594 Peesonal Pbopeety Law — Sec. 62. possession. After the contract was made, section 116 was amended by a provision requiring that if the vendor did not sell the articles within the thirty days after taking possession, the vendee could recover from the vendor the amount paid by him under the contract. When the contract was made, the statute conferred upon the vendee no right to recover pay- ment of part of the purchase price paid, in case the vendor had not sold the articles retaken within the thirty days. He could recover only on showing that he had offered to perform, or that the vendor had put it out of his power to deliver the goods. Held, that the rights of the parties were governed by the law as it existed at the time the contract was made. That the amendment to section 116 was applicable only where it affected the remedy, but could not operate retrospectively to affect the rights of the parties. That the amendment of 1900 did not amplify the remedy, and that the provisions of the amendment of 1900 were not available to the vendee. Ih. h. The above decision of the Appellate Division operates to overrule the decision of the County Court on the same point in the case of Vincingnerra v. Japan (57 Misc. 224). 11. Omnibus agreement for future sales. — A contract for the conditional sale of goods is void " as against subsequent purchasers, pledgees or mortgagees in good faith," unless the same has been filed. The statute contemplates the making and filing of an agreement, for each sale, and not an omnibus agreement in advance for all future sales. This is the neces- sary construction to be given to the statute, in view of the fact that it in effect treats and reduces the interest of the vendor to a lien, like that under a chattel mortgage, which must be foreclosed by the sale or retaking of property. The rule of law is, that chattels not in esse, cannot be subjected to a lien as against purchasers and judgment creditors. Scherl v. Flara, 129 App. Div. 561. A contract of conditional sale made by a baker, with a wholesale flour merchant, whereby the latter agreed to deliver flour from time to time, title to the flour to remain in the vendor until paid for, is fraudulent and void on its face. lb. 12. Common-law rule as to conditional sales. — At com- mon law, the rights of vendor and vendee, under a contract of sale, and the rights of creditors in the absence of filing Oral Conteact. 595' notice, were different with regard to the rights of innocent third parties, from those now conferred by the statute. One purchasing chattels under such a contract at common law got no title, and one purchasing from such vendee, or taking a mortgage thereon, got no lien, although such purchase was made in good faith and for a valuable consideration. Supply Co. V. Schirmer, 136 N. Y. 305; Graves Elevator Co. v. Collanan, 111 App. Div. 301, 42 N. Y. Supp. 930. 13. Oral contract. — A contract of conditional sale need not necessarily be in writing. Such contract being oral, cannot be filed as required by section 113 of the Lien Law of 1897 (now section 63 of the Personal Property Law, Laws 1909, chapter 45). The fact, however, that the contract of sale was oral does not invalidate it and it is binding upon the immediate parties, and also upon all parties having knowl- edge of the plaintiff's title. One who purchases chattels de- livered under an oral contract of conditional sale with knowl- edge of the fact that the seller has no title to the chattels until paid for, is not a purchaser in good faith, and may be sued in an action of conversion for the recovery of the chattels. Tompkins v. Fonda Glove Lining Co., 188 N. Y. 261. a. An oral contract for the conditional sale of chattels is not a chattel mortgage and such contract cannot be avoided upon the theory that it constitutes a chattel mortgage and is, therefore, void because it was not filed as required by the statute. lb. b. While a contract of conditional sale, in order to be filed, must necessarily be in writing, nevertheless there seems to be no good reason why one who has purchased goods under an oral contract, and agrees that the title to them shall remain in the vendor is not entitled to the protection of the statute so far as it can apply to such oral contract. Where a vendor sells under a verbal contract of conditional sale, if he retakes the property by reason of the default of the vendee, the vendor is nevertheless bound to give notice of sale to the vendee, as required by the Personal Property Law and sell the goods at public sale as required by the statute. Where after such retaking, the vendor sells at private sale, without notice to the vendee, the latter can recover all installments paid. Alexander v. Kellner, 131 App. Div. 809. 596 Peesonal Pbopeety Law — Sec. 62. In such a case, the giving of a chattel mortgage by plaintiff, to a partner of one of the defendants, is inconsistent with her claim that she had no title, but that it remained in the vendor. The claim is not conclusive, however, and if the vendee had no title, she could give no chattel mortgage. lb. While a contract of conditiomal sale need not necessarily be in writing, in order to bind the immediate parties to the agreement, yet as to third parties parol evidence will not constitute such a contract. Matter of Sheehan, 135 App. Div. 94. The Fitzgibbons Boiler Co., the vendors, sold three boilers to Rossman & Bracken, the contractors, which were installed in Bellevue Hospital, Gouverneur Branch. Thereafter the boiler company wrote three letters to the comptroller of the city of New York, notifying him that the boilers were sold under a contract of conditional sale, whereby it was agreed that title to the boilers should not pass until the sums due for the purchase price were fully paid. That the vendors were the general contractors and that the amount due for the purchase money was $1,113. Held, that these letters did not constitute a contract of conditional sale within the meaning of the statute, nor did they constitute a valid lien against the funds in the hands of the comptroller, applicable to the con- tract for the construction of the Hospital. Ih. 14. Oral agreement — Promissory note — Chattel mortgage. — A conditional sale may be created by parol. Plaintiff's husband bought a team from one Allison. The purchase price was $300. The vendee paid $30 in cash and gave his note for $270 for the balance. At the time of the transac- tion, it was agreed that the team should remain the property of Allison until the note was fully paid. Upon maturity, one Burdick advanced to the vendee $205, the money with which to pay the balance due on the note, and took from him an agreement stating that he had received from Burdick a team and wagon and harness for which he agreed to pay $205 with interest for six months, property to remain Burdick's until paid in full. When the note became due there was a balance unpaid, and the vendee transferred the property to his wife, the plaintiff. A few days later Burdick took possession of the team and advertised it for sale pursuant to section 116 of the Lien Law. The day prior to the sale plaintiff tendered ' OoNTKACT Must Be Filed. 597 to Burdick the balance remaining due with interest, and a sum sufficient to cover reasonable expenses and demanded possession of the property which was refused. In an action for conversion against Burdick, it was held that the trans- action constituted a conditional sale. Burdick treated it as such, and not as a chattel mortgage and plaintiff was entitled to judgment. Powers v. Burdick, 126 App. Div. 179, 110 K Y. Supp. 883. a. In a case where gas ranges were put in an apartment house, under an agreement in the form of a lease, to be paid for as " rent," the lessee to have a bill of sale, when the rent paid amounted in the aggregate to the purchase price. Held, that the lease operated as a conditional sale, and was void as against subsequent purchasers of the realty in good faith, and without notice. Central Union Gas Co. v. Browning, 146 App. Div. 783. aa. The vendor must file his contract of conditional sale to protect his rights. If he fails to do so and the vendee mort- gages the chattels, the lien of the mortgage will be superior to the lien of the vendor, and one who buys the chattels after they had been seized and sold under the foreclosure of the mortgage will acquire a valid title as against the conditional vendor. McLean v. Block, 52 Misc. 545 ; Foreman v. Nor- don Cons. Co., 152 IST. Y. Supp. 592 ; Colwell Lead Co. v. Home Title Ins. Co., 154 App. Div. 83. h. Section 113 of the Lien Law (now section 63 of the Personal Property Law, Laws 1909, chap. 45) governing conditional sales of goods and chattels requires that such con- tracts shall be filed as provided by the law relating to chattel mortgages in order that they may be valid, as against inno- cent third parties. The plaintiff sold to one Liebeskind a steam heating plant for an apartment-house on land owned by the latter, under a contract that the title should remain the property of plaintiff until fully paid for in cash. After the heating plant had been installed, Liebeskind sold the premises to one Kamsler. Thereafter plaintiff filed a me- chanic's lien against whatever interest Liebeskind had in the premises for the unpaid balance due on the heating plant. Kamsler sold the premises to Crystal, the defendant, from whom the plaintiff demanded a return of the heating plant, 598 Peesonai. Puopeety Law — Sec. 62. which was refused, whereupon plaintiff sued the defendant for conversion. Held, that in view of the fact that the con- tract of conditional sale had not been filed in the register's office until six months after defendant purchased the prop- erty, and as there was no proof that defendant at the time he purchased had notice of plaintiff's claim or any knowl- edge that the heating plant had not been paid for except the notice of lien against whatever interest Liebeskind had in the premises, that the action for conversion could not be main- tained. That the defendant was a tona fide purchaser and as to him the heating plant was part of the realty. Kirh v. Crystal, 118 App. Div. 32, 103 K Y. Supp. 17. Held, further that the notice of mechanic's lien filed by plaintiff was wholly inconsistent with his claim of title to the heating plant. The notice of lien was predicated upon the fact that the title to the plant has passed from the plaintiff to Liebeskind. The plaintiff's action against the defendant for conversion was predicated upon the assumption that title never passed to Liebeskind, but always remained in the plain- tiff. If at the time the notice of lien was filed, the title was in plaintiff, then plaintiff, by filing his notice of lien, made an election. He could elect whether he would take the plant or seek to recover its purchase price by acquiring a lien upon the real estate, and by filing the notice of lien he made his election and was bound by it. The choice of the selection of one remedy having been made and acted upon became final, and the right to follow the other was wholly gone. While the action to foreclose the mechanic's lien is a cumula- tive remedy, the plaintiff did not resort to it, but elected to sue for conversion upon the assumption that the title to the plant was in him. Ih. 15. Contract must be filed. — The filing of a contract of conditional bill of sale, as required by § 62 of the Personal Property Law, constitutes notice to the purchaser of the mort- gaged premises, and by reason of such filing and notice, he can obtain no title to the chattels in an action to foreclose his mortgage. The purchaser in such foreclosure sale need not depend upon appearances, but could ascertain by examination of the records whether the fixtures were subject to a condi- tional bill of sale or not. This is assuming that the method of annexation would have made the articles of personal prop- Failuee to Filk 599 erty a portion of the real estate, if the contract of conditional sale had not been filed. Foreman v. Nordon Cons. Co., 167 App. Div. 712. 16. Filing — Failure to file — Contract valid between the parties. — A contract of conditional sale is not void as be- tween the parties for the reason that it has not been filed pur- suant to the statute. The burden of proof is upon the pur- chaser of realty upon which chattels are affixed, which were sold to the owner under contract of conditional sale, which was never filed, to show that he had no notice or knowledge that the chattels had not been paid for. Crocker Wheeler Co. V. Gennessee Recreation Co., 160 App. Div. 373. Plaintiff brought replevin to recover possession of certain electrical generators, which were installed in the building being erected by the Genesee Recreation Co. Plaintiff made a contract of conditional sale of the chattels to McDonnell & Co., which was never filed. The Amusement Company sub- sequently settled with McDonnell Co. and deducted $1,500, because they claimed the electrical machines failed to com- ply with the equipment contract. Thereafter the Amuse- ment Co. became bankrupt, and its stockholders organized the Genessee Recreation Co., the defendant in the action. When the machines were installed the property was subject to two mortgages. The first mortgage was made before the electrical generators were installed. The second was foreclosed and was bid in by the defendant's agent. The purchaser executed a new mortgage and transferred title subject to the mort- gage. The jury found that the purchaser at the mortgage sale and the defendant were not innocent purchasers. Plain- tiff at the trial asked for a direction upon the ground that no title to the chattels ever vested in the Amusement Co. because the latter refused to accept the generators. The jury found a verdict for the plaintiff which was set aside by the trial justice. Held error. Order reversed, and verdict of the jury in favor of the plaintiff reinstated. Ih. See also opinion on the first appeal in the above-entitled ' action directing a new trial, in which it was held that the question of the good faith of a purchaser from a conditional vendee, was a question of fact, and that the court erred in directing a verdict for defendant, the conditional vendee. Orocher Wheeler Co. v. Genessee Recreation Co., 140 App. Div. 726. 600 Personal Peopeety Law — Sec. 62. 16a. Filing contract as to personalty unnecessary, when filed as to realty.— A corporation made a mortgage covering both real and personal property, and also after-acquired prop- erty. After the mortgage was made the mortgagor purchased a flooding and pumping plant to be constructed and used m connection with a dry dock covered by its mortgage, under a contract with the vendor (the mortgagor) that the title to the pumping plant was to remain in the vendor till fully paid for. Held, that the mortgage was valid, both as to the realty and personalty, That the vendee had a mortgageable interest in the pumping plant, and as its mortgage was required to be filed only as a mortgage of realty, under section 91 of the Lien Law, a filing under section 112 of the Lien Law (now section 62 of the Personal Property Law) was not essential as between the parties. Washington Trust Go. v. Morse Iron Worhs, 106 App. Div. 195, 94 IST. Y. Supp. 495. 17. Contract assignable. — A contract of conditional sale is assignable, and while the vendee can not release himself from liability, he may assign the contract to a corporation and the latter must assume the liability of the vendor. Where a trustee in bankruptcy succeeds to the rights of the bankrupt vendee, under a contract of conditional sale, his rights shall be subject to the right of the vendor to retake the property, if default is made in paying installments due, without any negotiations either with the assignee, or trustee, or bankrupt, and to hold the same subject to redemption, and if not re- deemed to sell the property pursuant to the statute. Or the vendor also may elect to retake the property and file a claim in the bankruptcy proceedings for the amount unpaid. Breakstone v. Buffalo Foundry Co., 152 N, Y, Supp. 394. 18. Rights of vendor when vendee becomes bankrupt. — Where machinery was sold upon the installment plan, pur- suant to a contract of conditional sale, in which the vendor reserved title until payment should be made, such vendor may, in case the vendee becomes bankrupt, elect either to retake the property under the terms of his original contract, or file a claim in the bankrupt court for the amount due and unpaid. Breakstone v. Buffalo Foundry Co., 167 App. Div. 62, 152 IST. Y. Supp. 394. 19. Conditional sale -7- Distinguished from chattel mort- gage. — The purchase price of an article sold may be secured Conditional Sale — Chattel Mortgage. 601 in either of two ways: first, by a conditional sale by which the title is reserved in the vendor until the purchase price is paid; second, by a chattel mortgage given back by the pur- chaser. The object to be accomplished by either instrument is substantially the same, but the rights of the parties under the two forms of security are substantially different. If the instrument constitutes a conditional sale, no title passes to the vendee until the article is paid for. If it is a chattel mort- gage, the title is in the mortgagor who gives back a mortgage to his creditor. Twedie v. Clark, 114 App. Div. 296, 99 'N. T. Supp. 85. a. Defendant sold and delivered to David H. Hammond a horse and took back a paper writing, setting forth, among other things, the following: "$100.00 Walton, Delaware Co., June 6, 1904. Three months after date I promise to pay to the order of Hall & Clark One hundred dollars, at the First National Bank of Walton, N. Y., value received, vpith interest." h. The paper then recited that the note was given for the purchase price of the horse and that the title was to remain in the payee or order until the note and interest was fully paid. Then follows the bill of sale containing a provision that in default of payment o f the debt and interest the payees or their legal representatives have power to enter on the premises of the maker of the note or any other place where the chattels may be, to take possession of the property and sell the same at public or private sale, and apply the avails to the payment of the debt. The provisions following were similar to that contained in a chattel mortgage. The paper was signed by D. H. Hammond. The note fell due on the 6th of September and on the 8th, $25 was paid on account of the note at the bank where the same was deposited. On the 10th of !N"ovember, the horse was transferred and assigned by Hammond to the plaintiff, Twedie, who assigned also all his interest in the contract. Thereafter on the 12th of No- vember, plaintiff notified defendant of the transfer and said he wished to redeem what was against the horse and asked if he should leave the money at the bank. Hammond bor- rowed the horse from the plaintiff to transport certain goods, and thereafter surrendered it to the defendant, who received it after he received the notice from plaintiff that he desired to redeem. On the same day, plaintiff and defendant met 602 Peesonal Propeett Law — Sec. 62. and defendant demanded the sum of $85 as a condition for releasing the horse. The defendant thereafter told the presi- dent of the bank, after banking hours, to charge the note to his account. On the following Monday, November 14th, the plaintiff went to the bank and inquired how much was due on the note and gave his check for the amount, but the next day withdrew the check and deposited the full amount in cash for defendant. Defendant, on being notified that the money was deposited for him, refused to receive it. Plaintiff demanded possession of the horse which was refused. Plain- tiff brought replevin. Held, that the transaction constituted a conditional sale and not a chattel mortgage. That Hammond and his as- signee, the plaintiff, had an equity of redemption and a right to redeem the horse upon the payment of the amount due. That Hammond had a right to assign his interest in the con- tract of sale to plaintiff, who was thereby entitled to all the rights of the original vendee. That plaintiff's offer to pay the amount due with notice to defendant constituted a suffi- cient tender to entitle him to possession, and that he could maintain an action of replevin to recover the horse. Ih. 20. Conditional vendee may mortgage his interest. — One who has executed a chattel mortgage, has the legal right to the possession of the chattels, until he makes default. He has, therefore a property interest in the chattels, which he has a right to assign or mortgage, subject to the rights of the mortgagee. This right also enures to a vendee, who holds possession of chattels under a conditional bill of sale. Levy V. Horn, 153 N. Y. Supp. 913 ; Moore v. Prentiss Tool & 8. Co., 133 N. Y. 144. 21. Building loan mortgage — Priority over lien of con- ditional vendor. — A mortgage given to secure a building loan takes priority over a lien of a conditional vendor, who sold mantel pieces, which were annexed to the realty, of which the mortgagee had no notice when the advances were made. One who purchased the premises in foreclosure has a superior title to the conditional vendor, as he acquired the same rights as mortgagee. East New York Refrigerator Co. V. Halpem, 146 App. Div. 201. 22. No title in vendee — Rights of vendor. — At common law, where a vendee gets property under an agreement that 'So Title ik Vbndoe. 603 no title shall vest until payment to the vendor, the purchaser gets no title but only a right to use the chattels until default in making the payments agreed upon. As the vendee has'no title he cannot give any. In such a case the vendor has no lien on the goods for the purchase money, upon the theory that he cannot have a lien on his own property. Accordingly held, that where horses and harness were sold by plaintiff to the vendee, who had paid part cash and gave his note for the balance, the note recited that the title to the chattels should not pass from the vendor until payment of the note. The vendee sold the property to the defendant, subject to the note which defendant agreed to pay. Upon default plaintiff seized the chattels and sold them for less than the amount of the note, and thereafter sued defendant for the balance due on the note. Held, that plaintiff could not recover, as the transaction did not come within section 62 of the Per- sonal Property Law, and was not a conditional sale under the statute. That when plaintiff regained possession of the chattels, the consideration for the notes given for the pur- chase price failed. Nelson v. Gibson^ 143 App. Div. 894. 23. No title in vendor — Rights of vendee. — One Dawley sold a cash register to plaintiff, upon an agreement that title was to remain in Dawley till the purchase price was fully paid. Plaintiff made weekly payments until he was notified by the National Cash Register Company that it, and not Dawley, was the owner of the cash register. Plaintiff re- fused to make further payments, and sued Dawley for pay- ments already made. It appeared that the National Cash Register Company failed to file its contract of sale with Dawley. Plaintiff was nonsuited below. On appeal the court held, reversing the judgment below, that plaintiff was entitled to recover what he had paid to defendant. Bowen V. Dawley, 116 App. Div. 568, 101 N. Y. Supp. 878. a. The court held that the object of the statute was to protect an innocent vendee, and was not intended to operate injuriously to the holder of a superior title, or as a penalty against him for failing to file his contract of sale. That the notice from the true owner placed plaintiff in the same position as he would have been had the contract of the true owner been filed. He would be entitled to credit on pay- ments made to defendant, if the true owner sought to retake 604 Peesonal Property Law — Sec. 63. the property, such payments being a lien upon it to the time that notice was given. That plaintiff could, on receiving such notice, also elect to terminate his contract with defend- ant, return the property to him, and sue him for the moneys paid, and for any damages resulting by reason of his defective title. lb. 24. Fixture — When still subject to contract of condi- tional sale. — Defendant purchased a gasoline engine under a conditional bill of sale. It was delivered and placed upon certain real estate consisting of a mill property which de- fendant bought under a contract by which he agreed to pay for the land in instalments. The engine was bolted to a sub- stantial foundation constructed of cement and other mater- ials, and became a fixture and part of the realty. After de- fendant failed to pay the last instalment for the engine, he gave the plaintiff a written assignment and sought to surren- der the engine. The following day defendant made default upon his contract for the purchase of the realty and surren- dered the land, with the engine attached, to the owner. Plain- tiff demanded the chattel from the latter, who refused to allow the engine to be removed. Plaintiff then brought an action of conversion to recover the engine. Held, that the intent of the parties to the conditional bill of sale was that the engine should remain personal property until paid for and that this agreement under the circumstances was binding upon the defendant, who had not advanced or lost anything on account of the personal property annexed to the land, and this notwithstanding the fact that the contract for the pur- chase of the land provided that all machinery placed upon the premises should become part of the realty. Such an agreement, while binding between the parties, will not be construed to destroy the superior rights of the vendor of the personality under a conditional bill of sale. (Davis v. Bliss, 187 K Y. 77.) lb. a. Personal property may be so firmly attached to or thor- oughly and substantially made a part of the realty that its character as personalty will not be preserved even by special agreement intended to accomplish that result, but where the chattel can be readily detached and removed without tearing down any part of, or causing any serious damage to the land, it will be deemed under the circumstances as between the vendor and vendee personalty, lb. FixTUEEs. 6Q5 25. Stoves and ranges. — The Union Stove Works, defend- at in a foreclosure action, interposed an answer setting forth lat certain stoves and ranges in the mortgaged premises 'ere sold to the mortgagor under a contract of conditional lie, providing that the title to the chattels should remain 1 the defendant until paid for, and that such contract was uly filed and the mortgagor having failed to pay for the battels, defendant was entitled to their possession and had lien thereon for the purchase price. Held, that such an nswer was deemed equivalent to a denial of the allegation in tie complaint that the interest or lien of the defendant, the Inion Stove Works, accrued subsequent to the lien of plain- iff's mortgage and was subject or subordinate thereto. An rder striking out such answer as frivolous, was reversed, ipon the ground that the chattels were the personal property f the vendor. Barwin Realty Co. v. Union Stove Works, 46 App. Div. 319. A sham answer may be stricken out on motion. Code, sec- ion 538. But the remedy for a frivolous answer is to apply the court for judgment thereon. Code, 537. lb. a. Heating and cooking ranges sold to a mortgagor to be nstalled in a tenement house, in the course of construction, brm part of the realty as a permanent equipment of the (remises. The mortgagor, who was the owner, made an greement with the contractor and conditional vendor to nstall the heating and cooking ranges. The owner knew at he time the mortgage was given that the ranges were to be nstalled. The contract of conditional sale was not filed lowever, until a month after. Held, under the particular ircumstances of the case as disclosed by the evidence, that he sale of the mortgaged premises included title to these Ixtures, and that a defendant who purchased the property it foreclosure sale acquired good title. Merchants' & Trad- es' Bank v. Bergen Heights Realty Corp., 137 App. Div. 45. 26. When mortgage does not attach to chattels on mort- gaged premises. — Defendants Hudson Mantle Mirror Co. md Colwell Lead Co. after a purchase money mortgage on )remises had been executed and recorded, furnished plumb- ng, mantels, and mirrors, which were sold to the builder inder contracts of conditional sale, which contracts were iled as required by the statute, and the chattels were placed 606 ~ Peesonal Pe£>peety Law — Sec. 62. . in buildings. In an action to foreclose tlie mortgage the de- fendants claimed title to the chattels. Held, that they were entitled to the chattels, as against the mortgagee, and that their rights were fully protected by section 62 of the Per- sonal Property Law. Astor Mortgage Go. v. Milton Con- struction Co., 151 App. Div.»557. Held, further as to defendant Col well Lead Co., whose conditional contract was duly filed at the time the foreclosure action was begun, but was not re-filed at the end of the year, that its rights were protected by such filing, and that a re- filing, after the action was begun was not essential. Ih. 27. Mortgage of realty does not attach to chattels on mortgaged premises. — The reservation of ownership under a conditional bill of sale is valid and effectual in the vendor as against subsequent purchasers, pledgees, or mortgagees in good faith from the date of filing. Mantels placed upon premises which are subject to a mortgage, where the mantels are the subject of a conditional bill of sale duly filed, are not within the lien of the mortgage, unless advances were made upon the mortgage between the date of delivery of the man- tels and the date of filing the conditional bill of sale. Nichols V. Potts, 35 Misc. 273. 28. Remedies of vendor. — When the vendee of personal property under an executory contract of sale refuses to com- plete his purchase, the vendor may keep the article for him and sue for the entire purchase price; or he may keep the property as his own and sue for the difference between the market value and the contract price, or he may sell the prop- erty for the highest sum he can get and after crediting the net amount received, sue for the balance of the purchase money. Ackerman v. Rubens, 167 IST. Y. 405 ; Moore v. Potter, 155 IST. Y. 481; Dustan v. McAndrew, 44 N. t". 72; Gourd V. Healy, 206 IST. Y. 423. a. Such sale by the vendor must be at public auction, after notice to the vendee, and upon due advertisement. The law is satisfied with a fair sale made in good faith according to ^tablished business methods, with no attempt to take ad- vantage of the vendee. Ackerman v. Rubens, 167 'N. Y. 405. b. Defendant purchased a cash register, under agreement of conditional sale, whereby he was to pay in advance one- half of the purchase price, and balance in instalments, title Remedies of Vendor. 607 to remain in vendor till payments made in full. The vendee, after paying half the price as agreed, refused to receive the goods. Held^ that the vendor could sue and recover the balance of the purchase price, and was not confined to action for damages based on the difference between the contract price and the market value of the article. Ideal Cash Regis- ter Co. V. Zunino, 39 Misc. 311 ; s. c, 79 IST. Y. Supp. 264. 29. Remedies of vendor cumulative. — Plaintiff, a condi- tional vendee, brought an action to recover $285, which he paid to the defendant on account of a conditional sale of pool tables. It appeared that defendant prior to the commence- ment of plaintiff's action seized the tables, in an action to foreclose his alleged lien upon the chattels under section 139 of the Municipal Court Act (now embrced in § 70 of the Municipal Court Code). Judgment was awarded to plain- tiff directing that the pool tables be sold. The amount real- ized on the sale did not equal the purchase price of the tables. Plaintiff in his suit against the conditional vendor, based his action on section 65 of the Personal Property Law, and alleged that the defendant failed to retain the property for thirty days after the r€Staking and failed to sell it at public auction, within thirty days tbereafter as provided by the statute. Held, that the remedy under the conditional sales act is not an exclusive remedy. That defendant had a right to bring an action to foreclose his alleged lien upon the chat- tels, in the Municipal Court, in view of the fact that, that act authorizes an action on a contract of conditional sale, and further declares that for the purpose of this section a con- ditional bill of sale " shall be deemed a lien upon a chattel." Quattrone v. Simon, 82 Misc. 610; Crump v. Wissner, 163 App. Div. 47. In view of the language of section 139 of the Municipal Court Act which declares that a conditional bill of sale shall be deemed a lien upon a chattel it is very doubtful whether the section is constitutional. The rights of the parties under the conditional bill of sale are inconsistent with the theory that title to the chattels is vested in the conditional vendor. What power has the Legislature to declare that the property rights of the parties to the conditional bill of sale shall be- come operative so as to vest title to the property on the con- ditional vendee and declares that the conditional vendor has only a lien. The theory of a lien is based upon posses- 608 pEEgoNAL Peopekty Law — Sec. 62. sion. The theory of a conditional sale is based upon the fact that the conditional vendor never parted with title. 30. " Retaking " — What constitutes. — Plaintiff, an infant, brought an action by his guardian against the defendant to recover installments aggregating $173.50 on account of the purchase price of a motorcycle, delivered under a contract of conditional sale. The conditional vendor at the request of the plaintiff's mother, who did not want her son to have the cycle, obtained possession of it, intending to sell it on plain- tiff's account in the spring. About two weeks later plaintiff demanded the motorcycle or the money he paid for it. De- fendant said the cycle had not been paid for, and plaintiff ■could not have it. Held, that under the circumstances plain- tiff's demand for the possession of the cycle and the refusal of the defendant to deliver it constitutes a " retaking " of the property within the meaning of the statute. That defendant having retained the property more than sixty days without selling it, as required by law, the vendee was entitled to re- cover the amount paid by him to the conditional vendor. BrucJcer v. Carroll, 86 Misc. 412. a. Where one who has given a chattel mortgage makes de- fault, and the mortgagee takes possession of the chattels, and appropriates them to his own use, the mortgage debt is satis- lied by such possession and the mortgage is thereby extin- guished. Levy V. Reich, 78 Misc. 413. A. H. Andrews & Co., defendant's assignor, sold 298 chairs to the plaintiff to be installed in a moving picture establish- ment. The contract provided that the title to the chairs should remain in Andrews & Co., until full payment in cash was made. That if promissory notes were given on account of the purchase price they were not to be considered as pay- ment, but merely as evidence of the indebtedness. That if default was made in, the payment of any part of the purchase price " whether evidenced by promissory notes or otherwise," the Andrews Co. had a right to retake the chairs with or with- out force and with or without legal process, and retain the portion of the purchase price then paid. Plaintiffs made default and Andrews & Co. sued to recover the purchase price and obtained a writ of replevin under which it took posses- sion of the chairs. Plaintiffs requested that the chairs be returned and offered a surety company's bond to secure the Retaking — What .Constitutes. 609 payment of the amount due thereon, which was refused. Plaintiff procured an order vacating the writ of replevin and directing the party who held possession to return the chairs to the plaintiffs. The demand was refused and the parties who had possession were adjudicated in contempt of court. The chairs were then delivered to plaintiffs, who put them in their establishment. 'No payments were made thereafter upon the chairs. The court submitted the question to the jury whether the delivery and acceptance of the notes operated as payment under the contract. The jury found for the plaintiff and awarded $2,200 damages against the vendors. Held, error. That the title in the chairs was in the An- drews Co. and under the contract it had the right to posses- sion and the right to take the chairs for nonpayment with or without force, and with or without legal process. The ques- tion as to whether the notes operated as payment was a question of law for the court and not a question of fact for tiie jury. In view of the fact that the contract expressly provided that notes were not to be considered as payment, but merely evidence of the indebtedness, and that Andrews Co. and its assignee had a right to possession of the chairs. Men- delson v. Irving, 155 App. Div. 114. An action was brought to recover the purchase price of a piano under a contract of conditional sale, and to foreclose plaintiff's lien therefor. Defendant agreed to pay $260 for the instrument, $5.00 down and $1.00 a week' thereafter. The contract stipulated that payments must be made at the cashier's office of the vendor, or at the sender's risk by regis- tered mail. Defendant did not make the weekly payments and was often in arrears. Held, that the vendee's default was not waived because the vendor accepted payments that were waivers of prior defaults. If there was any promise to extend the time of payments of installments, upon making partial payments, such promise was without consideration and void and plaintiff was entitled to judgment. Blooming- dale V. Braun, 80 Mis. 527. 31. Vendor after sale cannot recover the purchase price. — Where the relation between the parties is that of conditional vendor and conditional vendee, such vendor cannot, after as- serting his title to the property, taking the same from the 39 610 Personal Peopeety Law — Sec. 62. vendee and selling it, recover the purchase price thereof. He cannot disafBrm the contract of sale, take and keep his prop- erty, and at the same time require the defendant to pay- there- for. Cooper V. Payne, 111 App. Div. 785, 97 N. Y. Supp. 863. » a. Where a conditional vendor takes notes of the vendee to secure the purchase price, and thereafter takes possession of the property and sells it, he cannot thereafter disaffirm the contract of sale and apply the proceeds of the sale to the payment of promissory notes given by the vendee to secure the purchase price. The consideration for notes given under such circumstances fails, when the conditional vendor sells the property. Ih. See also Hurley v. Allman Gas Engine Co., 144 App. Div. 300, ante, page 590. 32. Right of vendee to recover moneys paid. — Where articles sold under a contract of conditional sale are retaken by the seller pursuant to section 116 of the Lien Law (now section 65 of the Personal Property Law), the purchaser has a period of thirty days from such retaking within which to comply with the terms of the contract and receive back the property. After the expiration of this period, if the terms are not complied with, the seller may sell the articles at public auction. Por failure of the' seller to cut oif the equity of redemption of the purchaser by such sale, the latter may bring an action and recover whatever money he has paid under the contract. Roach v. Curtis, 191 N. Y. 387. a. The fact that the seller got possession of the articles by an action of replevin constitutes no bar to the right of the purchaser to recover the moneys paid under the contract. This for the reason that the purchaser got no title to the articles delivered under the contract of conditional sale, and in an action of replevin to recover possession of the goods, the defendant could interpose no defense as the title to the property was in the plaintiff in the replevin suit. The judg- ment in the replevin action merely established the right of possession in the seller and had no bearing directly or in- directly upon the right of the purchaser to recover what had been paid on account of the purchase, in event of the seller's failure to sell the same after he had retaken the property. Right to Retuen Goods. 611 h. The only way in which a vendor can cut off the right of action by the vendee to recover moneys paid under the conditional contract of sale after the goods had been taken by the vendor, is for the latter, after the thirty days' period allowed the vendee to comply with the terms of the contract, to sell the goods on notice to the vendee at public auction. Eor failure to comply with this provision of the statute, the vendee has a cause of action against the vendor for moneys paid under the contract. lb. c. It seems that under a conditional bill of sale, for a breach of the contract, the vendor, when he retakes the prop- erty, must sell it at public auction. His right to sell at private ssile, even where he has inserted in the contract a clause allowing him 'to do so, is questioned as being contrary to public policy as it enables the vendor to evade the pro- visions of the statute with regard to Conditional sales. lb. 33. Right to return goods.— Where a contract of condi- tional sale reserves the right in the vendee to return the goods within a time specified, if the right to return is not duly exer- cised and the property is retained after the time specified, or after the lapse of a reasonable time, if no time is specified, the right to return the goods is forfeited, the sale becomes absolute and the vendor may sue for the value of the goods. Costello V. Herbst, 18 Misc. 176 ; Shafarman v. Loman, 32 Misc. 726. a. Defendant purchased a threshing machine from plain- tiff under an agreement that the machine should remain the property of the plaintiff, the seller, until fully settled for. Defendant agreed that plaintiff should have five days' written notice of any difficulty discovered in working the machine during the five days allowed for testing and a reasonable op- portunity given plaintiff to remedy any defect or substitute another machine. The contract also required the purchaser to furnish an engine to operate the machine with a fly wheel forty inches in diameter, ten and one-half-inch stroke, 200 revolutions per minute. Defendant waited sixteen days after receiving the machine before using it, was not satisfied with it, although fully instructed how to use it, and then wrote plaintiff that he would deliver the machine to plaintiff, as it did not give satisfaction. Held, that plaintiff was entitled "612 Peesonal Peopeety Law — Sec. 62. to notice within five days of any defects, and was entitled to an opportunity to remedy them or furnish another machine ; and that defendant's failure to comply with the contract in these and other respects constituted an acceptance and ren- dered him liable for the purchase price. Geiser Mfg. Go. v. Taylor, 55 App. Div. 638. 34. Vendee has mortgagable interest. — A vendee in pos- session of chattels, having a right to such possession under a contract of conditional sale until the purchase price is paid in full, has an interest in the contract, which he has a right to mortgage, prior to default under the contract. A mort- gagee of such interest, upon default of payment by the mort- gagor, has a right to immediate possession of the chattels, and to acquire title thereto, upon payment of the balance due upon the contract to the vendor. He may obtain possession by re- plevin, or sue for the value of the chattels in conversion, and the measure of damage in such case would be the value of the chattels, when converted, less the unpaid purchase price. a. The interest of a vendee, under a conditional contract of sale, cannot be reached upon execution upon a judgment against the vendee, it being an equitable interest which must be reached in an action in equity. A mortgagee of such an interest may maintain an action of conversion against a sheriff who seeks to sell such interest upon an execution against the vendee and mortgagor. Friedman v. Phillips, 84 App. Div. 179. fe. The right of a vendee consists in his right to pay in ■order to acquire title, under the terms of the contract. This right is assignable, and may also be mortgaged, for whatever is the subject of a sale is also the subject of a mortgage. The vendee mortgaged a flooding and pumping plant used in con- nection with a dry dock, which it acquired under a condi- tional contract of sale, and' made same subject to the lien of a prior mortgage. The court, in an action to foreclose the mortgage, directed that all the property covered by the mort- gage, both real and personal, be sold, free from all liens, and after payment of costs and allowances there should be paid out of said proceeds the amount due to the conditional vendor. Held, no error. That it would be inequitable that the mort- gagee or other creditors should receive the benefit of the sale Election of Remedies. 613 ■which included the property of the vendor, without provision in the first instance for payment in full of the property of the vendor. Washington Trust Co. v. Morse Iron Worlcs, 106 App. Div. 195, 94 N. Y. Supp. 495. 35. Right to redeem assignable. — The equity of redemp- tion given by the statute to a vendee under a conditional bill of sale is assignable, and the assignee of the rights of such vendee stands in the place of his assignor, and may exercise the equity of redemption in the same manner as the original vendee might have exercised it, and may maintain replevin upon making full tender of the amount due to the vendor. Twedie v. CUrTc, 114 App. Div. 296, 99 N. Y. Supp. 85. 36. Election of remedies — Rights of vendor. — Shipley Construction Co. agreed v?ith defendant Cayuga Cold Storage Warehouse Co., the owner of certain mortgaged premises, to erect thereon machinery and apparatus for a refrigerating plant, and assigned the contract to defendant, the York Manu- facturing Co., who installed the plant. The purchase price, $2,350, was to be paid in four installments, first installment in cash, balance in thirty, sixty and ninety days. Notes were given for the last three installments, bearing interest. The last installment was not paid and suit was brought to recover the amount. In an action to foreclose the mortgage plaintiff claimed that the machinery and apparatus furnished by defendant York Manufacturing Co. was part of the realty covered by the mortgage. The court below held, that the property cov- ered by the contract of conditional sale retained its character as personal property as against the owner of the prior mort- gage, but that the vendor by bringing suit to recover the last installment of the purchase price, made an election of rem- edies, and as against the mortgagee, waived its rights as con- ditional vendor. Held, error. That title to the machinery- did not pass to the vendee until the entire purchase price was paid. That the suit was merely to establish the obligation of the vendee, and the latter got no title to the machinery, till the balance of the purchase price was paid, whether that bal- ance was evidenced by the note, or by a judgment on the note. Batchford v. Cayuga Co. Cold Storage Co., 159 App. Div. 525. 614 ri:i:5:>A-. Pbopketx Liw — Ssx:. 62, - Title under executOTV cfmtiact. — 0:t* <<"". hnmlier r»> S-q.-irv^ Ti^le to tke fauabtar r.rier T^e ;;;rei-r,;r.: -.--ij :*■• 'Oss<* to S-c',::r«^ -.r-'y witen ii was o,if^iT-er^\i "or. v^%r^ sT C>xs::eSiX» F,'t_s.>." S;";r^~^ "ess j^.-^i. or £::vr-p7jr\i to j^;!!. llie lumber ?: tfe? r.-v. »>t" FirVr-r^:, Frtr^'i >^ Beaupi. rcyr;*;::TST:vof of Sr,;:r^:^- auEid rirVr.r.rf5 Treat to ^.tstj ndll in Fe-:-?y',\-xT.:s and >— ;^: iu nestxv.je :: die rc:"is^: cf rh; tv.T:k-^ s-sii he hsv^. no <>b;i>"!iv-i :o vie- Mvfrir,; :1~; hnuher :, Piirsl.-rs:, Fiendi A: lVar^i, T'r.t? ro.r:i;>? tban wen: :hr."^r. lvr^:"? .v,:v->;r ysAi, ?i'iv:oi tk* >,"-.:'rtr. whidi v--^:? in j^qv;-^.*? ;:',e?> and had eaA pale mailed ss f:"\v>: " T .:> ir-"-,K-r r.5J he«tt sc\i and de- liwwd * * * wP., F. JtR" Thereafter Kr<: <^: land .:e!:vcrix: the Innibex to vl.:;r..;;-.-:Ts Ped:. The ss-ip-^x^ v^t S, --.iros siixi Firkhr.r>T j:;c>i Pt^k fcr v\ -i^Tfr^icrv upon die theonr that the sot o^f B^jr^: in r.:f.r"s.:v.j: the hnnber r:";-; is l-iY-rj: been jc'.5- siia deliveied to Pirih-.r?:, rrenTeani. That in 'ie s~:4?fr.k.v of ar.y new si:r\v:v.fr.: or Ar.fiavr;;::,-.. iv.sj-.r.^ >^-:v.--,v. Bors: and FArk- r.r^rf-, K:r^: t.-~ < bonnd o-.y cv i.:> ecwtKiet wuh S:;,:;nrs^ That sr-.-'i contmet ■.-;.? exeeutorr and nnder i: K.^rft «\mld demand the pnrdiase priee of the hunb«r ©nfy npon hi$ v^e- .ivirTy o^f the linnber " or. .^^.r^ at Gxr.o-j^v Fcrs?,^' and title :> t2:c lumber could rvf.sf fr. ra IVrs: cr/y cy fr.^r. ddiveiy. That 5;:~e i>?:n?.ir.oi in R>r#: and j ",;.:-:i:: eould not ie<■; Sisi. B«Hk r. Part, i>l Ayp, P:v. i;:><. S7a. Chattels destroyed by fire. — Unforseen c,r,-.sak;es ir.-ifT he p:v>vi>ied spr.r.j: in :"r.e «!v>ntraet, :n orvler to prv. :itv; the psrrir^ In d»e abs«iee of s:u>:: an asrreenwnt. :'r,e L^s> win!o fsl! r.jv>r. the Jv-Ttv who^ -or:-vr:y maj be ,u~^:ro\-v>:. v.jvMi the cror.-d that j"o>. p^^T:y vV.fi ":.;i\Te prcvided sir-ii::>; sr.v'Ii v.v.-:r.-,i:vnoy in h'.j vvvccrao:. W..,.. a p^Tty by ;,-,j o.r.- :r..o: orvsts:-* a o.r.:y or ehsKre ujxm hr.r.si ,f . "re ij K>und to make ex i notv.-;:h?:,r.-,ir..4: anv aeeident. for the rw^.j^^n that he r.-.-.i:";.* havi? provided spur.?: fiur. aeeident in i.:? vviursot. rj-::oV-i:' r. -',;';:■- Atyn. -71: IfffrmoNjr r. }ii'i''~:."n, 13 X. T, ?i»: vr* r. i>; :«;. 1 Kov^j, 4T<5: j, e,. ? A^k iX Vpx> Dee. ST5: lO Ir; r. -4».v-;V: Clock (>.. V>: X. Y. in>:^; Fj; ;>■ r. '. - vs. «> App. Piv, 1?, affirmed 163 X. Y, e of an artist!:.?' liea, the rule sppMts that whei* tV.o o>.s"o! ciren to a xrorkman on which to jvr:or;u laK>r p:rij'.-.e5, without any iietau:T on the part of the wv>rfaman. Chattels Dbstkoyed by Fibe. 615 it perishes as to the master, and the bailee is entitled to com- pensation for the k'bor expended upon it, by him. In such (iiusoa the iniixiiu res periil domino applies. Kafka v. Leven- wlm, 18 Misc. 202. Tlu! same rule applies to chattels delivered upon a contract of coiulitional sale. The title to the chattels in such case riuiuiiiis in the vendor. The vendee acquires no title until (li(^ chattels iwc paid for. A promissory note given to a con- (lilloiial v(',ii(l(ir under such circiimstances, vests no title in tlio vendee. Wlioi'o chattels are delivered to a conditional v()iul(H!, the {■(iiiililidiuil vendor may provide against the loss of the chattels l>,y lire, or by accident, and where a contract contains such a pniviaion, llu! loss of chattels by fire must be borne by the coiulilioiial vendee. National Cash Register Company v. South Hay Club J louse, 64 Misc. 125. a. An iigreemeiit for the sale of a piano provided that the purchase'* mij^ht elect to pureluisn the piano and pay for it in instalments, and liecaiiu^ liable if the })iane was destroyed by fire in vomicae's possoaHion. Tiie vendoc^ exercised his oplieu to i)iir('iuise, paid some instalments, and before all had been paid llie piano was destroyed by lire. Held, that vendee, after oxercisins;' his option, was bound by it, and the vendor was not bonnd to take back the piaTio, if offered, and could Hiie for the purchase prieo, and vendee must bear the loss of destruction l)y fire. AiuMinorHi, v. lihincs. 34 Misc. 372. 38. Waiver of rights by vendor. — Where chattels were sold under a conditional bill of sale and the vendee subse- quently became hankntjit, the conditional vendor sold the property at private sale for a price over and above all that was due upon the chattels. The plaintiff, the trustee in bank- ruptcy of the con!'■- seinded -was a qaestion of fact for the jniy. and 're- Iz-lz.'j found tli*. the ecmtraet was Ks^rfr-d^ ^md that defendant reeetred from pkir.t;f: *r.e Vnlean, pntsnant to *ae comtraet of r^v:. ■-.'.- p-lairstiff was eri: titled to jaidarr.ir.';. /J, 43, Agreonait execatory — ^fntention goT^ems. — An a^ree- moit *', idl a 2rc<%T7." bimneas in -?.;'-: ->.r- avreement c-- dare* that tLe par*;.- of tlie first p-art ~ heretir s^h." the pnr- dia^e monev to l>r pai'i in t'.*';^ iii/.'.z.z dne at ^^avyi j/iri.-i?, The agreement cojiclndes as follows : " Tiie partv of die fir^* part Jtzr^rr-: to give to tte parties of the second part a free and elear li.i f sale when total amount of *2.:2W is paid in fnlL" JEfeW, that the word " seJl " does not r.e<5%^rilj iir.port an ezeented eoatraet. sad the language of the asr-K^ner: clearly indicated *Le intuition that title was lo pass when the bill of aale was gi. ex. not when the a-2r.t of the vendor Jo retake possession of flie piano ior a l>refe/;h of the etmditional bill of sale on the part of the guest Waters t. Gerard, Ih',' S. Y, 302, 45. 'Evidence — Identification of vendee — How estab- ToAedL — The contract of conditional sale was subscribed JaaAar Eraun. It was a printed blank and the parties i«amf-: 620 Personal Property Law — Sec. 63. in it were Otto Wuertz, the plaintiff, party of the first part, and Mrs. Isador Braun, party of the second part. In the other parts of the paper, the blanks were filled in as " she " and "her." In an action by plaintiff to foreclose his lien on the chattel, he served Erma Braun only. Upon the trial the court excluded the contract which was offered in evidence, because the defendant's name was Erma Braun. Plaintiff offered to show that Erma Braun was Mrs. Isador Braun. That all preliminary negotiations were had with Erma Braun. That the contract was drawn up and offered to her for execution. That she subscribed it and delivered it to the plaintiff. That she thereafter recognized it as her contract, affirmed it and in part performed it, and that in all things Isador Braun was an utter stranger. The evidence was ex- cluded and complaint dismissed. Held, error. That plain- tiff had a right to show who the real party was who executed the paper, and that the evidence excluded by the court below was competent. A person may become bound by any mark or description he thinks proper to adopt, provided it be used as a substitute for his name and he intended to bind himself. Wuertz V. Braun, 113 App. Div. 459, 99 JST. T. Supp. 340. § 63. Where contract to be filed.— Such contracts except contracts for the conditional sale of goods and chattels supplied for a building and attached or to be attached thereto, shall be filed in the city or town where the conditional vendee resides, if he resides within the state at the time of the execution therof, and if not, in the city or town where such property is at such time. Such contract shall be filed in the city of New York, as follows, namely: in the borough of Brooklyn in said city, such instrument shall be filed in the office of the register of the county of Kings; in the borough of Queens in said city, in the office of the clerk of Queens county; in the borough of Eich- mohd in said city, in the office of the clerk of the county of Richmond; in the borough of Manhattan in said city, in the office of the register of the county of New York; and in the borough of the Bronx in said city, in Conditional Contract — Refixing. 621 the office of the register in the county of Bronx; in every other city or town of the state, in the office of the city or town clerk, unless there is a county clerk's office in such city or town, in which case it shall be filed in such office. But all such contracts for the conditional sale of goods and chattels, attached or to be attached to a building, shall be filed with the register of the city or county or with the county clerk of the county, in case there is no register of such county, in which the prem- ises whereon the said building stands are located. (As amd. Laws 1900, chap. 248, Laws 1904, chap. 698, Laws 1915, chap. 14.) Lien Law of 1897, § 113, re-enacted as § 63 of the Per- sonal Property Law, Laws 1909, chap. 45. § 64. Endorsement, entry, refiling and discharge of conditional contracts. — The provisions of article ten of the lien law relating to chattel mortgages apply to the endorsement, entry, refiling and discharge of con- tracts for the conditional sale of goods and chattels, except contracts for the conditional sale of goods and chattels, attached or to be attached to a building. The officers with whom such first mentioned contracts are filed shall enter the future contingency or event re- quired to occur before the ownership of said goods and chattels shall pass from the vendor to the vendee, the amount due upon such contract and the time when due. The name of the conditional vendor shall be entered in the column of ' ' mortgagees, ' ' and the name of the con- ditional vendee, in the column of " mortgagors." Where such contracts are for goods and chattels, at- tached or to be attached to a building, the following provisions apply to the endorsement, entry, refiling and discharge thereof. The above named officers, with whom such contracts are directed to be filed, shall enter the future contingency or event required to occur before the ownership of said goods and chattels shall 622 Peesonal Pkopekty Law — Sec. 64. pass from the vendor to the vendee, the amount due upon such contract, and the time when due, and shall file every such contract presented to them for that pur- pose, and endorse thereon its number and time of re- ceipt; they shall enter in a boot provided for that pur- pose, in separate columns, the names of all the parties to each contract so filed, arranged in alphabetical ordei;, under the head of " vendees " and " vendors," the number of such contract and the date of the filing thereof, and under a column headed " property," they shall enter a brief description sufficient for identifica- tion of the land upon which said building stands^ and if in a city or village, its location by street and number, if known, and if in a city or county where the block system of recording and indexing conveyances is in use, the section and block in which the said land is situated. The said officers shall also keep an index, so as to afford correct and easy reference to the books containing the entries in regard to such last named contracts. In all cities and counties where the block system of recording and indexing conveyances is in use, the index shall be arranged according to the block numbers. A contract for the conditional sale of goods and chattels, attached or to be attached to a building, shall be invalid as against creditors of the conditional vendee and against subsequent purchasers or mort- gagees in good faith of such goods and chattels or of the premises upon which the said building stands, after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless: (1) within thirty days preceding the expira- tion of such term a statement containing a description of such contract, the names of the parties, the time when and place where filed, the interest of the con- ditional vendor or of any person who has succeeded to his interest in the property, claimed by virtue thereof; Tbustee rs BA5KKrPTCT — Title or. 623 or (2) a copy of .sucli contract and its endorsements, together with a statement attached thereto or endorsed thereon, showing the interest of the conditional vendor or of any i>erson who has sncceeded to his interest in the contract, is filed in the office where the contract was originally required to be filed : provided, however, if at the time such contract was executed the premises whereon the said building stands was then in the county of New York but is now located in the new county of Bronx, then such statement or a cojjy of such a>ntraet must be filed in the office of the register of the county of Bronx; and the officer with whom such statement or cojjy of such contract must be filed, as in this section provided, shall enter, iu a separate column, in the book above provided for, in a column headed " date of refiling," the date of the refiling of the said contract. The officers performing ser- vices under this article are entitled to receive the same fees as for like services relating to chattel mortgages. Upon the title to the goods and chattels affected by any such last mentioned contract becoming absolute in the conditional vendee or his successor in interest by the payment of the full consideration for which any such contract was made, the conditional vendor, his assignee or legal representative, upon the request of the con- ditional vendee or of any person interested in the property covered by such contract, miLst sign and acknowledge a certificate setting forth such payment. The officer with whom such contract Ls filed must, on reeeipt of such certificate, file the same in his office and write the word " discharged " in the book where the contract is entered, opposite the entry thereof, and the contract is thereby discharged. (As amd- Laws 1904^ diap. 698, Laws 1915, chap. 455.) Lien low of 1S97. § 114- le-enacted as § 64 of the Per- sonal Property Law, Laws 1909, diap. 45. 624 Peksonal Peopeett Law — Stec. 65. § 65. Sale of property retaken by vendor. — When- ever articles are sold upon the condition that the title thereto shall remain in the vendor, or in some other person than the vendee, until the payment of the pur- chase price, or until the occurrence of a future event or contingency, and the same are retaken by the ven- dor, or his successor in interest, they shall be retained for a period of thirty days from the time of such tak- ing, and during such period the vendee or his successor in interest, may comply with the terms of such con- tract, and thereupon receive such property. After the expiration of such period, if such terms are not com- plied with, the vendor, or his successor in interest, may cause such articles to be sold at public auction. Un- less such articles are so sold within thirty days after the expiration of such period, the vendee or his suc- cessor in interest may recover of the vendor the amount paid on such articles by such vendee or his successor in interest under the contract for the condi- tional sale thereof. (As amd. bv Laws 1900, chap. 762.) Lien Law of 1897, § 116, re-enacted as § 65 of the Per- sonal Property Law, Laws 1909, chap. 45. 1. Retaking — What constitutes. — A retaking within the meaning of section 65 of the Personal Property Law, dates from the period of time when the chattels so retaken come under the control of the conditional vendor, and the equity of redemption expires within thirty days from such retaking. Accordingly held, that where the chattels were retaken and loaded in cars, one of which remained on a siding, which did not leave the plant immediately, that the thirty day period began to run from the date when the chattels were placed in the car, upon the ground that after they were ready for trans- portation, they were no longer under the control of the vendee. Breakstone v. Buffalo Foundry Co., 167 App. Div. 62, 15a N. Y. Supp. 394. a. The retaking of property from the possession of the con- ditional vendee by a city marshal, in an action of replevin Trustee in Bankeuptcy — Title of. 625 to recover the property at the suit of the conditional vendor, is not a retaking vyithin the provisions of section 116 of the Lien Law, of 1897 (now embraced in section 65 of the Per- sonal Property Law), supra. While the property remains in possession of the marshall, who is an officer of the court, executing a writ issued out of court, it is in custodia legis, and not in the custody of the conditional vendor, who has given a bond for the return of the property in the event of a judgment against him. A marshal simply holds the property pending final judgment determining the rights of the parties. The vendor could not sell or deliver pending such custody. " It is only when the judgment of the court established its title to the property," says Hendrick, J., " that defendant's possession began, and the sale after due notice, was a com- pliance with the provisions of the statute." Sigall v. Hatch Co., 61 Misc. 332; Crump v. Wissner, 163 App. Div. 47; Boyd V. Wissner, 149 N. Y. Supp. 85. 2. Trustee in bankruptcy — Title of, as against condi- tional vendor. — Where a conditional vendee was adjudi- cated bankrupt, the trustee in bankruptcy succeeds to the property of the bankrupt, including the property purchased by him under a contract of conditional sale. His possession of such property, however, is subject to all valid claims, liens and equities, affecting the same and he takes the assets not as would an innocent purchaser but as the bankrupt held them. He cannot oppose the retaking of the property by the «onditional vendor although he can enforce any right re- served to the conditional vendee by the statute which was violated in the manner of the retaking of the property. Crowe V. Liquid Carbonic Co., 208 N. Y. 398. Where a contract of conditional sale contained a provision permitting the vendor to sell the property without complying with section 65 of the Personal Property Law, which provides that the property shall be held for thirty days to give the vendee an opportunity to redeem, is void as against public policy. lb. It has been held however, that while a contract of condi- tional sale may not contain a waiver of the provisions of the statute, nevertheless after such contract has been entered into, the parties may make a new agreement independent of the contract as to the disposition of the property. The statute contemplates only the protection of persons who had in good 626 Peesonal Peopeety Law — Sec. 65. faith, made purchases under a contract of conditional sale, by providing a reasonable opportunity to redeem, and com- pelling an equitable disposition of the funds in the case of a sale. It was not intended, however, to prevent parties to such a contract from entering into a new agreement in rela- tion to the property where the vendor made no move under the contract to repossess himself of the property. Seeley v. Prentiss Tool & Supply Co., 158 App. Div. 853 ; Breakstone V. Bu^alo Foundry Co., 167 App. Div. 62, 152 N. Y. Supp. 394. Municipal Court — Jurisdiction. — Prior to the enactment of the Municipal Court Code, in effect September 1, 1915, the Municipal Court of the City of New York had no juris- diction in actions to recover the amount paid under a contract of conditional sale as provided by § 65 of the Personal Prop- erty Law. Lefhoff v. Bauch, 90 Misc. 294; Sedbott v. Wan- namaker, 164 App. Div. 531; Edelson v. Wagman, 88 Misc. 514. § 66. Notice of sale. — Not less than fifteen days be- fore such sale, a printed or written notice shall be served personally upon the vendee, or his successor in interest, if he is within the county where the sale is to be held; and if not within such county, or he cannot be found therein, such notice must be mailed to him at his last known place of residence. Such notice shall state: 1. The terms of the contract. 2. The amount unpaid thereon. 3. The aniount of expenses of storage. 4. The time and place of the sale, unless such amounts are sooner paid. Lien Law of 1897, § 117, re-enacted as § 66 of the Per- sonal Property Law, Laws 1909, chap. 45. § 67. Disposition of proceeds.— Of the proceeds of such sale, the vendor or his successor in interest may retain the amount due upon his contract, and the ex- Disposition of Peoceeds of Sale. 627 penses of storage and of sale; the balance thereof shall be held by the vendor or his successor in interest, sub- ject to the demand of the vendee or his successor in interest, and a notice that such balance is so held shall be served personally or by mail upon the vendee or his successor in interest. If such balance is not called for within thirty days from the time of sale, it shall be de- posited with the treasurer or chamberlain of the city or village, or the supervisor of the town where such sale was held, and there shall be filed therewith a copy of the hotice served upon the vendee or his successor in interest and a verified statement of the amount un- paid upon the contract, expenses of storage and of sale and the amount of such balance. The officer with whom such balance was deposited shall credit the vendee or his successor in interest with the amount thereof and pay the same to him on demand after sufficient proof of identity. If such balance remains in possession of such officer for a period of five years, unclaimed by the person legally entitled thereto, it shall be transferred to the funds of the town, village or city, and be applied and used as other moneys be- longing to such town, village or city. Lien Law of 1897, § 118, re-enacted as § 67 of the Per- sonal Property Law, Laws 1909, chap. 45. PEESONAL PEOPEETY LAW — SALES OF GOODS. [Laws 1911, Ohap. 571.] VENDOR'S LIEN FOR PURCHASE PRICE. SALES OF GOODS LAW. Section 134. Remedies of an unpaid seller. 135. When right of lien may be exercised. 136. Lien after part delivery. 137. When lien is lost. 138. Seller may stop goods on buyer's insolvency. 139. When goods are in transit. 140. Ways of exercising the right to stop. 141. When and how resale may be made. 142. When and how the seller may rescind the sale. 143. Effect of sale of goods subject to lien or stoppage m transitu. 150. Remedies for breach of -warranty. That part of the Personal Property Law relating to the sale of goods, which does not involve conditional sales or chattel mortgages, is now emhraced in Chapter 571 of the Laws of 1911, entitled "An act to amend the Personal Property Law in relation to the sales of goods," in effect September 1, 1911. This act author- izes a lien on behalf of the vendor for the purchase price of the goods as follows, to wit: § 134. Remedies of an unpaid seller. — 1. Subject to the provisions of this article, notwithstanding that the property in the goods may have passed to the buyer, the unpaid seller of goods, as such has (a) A lien on the goods or right to retain them for the price while he is in possession of them; (b) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them; (c) A right of resale as limited by this article; ( G28 ) LiBTsr — When Lost. 629 (d) A right to rescind the sale as limited by this ar- ticle. 2. Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and coextensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. § 135. When right of lien may be exercised. — 1. Subject to the provisions of this article, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases namely: (a) Where the goods have been sold without any stipulation as to credit; (b) Where the goods have been sold on credit, but the term of credit has expired; (c) Where the buyer becomes insolvent. •2. The seller may exercise his right of lien notwith- standing that he is in possession of the goods as agent or bailee for the buyer. § 136. Lien after part delivery. — Where an unpaid seller has made part delivery of the goods, he may ex- ercise his right of lien on the remainder unless such part delivery has been made under such circumstances as to show an intent to waive the lien or right of re- tention. § 137. When lien is lost. — 1. The unpaid seller of goods loses his lien thereon (a) When he delivers the goods to a carrier or other bailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the possession thereof; ■630 Peesonal Peopeett Law — Secs. 138, 139. (b) When the buyer or his agent lawfully obtains possession of the goods; (c) By waiver thereof. 2. The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has ob- tained judgment or decree for the price of the goods. § 138. Seller may stop goods on buyer's insolvency, — Subject to the provisions of this article, when the buyer of goods is or becomes insolvent, the unpaid sel- ler who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods at any time while they are in transit, and he will then become entitled to the same rights in regard to the goods as he would have had if he had never parted with the possession. § 139. When goods are in transit. — 1. Goods are in transit within the meaning of section one hundred and thirty-eight. (a) From the time when they are delivered to a car- rier by land or water, or other bailee for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee; (b) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, even if the seller has refused to receive them back. 2. Goods are no longer in transit within the meaning of section one hundred and thirty-eight; (a) If the buyer, or his agent in that behalf obtains delivery of the goods before their arrival at the ap- pointed destination; (b) If, after the arrival of the goods at the ap- pointed destination, the carrier or other bailee ac- •Stoppage in Teansitu. 631 knowledges to the buyer or his agent that he holds the goods on his behalf and continues in possession of them as bailee for the buyer or his agent; and it is imma- terial that a further destination for the goods may have been indicated by the buyer; (c) If the carrier or other bailee wrongfully refuses to deliver the goods to the buyer or his agent in that behalf. 3. If the goods are delivered to a ship chartered by the buyer, it is a question depending on the circum- stances of the particular case whether they are in the possession of the master as a carrier or as agent of the buyer. 4. If part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement with the buyer to give up possession of the whole of the goods. § 140. Ways of exercising the right to stop. — 1. The unpaid seller may exercise his right of stoppage in transitu either by obtaining actual possession of the goods or by giving notice of his claim to the carrier or other bailee in whose possession the goods are. Such notice may be given either to the person in actual pos- session of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may prevent a delivery to the buyer. 2. When the notice of stoppage in transitu is given by the seller to the carrier, or other bailee in posses- sion of the goods, he must redeliver the goods to, or according to the directions of, the seller. The expenses of such delivery must be borne by the 632 Peesonal Peopeety Law — Sec. 141. seller. If, however, a negotiable document of title rep- resenting the goods has been issued by the carrier or other bailee, he shall not be obliged to deliver or justi- fied in delivering the goods to the seller unless such document is first surrendered for cancellation. § 141. When and how resale may be made. — 1. Where the goods are of a perishable nature, or where the seller expressly reserves the right of resale in case the buyer should make default, or where the buyer has been in default in the payment of the price an un- reasonable time, an unpaid seller having a right of lien or having stopped the goods in transitu may re- sell the goods. He shall not thereafter be liable to the original buyer upon the contract to sell or the sale or for any profit made by such resale, but may recover from the buyer damages for any loss occasioned by the breach of the contract or the sale. 2. Where a resale is made, as authorized in this sec- tion, the buyer acquires a good title as against the ori- ginal buyer. 3. It is not essential to the validity of a resale that notice of an intention to resell the goods be given by the seller to the original buyer. But where- the right to resell is not based on the perishable nature of the goods or upon an express provision of the contract or the sale, the giving or failure to give such notice shall be relevant in any issue involving the question whether the buyer had been in default an unreasonable time be- fore the resale was made. 4. It is not essential to the validity of a resale that notice of the time and place of such resale should be given by the seller to the original buyer. 5. The seller is bound to exercise reasonable care and judgment in making a resale, and subject to this requirement may make a resale either by public or pri- vate sale. Effect of Sale of Goods. 633 § 142. When and how the seller may rescind the sale. — 1. An unpaid seller having a right of lien or having stopped the goods in transitu, may rescind the trans- fer of title and resume the property in the goods, where he expressly reserved the right to do so in case the buyer should make default, or where the buyer has been in default in the payment of the price an unrea- sonable time. The seller shall not thereafter be liable to the buyer upon the contract to sell or the sale, but may recover from the buyer damages for any loss oc- casioned by the breach of the contract or the sale. 2. The transfer of title shall not be held to have been rescinded by an unpaid seller until he has mani- fested by notice to the buyer or by some other overt act an intention to rescind. It is not necessary that such overt act should be communicated to the buyer, but the giving or failure to give notice to the buyer of the intention to rescind shall be relevant in any issue involving the question whether the buyer has been in default an unreasonable time before the right of recis- sion was asserted. § 143. Effect of sale of goods subject to lien, to stop- page in transitu. — Subject to the provisions of this article, the unpaid seller's right of lien or stoppage in transitu is not affected by any sale, or other disposi- tion of the goods which the buyer may have made, un- less the seller has assented thereto. If, however, a negotiable document of title has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the right of any purchaser for value in good faith to whom such document has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier, or other bailee who issued such document, of the seller's claim to a lien or right of stoppage in transitu. 634 Personal Peopeety Law — Seo. 150. § 150. Remedies for breach of warranty. — 1. Where there is a breach of warranty by the seller, the buyer may, at his election, (a) Accept or keep the goods and set up against the seller the breach of warranty by way of recoupment in diminution or extinction of* the price; (b) Accept or keep the goods and maintain an action against the seller for damages for the breach of war- ranty; (c) Eefuse to accept the goods, if the property therein has not passed, and maintain an action against the seller for damages for the breach of warranty; (d) Rescind the contract to sell or the sale and re- fuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. 2. When the buyer has claimed and been granted a remedy in any one of these ways, no other remedy can thereafter be granted. 3. Where the goods have been delivered to the buyer, he cannot rescind the sale if he knew of the breach of warranty when he accepted the goods, or if he fails to notify the seller within a reasonable time of the elec- tion to rescind, or if he fails to return or to offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer. But if deterioration or injury of the goods is due to the breach of warranty, such deterioration or injury shall not prevent the buyer from returning or offering to return the goods to the seller and rescinding the sale. 4. Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for .the price upon returning or offering to return the goods. If the price or any part thereof has already Negotiable Bill of Sale. 635 been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price. 5. Where the buyer is entitled to rescind the sale and elects to do so, if the seller refuses to accept an offer of the buyer to return the goods, the buyer shall thereafter be deemed to hold the goods as bailee for the seller, but subject to a lien to secure the repay- ment of any portion of the price which has been paid, and wjth the remedies for the enforcement of such lien allowed to an unpaid seller by section one hun- dred and thirty-four. 6. The measure of damages for breach of warranty is- the loss directly and naturally resulting, in the ordi- nary course of events, from the breach of warranty. 7. In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the differ- ence between the value of the goods at the time of de- livery to the buyer and the value they would have had if they had answered to the warranty. Vendee may recoup damages. — A vender under § 150 of the Personal Property Law, may recoup the damages sus- tained by him, rather than he compelled to surrender the chat- tels to the vendor, and be then obliged to resort to an action to recover the damages sustained by him by plaintiff's breach of warranty. Demurrer to a defense setting up damages by reason of breach of warranty sustained. Peuser v. Marsh, 167 App. Div. 604, PERSONAL PEOPEETY LAW — ARTICLE VIL [Laws 1911, Ohap. 248.] LIEN OF CARRIER— LAW RELATIVE TO BILLS OF LADING. The Personal Property Law embracing Chapter 45 of the Laws of .1.909 entitled "An act relating to per- sonal property, constituting Chapter 41 of the Consoli- dated Laws," was amended Laws 1911, Chap. 248, by adding thereto a new article designated Article VII, consisting of thirty-five sections, numbered 187 to 241, both inclusive. This amendment to the Personal Property Law, governs bills of lading issued by any common carrier, prescribes the form and essential terms of a bill of lading. It defines the obligation of the carrier to de- liver the goods upon demand made by the consignee named in the bill of lading, or if the bill is negotiable by the holder thereof; the liability of the carrier for misdelivery; also cancellation of bills of lading. The law declares (Sec. 205) that the carrier cannot set up title in himself. It defines liability for non-receipt or misdelivery of the goods; and ^prescribes remedies. The law governs also, the negotiation of bills of lad- ing, and the rights of a person to whom a bill has been transferred. The provision of this law relative to the liens of the carrier is as follows: § 212. Negotiable bill must state charges for which lien is claimed. — If a negotiable bill is issued the car- rier shall have no lien on the goods therein mentioned, except for charges on those goods for freight, storage, demurrage and terminal charges, and expenses neces- sary for the preservation of the goods or incident to their transportation subsequent to the date of the bill, (636) Bill Featxdulently NEGOTLiTED. 637 unless tlie bill expressly enumerates other charges for which a lien is claimed. In such case there shall also be a lien for the charges enumerated so far as they are allowed by law and the contract between the consignor and the carrier. § 213. Effect of sale. — ^After goods have been law- fully sold to satisfy a carrier's lien, or because they have not been claimed, or because they are perishable or hazardous, the carrier shall not thereafter be liable for failure to delier the goods to the consignee or owner of the goods, or to a holder of the bill given for the goods when they were shipped, even if such bill be negotiable. § 228. Negotiation defeats vendor's lien. — ^Where a negotiable bill has been issued for goods, no seller's lien or right of stoppage in transitu shall defeat the rights of any purchaser for value in good faith to whom such bill has been negotiated, whether such negotiation be prior or subsequent to the notification to the carrier who issued such bill of the seller's claim to a lien or right of stoppage in transitu. Nor shall the carrier be obliged to deliver or justified in deliver- ing the goods to an unpaid seller unless such bill is first surrendered for cancellation. § 233, Negotiation of bill for mortgaged goods. — Any person who ships goods to which he has not title, or upon which there is a lien or mortgage, and who takes for such goods a negotiable bill which he after- ward negotiates for value with intent to deceive and without disclosing his want of title or the existence of the lien or mortgage, shall be guilty of crime, and upon conviction shall be punished for each offense by im- prisonment not exceeding one year, or by a fine not ex- ceeding one thousand dollars, or by both. 638 Peesonal Phopeett Law — Aeticle VII. § 238. Interpretation shall give effect to purpose of uniformity. — This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it. § 239. Definitions. — (1) In this article, unless the context or subject-matter otherwise requires — " Action " includes counterclaim, set-off, and suit in equity. " Bill " means bill of lading. " Consignee " means the person named in the bill as the person to whom delivery of the goods is to be made. " Consignor " means the person named in the bill as the person from whom the goods have been received for shipment. " Goods " means merchandise or chattels in course of transportation or which had been or are about to be transported. " Holder " of a bill means a person who has both actual possession of such bill and a right of property therein. " Order " means an order by indorsement on the bill. " Owner " does not include mortgagee or pledgee. " Person " includes a corporation or partnership or two or more persons having a joint or common in- terest. To " purchase " includes to take as mortgagee and to take as pledgee. " Purchaser " includes mortgagee and pledgee. (2) A thing is done " in good faith " within the meaning of this article, when it is in fact done honestly, whether it be done negligently or not. FORMS- No 1. Demand Upon Owner for Terms of Contract [Lien Law, § 8, ante, p. 183.] To , Owner of the real property situate [insert description suffi- cient for identification'] : Take notice that I have made a contract with [insert name of contractor"] to perform for him labor [or furnish mate' rials] to be used upon the building and structures erected or about to be erected [altered or repaired] upon the premises above described, to wit: [insert character of labor and mate- rials to be performed or furnished] in the execution of his said contract. I hereby demand that you furnish to me a statement show- ing the terms of your contract with said contractor for the improvements upon said property to be made by him, and of the amount due, or to become due thereon. This demand is made pursuant to section 8 of the Lien Law. In ease of your failure to comply with this demand, T shall hold you responsible for all loss sustained by me, and will look to you directly for payment to me under my contract pursuant to the statute in such case made and provided. Dated, N. Y., , 19. (639) 640 Forms. No. 2. Notice of Lien. Notice may bo filed at any time during progress of the work or fur- nishing of materials or within ninety days after completion of contract or final performance of work, or finishing materials dating from last item of work performed or materials furnished. File in county clerk's office where property situated. If it is in two or more counties, file in office of clerk of each county. (Lien Law, §§ 8, 0, ante, pp. 183, 185.) ]f the lienor ia a partnership or a corporation, the notice of lien shall state the business address of such firm, or corporation, the names of partners and principal places of business, and if a foreign corporation, its principal place of business within the State. To THE ClEJIK of THE CoUNTY OF NeW YoRlC : Take notice, that I, , residing at [state resir dence of lienor'] have and claim a lien for the principal and interest of the value and agreed price of the labor and mate- rials hereinafter mentioned upon the real property and upon the improvements hereinafter mentioned, pursuant to the Lien Lavsr (Laws 1899 chap. 38) and the acts amendatory thereof and supplemental thereto. IL The name of the owner of the real property against whose interest therein a lien is claimed is [here insert the name of the owner if Icnown; if the lien is claimed against the fee, that fact should be stated; the name of the occupant or lessee may also he stated, and if so, the lienor may claim Lienor. [Verification as in Form 2.] ToBMS. 651 No. 8. Assignment of Lien. [Lien Law, § 14, ante, p. 228.] This indenture, made the day of , 1909, between A, B., of the of coiinty of , State of , party of the first part [t/ the lienor is a corporation state: giving name of corporation, the Unique Construction Company, a domestic Corporation']^ and B. 0. of the same place, party of the second part, wit- nesseth : Whereas, the party of the first part filed on. the day of , 1909, in the office of the clerk of the county of , a notice of a mechanic's lien for the sum of dollars, with interest, against the following de- scribed real property: [here describe real property against which the lien is claimed as stated in the notice of lien]. Now therefore, the said party of the first part, in consid- eration of the sum of dollars to him in hand paid by the party of the second partj the receipt whereof is hereby acknowledged, has sold and by these presents assigns and transfers to the said party of the second part, his executors, adminitrators and assigns, the mechanic's lien based upon the notice above mentioned against the real property above described, and all moneys that may be had or obtained by means thereof, or in any proceedings instituted for the fore- closure of liens or incumbrances upon such real property, and the cause of action whereon said lien accrued. And the said party of the first part does hereby constitute and appoint the said party of the second part, his executor, administrator or assignee, his true and lawful attorney ir- revocable, with power of substitution and revocation, for the use and at the proper costs and -charges of said party of the second part, to ask, demand and receive all money due or to become due upon such mechanic's lien, and to bring all suits and take all lawful mean^ for the enforcement of such lien or ■652 FoEMS. the recovery of the moneys due or to become due thereon, and on payment of such lien to satisfy and discharge the same. In witness whereof the party of the first part has hereunto set his hand and seal the day and year first above written. A. B. [l. s.j State of New Yoek,| County of. , \ On this day of , 1909, before me per- sonally came A. B., to me known to be the individual de- scribed in and who executed the foregoing instrument and acknowledged to me that he executed the same. Notary Public, N. Y. Co. If the assignor is a corporation, the proof may be as fol- lows: State of New Yoek, ) n ±-l n j- „., , ^ , _, -.J 4r 7 f ss. : Proof by CorporaMon. City and County of New York,) ' " ^ On the day of , in the year ....... before me personally came , to me known, who, being by me duly sworn, did depose and say that he resided in ; that he is the (president or other officer) of the (name of corporation), the corporation described in and which executed the above instrument ; that he knew the seal of said corporation; that the seal affixed to such instrument was such corporate seal, that it was so affixed by order of the board of directors of said corporation and that he signed his name thereto by like order. (Signature and office of officer taking acknowledgment.) If such corporation have no seal, that fact must be stated place of the statements required respecting seal. (Heal Property Law, § 309.) m FoKMS. 653. No. 9. Notice of Pendency of Action. [Lien Law, § 17, ante, p. ?50.] A. B., Plaintiff, vs. C. D., E. F. and F. G., Defendants. V iis Pendens. Private Property. SiE. — Notice is hereby given that an action has heen com- menced, and is now pending in this court by the above-named plaintiff against the above-named defendants, the object of which action is to foreclose a mechanic's lien, a notice of which lien was duly filed in the office of the clerk of the county of , on the day of , 1909. The real property affected by such lien is described as follows: [here insert a description of the premises as set forth in the complaint in the action.] Dated , 19. .. J. K., Plaintiff's Attorney. Office and post-office address To the County Cleric, County: Tou are hereby directed to index the foregoing notice in the names of the following defendants {here state the names of the defendants'] in the above-entitled action. J. K, Plaintiff's Attorney. 654 FoEMS. No. 10. Affidavit to Obtain Order for the Continnance of Lien. [Lien Law, § 17, ante, p. 250.] In the Matter of the Application of A. B., to Secure an Order for the Continuance . of a Mechanic's Lien against Certain Real Property Belonging to CD. ■ >■ Private Property. State of New York,) County of , j A. B., being duly sworn, deposes and says: I. That prior to the .' day of , 1916, the materials \_or labor] were furnished [or performed] by me as is more particularly set forth in the annexed notice of lien which I hereby make a part of this affidavit, and such mate- rials \_or labor] were furnished [or performed] for and used in the improvement of the real property therein described. II. That on the said ' day of ; 1909, and within ninety days after the furnishing of the last item of said materials \_or performance of the last item of labor], as set forth in the annexed notice, I caused to be filed in the office of the clerk of the county of a notice of lien against the owner of such real property for the improve- ment of which such materials were furnished \_or labor was performed]. \_If the materials were furnished, or the labor was performed for a contractor or subcontractor, such fact should be stated.] III. That the name of the nower of such real property is CD. IV. That the name of the person for whom such labor [or materials] was performed [or were furnished] is [state name of contractor or subcontractor, if any] E. F. V. That the reason why the action to foreclose such lien cannot be brought and the reason why an order for the con- FoEMS. 635 timxance of such lien is desired is as fallows : [here state the fads because of which an order for contimuince is desired]. (Signed.) A. B. Sworn to before me, tliis| day of , 1916. \ No. 11. Order Continning Lien. [Lien Law, § 17, The plaintiff complains and alleges : I. Upon information and belief, that heretofore and at the times hereinafter mentioned, the defendant. The City of New York, was and now is a municipal corporation, duly existing under and by virtue of the laws of the State of New York. II. Upon information and belief, that heretofore and at the times hereinafter mentioned, the defendants James Lewis and William Clark were, and still are, copartners carrying on business under the firm name and style of Lewis & Clark. III. Upon information and belief, that heretofore, and at the times hereinafter mentioned, the defendants Richard Rosebud and Evander Hay were, and still are copartners, carrying on business under the firm name and style of Rose- bud & Hay. IV. Upon information and belief that prior to the times hereinafter mentioned the defendants Lewis & Clark, as co- partners as aforesaid, on or about the 18th day of December, 1903, made a contract with the aqueduct commissioners acting for the city of New York, whereby the said defendants Lewis & Clark agreed to construct a portion of a new equeduct or water conduit from some point on the Croton river or Croton lake to some point in the city of New York, such portion be- ing known as Section Eight, and to construct one or more dams to retain such water, and to construct such sluices, cul- verts, canals, pumping works, bridges, tunnels, blow-offs, ven- FoEMS, 675 tilating shafts and other appurtenances as migh be necessary to the proper construction, maintenance or operation of such portion of said aqueduct known as Section Eight, and of such dams and reservoirs; on the lines shown upon the maps in the office of the equeduct commissioners for the prices men- tioned in said contract. [The pleader must set forth the original contract with the municipal corporation, its performance and the liability which has arisen under it to the contractor, in the same man- ner as the contractor would be required to do if he were suing upon it. Breuchaud v. The Mayor, 61 Hun, 564; Scerbo v. Smith, 16 Misc. Eep. 102.] That said contract was executed in triplicate by the said contractors and the said aqueduct commissioners, and that one of said originals was delivered to the said contractors, and the other two filed, one in the finance department of the city of !N^ew York, and the other with the said aqueduct com- missioners. And for a fuller description of said contract reference is hereby made to the original contracts so filed as aforesaid. That thereafter the said commissioners or a majority of them certified in writing that the acceptance gf said contract would, in their judgment, best secure the public interest and the efficient performance of the work therein mentioned, and the said contract was duly accepted for and on behalf of the defendant, The City of New York. V. Plaintiff further alleges, upon information and belief, that thereafter the said contractors, the defendants, Lewis & Clark, entered upon the performance of said contract, and that at the time of the filing of the notice of claim and lien by the plaintiff, as hereinafter set forth, said contractors had performed part of the conditions of said contract on their part to be performed, and so far completed the same as to become entitled to a payment on account of said contract [the pleader must set forth performance by the contractor, and how much is due under the contract to the contractor, so as to show an existing liability by the municipal corporation to the contractor. Scerbo v. Smith, 16 Misc. Eep. 102], and that there were then moneys in the control of the said defend- 676 FoEMs. ant, The City of New York, due under said contract far in excess of the plaintiff's claim herein. VI. That at Nepperhan, Westchester county, ISTew York, between and including the 1st day of September, 190S, and the 1st day of February, 1904, the above-named plaintiff sold, delivered and furnished to the above-named defendants Lewis & Clark [and Rosebud Hay'] at their request, goods, wares, merchandise and materials at the price and of the value of $2,000, which they promised and agreed to pay plaintiff therefor, no part or portion of which has been paid, although payment thereof has been demanded, and the said sum of $2,000 is now justly due and owing said defendants to plain- tiff. The said goods, wares, merchandise and materials were fur- nished in conformity with the terms of and toward the per- formance or completion of the aforesaid contract, between the defendants, Lewis & Clark, and the city of New York, or as called for and required by the defendants, The City of New York, the aqueduct commissioners and the engineer in charge, in connection with the performance and completion of the same, and were actually used in the execution and com- pletion thereof. VII. That in pursuance of and in conformity with the pro- visions of the Lien Law of the State of New York, " An Act in relation to liens, constituting chapter thirty-three of the consolidated laws," this plaintiff, on or about the 14th day of February, 1909, filed with the comptroller of the city of New York (being the financial officer of said city), and with the aqueduct commissioners of said city (being the head of the department or bureau having charge of the work under the said contract between the said defendants Lewis & Clark and the said corporation), a notice in writing stating the name and residence of the lienor, the name of the contractor and subcontractor for whom the labor was performed and ma- terials furnished, the amount claimed to be due, or to become due, the date when due, a description of the public improve- ment on which the labor was expended and materials fur- nished, the kind of labor and materials performed and fur- nished, and general description of the contract pursuant to FoEMs. 677 which the improvement was constructed, which notice was entered hy the comptroller of the city of New York in the lien-hook provided for that purpose. That said notice of lien was duly verified and complied in all respects to the statute in such case made and provided. That at the time of filing said notice with the said comp- troller of the city of New York, and with the said aqueduct commissioners, thirty days had not elapsed since the comple- tion or acceptance by said corporation of the said work under the said contract, and that said notice contained all things necessary and requisite under the provisions of the acts afore- said, to constitute a good and valid lien upon the said moneys imder the control of said corporation, due and to grow due to said Lewis & Clark under said contract with said corpo- ration, to the extent of the amount therein claimed, and the interest thereon as aforesaid. VIII. Plaintiff further alleges that neither the said lien nor the claim on which the same is founded has been waived, satisfied or discharged. IX. On information and belief that the said contract be- tween Lewis & Clark and said corporation contained a cove- nant in words and terms as follows: "And it is further agreed by the party of the second part that said party will furnish the said aqueduct commissioners with satisfactory evidence that all persons who have done work or furnished materials under this agreement, and who may have given written notice to said commissioners before or within ten days after the final completion and acceptance of the whole work under this contract that any balance for such work or materials is due and unpaid, have been fully paid or satisfactorily secured; and in case such evidence is not furnished as aforesaid, such amount as may be necessary to meet the claims of the persons aforesaid may be retained from the moneys due said party of the second part under this agreement, until the liabilities aforesaid shall be fully dis- charged, or such notice withdrawn." And on information and belief this plaintiff alleges that in pursuance of said covenant and said act the said corporation is retaining a suiEcient amount of money from the moneys duo 678 FoEMs. and to grow due under said contract to pay and discharge the claim of this plaintiff and interest and costs, and has now in its possession or under its control under said contract a sum far in excess of the sum of $ and interest thereon, the amount claimed to be due in said notice of lien. X. That the defendants, Eichard* Rosebud, Evander Hay, Eoland Park and Edward Gray, have, or claim to have, some lien or interest in or upon said funds due under said con- tract between Lewis & Clark and said corporation, but plain- tiff avers, upon information and belief, that the said liens, claims or interest, if any be valid, are subsequent to the lien of this plaintiff. Wherefore, plaintiff prays that it may be adjudged and decreed First, That plaintiff's claim is a valid lien upon the funds now due and to grow due under the said contract of the said Lewis & Clark, and the said defendant The City of New York, prior to all other liens, claims, interests and demands thereon. Second, That the said The City of New York pay over to this plaintiff, out of said funds due and to grow due under the said contract, the amount adjudged herein to be due to this plaintiff from the said defendants, Lewis & Clark, together with the interest thereon and the costs of this action, and that this plaintiff have judgment against the said defendant The City of New York therefor. Third, That plaintiff have personal judgment against the defendants, Lewis & Clark, for the amount of his said lien and interests and costs. Fourth, That plaintiff have such other or further relief as to this court may seem just and proper in the premises. JAMES FITZJAMES, PlainMjf's Attorney, Temple Court, N. Y. [Add usual verification.] FoEMS. 679 No. 24. Mnnicipal Lien — Complaint by Materialman — Foreign Corpora- tion. SUPEEMB COUET NeW YoKK CoUNTY. TITICACA ASPHALT CO. (a Foreign Cor- poration), THE CITY OF NEW YORK, A. B. and C. D. Plaintiff complains and alleges: First. That plaintiff is a foreign corporation, duly organ- ized and existing under the laws of Great Britain and Ire- land, and has duly complied with all the requirements of the General Corporation Law of this State,* and is and was at all the times hereinafter mentioned, duly authorized to carry on and transact business in this State. Second. On or about the 12th day of April, 1908, the de- fendant. The City of ISTew York, duly made a contract, in writing, with the defendant Matthias Theobold for labor and materials for alterations and additions to a building belong- ing to said city, formerly used for storing cement, near the foot of East Sixteenth street, in the city and county of 'Eew York, for the sum of $8,750. Third. Thereafter the plaintiff was employed by said Theobold, and upon his employment as laborer and merchant, and at his request, and in pursuance of and in conformity with the terms of said contract, performed labor and fur- nished materials toward the performance and completion of said contract, to wit: It furnished Val de Travers asphalt and laid the same upon, and therewith covered the floors of the said building. Fourth. The value of said labor and materials was and is the sum of $1,500, which sum said defendant Theobold agreed to pay the plaintiff therefor as soon as the same should •The General Corporation Law (Laws 1909, chap. 28, § 15), requires a foreign corporation to procure a certificate from the Secretary of State authorizing such corporation to transact business in this State. 680 FoEMs. be performed and furnished. The said work was completed and said materials were all furnished on or before August 21, 1908, and the said sum of $1,500 then became due from said defendant Theobold to the plaintiff under the said agreement between them. On September 12, 1908, said defendant Theobold paid the plaintiff $375 on account thereof, but has not at any time paid any other part thereof. And the re- maining sum of $1,125, with interest, is now wholly unpaid and due from said defendant Theobold to this plaintiff oh account of said labor and materials. Fifth. Therafter said Theobold fully performed and com- pleted the whole work mentioned in his said contract with the city, and the same was accepted by the city, to wit, on or about January 10, 1909, and thereupon the said contract price or so much thereof as remained unpaid after deducting previous payments, to wit, $4,812.50, became and now are due under said contract from the defendant; The City of New York to the defendant Theobold, and said moneys are now in the control of said city. Sixth. On or about October 25, 1908, and before the whole work to be performed by the contractor for the city was com- pleted or accepted by the city and within three months before the commencement of this action, this plaintiff duly filed with • the president of the board of health, who was the head of the department. having charge of said work, and with the comp- troller of the city of New York, a notice stating the resi- dence of this lienor, duly verified by oath, stating also the name of the contractor for whom the lienor performed labor and furnished materials, the amount claimed to be due and to become due, date when due description of the public im- provement upon which the labor was performed and materials expended, the kind of labor performed and materials fur- nished, and a general description of the contract pursuant to which such public improvement was constnicted and upon which said labor and materials were actually performed and used in the execution and completion of the said contract with said city and said claim was duly entered by the said comptroller in the lien-book provided by him for that pur- pose, and plaintiff thereby acquired, and is now entitled to, FoEMS. 681 an. absolute lien in its favor to the full and par value of sucb work and materials performed and f urnislied, by it, to wit, said sum of one thousand one hundred and twenty-five dollars ($1,125), and interest upon the said moneys in the control of said city, due under said contract. This action was duly commenced, and a notice of the pendency of said action was duly filed with the said comptroller, within three months from the filing of the said notice of claim. Seventh. The defendants, other than the said The City of New York and said Matthias TheoboW, have, or claim to have, some interest in, or lien upon, said moneys, or eome part thereof, under and by virtue of notices filed by them. Eighth. More than thirty days have elapsed siace the plaintiff's said claim upon which this action is founded was presented to the comptroller of said city for adjustment and he has neglected to make an adjustment or payment thereof for thirty days after such presentment. Wherefore, the plaintiff prays judgment that the validity of the plaintiff's lien be determined, together with the amount due from the said city to the said contractor under said eon- tract, and from said contractor to the respective claimants and the validity and order of priority of their claims or liens, and that the city pay over to the said claimants whose claims or liens shall be held to be valid and just, in the order of their priority as so determined, to the extent of the sums found due to said claimants from said contractor, so much of said funds or money which may be found due from said city to said contractor under said contract as will satisfy their liens or claims with the interest and costs to the extent of the amount found due from said city to said contractor, and that in case said fimds shall not be sufficient to pay the plaintiff the full amount of its claim with interest and costs that the defendant be adjudged to pay to plaintiff the amount of such deficiency when ascertained, and that plaintiff have a per- sonal judgment against defendant Theobold therefor. > Plaintiff's Attorney, Temple Court, IST. T. [Usual verification.] 682 FoEMs. No. 25. Manicipal Contract — Proceedings for Writ of Mandamus. A writ of mandamus will issue commanding a public officer, corpora- tion, board or other person to perform a duty imposed by law. A peremptory writ will issue in the first instance when the applicant's right depends only on a question of law. (Code Civ. Proc, § 2070.) SUPEEME COUET ■'NeW YoEK CoUNTT. THE PEOPLE OF THE STATE OF NEW YORK, on the Relation of WILilAM J. PRESCOTT, HERMAN A. METZ, as Comptroller of the City of New York. Application for torit. ^ Order to show cause. On reading the annexed affidavit of William J. Prescott, the relator, verified the 14th day of June, 1909, on motion of A. & B., attorneys for said relator, Let Herman A. Metz, as comptroller of the city of New York, show cause before me, one of the justices of this court, at a Special Term, Part I, thereof, to be held at the court- house in the city of New York, Manhattan, on the 16th day of June, 1909, at 10:30 o'clock in the forenoon, or as- soon thereafter has counsel can be heard, why a peremptory writ of mandamus should not issue to the said Herman A. Metz, as comptroller of the city of New York, directing and com- manding him to deliver a warrant on the chamberlain of the city of New York, for the payment of the sum of 2,863, the amount earned under the contract for regulating and grading One Hundredth street, from Amsterdam avenue to the Boule- vard, together with all work incidental thereto, and to make the said payment under said contract, and why the relator should not have such other and further relief as to the court may seem just and proper. Sufficient reason appearing let service of this order and the annexed affidavit on or before the 15th day of June, 1909, be sufficient. L. A. GIEGEEICH, Justice Supreme Court. Dated New York, May 15, 1909. FoEMS. 683 No. 26. Affidavit of Relator. THE PEOPLE OF THE STATE OF NEW YORK, on the Relation of WILLIAM J. PRESCOTT, HERMAN A. METZ, as Comptroller of the City of New York. > Affidavit of Relator, City and County of it^Ew Yoek^ ss. : William J. Prescott, being duly sworn, says that he is the relator in the above-entitled proceeding. That now, and at all the times hereinafter mentioned, the city of New York is, and was, a municipal corporation, duly organized and incor- porated under the laws of the State of New York. That on the 5th day of January, 1909, the relator made and entered into a contract with the city of New York, by its commis- sioner of highways, wherein and whereby the relator agreed to regulate and grade West One Hundredth street, from Am- sterdam avenue to the Boulevard, together with all work in- cidental thereto. That the amount payable under said con- tract was in excess of $5,000. That in and by said contract it was, among other things, provided as follows : " Said parties hereto also declare that this agreement is made with reference to the plans now on file in the ofiice of the commissioner of highways, which said plans are to be taken as part and parcel of these presents, and are intended to co-operate, and all technical questions as to their true intent and meaning concerning the execution of the work, in accordance therewith, shall be decided by the chief engineer of the department of highways, and his deci- sion shall be final." In and by said contract it was further provided : " To prevent all disputes and litigations it is further agreed by and between the parties to this contract that the chief engineer of highways shall in all cases determine the amount or quantity of the several kinds of work which are 684 Forms. to be paid for under this contract, and shall determine all questions in relation to said work and the construction there- of, and he shall, in all cases, decide every question which may arise relating to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive upon the contractor, and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of the party of the second part to receive any money under this agreement." That in and by said contract, it was further provided, with relation to payments for the work to be made thereunder: "(b.) But in case the amount payable under this contract shall be $5,000 or over, payments will be made to the said party of the second part by monthly installments of seventy per cent. (70%) on the amount of work performed, and also on the quantity of materials furnished and delivered, should the commissioner deem it advisable so to do, in which case, however, the quantity returned shall be such that the amount paid will be fairly due, and in accordance with the provisions and stipulations of this agreement, provided the amount of work done on each installment shall not be less than fifteen hundred dollars ($1,500)." That imder and pursuant to the terms of said contract the relator proceeded to perform and carry out his said contract, and during the month of March, 1901, the relator carried out and performed the said contract according to its terms and to the satisfaction of the commissioner of highways, and the amount earned under said contract at contract prices during said month was over and above the sum of fifteen hundred dollars ($1,500). That on or about the 23d day of April, 1901, the engineer in charge of the work being done under said contract, and the commissioner of highways of the city of ISTew York, duly made a certificate, in writing, by which it appears that there was earned under said contract by the said relator during the month of March, 1901, the sum of $4,090, and that the YO per cent, payment provided for in said contract for the work done and materials furnished thereunder, during said month, FoEMS. 685 amounted to the sum of $2,863. That a copy of the certifi- cate is hereto annexed marked " Exhibit A." l^Append certificate approved hy examiner of claims, prin- cipal assistant engineer, commissioner of highways, and avr ditor of accounts.^ That in and hy chapter 378 of the Laws of 1897, section 149, known as the " Greater New York Charter," it is pro- vided as follows: " The finance department shall have control of the fiscal concerns of the corporation. All accounts rendered to or now in the other departments shall be subject to the inspection and revision of the officers of this department. * * * All payments by or on behalf of the corporation, except as otherwise specifically provided shall be made through the proper disbursing officer of the department of finance on vouchers, to be filed in said departments by means of war- rants drawn on the chamberlain by the comptroller and coun- tersigned by the mayor." That the respondent, Herman A. Metz, was duly elected comptroller of the city of New York, and is now, as such, acting head of the finance department of said city. That the certificate above mentioned was duly filed in the office of tho comptroller of the city of New York, and the said comp- troller, respondent herein, has drawn his warrant on the chamberlain of the city of New York for the said sum of twenty-eight hundred and sixty-three dollars ($2,863), and the same has been signed and countersigned by the properly authorized officers of the city of New York, but that the said comptroller refuses, on demand, to deliver the same to the relator or to make the said payments under said contract. That the refusal of the comptroller to draw and deliver his said warrant and to pay the amount earned by this relator under said contract is without warrant or authority of law, and that it is the duty of the comptroller of the city of New York, imposed by law, to pay the claim of this relator. That by reason of the refusal of said comptroller this re- lator is greatly damaged in his rights under said contract. That the reason an order to show cause is asked for is be- cause the relator is suffering great damage from the delay in 686 Forms. -the drawing and delivery of said warrant and the payment of his claim. That no previous application has been made for the order here asked for. WILLIAM J. PEESCOTT. iSworn to before me, this 14th| day of May, 1909. \ No. 27. Affidavit in Opposition to Granting Writ of Mandamas. [Title as in Form No. 26.] CoTJNTT OF New Yoek, ss. : Herman A. Metz, being duly sworn, deposes and says : I am the comptroller of the city of New York, and have been since the 1st of January, 1909. I have read the affidavit of William J. Rogers, attached to the moving papers in the above-entitled proceeding, and veri- fied by him on the 14th day of May, 1908. Upon information and belief, I deny that during the month of March, 1901, the relator carried out and performed the said contract according to its terms. [Insert denial that refusal to deliver warrant was without warrant or authority of law. Set forth provisions of statute claimed to have been violated, show that such provisions were embraced in relator's contract and were disregarded by re- lator.] The sources of my information as to the foregoing state- ment are the books and records on file in the finance depart- ment of the city of New York. I further allege that the relator herein, as I am advised and believe, has an adequate remedy at law. HEEMAN A. METZ. Sworn to before me, this 18th| day of May, 1909. ] FoEMS. 687 No. 28. Stipulation that no Question of Fact is Involved. A peremptory writ of mandamus will not issue if there is a question of fact to be tried. It will issue only where the issue involves solely a question of law. [Title as in Form No. 2 6. J llnsert stipulation showing that only a question of law is involved, as follows :] It is hereby stipulated that the denial of performance con- tained in the affidavit in this proceeding, made by Bird S. Coler, verified May 18, 1909, is limited and confined solely to the failure of the relator to comply with the statutes and amendments thereto known as the Labor Law, and with the provisions of the contract referring thereto; performance of the other conditions, for the purposes of this proceeding, be- ing admitted. Dated, New York, May 29, 1909. FRANCIS K. PENDLETON, Corporation Counsel. GEOEGE A. PICKETT, Attorney for Relator. No. 29. Order Directing Issuance of Writ of Mandamus. At a Special Term, Part I, of the New York Supreme Court, held at the Court House in the City of New York, Borough of Manhattan, on the 26th day of June, 1909. Present — Hon. James W. Gerard, Justice. THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM J. PKESCOTT, HERMAN A. METZ, as Comptroller of the City of New York. The motion on the part of the relator for a peremptory writ or mandamus, commanding the respondent to deliver to the 688 Forms. relator a warrant on the chamberlain of the city of T^ew York for the payment of the sum of $2,863, the amount earned under the relator's contract with the city of New York, coming on to be heard. Wow, after reading and filing the order to show cause and the affidavit of William J. Prescott, 'verified the 14th day of May, 1909, in support of the motion, and the affidavit of Herman A. Metz, verified the 18th day of May, 1909, in opposition thereto. After hearing George A. Pickett, Esq., of counsel for the relator, in favor of the motion, and Edward J. Freedman, Esq., assistant corporation counsel, in opposition thereto, it is Ordered, That the said motion be, and the same hereby is granted, and that a writ of mandamus issue commanding Her- man A. Metz, comptroller of the city of New York, to de- liver forthwith to the relator a warrant on the chamberlain of the city of New York, directing him to pay to said relator the sum of $2,863, due and owing to said relator under his con- tract with the city of New York for regulating and grading One Hundredth street from Amsterdam avenue to the Boule- vard, as prayed for herein, and that said relator recover of the city of New York $50, costs of this proceeding. Enter, J. W. G. No. 30. Order of Reference. At a Special Term of the Supreme Court, Part I, for the city and county of New York, held at the County Court House in the Borough of Manhat- tan, on the day of , 1909. Present — Hon. Charles H. Truax, Justice. A. B., Plaintiff, vs. C. D., Defendant. A motion having been made on the pleadings herein by the plaintiff for a reference of all the issues in this action, and ToEMS. 689 ng the parties by their respective counsel, now, upon reading and filing said notice of motion, and due proof of service thereof, and upon the pleadings and all the papers and proceedings herein, due deliberation being had, on mo- tion of W. L. S., Esq., attorney for the plaintiff, It is ordered. That the above-entitled action and all the issues therein be and the same hereby are referred to Esq., of the city of New York, counselor-at-law, as sole referee to hear and determine the same. No. 31. Report of Referee. Sttpeeme Couet — CouiirTT of A. B., PlaintifiF, vs. C. D., Defendant. I, , the referee named in the order made herein, and dated the day of , 1909, by which the above-entitled action and all the issues therein were referred to me to hear and determine the same, do respectfully report : That I have been attended by the parties to this action, with their respective counsel, and having taken and subscribed the oath prescribed by law, I have heard the proofs and allegations of the respective parties, and from the pleadings and such proofs and allegations, I find and decide as Mattees of Fact. First. That at the several times hereinafter, and in the complaint mentioned, prior to the day of , 19 ... , the defendant was the owner in fee of the lot of land described in the complaint in this action. . Second. That on or about the day of , 19 ... , the plaintiff made a contract with the defendant, whereby plaintiff agreed to construct for said defendant, and furnish to him seventy rear and gable window frames and 690 FoEMS. sash for the price of $240, which sum defendant promised and agreed to pay to the plaintiff for the work and materials aforesaid. Third. That thereafter, ajid between said day of , 19 ... , and the day of , 19. . ., the plaintiff, under and pursuant to the terms of the contract aforesaid, performed certain work, consisting of constructing the window frames and sash aforesaid, and furnished to said defendant, pursuant to said contract, ma- terials, being the window frames and sash aforesaid. Fourth. That all of the work performed and materials fur- nished, as aforesaid, were agreed to be, and were so performed and furnished to be used, and were actually used in and toward the erection of five buildings on the land hereinbefore men- tioned and in the complaint described, and were so performed and furnished under, pursuant to and in conformity with the terms of the contract aforesaid; that plaintiff performed all the conditions of said contract on his part to be performed, and prior to the filing of the lien hereinafter mentioned, became entitled to receive from said defendant under and by the terms of said contract, the sum aforesaid, to wit, the sum of $240. Fifth. That said sum has not, nor has any part thereof been paid, and in said sum and interest thereon from , 19. . ., said defendant is now justly indebted to plaintiff. Sixth. That within ninety days after the completion of said contract, and on the day of , 19 . . . , the plaintiff caused to be filed in the office of the clerk of the city and county of New York, a notice of claim and lien on and against said buildings and land (which are situate in said county) for said sum of $240, the unpaid price of said work and materials, which notice was duly verified and was in the form prescribed by, and contained all the statements re- quired by, and complied in all respects with the requirements of, the statutes of New York in such case made and provided, and was so filed pursuant to said statutes. That on said day of ,19. . ., said lien was duly entered and docketed by said clerk on the lien docket kept in his office. FoEMS. 691 That said lien has not been paid, canceled or other- wise discharged of record, and no other action or proceeding has been had or commenced to recover said debt or foreclose said lien, and that no persons have filed liens against said property nor have subsequent liens or claims by mortgage, judgment or conveyance on or against said premises, and that on the day of , 19 . . ., within one year after the filing of said lien, a notice of the pendency of this action, which is brought to foreclose the same, was duly filed and recorded in the ofiice of said clerk. And as Conclusions of Law. First. That under and by the terms of the contract afore- said, and for and on account of the work and materials aforesaid, the defendant was, at the time of the filing of the lien hereinbefore mentioned, and when this action was com- menced, and now is justly indebted to the plaintiff, in said sum of $240, and interest thereon from , 19 . . . Second. That by the performance and furnishing of said work and materials and the filing and docketing of said lien, the plaintiff acquired and now has a good and valid me- chanic's lien on all the right, title and interest which the de- fendant had on the day of , 19 ... , at the time of the filing of said lien, and to the buildings and lands hereinbefore and in the complaint mentioned. Third. That the plaintiff is entitled to judgment against the defendant, barring and foreclosing him of all interest and equity of redemption in and to said premises, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing said lien, and for the payment to plaintiff from the proceeds of such sale of said sum of $240, and interest thereon from , 19 ... , which, at this date, amounts to $4.80, making together $244.80; and the plaintiff's costs and disbursements of this action, to be taxed, which are hereby granted to him ; and also in case said proceeds be insufficient to pay the sum aforesaid plaintiff is entitled to judgment against the defendant for the amount 692 Forms. of any deficiency so remaining. And I order and direct judg- ment accordingly. All of whicli is respectfully submitted. Beferee. Dated New York, , 1909. No. 32. Notice of Motion for Confirmation of Beferee 's Report and for Judgment. [Title of cause as in preceding fonn.] Gentlemen. — Please take notice that the report of , Esq., the referee herein, dated , 1909, was duly filed in the office of the clerk of this court, in the courthouse in the city of New York, on the day of , 1909, and that upon said report and upon the pleadings and all the papers and proceedings herein, a motion will be made at a Special Term of this court. Part I, to be held at the courthouse in the city of on the day of , 1909, at 10 :30 o'clock a. m., or as soon thereafter as counsel can be heard, for the confirma- tion of such report, for an extra allowance and for judgment and decree thereon in conformity with such report. Dated , 1909. W. L. S., To D. & P., Defendant's Attorneys. Attorney for Plaintiff. No. 33. Judgment on Report of Referee. [Title of cause as in Form No. 30.] This action being for a foreclosure of a mechanic's lien. and the issues therein having been referred to FoEMS, 693 Esq., as sole referee, to hear and determine the same, by order duly made and entered herein bearing date , 1909, and the said referee having duly made his report dated , 1909, and which has been duly filed, whereby he orders and directs judgment in favor of the plaintiff against the defendant, barring and foreclosing him of all interest and equity of redemption in and to the premises described in the complaint herein, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing the lien described in the complaint herein, and for the payment to plaintiff, from the proceeds of such sale, of the sum of $2,044.80, being the amount of plaintiff's claim and interest to the date of said report, and the plaintiff's costs and disbursements of this action to be taxed, and an extra allow- ance of $200, which are thereby granted to him, and in case said proceeds be insufficient to pay the sums aforesaid, for judgment against the defendant for the amount of any de- ficiency so remaining, and the plaintiff's costs having been duly taxed at $96: Now, on motion of W. L. S., plaintiff's attorney, It is ordered. That said report be, and the same is hereby, in all respects, confirmed, and on like motion, It is adjudged and decreed. That all the right, title and interest which the defendant had in and to the premises de- scribed in the complaint herein, and hereinafter particularly described, on the day of , 1909, at the time of filing plaintiff's lien described in the complaint herein, be sold in one parcel at public auction in the city and qounty of New York, by or under the direction of , Esq., of the city of New York, counselor-at-law, who is hereby appointed referee for that purpose, and the said referee give public notice of the time and place of such sale according to law ; that either of the parties to this action may purchase at said sale; that said referee deliver to the purchaser or pur- chasers a deed or deeds of the premises sold on the purchaser's complying with the terms on which the same were sold ; that out of the proceeds of such sale, after deducting his fees and the expenses thereof, the said referee pay to the plaintiff or his attorney $296, the costs taxed as aforesaid, and al- 694 FoEMS. lowance hereby adjudged to said plaintiff, with interest thereon from this date, and that he further pay to the plain- tiff or his attorney $2,044.80, the amount of the plaintiff's lien, and interest reported due as aforesaid, and with interest thereon from the date of said report, or so much thereof as the purchase money of said premises will pay of the same, and take receipts therefor and file them with his report; that said referee pay the surplus arising on said sale, if any, to the chamberlain of the city of Xew York, to the credit of this action, to be drawn only on the order of this court, signed by the clerk and a judge thereof, within five days after he receives the same ; that he make a report of such sale and file it with all convenient speed with the clerk of this court ; that if there be any deficiency remaining" on such sale said referee specify the amount thereof in his report of sale, and that the plaintiff recover of the defendant the amount of deficiency so remaining and have execution therefor, and that the pur^ chaser be let into possession on production of the referee's deed. And it is further adjured. That the defendant and all per- sons claiming under him subsequent to the filing of the notice of pendency of this action (which, as appears by said referee's report, was filed in the office of the clerk of the city and county of New York on the day of , 19. . .), be forever barred and foreclosed of all right, title, interest, estate, claim, lien and equity of redemption of, in and to the premises sold as aforesaid and every part thereof, with the appurtenances. The following is a description of said premises : [insert description of premises hy metes and bounds^. FoEMS. 695 No. 34. Decision for Plaintiff after a Deposit. [Title as in Form No. 31.J The issues in this action having been tried before me, at a Special Term of this court, held on the day of , 1909, and after hearing the proofs and allega- tions of the parties, I decide that plaintiff is entitled to judg- ment establishing his lien as prayed for in the complaint, with costs. The grounds for this decision, concisely stated, are that upon the whole case plaintiff has established by a preponder- ance of evidence that the defendant is indebted to the plaintiff in the sum of dollars upon hia contract for work, labor and services and materials furnished said defendant, which were actually used in the erection and construction of a dwelling-house upon land and premises de- scribed in the complaint, and for which plaintiff filed a lien as stated in the complaint. On the day of , 1909, the defendant deposited with the clerk of the county of dollars in discharge of the lien. The lien attaches to the deposit. Plaintiff is entitled to judgment establishing his lien, and for the recovery of dollars, the amount due thereon, with interest from the day of , 1909, besides the costs and disbursements of this action to be taxed, with an allowance of 5 per cent, upon the amount claimed, and said costs and allowance are hereby awarded to , the plaintiff herein, against the defendant And I hereby order and direct judgment in favor of the plaintiff accordingly, and direct that plaintiff have liberty to proceed according to law to collect the deposit of dollars made in discharge of the lien herein, and to proceed according to law against the defendant to collect and recover the remainder due upon said judgment over and above the amount of said deposit. Dated ,1909. W. B., /. 8. C. 696 FoEMs. No. 35. Judgment where Deposit has been Made. [Title as in Form No. 30.] This action being to foreclose a mechanic's lien, and the court at Special Term having tried the issues therein on the day of , 1909, and having made and filed its decision herein on the day of , 1909, whereby the court directs judgment in favor of the plaintiff against the defendant, establishing the plaintiff's lien upon the property described in the complaint herein, and deciding that said lien attaches to a deposit made herein in the office of the clerk of the county of , on the day of , 1909, of dollars, and that plaintiff is entitled to judgment for dollars, the amount due on said lien, with interest thereon from , 1909, besides the costs and disbursements of this action, and an allowance of 5 per cent, upon the amount claimed, which said costs are awarded in favor of plaintiff against the de- fendant , and directing that plaintiff have liberty to proceed according to law to collect the deposit of dollars, and to proceed according to law against the defendant to collect and recover the remainder due upon said judgment over and above the amount of said deposit. And plaintiff's costs having been taxed on notice at dollars and cents, now on motion of A, B., plain- tiff's attorney: It is adjudged and decreed^ That the lien filed herein by in the office of the clerk of the county of on the day of , 1909, for dollars, is and was a good and valid lien on the property described in the complaint, to wit : [Here set out description of property iy metes and bounds as in complaint.'] It is further adjudged and decreed. That the amount due on said lien is dollars, with interest thereon from , 1909, upon the contract between the plaintiff Poems. 697 and defendant for work, labor and services and materials furnished in and upon said premises, and the erection of a dwelling thereon, and plaintiff hecame and was entitled to enforce said lien against said property according to law, and the same was a valid and subsisting lien thereon. That on the ...... day of , 1909, the defend- ant deposited with the clerk of the county of the sum of dollars, and the lien of plaintiff attaches to said deposit. It is further adjudged and decreed. That the plaintiff recover of the defendant the sum of dollars, the amount of plaintiff's lien, with dollars, the interest due thereon to , 1909, the date of filing of the decision herein, making to- gather the sum of dollars, which sum is hereby adjudged to be a valid subsisting lien upon said deposit of dollars made with the clerk of the county of on the day of . , 1909, and said deposit, together with the interest thereon (less com- missions, if any), is hereby adjudged to be the property of the plaintiff, and the plaintiff is entitled to receive said de- posit and the whole of said deposit, and the clerk of the county of (or the county treasurer county) is hereby directed within five days after service of a notice of entry of this judgment upon the defendant or his attorney to pay said deposit, to wit, dol- lars, to , the plaintiff, or to A. B., his attorney, said moneys to be applied to the payment of plaintiff's said lien and claim herein. It is further adjudged and decreed. That, in addition to said sum of dollars, said recover of the defendant the sum of dollars, the costs and allowance of this action as taxed, and have execution therefor. Granted , 1909. Enter. W. B., /. a. c. 698 FoEMs. No. 36. Decision for Defendant. [Title as in Form No. 30.] The issues in this action having been tried before me at a Special Term of this court on the day of , 1909, and after hearing the allegations and proofs of the parties, I decide that the defendant is entitled to judgment dismissing the complaint upon the merits as prayed for in his answer, with costs. The grounds for this decision, concisely stated, are, that upon the whole case the plaintiff has failed to establish by a preponderance of evidence that the defendant . ., is indebted to the plaintiff in any sum whatever, or that he has acquired a valid lien on the land and premises described in the complaint; that, on the contrary, the said defendant has established to my satisfaction that there is nothing due from him to plaintiff upon the contract set forth in the complaint, or for extra work thereunder. And I hereby decide that judgment be entered dismissing the complaint upon the merits, and that the defendant recover his costs and disbursements of this ac- tion, to be taxed, and an extra allowance is hereby granted to the defendant of $100, and I order and direct judgment accordingly. Dated New York, , 1909. 0. H. T., J. 8. G. Wo. 37. Judgment on Decision Dismissing Complaint. [Title as in Form No. 30.] The issues in the above-entitled action having been tried at a Special Term of this court before Hon , Part IV, at the courthouse in the city of New York on the . . FOEMS. 699 day of , 1909, and the court having duly made and filed its decision, whereby it found that the defendant is entitled to judgment dismissing the complaint upon the merits, with costs: Now, on motion of , defendant's attorney, it is Ordered and adjudged. That the complaint herein be and the same hereby is dismissed upon the merits; and that , the defendant, recover of , the plain- tiff, $100, the costs and disbursements of this action as taxed, together with an allowance of $100, amounting in all to the sum of $200, and have execution therefor. Enter. L. A. G., /. 8. G. No. 33. Decree of Foreclosure — Mnnicipal Lien. [Lien Law, § 42, ante, p. 325.] At a Special Term, Part III, of the Supreme Court, held in and for the County of New York, at the County Court House therein, on the 27th day of May, 1909. Present — Hon. Peter A. Hendrick, Justice. MILTON & HARRISON, against Plaintiffs, THE CITY OP NEW YORK, a Domestic Municipal Corporation, BOARD OF EDU- CATION OF THE CITY OF NEW YORK; JOHN NORMAN, ROBERT J. HASTINGS, HARVARD SUPPLY COMPANY, AMERI- CAN MANUFACTURING COMPANY, YALE MANUFACTURING COMPANY, JOHN SMITH, JOHN HARVEY COM- PANY, WILLIAM GRAY, and JOHN LOGAN as Receiver of JOHN NORMAN and ROBERT J. HASTINGS, Deflendanta. Municipal lien. Judg- ment and decree. The issues in this action having come on for trial before me, at Special Term, Part III, of the court, held in and for 700 FoEMs. the county of New York, in the county courthouse therein, on the 15th day of May, 1909, and the plaintiff having ap- peared upon said trial by Bartholomew Shower, its attorney, and the defendant Harvard Supply Company having ap- peared upon said trial by Francis Chippendale, Esq., its at- torney, and the defendant Arndtican Manufacturing Com- pany having appeared upon said trial by Henry QuantreJl, its attorney, and the defendant Yale Manufacturing Com- pany having appeared upon said trial by Cyril Carroll, its attorney, and the defendant John Smith, having appeared in person, and the defendants The City of New York and the Board of Education of The City of New York, having ap- peared upon said trial by Francis K. Pendleton, corporation counsel, John F. O'Brien, Esq., of counsel, and the defend- ant John Logan having appeared upon said trial by Henry Long, his attorney, and John Harvey Company not having appeared in said action, and the defendant William Gray having appeared and answered herein, and not having ap- peared on the trial in said action, either in person or by attorney, and having been duly called and his default duly noted, and the allegations and evidence of the parties to this action, who appeared upon said trial, having been heard, and due deliberation having been had, and a decision having been made and filed herein by the justice before whom this action was tried stating separately the facts found and the conclu- sions of law on which the issues have been decided. Now, on motion of Bartholomew Shower, attorney for the plaintiff, it is Ordered, adjudged and decreed, That there is due and owing from the city of New York and the board of education of the city of New York, under the contract between the de- fendants John Norman and Robert J. Hastings, and the said the city of New York, for the public improvement mentioned in the complaint, the sum of ten thousand forty-nine and 25/100 ($10,049.25) dollars, and it is Further ordered, adjudged and decreed, That the plaintiff and the defendants Harvard Supply 'Company, American Manufacturing Company, Yale Manufacturing Companv and John Smith, by the filing of their respective liens referred t« Forms. 701 in the decision herein, acquired a good, valid and subsisting claim upon the said sum of ten thousand forty-nine and 25/100 dollars, and by the contii^uance of said liens by orders of this court have a good, valid and subsisting lien against said fund stated in said decision, and it is Further ordered, adjudged and decreed. That out of said fund of ten thousand forty-nine and 25/100 dollars, the said the city of New York shall first pay to the plaintiff, or to Bartholomew Shower, its attorney, the sum of two hundred and forty-six and 70/100 ($246.70) dollars, its costs and disbursements, and that there then be paid to the plaintiff, or to Bartholomew Shower, its attorney, the sum of three thousand two hundred ($3,200) dollars, with interest thereon from the 9th day of April, 1907, to the date of such pay- ment, and that there then be paid to the defendant Harvard Supply Company, or to Francis Chippendale, its attorney, the sum of three thousand and ninety ($3,090) dollars; and that there then be paid to the defendant American Manufac- turing Company, or to Henry Quantrell, its attorney, the balance of said fimd on account of its lien for the sum of five thousand seven and 2/100 ($5,007.02) dollars, with in- terest thereon from the 9th day of July, 1907; and it is Further ordered, adjudged and decreed. That the plaintiff apply at the foot of this decree for such order, direction or relief as may be proper to carry the same into effect and the clerk of this court is hereby directed to insert in the blank spaces left in this decree for that purpose the amount of the costs of the plaintiff when taxed. Enter. P. A. H., J. S. 0. PeTEB J. DOOLINO, Clerh. 702 FoBMS. No. 39. Offer to Pay into Court to Discharge Mechanic's Lien after Snit is Brought. [Lien Law, § 55, ante, p. 433.] [Title as in Form No. 31.J The defendant , the owner of the real property described in the complaint herein, hereby offers to pay into court the sum of dollars [or to execute and deposit securities with the court of the value dollars, de- scribed as follows (describe securities)'} in discharge of the liens set forth in the pleadings in this action, to wit : [specify amount of liens and date of filing']. Dated , 1909. D. F., Attorney for defendant owner. No. 40. Acceptance of Offer. [Lien Law, § 55, wnte, p. 433.] [Title as in Form No. 31.] The plaintiff , having been served with an offer of the defendant , owner of the real property described in the complaint in this action, to pay into court the sum of dollars \_or to execuie and deposit with the court the following described securities, of the value of dollars {describe securities)] in discharge of the lien of this plaintiff against such real property, for the sum of dollars, filed in the office of the clerk of the county of on the day of , 1909, does hereby accept the offer of such defendant. Dated , 1909. E. F., Plaintiffs Attorney. FoEMS. 703 No. 41. Affidavit to Secure Order for Discharge of Lien upon Offer to Fay into Court. [Lien Law, § 55, wnte, p. 433.] [Title as in Form No. 31.] State oi" E'ew Toek,| County of ,1 C. D., being duly sworn, deposes and says that he is the defendant in the above-entitled action ; that such action was brought by the plaintiff herein to enforce an alleged me- chanic's lien against the following described real property belonging to this deponent : [describe real property'] ; that notice of such lien was filed in the office of the clerk of county on the day of , 1909 ; that the amount claimed by virtue of such lien is the sum of dollars. That on the day of , 1909, a written offer to pay into court the sum of dollars {^or to execute and deposit securities with the court of the value of dollars and described as follows: {describe se- curities) ] was filed in the office of the clerk of this court and served upon , the plaintiff and lienor herein, on the same day, pursuant to section 65 of the Lien Law. A copy of such offer is hereto annexed. That a written acceptance of such offer was filed in the office of the clerk of this court on the day of , 1909, and served upon the attorney for this deponent upon the .... day of , 1909, as provided in such sec- tion of the Code of Civil Procedure. C. D. Subscribed and sworn to before me, this^ day of , 1909. ] , 7041 FoEMs. No. 42. Order Discharging Lien upon Payment of Money into Court. [Lien Law, § 65, ante, p. 433.] [Title as in Form Wo. 30.J ' Upon proof by the affidavit of C. D., the defendant in the above-entitled action, and [^state other proof, if arty,^ whereby it appears that an offer to pay into court the sum of dollars in discharge of the lien described in such affidavit has been made and accepted, and upon motion of D. F., attorney for the defendant C. D., it is hereby Ordered, That upon depositing with the clerk of this court the sum of dollars, the sum offered to be paid into court by the defendant C. D. \^or upon executing and depositing with the clerk of this court the securities, etc.1, the lien of the plaintiff A. B. against the real property of C, D. described as follows: [^descrihe real property^ be and the same is hereby discharged, and that the money l_or secv/r- itiesl so deposited shall take the place of the real property upon which such lien existed and shall be subject to the lien, and the clerk of the county of is hereby directed to cancel and discharge such lien of record, and to enter upon the lien docket and upon all other proper books and indices the appropriate entry thereof, with a reference to this order and its date of entry. No. 43. Notice to Commence Action. [Lien Law, § 59, ante, p. 440.] SiH. — Please take notice that you are hereby required to commence an action to enforce the alleged claim for , and interest, referred to in your notice of lien, heretofore filed by you in the office of the clerk of the county o£ on the day of , 1909, against EOEMS. 705 the real property described in said notice as follows : '[describe premises'] on or before the day of , 1909, [not less than thirty days from the service of the notice], or show cause at the Special Term of the Supreme Court, Part I, to be held at Chambers, at the county courthouse in the , on the day of , 1909, at eleven o'clock in the forenoon of that day, or as soon there- after as counsel can be heard, why an order should not be made directing that the notice of lien filed by you on said ...... day of , 1909, as aforesaid, should not be vacated and canceled of record. Dated , 1909. Yours, etc., To A. B., 0. D., Owner. No. 44. Affidavit for Order for Bischarge of Lien upon Failure to Com- mence Action. [Lien Law, § 69, ante, p. 440.] Stjpeeme Coukt, Cotjntt of ■. . . . In the Matter of the Application for a Bischarge of a Lien Held by A. B. against Certain Real Property of CD. State of !N^ew Yoek,| County of .^ 0. T)., being duly sworn, deposes and says that he is the owner of the following described real property: [describe premises]. That on or about the day of , 1909, A. B. filed a notice of lien against such property in the office of the clerk of the county of , a copy of which is hereto annexed. That on the ' day , 1909, this deponent caused a notice to be served 45 706 FoEMS. on tlie above-named A. B., pursuant to section 59 of the Lien Law, a copy of which notice and proof of the service thereof is hereto annexed. That hy such notice such lienor was re- quired to commence an action for the foreclosure of his lien on or before the ...... day of , 1909, which was more than thirty days' from the time of the service of such notice, or show cause at this Special Term of this court why such lien should not be vacated and canceled of record. That no action has been commenced by A. B. to enforce the lien against the above-described real property as required by such notice, at the time of making this application for an order vacating and canceling such lien. Subscribed and sworn to before me, this| day of , 1909. \ C. D, No. 45. Order Discliargiiig Mechanic's Lien when Action is not Com^ menced. [Lien Jj&ir, § 59, ante, p. 440.] At a Special Term, etc. [Title as in Form No. 35.] Upon the affidavit of C. D., whereby it appears that a notice was duly served upon A. B., pursuant to the Lien Law, § 59, requiring him to commence an action to enforce a mechanic's lien against the real property of C. D. described in such affi- davit, and that such action has not been commenced within the time specified therein, and upon proof of the service of such notice, and upon motion of D. F., attorney for the said C. D., it is hereby Ordered, That the mechanic's lien, a notice of which was filed by A. B. in the office of the clerk of county on the day of , 1909, upon the real prop- erty of C. D. described as follows: [describe real property'} FoEMS. 70 T be and the same hereby is vacated and canceled of record^ and the clerk of the county of is hereby directed to cancel and discharge such lien of record, and to enter upon the lien docket and upon all other proper books and indices a statement of such discharge, with a reference to this order and its date of entry. No. 46. Notice of Lien on Vessel [Lien Law, §§ 81, 82, ante, pp. 455, 456."] To THE Clbek of the Countt of New Yoek : Take notice that I, A. B., residing at , have and claim a lien upon the ship or vessel called the " Innocent," owned by , on her tackle, apparel and furniture, for a debt amounting at the time of filing this lien to $500, which debt was contracted by [here state the name of the master, owner, charterer, builder, or consignee of said vessel, who contracted the debf] or by the agent of the said at the city and county of New York, within the State of New York, for the following purposes, namely : On account of work done and materials and articles fur- nished to and delivered upon said vessel, in the State of New York, and county of New York, for and toward the repairing, fitting, furnishing or equipping of said vessel. For provisions and stores furnished to and delivered upon said vessel, within the State of New York and county of New York, fit and proper for the use of said vessel, at the time when the same were furnished. [// the debt is based upon a written contract, a copy of the contract must be attached to the notice of lien.] That such ship or vessel is a schooner, a seagoing and ocean- bound vessel. That annexed hereto is a bill of particulars of said lien which is correct, and the amount of such lien due and owing, 708 FOEMS. as aforesaid, now due and unpaid, is the sum of $500. [Attach also a copy of the contract, if there was one, in -.writing.'] > Lienor. JAdd verification as in Form 2*.] No. 47. Libel to Enforce Lien on VesseL The State statute (Lien Law, § 80) authorizes a lien for repairs upon or necessaries furnished to a domestic vessel in her home port. This is not a maritime lien. A maritime lien cannot be created by a State legislature. It exists under the maritime law against a foreign vessel when credit is given to the vessel. But the lien authorized by the State law creates a maritime contract which can only be enforced in admiralty in the Federal courts. The following form of libel for the enforcement of such lien will be found convenient: To Hon. Geoege B. Adams and Hon. Geoege C, Holt, Judges of the Disteict Couet op the United States FOE THE SOUTHEEN DiSTEICT OF New YoEK : The libel and complaint of George J. Walsh against the ■sloop yacht " Innocent," her tackle, apparel and furniture, and against all persons claiming any interest therein in a cause of contract civil and maritime for repairs, alleges as follows : First. That said vessel, as libellant is informed and be- lieves, is now within this district and within the jurisdiction ■of this court. / Second. Libellant herein is and at the times hereinafter mentioned was a ship carpenter, and as such was and is en- gaged in the business of repairing vessels in the city and county of New York. Third. In and about the months of April and May, 1909, the above-named libellant at the request of the master and owner of the sloop yacht " Innocent," in the city and county ■of New York aforesaid, performed work, labor and services, EOEMS. 709 and furnislied materials in and about the repairing of said vessel at the price and of the value in the aggregate of five hundred and eighty-three and fifty-three one hundredths dol- lars ($583.53), of which he has received on account the sum of eighty-three and fifty-three one hundredths dollars ($83.53), and there is now still due, demanded and unpaid him therefor the sum of five hundred dollars ($500). Fourth. The repairs aforesaid were made upon the credit of said vessel, were fit, necessary and proper for her, and the charges for the same are just and reasonable. Fifth. The sloop yacht " Innocent " at the time aforesaid was, as libellant is informed and believes, a domestic vessel owned by some person or persons residing in the State of New York. Pursuant to the Lien Law, and the various acts amendatory thereof and supplemental thereto, libellant's claim became and still is a valid and subsisting lien upon said vessel. And libellant has duly filed specifications and notice of his said lien in conformity with the provisions of said act. Sixth. All and singular the premises are true and within the admiralty and maritime jurisdiction of this court. Wherefore, Libellant prays that process in due form of law may issue against said vessel, her tackle, etc. ; that all persons having or claiming any right, title or interest therein may be cited to appear and answer upon oath all and singular the premises aforesaid ; that this honorable court may be pleased to decree payment to the libellant of the amount of his claim aforesaid, together with interest and costs; that said vessel may be condemned and sold to pay the same, and that libel- lant may have such other and further relief in the premises as may be just. AiEXANDEE & Ash, Proctors for Libellant. Sworn to before me, this....| day of , 1909. | ,710 FOEMS. No. 48. Notice of Lien on a Vessel for Construction — State Court. [Lien Law, §§ 81, 82, ante, pp. 455, 456.] The notice of lien must be filed within thirty days after the debt was contracted. If the vessel against which the lien is claimed is to be used or fitted for the navigation of the canals or the lakes of the State the lienor must immediately, after filing a notice in the county clerk's oflSce, file a copy thereof in the office of the comptroller of the State. The notice must be verified either by the lienor or by his legal repre- sentative, agent or assignee. If it is verified by a legal representative, agent or assignee, the verification should give the authority under which such verification is made. The lien being for original construction or building may be enforced in the State court. To THE Cleek of CoUWTT : Take notice that I, A. B., residing at , have and claim a lien against the vessel [here state the name and nature of the vessel against which the lien is claimed^, her tackle, apparel and furniture, and as a hasis for such lien do state the following facts : I. That the owner of such vessel is , residing at II. That the debt on account of which such lien is claimed arose upon the following facts [state the particulars of the ac- count against the vessel for which the lien is claimed, showing the amount due for labor performed and materials furnished in building and constructing the vessel and a copy of the con- tract if there was one in writing"}. III. That the amount due from such vessel for materials [or labor performed, supplied, furnished, etc.}, as above specified, is dollars. IV. That no part of such amount has been paid, and that the same is honestly and justly due to the above-named lienor. [If the debt is based upon a written contract a copy of such contract must be attached to the notice.} Dated , 1909. > Lienor. [Add verification as in Form No. 2.] FOEMS. 711 No. 49. Assignment of Lien on Vessel. [Lien Law, § 84, ante, p. 458.] This indenture, made the day of , 1909, between A. B., of the of , county of , State of , party of the first part, and B. C. of the same place, party of the second part, witnesseth: Whereas, The party of the first part filed on the day of , 1909, in the office of the clerk of the county of [and in the office of the State comp- iroller, if against a vessel navigating any of the canals or lakes of the State"], a notice of a lien on the vessel her tackle, apparel and furniture, for the sum of dollars, with interest, which lien is based upon the follow- ing described debt [state particulars of debt as in notice of Uen]. [Follow as in Form No. 6, inserting the proper words in place of the words therein contained not applicable to a lien «n vessels.] No. 50. Application for Warrant to Enforce Lien on Vessel — State Court. [Lien Law, § 86, ante, p. 458.] SupEEME Court, County of In the Matter of the Application far a Warrant to Seize the [state name of vessel'] and to Sell the Same for The Satisfaction of the Alleged Claim of A. B. against such Vessel. To Eon. J. K., Justice of the Supreme Court of the State of New York: The application of A. B., claiming a lien against the vessel 712 FoEMs. [here state name of vessel^ and her tackle, apparel and furni- ture, respectfully shows : I. That on or about the day of j 1909, the labor and materials below specified were furnished and performed for the use of the vessel [shipj steamboat, canal boat, etc.], which is designated by the name of [state name of vessel], and is owned by , residing at Such labor and materials were performed and furnished pursuant to a contract made with , who repre- sented and was the agent of the above-named owner, and was in charge of such Vessel. II. That such labor and materials consisted of the follow- ing items : [here state an itemized account of the supplies fur- nished or labor and services performed for which the lien is claimed]. III. That the value [or the price agreed to he paid for] of such labor and materials is dollars ; that of such amount the sum of dollars has been paid, and that there is now justly due the applicant, over and above all payments or any just deduction, the sum of dol- lars. IV. {If any assignment or transfer of the debt has been made since it was contracted it should be stated in the applica- tion. If the applicant is not the original lienor the source from which he derived his interest in the lien should he specified]. V. That a notice of the lien, founded upon the debt above mentioned, was filed in the office of the clerk of the county of on the day of '., 1909, [and if the lien is claimed against a vessel navigating the canals or the lakes of the State the application should also state that a notice of the lien was filed in the office of the State Comptrol- ler], as prescribed by section 82 of the Lien Law. A copy of such notice is annexed to this application, and is made a part hereof. Wherefore, The applicant respectfully asks that a warrant be issued to the sheriff of the county of , com- "manding him to seize and safely keep the vessel above de- scribed, her tackle, apparel and furniture, to satisfy the claim FoEMS. 713 of this applicant, if it be established to be a lien upon a vessel according to law, and that an order to show cause be granted why the vessel seized by virtue of such warrant should not be sold to satisfy the claim above specified, if it be established a lien upon such vessel in proceedings hereafter taken. Dated , 1909. Lienor. [Verification as in Form No. 2.] No. 51. TTsdertakiiie to Accompany Application for Warrant of Seizure of Vessel. [Lien Law, | 87, ante, p. 459.] [Title of cause as in preceding form.] Whereas, The above-named A. B. has applied, or is about to apply, for a warrant for the seizure of the vessel [here state name of vessel^ and her tackle, apparel and furniture, as pro- vided by article 4 of the Lien Law : Now, therefore. The undersigned C. D. of , in the coTmty of , State of New York, merchant, and E. F. of , in the county of , and State aforesaid, merchant, do hereby jointly and severally un- dertake, pursuant to statute, that if it is finally adjudged that the above-named applicant is not entitled to a warrant for the seizure of such vessel, her tackle, apparel and furniture, that they will pay all costs which may be awarded against him, not exceeding the sum of dollars, and all damages which may be sustained by reason of the seizure of such vessel under such warrant not to exceed the sum of fifty dollars. Dated , 1909. C. D., E. F. 714 FOEMS. State of New Yoek,| . County of ....... ., j C. D. and E. F., who are named in and who executed the foregoing undertaking, being duly sworn, says each for him- self, that he is a resident of the State of New York, and is a freeholder in said State, and is worth the sum of [here insert double the sum specified in the undertaking as a limited lia- bility'] over and above all the debts and liabilities he owes or has incurred, and exclusive of property exempt by law from levy and sale under an execution. CD., E. F. Subscribed and sworn to before me,) this day of , 1909. j State of New Yoek,| County of , \ On this day of , 1903, before me per- sonally came A. B., C. D. and E. F., to me known to be the persons described in and who executed the within instru- ment, and who severally acknowledged that they executed the same. [Signature and official title.'} No. 52. Warrant for Seizure of Vessel to Satisfy Idea. [Lien Law, § 88, ante, p. 459.] To THE Sheeiff of THE CouNTY OF [or gener- ally to the sheriff of any county of the State], Geeet- ing: Whereas, A. B. has this day presented before me an appli- cation, duly verified, exhibiting an account of his claim against the vessel [here name vessel], and whereby it appears that a lien exists upon such vessel, her tackle, apparel and furniture for the sum of dollars, and in which FoEMs. 715 he respectfully asks tliat a warrant be issued commanding you to seize and safely keep such vessel, her tackle, apparel and furniture to satisfy such claim, if established to be a lien upon the vessel according to law, and the said. A. B. having deliv- ered to me the undertaking required by section 87 of the Lien Law. You are, therefore, commanded to seize and safely keep the vessel [here name vessel^, her tackle, apparel and furni- ture, to satisfy such claim, if established to be a lien upon such vessel according to proceedings hereafter instituted pur- suant to article 4 of the Lien Law; and to make return of your proceedings under this warrant within ten days after you have made such seizure. Witness my hand at chambers in the city of . . . '. on the day of , 1909. Justice of the Supreme Court. So. 53. Order to Sbow Cause why Vessel Seized Should not be Sold to Satisfy Lien. [Lien Law, § 89, ante, p. 460.] At a Special Term, etc. [Title as in Form No. 47.] On the application of A. B. for a warrant to enforce a lien on the vessel {here state name of vesseV], her tackle, furni- ture and apparel, and to collect the amount of such lien, a copy of which is hereto annexed, and which is in the forjn prescribed by section 86 of the Lien Law, and verified as required thereby, and on motion of D. F., attorney for the lienor A. B,, it is hereby Ordered, That , the master {or other person in charge"] of the vessel {here name the vessel] seized by virtue of such warrant, and .". , the owner of such vessel, 716 FoEMS. and , the person to whom such vessel is consigned [if known], show cause before me at a Special Term of this court l_or at chambers'], to be held at in the countj of ■_. . ... on the day of , 1909, at o'clock in noon, or as soon there- after as counsel can be heard, why {he above-named vessel, her tackle, apparel and furniture, seized by virtue of such warrant, should not be sold to satisfy the claim specified in the annexed application, pursuant to article 4 of the Lien Law. [A copy of this order should he served upon the master of the above-named vessel (or other person in charge) at the time of the execution of the warrant for the seizure thereof. A copy shbuld also be served personally upon the owner and consignee of such vessel. If such owner or consignee are not residents of the State of New York, such service may be made by mail.] Dated , 1909. Justice of the Supreme Court. No. 54. Notice of Issuance of Warrant to be Published. [Lien Law, § 90, ante, p. 461.] [Title as in Form No. 44. J Notice is hereby given that upon an application made by A, B., as prescribed by statute, a warrant was issued on the . . day of , 1909, by Hon. J. K, justice of the Supreme Court of the State of New York, for the seizure and safekeeping of the vessel [here state name of vessel], her tackle, apparel and furniture to satisfy the claim of A. B., if established to be a lien upon such vessel by law ; that the amount of such claim as specified in such warrant is dollars; that at the time of the issuance of such warrant an FoEMS. 717 order to show cause was granted by the aforesaid justice of the Supreme Court, directed to , master [or other person in charge of such vessel^ , and , the owner- thereof, and , the consignee thereof ; that such order is returnable at a Special Term of the Supreme Court; [or at chambers'] before the Hon. J. K., justice of the Su- preme Court, to be held at in the city of on the day of , 1909. Dated , 1909. [^Signature of attorney.'] ^Signature of appldcant."} No. 55. Order for Sale of Vessel to Satisfy lien. [Lien Law, § 92, ante, p. 462.] At a Special Term, etc. [Title of cause as in Form No. 50.] An order to show cause having been granted why the vessel [state name of vessel] seized by virtue of a warrant issued on the day of , 1909, should not be sold to satisfy the lien specified in the application for such warrant by Hon. J. K., justice of the Supreme Court, and such order having been made returnable on the .... day of , 1909, at in the city of , and by virtue of such order the following persons Instate names of persons who appeared to contest the claim of the lienor] having ap- peared at such time and place and contested the claim of the above-named lienor, and having presented affidavits contro- verting the material allegations contained in the notice of lien and application for a warrant by the lienor, and the is- sues so raised having been tried before the Hon , justice of Supreme Court [or before , referee duly appointed], and it having been decided by such justice [or referee] that the lien of such lienor is valid, and that by 718 FoEMs. virtue of sucli lien there is now due to the lienor tie sum of dollars, and in addition thereto the sum of dollars for the costs, disbursements and fees at- tending the proceedings instituted for the enforcement of such lien, and upon motion of D. F., attorney for the lienor, It is hereby ordered. That ^ , sheriff of the county of [insert name of sheriff who seized the vessel'], sell the vessel [name vessel] and her tackle, apparel and furniture to satisfy the lien of such lienor, and pay all costs and expenses necessarily incurred in the proceedings in- stituted as prescribed by article 4 of the Lien Law, to the amount above specified, and that he shall make a return to me of his proceedings hereunder and that after deducting the necessary, fees and expenses of seizing, preserving, watching and selling such vessel pay into court the remaining proceeds of the sale of such vessel. Dated , 1909. Justice. No. 56. Order to Attend Distribution of Proceeds. [Lien Law, § 94, ante, p. 463.] [Title of cause as in Form ITo. 44. J An order having been granted in the above proceedings for the sale of the vessel [ndme vessel] and her tackle, apparel and furniture to satisfy the lien of upon such vessel, and pursuant to such order , sheriff of the county of , having sold such vessel and her tackle, apparel and furniture in the manner prescribed by law for the sale of personal property upon execution issued out of a court of record, and return of his proceedings under such order having been made by him, and the proceeds of the sale of such vessel having been paid into court. It is hereby ordered. That all persons having a lien upon FoEMs. 719 such vessel by virtue of article 4 of the Lien Law, as enacted by Laws of 1909, chapter 38, and all other persons interested therein, including the master, owner and consignee thereof, appear before me [or referee appointed'] on the day of , 1909, at in the city of ., to attend the distribution of such proceeds, and it is hereby Further ordered. That this order be published once a week for three successive weeks in the , a newspaper published in the city of [Such order should be piiblished in the same newspaper in which the rwtice of seiz- ure was published.'] Dated , 1909. . . ., Justice. No, 57. Order of Distribution of Proceeds. [Lien Law, § 94, ante, p. 463.] At a Special Term of the Supreme Court, held at Su- preme Court chambers in the city of on the day of , 1915. Present — Hon. James A. Blanchaed, Justice. In the Matter of the Claims of A. B., C. D., and E. F. against the Vessel [state here name of vessel] and Her Tackle, Apparel, and Furniture, and the Proceeds of Sale thereof and the Contest in Reference thereto by L. M., the Owner of Such Vessel. >• The issues in the above-entitled matter between the above- named claimants and the contestant having come regularly on for trial, and a trial having been had, and the justice having rendered his decision and findings of fact and conclusions of law by which it appears that the vessel [here state the name 720 FOEMS. of vessel"] was sold by the sheriff of the county of . .■ under the order of sale referred to in such findings of fact, and such sale having realized the sum of dollars, "which amount is now held by such sheriff subject to the fur- ther order of such justice, now on motion of D. F., attorney for A. B., lienor above named, it i^ Ordered and adjudged. That the said A. B. be paid by such sheriff out of the proceeds of the sale of such vessel the sum of dollars, and his costs and disbursements in the amount of dollars [/oZZow with other similar directions as to payments to he made to other lienors or claimants] . Dated ■ , 1915. * •••> Justice. No. 58. Application for the Discharge of Warrant of Seiznre. [Lien Law, § 101, ante, p. 466.] SlTPHEME COUET, CoUNTT OF ,. ., In the Matter of the Application of A. B. for the Discharge of a Warrant of Seizure of the Vessel [state name of vessel], Her Tackle, Apparel, and Furniture. To THE Hon. Alfeed R. Page, Justice of the Stipeemb Court : I, A. B., of the city of , State of N"ew York, the owner \^or consignee, agent, master or other person havinq an interest therein] of the vessel [here state name of vessel] which was seized by virtue of a warrant issued by you to- gether with her tackle, apparel and furniture, in satisfaction of an alleged lien upon such vessel claimed by C. D. of the ' FOEMS. V21 city of , to the sheriff of the county of on the day of , 1909, and which is now in his possession, do respectfully make application to you that such warrant be discharged upon the undertaking at- tached hereto which was executed by , having a residence in the city of and doing business at in the city of , and , having a residence in the city of and doing busi- ness at in the city of . . . ,. , and upon giving at least one day's notice to the above-named lienor, or his attorney. Dated , 1909. • •> Owner. No. 59. ITotice of Application for the Discharge of Warrant. [Lien Law, § 101, ante, p. 466.] [Title as in preceding form.] To C. D., LiENOE, OK D. F., Attoenet foe C. D. : Please to take notice, that an application will be made by me to the Hon. J. K., justice of the Supreme Court, at , in the city of , on the day of :...., 1909, for an order discharging the warrant issued by such justice to the sheriff of the county of , and by virtue of which warrant the vessel [^state name of vessel^, her tackle, apparel and furniture were seized on the day of , 19 ... , upon the annexed appli- cation and upon an undertaking executed by [state names, residences and places of business of proposed sureties upon undertaking'], in the sum of dollars. Dated , 1909. .Very truly, ,722 FoKMs. No. 60. Undertaking to Accompany Application for Discharge of Warrant. [Lien Law, § 102, ante, p. 466.] [Title as in Form 58.J Know all men hy these presents: That we, A. B., owner of the vessel [state name of vessel^, residing at , in the city of , and M. ^., residing at , in the city of , and doing business at in the city of , and N. O., residing at , in the city of , doing business at , in the city of , are hereby held and firmly bound unto C. D., his executors, administrators and assigns in the sum of dollars, lawful money of the United States, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors and adminis- trators, jointly and severally, by these presents. Signed and sealed on the day of , 1903. Whereas, The sheriff of the county of has seized the vessel [state name of vessel], her tackle, apparel and furniture by virtue of a warrant issued on the applica- tion of A. B., claiming to have a lien thereon under the pro- visions of article 4' of the Lien Law (L. 1909, chap. 38) : Now, therefore. The condition of this obligation is such that if the obligors above named pay the amount of all claims and demands which shall be established to be due to A. B., or to have been a subsisting lien on the vessel at the time of the issue of such warrant pursuant to such statute, then this obligation is void; otherwise to remain in full force and virtue. A. B., [l. s.] M. K, [l. s.] N. O. [l. s.] [Justification and acknowledgment as in Form No. 48.] FoKMS. 723 No. 61. Order for Discharge of Warrant. [Lien Law, § 103, amte, p. 467.] [Title of cause as in Form No. 54.] Upon the annexed application, made by A. B., owner [^con- signee^ agentj master of or other persons having an interest therein^ of the vessel Estate name of vessel!] for the discharge of the warrant for the seizure of such vessel, her tackle, ap- parel and furniture, issued on the day of , 1909, and upon the execution, approval and delivery of a good and sufEeient undertaking to C. D., the lienor, claiming a lien against such vessel, her tackle, apparel and furniture, and upon the payment of the fees of the sheriff upon the seizure and detention of the vessel taxed at the sum of dollars, and upon motion of F. D., attorney for A. B., It is hereby ordered. That the warrant for the seizure of such vessel, her tackle, apparel and furniture, be discharged, and that no further proceedings against the vessel seized by virtue thereof shall be had under title 4, chapter 22, of the Code of Civil Procedure, founded upon any demand claimed by the above-named C. D. which is secured by such under- taking. Dated , 1909. ,724 FoEMs. No. 62. Complaint — Action upon Undertaking Given for Discharge of Warrant. [Lien Law, § 104, ante, p. 467.] ■SUPEEME COUBT, CoUNTY OF i C. D., Plaintiff, vs. A. B., M. N. and N. 0., Defendants. The plaintiff complains and alleges: I. That the plaintiff now is, and has been fof many years last past, engaged in the business of [^state nature of business^ in the city of , State of l^ew York. II. That, as the plaintiff is informed and believes, the de- fendant A. B. was the owner of the canal boat at the several times hereinafter named, and that such canal boat is a steam canal boat or vessel used in the navigation of the lakes, rivers and canals of this State; that one J. P., of , in the county of , State of New York, was a contractor, builder or repairer of such boat; that said J. P. on the day of , 1909, con- tracted a debt to the plaintiff within this State on account of work done and materials furnished in this State for the repair, fitting, furnishing or equipping of said vessel or canal boat, which said work and materials were of the value of $ , and that there was justly due the plaintiff upon said account on the day of , 1909, the sum of $ over and above all payments and just deductions. III. The plaintiff further shows that on the day of , 1909, and within thirty days after the debt above mentioned was contracted, the said plaintiff filed a no- tice of lien in the county clerk's office of the county of , and a copy thereof, duly certified by the county clerk of the county of , was filed in the office of Forms. 725 the comptroller of the State on the day of , 1909. IV. That such notice of lien contained the name of the vessel, hte name of the owner, the particulars of the debt, and a statement of the amount claimed to be due from such vessel, and was verified by the lienor to be true and correct. A copy of such notice is attached to this complaint, and is hereby made a part hereof. V. That on the day of , 1909, the above-named plaintiff, pursuant to article 4 of the Lien Law, applied to the Hon. J. K., justice of the Supreme Court of the State of 'New York, for a warrant to enforce such lien, and to collect the amount thereof; that such application was in writing, duly verified by the plaintiff, and exhibited by whom and when such debt was contracted, and for what vessel, the items composing such debt, the amount claimed, and that the same was justly due to the plaintiff over and above all payments and just deductions, an dthe time and place where the notice of lien was filed. VI. That thereupon the said justice of the Supreme Court issued a warrant to the sheriff of the county of , commanding him to seize and safely keep such vessel, her tackle, apparel and furniture to satisfy such lien, if estab- lished to be a subsisting lien according to law, and to make return of his proceedings under such warrant to such justice upon the day of , 1909 ; that in pursuance of such warrant the sheriff executed the same and seized the said vessel as therein .directed on the day of , 1909. VII. That thereupon A. B., the owner of such vessel on the day of , 1903, and before any order for the sale of such vessel was made, applied to such justice for an order to discharge such warrant and thereupon the said A. B. and the other defendants herein, viz. : M. K and N. O., duly executed and delivered to such justice a bond to the above-named lienor, the plaintiff herein, who applied for such warrant. A copy of such undertaking is hereto annexed and made a part of this complaint. By such under- taking the above-named defendants jointly and severally 726 FoEMs. bound themselves to pay the plaintiff the sum of dollars subject to the condition expressed in such bond, and that thereupon such warrant was discharged. VIII. That the conditions of such bond have been broken by the defendants inasmuch as no part of such lien has been paid since the execution of such undertaking; and that such lien was a subsisting lien upon such vessel, and that the whole amount thereof is now due to the plaintiff, with in- terest thereon from the day of , 1903. Wherefore, The plaintiff demands judgment against the defendants for the said sum of dollars, with in- terest thereon from the day of , 1903, to- gether with the costs of the proceedings for the enforcement of his lien, as prescribed by section 105 of the Lien Law, together with the costs and allowances in this action. Plaintiff's Attorney. XVerification as in Form No. 48.] No. 63. ITotice of Lien upon Monument or Gravestone. [Lien Law, § 121, ante, p. 470.] To , Superintendent of Cemeteet, AND TO Whomsoever it May Concern : Sir. — Take notice, that I, A. B., residing at claim a lien upon the monument [gravestone, inclosure or other structurel hereinafter described, which is based upon the following facts : I. That on or about the day of , 19 . . . an agreement was made by me with for the sale and erection of a monument [gravestone, inclosure or other structure^, to be erected in cemetery [or burial ground^ . II. That such monument [gravestone, inclosure or other structure'] was of the following kind and nature [here insert FoEMS. 727 description of monument, gravestone, inclosure or other struc- ture on account of which the lien is claimed^. III. That tlie amount agreed to be paid for such monument [gravestone, inclosure or other structure'], and the erection thereof, was dollars. IV. That of such agreed price there remains unpaid the sum of dollars. V. That such monument [gravestone, inclosure or other structure] was erected upon a plot in such cemetery [or burial ground], described as follows: [here describe the plot upon which the monument, gravestone, inclosure or other structure was erected]. Dated , 1909. State of New Yoek,| County of , ^ A. B., being duly sworn, deposes and says that he is the lienor mentioned in the foregoing notice of lien ; that he has read such notice and knows the contents thereof; that the statements therein contained are true to his knowledge, ex- cept as to the matters therein stated to be alleged on informa- tion and belief, and that as to those matters he believes it to be true. A. B. Subscribed and sworn to before me,| this.... day of ,1909. | 728 FoKMs. No. 64. Complaint in an Action to Enforce a Lien upon Monument or Gra7estone. [Lien Law (L. 1909, chap. 38), § 122, ante, p. 472.] CouBTj County of JOHN N. BOSTWICK, Plaintiff, vs. SIMEON BOLIVAR, Defendant. The plaintiff complains and alleges : I. That at the times hereinafter mentioned the plaintiff was a dealer in monuments, gravestones and other cemetery structures, doing business in the city of Amsterdam and county of Montgomenry. II. That on or about the 10th day of June, 1909, such plaintiff entered into an agreement with the above-named defendant whereby he agreed to sell a certain monument [gravestone of other structure'] oi the following description, to wit: [describe monument, gravestone or other structure'], and to erect the same upon a lot or plot of ground in the cemetery [or burial ground], situated in the city [town or village] of , county of III. That pursuant to such agreement the above-described monument was sold and delivered, and erected in such ceme- tery [or burial ground] on or about the 18th day of June, 1909, upon a lot or plot in such cemetery [or burial ground] described as follows : [here describe the lot or plot by metes and bounds, or in such other way as will he sufficient for identification] . IV. That by the terms of such agreement the price to be paid for such monument [gravestone or other structure], and for its erection in such cemetery [or burial ground], was dollars, of which amount the sum of dollars has been paid, and there is now due this plaintiff from the above-named defendant because of the sale and erec- tion of such monument [gravestone or other structure] the sum FoEMs. 729 of dollars, with interest from the 18th day of June, 1909. V. That pursuant to section 121 of the Lien Law of the State of 'New York (L. 1909, chap. 38) a notice of lien was filed with , the superintendent of the cemetery [or hurial ground'] upon the 1st day of July, 1909, a copy of which notice is hereto annexed and made a part of this complaint. VI. That pursuant to such section a copy of such notice was served personally [or by mail} upon the above-named defendant, and upon the following-named persons, who by the records in the office of the superintendent of such cemetery appear to be the owners of the lot or plot upon which such monument [gravestone or other structure'] was erected. 'Wherefore, the plaintiff demands judgment against such defendant for the sum of dollars, with the costs of this action, and that he be authorized by such judgment to remove such monument [gravestone or other structure] from the above-named cemetery [or hurial ground], and to sell the same at public auction to satisfy the amount of such judg- ment, pursuant to section 42 of the Lien Law (L. 1909, chap. 38). Plaintiff's Attorney. [Add verification as in Form No. 48.] No. 65. Judgment in an Action to Enforce a Lien on Monument or Gravestone. [Lien Law (L. 1909, chap. 38), §§ 122, 123, ante, p. 472.] [Title of cause.] The issues in the above-entitled action having been tried at a trial term of this court before Hon and a jury, at the courthouse in the city of on the day of , 1909, and the jury having rendered a ^30 FOEMS. verdict in favor of the plaintijff herein, and against the de- fendant for the sum of dollars, and by such ver- dict the lien of the plaintiff against the monument described in the complaint in ^this action being established, now, on motion of , attorney for the plaintiff, it is hereby Ordered and adjudged. That John N. Bostwick, the plain- tiff, recover of Simeon Bolivar the sum of dol- lars, the amount of such verdict, and the costs and disburse- ments of this action, in the sum of dollars, as heretofore taxed, amounting in all to the sum of dollars, and it is hereby further Ordered and adjudged. That the plaintiff John N. Bost- wick be and he is hereby authorized to remove from the fol- lowing-described lot or plot in the cemetery at , county of , to wit: [here describe lot or plot in cemetery as contained in the complaint'\, a monument [gravestone or other structure'] erected thereon by him for the defendant, Simeon Bolivar, and which monu- ment is described as follows : [here describe monument, grave- stone or other structurel and to sell such monument [grave- stone or other structure'] at public auction to satisfy the amount of this judgment and the expenses of the removal and sale, thereof, provided, however, that the expense of such removal shall not exceed [fifty dollars if a monument and ten dollars if a gravestone, inclosure or other structure]. [Enter.] , Judge [or Jv^ice]. No. 66. Notice of Sale of Monnment or Gravestone Fnrsnant to Judgment. [Lien Law (L. 1909, chap. 38), § 122, ante, p. 472.] TaJce notice. That by virtue of a judgment against Simeon Bolivar, of , obtained in the Court, at a term thereof, held on the day of 1909, and entered in the oiSce of the on tho FoEMS. 731 day of , 1909, I will expose for sale at public auction at in the city of , county of , on the day of , 1909, at 12 M., the following described monument [grave- stone or other structure] : [describe monument, gravestone or other structure to be sold} to satisfy the amount of such judg- ment and the costs and expenses of the sale and removal of such monument [gravestone or other structural. Dated , 1909. JOHN" N. BOSTWICK. No. 67. Notice of Sale — Enforcement of Lien on Personal Property. [Lien Law (L. 1909, chap. 38), § 201, ante, p. 524.] To [owner of personal property to be sold'] : Take notice. That I, A. B., have a lien against personal property now in my possession and belonging to you of the fol- lowing description: [describe personal property to be sold by virtue of the lien"]. That such lien is claimed because of services rendered, as follows: [state nature of the debt or agreement under which the lien arose, with an itemized statement of the claim.'] That the estimated value of the property above described, against which the lien is claimed, is dollars. That the amount of the lien claimed against such property at the date of this notice is dollars. You are hereby required to satisfy such lien and pay the amount thereof to me on or before the day of , 1909. [Such date must be not less than ten days from the service of the notice.] If such lien is not satisfied and the amount thereof paid to me on or before such date, the personal property above de- scribed will be sold by me at public sale to the highest bidder at [state place of sale], on the day of , 1909, as provided by article VII of the Lien Law (L. 1909, ehap. 38). 732 FoEMs. [7/ the lien is based upon an agreement which calls for the continuous care of property, and the lienor is entitled to re- ceive all sums which may accrue under the agreement after the notice is served and prior to payment or a sale of the prop- erty, the notice should contain a statement that such addi- tional sum is demanded.'] Dated , 1909. Lienor. State of New Yoek,| County of ,5 A. B., being duly sworn, deposes and says that lie is the lienor named in the foregoing notice; that he has read such notice and knows the contents thereof ; that the lien claimed therein upon the personal property therein described is a valid one ; that the debt upon which such lien is founded is due, and no part thereof has been paid ; that the facts stated in such notice are true to the best of his knowledge and belief. A. B. Subscribed and sworn to before me,) this day of , 1909. \ No. 68. Notice of Sale of Personal Property to be Published. [Lien Law (L. 1909, chap. 38), § 202, wnte,'] p. 525. Take notice. That by virtue of a lien held by me against the following-described personal property [describe personal property to he sold], belonging to \_siate name and residence of owner] and now in my possession, I will sell such personal property at public auction to the highest bidder, to satisfy such lien, at [state place of sale] , on the day of , 1909. Dated ., , 1909. A. B. FoEMS. T33 No. 69. Notice of Surplus Held by Lienor. [Lien Law, § 204, ante, p. 526.] To C. D., Ownee: Please to take notice. That pursuant to a notice of sale hitherto served upon you as prescribed by section 81 of the Lien Law, I have caused the articles specified in such notice of sale to be sold at public auction to the highest bid- der. That by such sale there was realized the sum of dollars ; that the expense of advertising such sale was dollars ; that the expense of the sale was dollars, and that after deducting such ex- penses and satisfying my lien there remains in my hands a balance of dollars, which is held by me subject to your demand or the demand of your assignee or legal representative. Dated , 1909. A. B., Lienor. No. 70. Affidavit to be Filed by Lienor upon Depositing Surplus. [Lien Law, § 204, ante, p. 526.] State of New Yoek,| County of ,j A. B., being duly sworn, deposes and says, that, having a lien upon the following-described personal property: [de- scribe property'], belonging to [state name and residence of owner'], for [state services or debt on account of which the lien arose], in the sum of dollars, he sold such personal property at public auction to the highest bidder, on the day of , 1909, at , in the city of , State of New York. That the articles so sold brought the following prices: 734 Forms. {state in detail the prices received for each article'] ; that the total amount received from such sale was dol- lars ; that the expense of advertising such sale was dollars, and the expense of the sale was dollars. That after satisfying my lien as above mentioned and pay- ing the expenses of advertisement and sale, there remains in my hands a surplus of dollars. That a notice of such sale was duly served, as prescribed by section 201 of the Lien Law, upon , the owner of such articles, personally [or hy mail], upon the ...... day of , 1909. A copy of such notice is hereto annexed and filed herewith. That such sale was duly advertised by publication of a no- tice thereof in the , a newspaper published in the of , once a week for two consecu- tive weeks [or posted in six or more conspicuous places , if no newspaper is published in the town where the sale took place], as prescribed by section 82 of the Lien Law. A copy of such notice of sale is hereto annexed and filed here- with. That a notice that the balance of the proceeds of such sale was held by me, subject to the demands of the owner, was served personally upon such owner [or by mail], on the .... day of , 1909. That such owner, his assignee or legal representative did not, within thirty days from the day of such sale, nor has not, to the present time, claimed and applied for the balance so held by me. A.B. Subscribed and sworn to before me,| this day of , 1909. | Forms. 735 No. 71. Chattel Mortgage. [Lien Law, § 230, ante, p. 536.] Where filed. — Mortgage or true copy must be filed in town or city ■where mortgagor resides at time of execution thereof, unless he is a nonresident; if a nonresident of the State, instrument must be filed in the city or town where chattels are located. It must be filed as follows : In borough of Brooklyn, in register's office of Kings county. In borough of Queens, in office of clerk of Queens county. In borough of Eichmond, in office of clerk of Richmond county. In borough of Manhattan and the Bronx, in office of register of county of New York. In other cities and towns, in office of city clerk or town clerk, unless there is a county clerk's office in the city or town, in which case it must be filed therein. Partnership mortgage must be filed in the city where each mortgagor resides. Mortgage of canal boat, tug, scow or other craft, must be filed with the State comptroller. Refiling — A chattel mortgage becomes void as against creditors of mortgagor and subsequent purchasers or mortgagees in good faith, after the expiration of the first year, or any succeeding term of one year reckoning from time of first filing, unless within thirty days next preceding the expiration of each such term, a statement containing a description of the mortgage, the names of the parties, the time when and place where filed, the interest of the mortgagee or his successor in interest in the property claimed, or a copy of the mortgage, and its indorsements, together with the statement attached or indorsed thereon, showing the interest of the mortgagee or his successors in interest, is filed in the proper office in the city or town where the mortgagor then resided, if he is then a resident of the town or city where the mortgage or a copy thereof or such statement was last filed. If not such resident, but a resident of the State, the copy of the mortgage and statement shall be filed in the proper office of the town or city where he then resides. If the mortgagor is a nonresident then in the proper office of the city or town where the mortgaged property was at the time of the execution of the mortgage. Refiling, City of New York. — Where the chattels mortgaged were located in the city of New York when the mortgage was made a copy of such mortgage and its indorsement together with a statement at- tached thereto or indorsed thereon, showing the interest of the mort- gagee or his successor in interest, must be filed in the office where the original mortgage or a copy thereof was filed at the time of its execu- tion. Lien Law, i§ 232, 235, ante, pp. 578, 580. Y36 FoEMs. Know all men hy these presents. That I, • now residing at No , in the city and county of New York, party of the first part, for securing the payment of the money hereinafter mentioned, and in consideration of the sum of one dollar to me duly paid by , party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant, bargain and sell unto the said party of the second part one ebony piano, and all and singular the other goods and chattels, mentioned in the schedule hereto annexed, and now in my dwelling-house [^store or place of business^ at No , in said city and county of New York. To have and to hold, all and singular the goods and chattels above bargained and sold, or intended so to be, unto the said party of the second part, his executors, administrators and as- signs forever. And I, , the said party of the first part, for myself, my heirs, executors and administrators, all and singular the said goods and chattels above bargained and sold unto the said party of the second part, his heirs, executors, administrators and assigns, against me, the said party of the first part, and against all and every person or persons whomsoever, shall and will warrant, and forever de- fend. Upon condition, that if I, , the said party of the first part, shall and do well and truly pay unto the said party of the second part, his executors, administrators or assigns, the just and full sum of dollars [here state the indebtedness, and if secured by a promissory note, state that fact and when some will become due'\ , on the .... day of , 1909, with interest from the .... day of , 1909, then these presents shall be void. And I, , the said party of the first part, do for myself, my executors, administrators and assigns, covenant and agree to and with the said party of the second part, his executors, administrators and assigns, that in case default shall be made in the payment of the said sum above men- tioned [af the tv.ne and in the manner above stated'] then it shall and may be lawful for, and I, the said party of .the first part, do hereby authorize and empower the Forms. 73T said party of the second part, his executors, administrators and assigns, with the aid and assistance of any person, to enter my dwelling-house, store and other premises, and such other place or places as the said goods or chattels are or may be placed and take and carry away the said goods and chat- tels, and to sell and dispose of the same for the best price they can obtain ; and out of the money arising therefrom, to retain and pay the said sum above mentioned, to wit, the sum of dollars, and all charges touching the same ; rendering the overplus (if any) unto me or to my executors, administrators or assigns. And until default shall be made in the payment of the said sum of money I am to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full and free enjoyment of the same. If the avails of said property shall not be suflScient to pay and discharge said debt, with interest, costs and charges, I, said ., party of the first part, hereby agree to pay the deficiency, with interest. \_The following clause is sometimes inserted in a chattel mortgage.^ If said , party of the second part, shall, at any time, deem the property unsafe, or the debt insecure, it shall be lawful for him to take possession thereof, and sell the same, and apply the proceeds or avails thereof to the pay- ment of the indebtedness aforesaid, after deducting all legiti- mate and necessary expenses for the sale and keeping thereof, as hereinbefore provided. In witness whereof, I, , the said party of the first part, have hereunto set my hand and seal the day of September, 1909. [seal.] iSealed and delivered in| presence of ) [Acknowledgment as in Form No. 6.] 47 V38 FoEMs. No. 72. Assignment of Chattel Mortgage. This indenture, made this day of , 1909, between A. B. of , party of the first part, and C. D. of , party of the second part, witnesseth: Whereas, The party of the first part is now in possession, and the owner of a chattel mortgage, bearing date , 1909, which mortgage was executed by E. F. of ^. ., upon certain property mentioned therein; and was filed in the ofiice of on the day of , 1909, at o'clock m., a copy of which chattel mortgage is hereto annexed: Now, therefore. The said party of the first part, in con- sideration of the sum of dollars to him in hand paid, the receipt of which is hereby acknowledged, by the said party of the second part, has sold, assigned and trans- ferred to such party of the second part the above-mentioned chattel mortgage with the debt thereby secured and all sums due and to grow due thereon. And the party of the first part hereby covenants that there is now due on said mortgage the sum of dollars. In witness whereof, the said party of the first part has hereunto set his hand and seal the day of , , 1909. A. B. [l. s.] ■ [Acknowledgment as in Form No. 8.] No. 73. Power of Attorney to Foreclose a Chattel Mortgage. I, A. B., do hereby nominate and appoint 0. D. my lawful attorney, for me and in my name to take possession of the personal property described in the within true copy of a chattel mortgage, the original of which was filed pursuant to law in the office of , on the day of FoEMS. Y39. , 1909, and to foreclose such mortgage by a sala of sucli personal property, according to the power therein, contained, and I authorize the said C. D., as my attorney, to do all acts for me and in my behalf which I could lawfully do by virtue of such mortgage, and for that purpose to pro- cure the aid and assistance of any person. And I also covenant with the said C. D. that the sum of dollars, and interest thereon from the day of , 1909, is now justly owing ,to me on suchi mortgage, and that I will protect him and hold him harmless- for any lawful acts done by him in carrying out and execut- ing the power to foreclose herein granted. Dated , 1909. A. B. No. 74. Satisfaction of Mortgage. [Lien Law, § 238, ante, p. 583.] I, A. B., do hereby certify that a certain chattel mortgage, executed by C. D., of , on the day of , 1909, and filed in the office of the of at o'clock in noon, and the debt secured thereby is fully paid and satisfied. And I hereby consent that such chattel mortgage be dis- charged of record. Dated , 1909. A. B. [Acknowledgment as in Form "No. 6 if the chattel mort- gage is acknowledged.] liO FOEMS. No. 75. Statement by Mortgagee ou Befiling Chattel Mortgage. [Lien Law, § 235, ante, p. 580.] 1, A. B., the mortgagee named in the within chattel mort- gage, do certify and state that there remains due and unpaid on the mortgage, of which the within is a true copy \_or of which the foregoing is a true copy'\, the sum of dollars, with interest thereon from the .... day of , 1909, which sum is the amount of my interest in the property described in such chattel mortgage claimed by me by virtue thereof. Dated , 1909. A. B. No. 76. Statement by Mortgagee on Refiling Chattel Mortgage — New York City. [Lien Law, § 235, ante, p. 580.] State of ISTew Yobk, ) €ity and County of New Yorh,^ I, John J. Bryan, of the bourough of Manhattan,' city and county of New York, Do hereby certify and state. That a mortgage of personal property was made by Moses Goldstein, to me, said John J. Bryan, covering certain chattels on premises 23 Park Lane, in the borough of Manhattan, city and county of New York, given to secure the principal sum of fifteen thousand ($15,000) dollars with interest, which said mortgage bears date the 15th day of April, 1908, a true copy of which said mortgage is hereto annexed. That said mortgage was on the said 15th day of April, 1908, duly filed in the office of the register of the city and ■county of New York in the hall of records, in the borough of Manhattan, in said county. FoEMS. 741 That there remains due and unpaid upon said mortgage the sum of fifteen thousand ($15,000) dollars with interest thereon from the 15th day of October, 1908, which sum is the amount of my interest in the property described in said mortgage claimed by me by virtue thereof. Dated New York, April 10, 1909. JOHN J. BEYAN, Mortgagor. [Acknowledgment as in Form Y.] No. 77. Notice of Sale of Personal Property under Chattel Mortgage. To WsoM It May Concekn : Notice is hereby given, that I, A. B., mortgagee, by virtue of a chattel mortgage, executed by C. D. to me, the said A. B., dated on the day of , 1909, and which was duly filed in the office of the of on the day of , 1909, I will expose for sale at public auction at in the of on the day of , 1909, at o'clock in the noon, the following personal property [^specify articles of personal property to he sold]. Dated , 1909. A. B. [Mortgagee or mortgagee's agent.'] [A copy of this notice should be served on the mortgagor, if possible.] No. 78. Contract of Conditional Sale. [Personal Property Law, § 62, ante, p. 588.] This agreement, made this day of , 1909, between A. B., of the city of ,^-^; party 742 FoKMs. of the first part, and 0. T>., of the same place, party of the second part: Witnessethj The said party of the first part has this day delivered to the said party of the second part the following personal property, to wit : Ihere describe personal property'] upon the terms and conditions hereinafter agreed. The said party of the second part agrees to receive said property and to pay said party of the first part therefor the sum of dollars, in installments, as follows : the sum of dollars on the day of each and every month hereafter until the whole sum of dollars is fully paid. It is expressly understood and agreed that the absolute legal title to all of said property is to remain in such party of the first part until the sum of dollars is paid in full, and such party of the second part shall not be vested with the title to such property until such sum of dollars is fully paid. It is further agreed that in the event of the failure of the party of the second part to pay any of such installments when the same shall become due, then the party of the first part may enter upon the premises and into the house and build- ings occupied by the party of the second part and take pos- session of and remove such property therefrom, with or with- out legal process, and in such case it is also expressly agreed that such party of the first part may retain all the install- ments previously paid, as and for compensation for the use of said property by such party of the second part. It is further agreed that when the sum of dollars shall have been fully paid in the manner above mentioned, the absolute legal title to all of such property shall then, and not until then, vest in the party of the second part. No verbal contract or agreement contrary to any of the terms and conditions of the foregoing contract has been made. This contract is executed in duplicate and each party has one. In witness whereof. The parties hereto have hereunto set their hands the day and year first above written. [Acknowledgment, as in Form Wo. 8.] A. B. C. D. FoEMS. 743 No. 79. Conditional Sale of Machinery — Order."' To THE Chesapeake Manufactubing Company, Wilming- ton, Delaware: Please to ship and forward to me to Goliad, Seneca county, K T., by Lehigh Valley, or route you consider best and cheapest, on or before the day of , 1903, one class A Peerless Grain Thresher, thirty-inch cylinder, forty-six-inch separator, straw carrier and elevator, and wind stacker. \_Here insert description^ dimensions, price and terms of payment.'] Above machine is hereby ordered subject to following con- ditions and warranty: [state conditions and warranty']. As a condition of this order it is understood and agreed as fol- lows: First. Paety to Try Machine, Etc. — That the machine herein ordered is to b^ promptly received by the party order- ing, but to remain the property of the Chesapeake Manufac- turing Company until fully settled for. If from any cause the above machine is not settled for as agreed, the Chesa- peake Manufacturing Company, or their agent, shall have the power to take possession of the same, and if taken possession of the purchaser shall deliver it free of charge to the place where received. The party ordering may have five days' time from first day's use for trial of the same and agrees in case it cannot be made to fill the warranty to return same to the place where received free of charge, at which time another may be furnished on same terms of warranty, or money, notes to the amount represented by the defective ma- chine or part shall be retiirned and no further claims be made on the Chesapeake Manufacturing Coxijipany. Second. When Entire Purchase Money Due. — That failure to make settlement on the terms herein agreed upon renders the whole of the purchase money due and payable, * The provisions of the above form were construed in Geiser Mfg. Go. T Taylor, 55 App. Div. 638. See ante, p. 612. ,744' FoEMs. and the purchasers agree to pay all collection expenses, in- cluding 10 per cent, attorney's fee for collecting same. Third. Stkike Clause. — That should there he any fail- ure on the part of the Chesapeake Manufacturing Company to ship this machine on account of strikes of workingmen, or where the party is ascertained to he unworthy of credit or from causes heyond the control of said company, the said the Chesapeake Manufacturing Company are not in anywise to be liable for damages. Fourth. Waeeanty^ Etc. — That this machinery is ordered subject to the following warranty and agreement, namely: That it is well built, of good material, and durable if prop- erly cared for, and with proper management it will do as good or better work than any other machine in the United States. Upon starting, if the purchaser follows the directions of the manufacturer and is then unable to make it operate well, notice wherein it fails to conform to the warranty is to be given by the purchasers to the Chesapeake Manufacturing Company at Waynesboro, Pa., by wire and registered letter, and reasonable time allowed to get to it and remedy the de- fect, if any exists, and is of such a nature that a remedy cannot be suggested by letter, then the purchaser to render all necessary assistance. But if the purchaser fails to make it perform through improper management or want of skill, or if he neglect to observe the printed or written directions, then the purchaser is to pay all necessary expense incurred thereby; also, if any part of the said machine fail in conse- quence of any defect, if the purchaser shall have observed the directions applicable to the management of -such part, the Chesapeake Manufacturing Company are to furnish a dupli- cate of said part free of charge, except freight, on presenta- tion at the factory, or to the agent through whom the said machine was bought, of the defective piece, clearly showing a flaw in the material. The failure of any separate machine, or part thereof, shall not affect the liability of the purchaser for any other separate machine that is not defective. Failure to settle for the machine in the manner provided, or failure to notify the Chesapeake Manufacturing Company, as above provided, or keeping the machine longer than the six days FoEMS. 745 above provided, or any abuse committed or suffered by the purchaser, shall be a waiver of the warranty and a full release of the Chesapeake Manufacturing Company without in any way affecting the liability of the party ordering. It is further understood and agreed that no agent or expert operator has any authority to in any way change this warranty, nor make any agreement aside from this contract that shall be binding upon the Chesapeake Manufacturing Company; and the signers hereto agree that they will not hold the Chesapeake Manufacturing Company responsible for any agreement not expressed on the face of this order. No. 80. Notice of Betaking — Notice to Redeem. ^Personal Property Law, § 65, ante, p. 624.] To Sebastian Bach, Esq., No. 16 Park Lane, Borough of Man- hattan, Conditional Vendee. Take Notice that the Kubinstein-Liszt Piano Co., the un- dersigned, have and claim a vendor's lien, as conditional vendor, pursuant to Article IV of the Personal Property Law, upon certain personal property, to wit: one Wilbur Player Piano, style N., No. 62466, with bench and cover, delivered to you on or about the 16th day of September, 1911, pursuant to a written contract dated on that day, executed by you, and by the undersigned, upon which there is now due and owing a balance of $28.00, with interest thereon pursuant to the terms of said contract amounting in the aggregate to $56.42, amounting at this date to $84.42. You will further take notice that the undersigned will re- tain said property above described for a period of thirty days from the 10th day of November, 1915, to the day upon which said chattels were retaken, during which period you may comply with the terms of the contract, heretofore referred to. Upon complying with said contract said chattels will be re- turned to you. In case of your failure to comply with the terms of your said contract after the tenth day of December, V46 Forms. 1915, the undersigned will cause said chattels to be sold at public auction within thirty days after said 10th day of December, 1915, to wit: the 7th day of Janua^, 1916. Such sale will be at public auction on that day at the office of the Kubenstein-Lizst Piano Co. at 128 West 42nd Street, Bor- ough of Manhattan, City of New York, at 10 o'clock in the forenoon of that day. [Fifteen days' notice of such sale will be given to you pursuant to § 66 of the Personal Property; Law. Dated New York, November 24, 1915. • > Conditional Vendor. No. 81. Notice of Sale of Property Retaken by Conditional Vendor. [Personal Property Law, § 66, ante, p. 625.] To Sebastian Bach, Esq., No. 16 Park Lane, Borough of Man- hattan, Conditional Vendee. Take notice that pursuant to Article IV of the Personal Property Law, and pursuant to the notice heretofore served on you, the undersigned will sell at public auction, on the Tth day of January, 1916, at the office of the Kubinstein-Liszt Piano Co. at 128 West 42nd Street, in the Borough of Man- hattan, city of New York, at 10 o'clock in the forenoon of that day, one Wilbur Palyer Piano, Style N., No. 63466, with bench and cover, unless the amounts due thereon, under your contract dated September 16, 1911, terms of which are here- inafter set forth, with expenses of storage, are sooner paid. 1. Terms of the contract, purchase price $475, payable as follows: Credit of $25 for phonograph and $10 per month for each succeeding month, with interest at the rate of six per cent per annum on all unpaid balances. 2. Amount unpaid on said contract for principal $28, in- terest due on November 24th, 1915, $56.42 amounting in all on November 24th, 1915, to $84.42. FoKMs. 747 3. Amount of expenses of storage $1 per month from No- vember 10, 1915. Dated New York, December 20, 1915. • •} Conditional Vendor^ No. 82. Notice of Lien upon Surplus Moneys. SUPEEME COUET ISTeW ToEK CoUNTY. ANDREW JACKSON, Plaintiff, against SUSAN WOOD and Others, Defendants. After the sale of premises in an action to forcelose a mortgage thereon, the surplus money, if any, stands in place of the land. The lien of a defendant on the land follows the surplus, and may be deter- mined in proceedings for the distribution of the surplus. Fliess v. Buckley, 90 N. Y. 286; Ellis v. Solomon, 57 App. Div. 118. See ante,) p. 196. SiE. — Please take notice that the undersigned, Daniel Dove, is entitled to the surplus moneys arising on the sale made in the above-entitled action on the 21st day of August, 1909. The claim of the undersigned is for six hundred ($600) dollars and interest thereon from July 9, 1908, by virtue of a lien on the mortgaged premises consisting of a mechanic's lien^ filed by the undersigned in the oiEce of the clerk of the county of New York on the 9th day of July, 1908, pursuant to the provisions of the Lien Law, to secure the payment to the undersigned of the sum of six hundred ($600) dollars and in- terest. That said mechanic's lien was filed by the undersigned during the time that Thomas J. McLoughlin was the owner of the equity of redemption of the mortgaged premises, and before the commencement of this action. Dated New York, September 11, 1909. DANIEL DOVE, Claimant, Borought of Manhattan, City of New Yorh. To the Clerk of New York County. INDEX. FA6B Abandonment, consent of owner after 113 by mutual consent Ill when contract must be readvertised 161 by sub-contractor Ill by contractor i. 112 cost of completion after •• 114 Abatement of action to foreclose lien 255 Acceptance by owner, wheii not essential 240 Accidents must be reported 153 Accountant, has no lien on books 480 Accounting, when action for, prematute 374 Acknowledgment, in lieu of verification inadmissible 200 form of, by corporation 279 of contract of conditional sale essential 588 Action, evidence of complei^on of contract after, not admissible.. 121 when must be commenced within one year. 251 when must be commenced within three months (municipal lien) 265 commencement of, within meaning of Lien Law 272 consolidation of 343 on undertaking lien against vessel 467 order included in, under Warehouse Law 513 by creditor at large attacking mortgage 564 in court not of record 405 recovery for completion after 121 to foreclose lien 533, 534 to foreclose lien, inferior court 534 when begun 272 in court of record 343 (749) 750 Index. PAGE Admiralty Rules 450, 456 mariner's wages 450 suits for pilotage 450 as to salvage 455 as to damages for collision 456 for assault and battery ». 457 for hypothecation and on bottomry bonds 457 Advance Payments, liability of owner for 177 Advancements by general creditor to contra,ctor, lien not author- ized for 241 Advances to factor upon goods in. possession 503 Advertising after abandonment 161 After Acquired Property, equitable lien as to 317 validity of chattel mortgage as to 554 A£Sdavit without the State, how taken 201 Agent distinguished from broker 502 may bind owner by consent 55 may invoke equitable lien against his principal 243 lien of, under Factor's Act 503 Agreement executory, intention governs 619 Agister, lien of, at common law 489, 490 Alternative Statement not permissible in notice of lien 193 Amendment of pleadings at trial 361 of complaint to conform to the proof 362 Amount Claimed, lienor limited to 195 when excessive will invalidate lien 198 Animals, lien of bailee 516 estrayed may be seized 518 Another Action Pending, complaint need not allege 355 Ikdex. 151 PAGE Answer, court not of record 366 various allegations of 366 contents of, in courts not of record .366 general denial, what defendant may show 365 provisions of 363 service of on co-defendant 364 see also "Pleading in Practice." Antecedent Debt, when constitutes consideration 573 Any Person, non-resident, defined 24 Apartment Hotel, lien of 495 Appeal, judgment may be modified on 443 error in judgment may be corrected on 427 bond given to stay 284 in suit on lien against vessel 464 from judgment in courts not of record 409 stay on 284 Appellate Division, jurisdiction of 311 Arbitration, evidence as to agreement of 378 Arbitrary conduct of inspector, municipal contract 168 Architect cannot waive provisions of contract 133 liability of owner for delay 134 certificate must be furnished 136 decision of under contract 133 Architect's Certificate, burden of proof as to 136 waiver of 129 as to contract 133 when conclusive 13*» 1^9 refusal of, when question of facts 170 Artisan, lien of, at common law 479 Artisan's Lien, scope and extent of 480 performance of labor necessary to create 485 752 Index. PAGE Assignee, defence arising after assignment not available against.. 241 takes claim subject to all equities 241 of contractor may execute bond or undertaking 300 Assignment for Benefit of Creditors 243 of moneys under contract void unless »filed 238 under municipal lien must be filed 245 counterclaim arising subsequent to 370 Assignment of Contract and order for public improvement to be filed 245 presumption wben not filed 231 Assignment of Lien on vessel 228 Assignment of Municipal Contract 246 not permitted 164 ■where filed 247 Assignment, common law rule as to 231 for benefit of creditors 88, 223 Assistance, writ of 439 Attorney's Lien, at common law 493 Attorney, corporation cannot file lien as 494 lien of cannot be enforced by surrogate 494 Auctioneer, liability of under chattel mortgage 544 Authorities for defendant 63 Automobile, no lien without consent of owner 519 bailee of has lien 520 Bad Faith in making payments 180 burden of proof 181 as to payments must be pleaded 181 Baggage, hotel-keeper may sell 529 right of railroad to sell 532 Index. 753 FAGK Bailee cannot create lien 518 of animals, lien of 516 Bailees for Hire, lien of 521 Bailments, liens created by 488 tender, when executed 485 Baker's Ten-Hour Day Law, void as to 158 Banker's Lien, pledge 318 Bankruptcy, where contractor is adjudged bankrupt 88 will not defeat lien 223 title of trustee 39 trustee may acquire lien 39 when does not affect lien 223, 224 rights of trustee to assail chattel mortgage 566 Bids, by municipal corporation 165 when sufficient 165 sealed bids required in Greater New York 160 lowest bidder 165 for public work, check must accompany 162 Bill of Lading, lien of carrier as to 634 carrier's lien 510 Bill of Particulars 375 Blanket Lien, effect of 204 Board of Education, when municipality bound by acts of 173 Boarding-house Keeper, lien of 495 Bona Fide Purchaser, meaning of, under Personal Property Law . . 641 Bond, form of 303 assignee of contractor may execute 300 cannot be substituted for deposit 290 when to be served personally 277 undertaking equivalent to 298 provisions of Code applicable to 302 conditions of as to municipal lien 298 754 Index. Bond — Continued. page given to discharge municipal lien 293 seal omitted from 277 synonymous with undertaking 276 must be filed before lien cancelled 377 to discharge lien, how served 268, 269 see also " Sureties." Bondsman, liability of 544 Books of Accountant, no lien on 480 Borough Presidents, powers of 160 Broker distinguished from agent 502 Buildings, in cities, protection of persons employed upon 151 work of removing, when lien for 49, 189 removal of, does not defeat lien 61, 91 protection of employees on 151 lien for moving 189 Building Loan Contract 305 Building Loan Mortgage, conditional vendor 602 principles of 306 Building Materials not sold for particular structure 43 Burden of Proof , 376 as to bad faith in making payments 180 architect's certificate 137 Canal Boats, within admiralty jurisdiction 451 duration of lien as to 582 Cancellation of Lien, discretionary 343 cannot be ordered after undertaking given 442 Carrier's Lien, bills of lading 510 at common law 439 sale of unclaimed articles by 531 bill of lading 534 Cartmen, in Greater New York, lien of 41 Index. 755 PAGE Cash Payment of wages 149 Cash Payments, under void law 173 Cemetery Associations, duty of officers 473 Cemetery Structures, lien on 470 Certificate, of completion, municipal contract 163 of engineer, when conclusive 316 when refusal of question of fact 170 Chattels, sale of by mortgagee 541 lien when chattels perish 482 may be seized in foreclosure , 534 when not subject to mortgage of 305 destruction of under conditional sale 615 insufficiency of description of in chattel mortgage 549 Chattel Mortgage may be embodied in promissory note 547 trustee in bankruptcy may attack validity of 41 statute as to (§ 330) 536 power of sale in ' 541 safety clause 547, 548 recitals in govern 548 void as to part, valid as to residue 551 husband and wife 557 filing of essential 557 as to re-filing 580 failure to file, effect of 558 filing, renewal of 55S delay in filing 559 delivery of 561 distinguished from bill of sale 548 as to delivery in escrow 561 by copartnership, filing 563 premature re-filing 563 when void rights of mortgagee 568 when void rights of mortgagor 568 when enforceable 553 resort to in first instance 575 penalty for secreting mortgaged property 583 when void 553 validity of, how tested 548 when lien superior to 497 756 Index. Chattel Mortgage — Continued. page when to be filed 536 jurisdiction as to 339 warehouseman may assail 515 as to re-filing 578 when valid as against mortgagee 568 where filed * 577 Yoid in law may be enforced as a contract in equity 675 Chattels, warrant to seize 534 Check must accompany bids 163 Chimney, no lien for 56 City Court of New York, jurisdiction of 310, 324, 336, 332 City Court of City oi New York, territorial jurisdiction of 331 City Surveyor, certificate of 171 Coal consumed to generate steam, not materials 48 Co-defendants, issues between must be tried 374 Collateral Promise, validity of 81 Collusion, lien for damage for 455 Collusive mortgages and encumbrances 177 Commissioner of Labor must enforce Labor Law 153 Common Carrier. See " Carrier." Common Law, conditional sales under 594 Common Law Liens 486 Complaint, extra work 35^ another action pending 355 substantial performance 357 excuse for non- performance 353 causes of actions improperly united 359 In-dbx. 757 Complaint — Continued. p^qe amendment of to conform with the proof , . . 363 by contractor jgj in actions to foreclose mortgages and liens distinguished 343 in action to foreclose liens, various provisions as to 350 in courts not of record 363 demand for personal judgment 43a Completion after action begun 121 by surety 114 certificate of municipal contract 162 cost after abandonment 114 Comptroller, payment by for public work 163 Concurrent Remedy, lienor has 33 Conditional Sale, when interpretation of contract question of law. 589 reservations in contracts of 58S may be created by parole as to realty and personalty 576 promissory note, chattel mortgage 596 attempt to evade law 589 may be filed as to realty only 600 no title in vendor, rights of vendee 600 town authorities cannot make contract for 592 fixtures subject to conditions of 604 destruction of chattels 614 rescission of contract of 618 common law rule as to 594 executory agreement under 619 intent governs 619 lien of innkeeper superior to title of vendor 619 ' ; refiling and discharge of contract 621 agreement 617 rescission of contract of 618 contract must be filed 598 contract valid between parties 699 contract assignable 600 of goods and chattels 586 defined 587 of railroad equipment 587 when vendee becomes bankrupt 600 as to fixtures €04 distinguished from chattel mortgage 600 chattel mortgage, jurisdiction as to 339 758 Index. PAGE Conditional Vendee, right to redeem 613 may mortgage his interest 602 rights of to retain goods 611 rights to recover money paid 610 right to redeem assignable 613 Conditional Vendor, delivery by essential 538 after sale cannot recover purchase price 609^ remedies of 606 Congress supreme as to interstate commerce 142 Consent, after abandonment 73 agreement 55 express request 54 how pleaded 74 landlord and tenant, authorities for plaintiff 59 liability of owner 53 agent 55 express and implied 54 general principles as to 50 nothing due 73 party wall 57 of owner when implied 55 repairing chimney 56 gratuitous services 55 vendor and purchaser 65 undisclosed principal 72 married woman 68 religious corporations 58 f orebearance to file lien 57 vendor and purchaser, authorities for defendant 68 Consideration, antecedent debt 573 equitable assignment 335 Consolidation of lien actions 350 Constitutional Law, State may prefer its own citizens for public work 144 Constitutional Provisions, power of legislature 141 Constitutionality of Lien Law 4 et seq 308 Ihdex. 759 PAGE Contempt, false justification 285 Contested Claims in lien suit against vessel 464 Contract of lienor, validity and legality of 74 for conditional sale 588, 589 of conditional sale, filing 620 for building loan 305 terms of may be demanded 183 decision of architect as to 133 legal as to plumbers 77 municipal work 159 reformation of 132 time of performance not specified 76 to be re-advertised after abandonment 160, 161 when severable 131 statute of frauds 81 abandonment of by mutual consent Ill abandonment of by contractor 112 cancellation of Ill quantum meruit under 114 amount earned under : 111 work done in violation of 171 covering adjoining lots 204 assignment of, when forbidden 245 when implied 1-36 waiver of conditions of 127-130 quantum meruit, when contract violated 130 sealed bids. Greater New York 160 execution of, under Greater New York Charter 161 work not required by 76 Contractor 10, 19 default of 110 defined 10 liability of Ill member of school board 36 must show performance 444 must give security 161 rights and liability of 102 when adjudged bankrupt 88 when excused for delay 134 when estopped IS when relieved from guarantee 123 when cannot counterclaim against sub-contractor 371 760 Index. PAGE Co-partnership, filing of mortgage by 563 Corporate Mortgage to secure bonds 578 where filed 577 invalid after one year unless filed 580 against real and pergonal property 576 Corporation cannot file attorney's lien 494 may employ an unlicensed plumber 81 acknowledgment by 279 business address and notice of lien 185 foreign, when may acquire lien 37 Costs in proceedings for lien on vessels 468 in justice's court 419 municipal court. City of New York 410, 416 against municipal corporation 410 extra allowance and disbursements 410 when discretionary 412 when not authorized against sub-contractor 413 amount of, in courts of record 413 Cost of Building, expert testimony as to not admissible 383 Cotinterclaim 368 against architect 370 against co-defendant 369 none in absence of contra,ctual relations 373 jury trial 370 by contractor against sub-contractor 113 arising subsequent to assignment 370 in lien suits against vessels 461 when not authorized 373 in courts not of record 375 County Court, jurisdiction of 310, 321, 326 Court of Appeals, may modify judgment 427 Courts of Record and not of record 325 actions in 343 jurisdiction of 313 Cumulative Remedy, defined gl Index. 761 PAGE Creditor, when may sue 565 Creditors of warehousemaii, remedies of 616 includes contract as well as judgment creditors 564 Criminal Intent, removal of chattels 584 Custom in plumbing trade 383 Cut Garments, lien on 481 Damages, liquidated 393 when none recovered in lien actions 391 rule of 393 by collision, suits for 455 liquidated damages cannot be enforced 392 Day Laborers, priority of 226 Death does not abate remedy of lienor 35 Debt, when due as to lien on vessel 447 Deed, when held to be a mortgage 547 Default, readvertising contract 172 of owner 109 Defendant, examination of before trial 350 who prevents performance 121 Defense as to sureties 287 Definitions embraced in Lien Law 9 legal effects of • 11 in General Business Law-Warehousemans Lien 511 in Sales of Goods Law « 587 in Personal Property Law-Carriers 638 For other definitions see "Words and Phrases." Delay, liability of owner for 134 when contractor excused for 12* provision as to 390 Delivery by conditional vendor essential 538 when question of fact 539 762 Index. FAQE Demand, equitable assignment, waiver of 335 Demurrer 366 by bondsman • . • 367 Deposit, discharge of lien 289 how surrendered 289 Description of chattels, sufficiency of 549 of premises 199 Desks, lien for 95 Discharge of chattel mortgage 583 of lien, option as to discharge of 109 of lien for public improvement 293 of lien generally 267 of warrant against vessel after sale 466 Dissolution of partnership, waiver of 130 t Dne Process of Law 142 Duration of Lien 250 second action 253 of mortgage on canal craft 582 for' public improvement 864 on vessels 457 Dynamite, regulations as to 44 Eight-hour Day 153 Election of Remedies 171 Enforcement of lien for public improvement 325 Equitable Assignment 234 law as to 220 order drawn by owner 306 existing equities 241 form of 236 order must be filed with county clerk 237 order payment of, by owner 33g Index. 763 PAGE £qmtable Lien 343 after-acquired property 317 growing crops 316 defined 315 Equity of Redemption may be mortgaged 575 how cut oflF 574 how reached by creditor 574 Equities of lienor to be determined 404 Escrow, delivery of mortgage 561 Estoppel, owner, public library 18 Evidence, declarations of mortgagor 574 burden of proof as to good faith 573 identification of vendee, how established 619 expert testimony 383 usage and custom 381, 383 estoppel 381 based on another's testimony 380 burden of proof 376 prior adjudication 377 authorities as to 377 findings conflicting 377 rule of damages 393 Examination of defendant before trial 350 Excavating Earth, lien for 49 Excuse for non-performance 115, 133, 124, 358, 380 Execution, Municipal Court, city of New York 404 Expiration of municipal lien 265 Explosives transported from another State 43 regulation as to 44 in New York 46 Factor, distinguished from agent and broker 501 764 Index. PAOB Factor's Act, text of 504 construed 50S Factor's Lien 503 how protected 499 on merchandise .' 498 False Statements in notice of lien 194 Fees payable to clerk 418 Fictitious Claim, not permitted 309 Filing, delay in 559 renewal of mortgage of corporation without consent of stock- holders 558 renewal of subsequent incumbrances 558 two mortgages on same day 558 essential as to chattel mortgage 557 time of extended 209 fictitious claim 209 agreement to refrain from 207 foreign corporation 206 when time begins to run 206 what constitutes 205 notice of lien 205 assignment of municipal contract 247 of assignment of contract sCnd order for 245 of chattel mortgage 536 not essential 537 contract fraud and bad faith 168 liens upon municipal contracts 153 Findings unwarranted by evidence 398 provision as to 397 Fire hose and racks 97 destruction of chattels by 614 effect as to lien 483 when building destroyed by 124 Fixtures 16 when subject to contract of conditional sale 604 law as to 93 Index. 76 S FACE Forebearance to file lien 57 Foreclosure against party in possession 575 of mortgage and lien distinguished 343, 348 of lien by action 533 Foreign Corpo'ration must file certificate 37 filing notice of lien 206 Forms, demand on owner for terms of contract (No. 1) 639 notice of lien (No. 2) 640 notice of lien by corporation (No. 3) 643 notice of lien — materialman (No. 4) 345 notice of lien — subcontractor (No. 5) 646 notice of lien for public improvement (No. 6) 647 municipal lien — another form (No. 7) 649 assignment of lien (No. 8) 651 notice of pendency of action (No. 9) 653 aflBdavit for order for continuance of lien (No. 10) 654 order continuing lien (No. 11) 655 notice of pendency of action to enforce municipal lien (No. 12) 656 satisfaction piece — certificate of discharge of lien, private property (No. 13) 657 satisfaction piece — discharge of municipal lien, by assignee (No. 14) 658 affidavit for order fixing amount of bond (No. 15) 659 order directing filing of bond (No. 16) 660 bond to discharge lien (No. 17) 661 order discharging lien on giving bond (No. 18) 663 complaint — contractor against owner (No. 19) 684 complaint — subcontractor against owner and contractor (No. 20) 668 complaint — contractor against lessee and owner who consented to improvement (No. 31) 670 complaint — materialman against owner, contractor, and sub- contractor (No. 23) 671 complaint — action to foreclose lien for public improvement (No. 33) 674 municipal lien — complaint by materialman — foreign corpora- tion (No. 24) 679 municipal contract — proceedings for writ of mandamus (No. 25) • 682 affidavit of relator (No. 26) 683 afiidavit in opposition to granting writ of mandamus (No. 27) 686 166 Index. Forms — Continued. PAGE stipulation that no question of fact is involved (No. 28) 687 order directing issuance of writ of mandamus (No. 39) 687 order of reference (No. 30) 688 report of reference (No. 31) 689 notice of motion for confirmation of referee's report and for judgment (No. 33) .*. 693 judgment on report of referee (No. 33) , 692 decision for plaintiff after a deposit (No. 34) 695 judgment where deposit has been made (No. 35) 696 decision for defendant (No. 36) 698 judgment on decision dismissing complaint (No. 37) 698 decree of foreclosure — municipal lien (No. 38) 699 offer to pay into court to discharge mechanic's lien after suit is brought (No. 39) 702 acceptance of offer (No. 40) 703 affidavit to secure order for discharge of lien upon offer to pay into court (No. 41) 703 order discharging lien upon payment of money into court (No. 43) 704 notice to commence action (No. 43) 704 affidavit for order for discharge of lien upon failure to com- mence action (No. 44) 705 order discharging mechanic's lien when action is not commenced (No. 45) 70& notice of lien on vessel (No. 46) 707 libel to enforce lien on vessel — U. S. court (No. 47) 708 notice of lien on a vessel for construction — State court (No. 48) 710 assignment of lien on a vessel (No. 49) 711 application for warrant to enforce lien on a vessel (No. 50) . . 711 undertaking to accompany application for warrant of seizure of vessel (No. 51) 713 warrant for seizure of vessel to satisfy lien (No. 53) 714 order to show cause why vessel seized should not be sold to satisfy lien (No. 53) 715 notice of issuance of warrant to be published (No. 54) 716 order for sale of vessel to satisfy lien (No. 55) 717 order to attend distribution of proceeds (No. 56) 718 order of distribution of proceeds (No. 57) 719 application for the discharge of warrant of seizure (No. 58) . . 720 notice of application for the discharge of warrant (No. 59) . . 721 undertaking to accompany application for discharge of war- rant (No. 60) 723 order for discharge of warrant (No. 61) 733 complaint — action upon undertaking given for discharge of warrant (No. 62) 734 Index. 767 Fonns — Continued. page notice of lien upon monument or gravestone (No. 63) 726 complaint in an action to enforce a lien upon monument or gravestone (No. 64) 728 judgment in an action to enforce a lien on monument or grave- stone (No. 65) 729 notice of sale of monument or gravestone pursuant to judg- ment (No. 66) 730 notice of sale — enforcement of lien on personal property (No. 67) 731 notice of sale of personal property to be published (No. 68) . . 733 notice of surplus held by lienor (No. 69) 733 affidavit to be filed by lienor upon depositing surplus (No. 70) 733 chattel mortgage (No. 71) 735 assignment of chattel mortgage (No. 73) 738 power of attorney to foreclose a chattel mortgage (No. 73) . . . 738 satisfaction of mortgage (No. 74) 739 statement of mortgagee on refiling chattel mortgage (No. 75) . 740 statement on refiling — New York City (No. 76) 740 notice of sale of personal property under chattel mortgage (No. 77) 741 contract of conditional sale (No. 78) 741 conditional sale of machinery, order (No. 79) 743 notice of re-taking by conditional vendor (No. 80) 745 notice of sale by conditional vendor (No. 81) 746 notice of lien upon surplus moneys (No. 83) 747 Fraudulent Mortgage, husband and wife 557 conveyances 395 Fraud, retention of pending suits 170 or bad faith 168 Frauds, statute of 81 Frivolous Pleadings, answer 364 Furnace, lien for 95- Fuses and explosives ^"^ Future Sales, omnibus agreement as to 594 General Business Law as to lien of warehouseman 511 General Denial, what defendant may show 365 768 Index. FAOB Good Faith, burden of proof ^"^^ payments made in ^^^ Goods to te Manufactured, conditional sale of 592 Gravestones, liens on - ^"^^ ■ Greater New York Cartmen, lien of *!• provisions of charter 159 Growing Crops, lien of 316 Guarantee, when contractor relieved from 133 Guilty Knowledge of one making advances 508 Hospital, lien for, how served 219 Hotel-keeper, right to sell baggage 539 Hotel, lien of under statute 495 Hours of Labor to be required 149 Husband and Wife, fraudulent mortgage 557 Husband, when acts of bind wife 70 Ice Boxes, lien for 96 Ice Machine 94 Improvement 9, 10, 13 by tenant, lien for 53 Infant, contract of under Lien Law 38 Innkeeper, lien of 495 how enforced 497 Insolvent judgment creditor 544^ 545 contractor, trustee in bankruptcy gg owner or contractor, equitable lien of creditors 89 Inspection, duties of warehouseman 515 Index. Y69 FAGE Interest upon claim tinder municipal contract 165 when recoverable in lien actions 197 on judgment 443 unliquidated claim 98 lienor acquires 88 Issues, how tried in court of record 409 between co-defendants must be tried 374 Judgment against railroad 175 on merits, when sureties entitled to 384 offer of ' 291 form of under Municipal Court Code 341 in case of failure to establish lien 431 may direct delivery of property 438 surplus money 438 for deficiency .' 439 in action on account of public improvement 443 may be modified on appeal 443 corrected by motion 443 lien on property of railroad 444 in action to foreclose lien 534 Judgment Creditor, lien of 344 Jurisdiction of Appellate Division 311 of Supreme Court 311 of Court of Appeals 313 of Municipal Court, City of New York 407 Jury, right to trial by • • 5 party must move before production of evidence 8 trial, counterclaim 373 trial by • ^22 Justices' Court, jurisdiction of 310 Justification of sureties 377 presumption as to 387 Labor and Services, defined 33 Labor Law, contracts under 75 commissioner must enforce 153 49 770 Index. Labor Law — Continued. page decisions under before amendment of constitution 156 legality of municipal liens under 141 liens for public work 139 provisions of as to municipal contracts 147 Labor, performance of necessary to create lien 485 Laborer, defined 10, 33 on railroad, liens for 174 Landlord and Tenant 53 consent of 53, 58 Leave to Sue not necessary 385, 301 Legality of Contract 77 Liability of Owner 97 Library, shelves and furniture 95 Lien, who may acquire ■ 3& for what may be acquired 43 for moving building 49 extent of 86 under contract for public improvement 138 for public work 139 where filed upon municipal contracts 153 for labor on railroads 174 notice of, when sufficient 185 contest of 185 notice of, honest mistake 189, 198, 199 for moving buildings 189 when notice not sufficient 190 for moneys loaned 194 successive liens 308 for public improvement 313 upon funds of the State 317 priority of 330 when not defeated by bankruptcy 233 in supplemental proceedings 226 assignment of 238 of judgment creditor 244 duration of 250 Index. 771 Lien — Continued. page order continuing 262 how lost 263 against the State 266 discharge of by order 267 discharge of generally 868 cancellation of 270 limitation of 271 expiration of 272 redocket of, unauthorized 275 filed to injure defendant's credit 372 filing of in wrong department 431 on seat in stock exchange 319 power to cancel discretionary 441 cannot be canceled after undertaking given 442 on vessels, enforcement of 446 on vessels, debt when due 448 for salvage 453 on vessel, causing damage 455 on vessel, when to be filed 456 on vessels, enforcement of 458 on vessel, trial of issues 461 on vessel, contested claim 464 on vessels, discharge of 469 waiver as to part of goods 484 for labor performed 485 at common law 486 of artisans on personal property 480 liens not arising on bailments 489 by usage and custom 491 of attorney 493 of bailee of motor vehicles 518 of bailees for hire 521 modes of enforcement of 528 of innkeeper, when superior to title of vendor 619 Lien Law, as to public improvement 138 scope and extent of 1; 4 constitutionality of 4, 8, 308 construction of 320 Lienor, defined l"* order of priority among 227 payment of wages by 150 Limitations, statute of • • • 231 772 Index. FAOB liquidated Damages, quantum meruit 394 Xis Pendens ^^^ municipal lien 264 Xivery Stable Keeper, lien of 517 Lodging House Keeper *95 Logs, may be both realty and personalty 481 Loan for Advances, lien for 500, 586 Macbinery of brewery 94 Mare and Foal, lien on 477 Maritime Liens, no jurisdiction in State courts as to 447 federal jurisdiction exclusive 448 Married Woman, consent of 69 undisclosed principal 72 Materialman, defined 10, 43, 435, 437 may be lienor 39 has priority 226 preference over contractor 435 ■who dealt with subcontractor 437 Materials sold in open market 42 dynamite, fuses and explosives 47 words " just as good," not permissible 118 Mechanic's Lien on real property 27 enforcement of 309 vacated by order 440 Merchandise, liens on for advances 586 Merger, when question of intent 545 Mirrors, lien for 95 Moneys Loaned, lien for j^g^ PAGE Monuments, lien on 470 Mortgage, foreclosure, provisions as to 343 foreclosure of, distinguislied 343, 348 distinguished from sale 537, 538 pledge and conditional sale distinguished 546 void as to part 551 delivery of, wlien question of fact 561 of corporation against real and personal property 576 on chattels, how discharged 583 trhen does not attach to chattels on mortgagee's premises.... 605 Mortgagor, sale of chattels by 541 Motion to cancel lien 267 Motor Vehicles, lien of bailee 518 Moving Building, lien for 49 Municipal Corporation, defined 12 is a person 25 lien as to 141 seal of 378 Municipal Liens 13S under Labor Law 141 in Greater New York 159 Municipal Contract, State may prefer its own citizens 144 Labor Law 147 liens, where filed 153 in Greater New York 159 not assignable 164 constitutionality of 164 when contractor allowed interest 166 arbitrary conduct of inspector 168 error of city surveyor 168 discretion as to payments 170 retention of fund pending suits 170 assignment of ^45 Municipal Lien ^'^'^ when not sufficient 214 none for materials to be furnished 216 774 Index. Municipal Lien — Continued. page second action 253 ' effect of 258, 261 public improvement, duration of lien 264 discharge of 275, 293 second action 295 • Municipal Court, New York City, jurisdiction of 310, 338 jurisdiction as to municipal lien 314 enforcement of municipal lien in 335 jurisdiction as to contracts of conditional sale 626 Municipal Court Code, form of judgment 341 Name, fictitious partnership 81 Negligence of warehouseman 515 New York City, regulation as to plumbers 77 jurisdiction, none in State courts as to maritime liens 447 Nonresident, defined 24 lien of must be enforced 39 service of undertaking on 270 Nonperformance 113 no excuse for 115, 122, 124 Note, does not constitute waiver of lien 128 Nothing Due Contractor 105 or earned 106 when suit begun 107 Notice of Lien, contents of 185 when sufficient 186 service of 210 Notice to commence action 441 Notice of sale by conditional vendor, disposition of proceeds 623 Offer of Payment 293, 434 Offer of Judgment 291, 434 Offer to Pay money into court 433 Option as to discharge of lien 109 IwDEx. 7Y5 PAGE Oral Contract, conditional sale 595 promissory note, chattel mortgage 596 Older continuing lien 362 for sale of vessel 462 Owner, defined 9, 17 right, title and interest of 87 liability for fraudulent representations •. . . . 100 rights and liability of 100 may pay contractor after suit dismissed 101 rights of, under contract 102 default of 109 refusing to furnish plans, remedy of 124 who occasions delay 124 liability for advance payments 177 name 195, 197 equitable assignment, acceptance, when not essential 240 Parties to an action in a court of record 399 prior incumbrances 400 trustee in bankruptcy 40 L Party Wall, lien as to 57 Partnership, effect of fictitious name 81 notice of lien by 189 verification by 202 Pawnbrokers, protected by factor's act .' 508 constitutional rights of 509 when deemed true owner 509 Payment in good faith 108 of wages by receiver 150 when made by comptroller 163 bad faith in making 180 in good faith 211 equitable assignment, order 238 Performance, elements of substantial performance 117 excuse for nonperformance 115, 122, 124 prevented by defendant 121 what constitutes ; substantial performance 115 776 Index. FAOK Perishable, fire brick 1& material, destruction of building 16 Permanent, defined 13, 14 Personal Judgment , 353, 423 as to sureties 385 complaint as to 35S on failure to establish lien 431 law in force at time of trial 421 trial by jury 422 on demurrer to answer 436 right of surety 423 when not authorized 429 none unless lien filed .- 430 payment must be demanded 432 liens on 479 Personal Property, sale of to satisfy lien 533 fraudulently secreting 584 Personal Property Law relating to sales of goods 62S Permit, failure to procure 17t Pleadings and Practice 350 Pleadings, amendment of on trial .' 361 Plumbers, regulation as to in New York City 77 conduct of 79 must be licensed 80 trade, general business law 538 Possession, must be by owner's consent 484 right to essential 507 essential to support lien 519 taking without sale 544 how proved 570 must be actual, not constructive 570 joint possession by mortgagees 571 Powder and Fuses, nature of 49 Priority of Liens 230 IlTDEX. 777 PAGE Preferences, in employment of persons, upon public work 150 over contractors 435 PrevaiUng Bate of Wages 143 eight-hour day 154 Premature Payments 173 refiling 563 Principal and Agent, when relation must exist 507 Printer's Lien 4S6 Priority of mechanic's lien oyer bankruptcy trustee 40 order of among lienors 227 of bnilding loan mortgage 306 of mechanic's lien 310 of municipal lien 314 Proceeds, distribution of on sale of vessel 463 of sale, distribution of 526 Profits, loss of, when inadmissible 379 Promissory Note, taking does not constitute waiver of lien 128 Protection of persons employed on bmldings in cities 151 Public Improrement, defined 10, 12 lien for 138,214 Public Policy, waiver of, provisions of statute 616 Public Work, State may prefer its own citizens 144 school house 218 Purchasers in Good Faith 318 Quantum Meruit, amount earned Ill, 113, 130 verbal contract 132 evidence as to 380 Quarrymen's Lien (sec. 140) 474 778 Index. PAGE Railioad, liens on 174 judgment against 175, 444 service of lien on 175 special provisions relating to 176 right to sell unclaimed freight 532 Railroad Mortgage, as to filing 578 Ranges and Boilers 94 Readvertising after default 173 Real Property, defined 9 gas and electrical fixtures, defined 11 enforcement of lien on 331 Recitals in mortgage govern 548 Recovery for work not required by the contract 76 Redemption before sale 526 Refiling, premature, eflfeet of 563 and discharge of conditional contract 631 RefoTmation of contract 132 Religious Corporation, consent of 58 Remedy, nature of ; . . 28 constitutional 29 in equity 30 at lave 30 cumulative 31 concurrent 33 lavif in force at the time of 35 death does not abate 35 of owner vchen plans not furnished 134 Remedies, election of 171 of lienor not exclusive 537 of vendor cumulative 607 election of 613 of unpaid seller 628 Index. 779 PAGE Removal of buildings 9X Res Adjudicata, personal judgment 435 Resale, where goods are perishable 633 Rescission of contract of conditional sale 618 Res Periit Domino, application of rule 483 Retaking, what constitutes 60S recovery by vendor after 616 Rights of Parties governed by law in force when contract was made 593 Salvors' Lien 453 Sale of vessel, order for 462 effect of warehouseman's lien 513 personal property to satisfy lien 523 notice of 524 to be advertised 525 distribution of proceeds 526 to hinder, delay and defraud creditors 540 on execution, how conducted 543 by judgment creditor, when illegal 543 validity of by mortgagor 550 omnibus agreement as to future -. 594 property retaken by conditional vendor 634 Sales of Goods Law (Laws 1911, chap. 571) 628 Sales of Goods subject to lien 633 to satisfy lien of carrier 635 Schoolhouse, public improvement 218 Second-hand Machinery 93 Security, contractor must give 161 Seal, omitted from bond 277 when municipal corporation bound by 378 law as to 279 780 Index. PA6B Seller of Goods, when he loses lien 629 may stop goods on buyer's insolvency 630 when may rescind sale 633 Service of notice of lien on railroad 175 of notice of lien 210 of copy of notice of lien 31(> of answer on co-defendant 364 Slander, counterclaim 373 Stage Companies and carriers by water 530 Stallions for service of (sec. 160) 477 State may prefer its own citizens in public work 144 or municipal corporation, lien on funds of 139, 217 Statute of Frauds, promise to pay debts of another 84 as to executed contracts 84 building loan contracts 85 oral contract 59S Stay in lien actions 33 on appeal 284 Stock Exchange, lien on seat in 319 Stone Cutters, lien of 474 Stoppage in transitu 630 ways of exercising the right to stop 631 Stoves and Ranges, conditional sale of 60S Subcontractor, defined 10, 19 Subrogation 184 Substantial Performance, elements of 1X7 what constitutes 116 what is not 113 when recovery may be had for 12i Substitution, of materials, permissible llg Index. 781 PAGE Snccessive Liens 208 Suit Begun, nothing due 107 Summons, when personal service cannot be made 408 Supreme Court, jurisdiction of 311 Supplemental Answer 465 Supplemental Complaint 361 Surety, completion by 114 when bond not operative as to 276 rights and liabilities of 283 liability on municipal bond 396 justification of 303 on undertaking 400 judgment against 443 Surplus Money 863 Surrender of Possession, when will not defeat lien 483 Tender, right to withdraw funds after 291 by junior mortgagee 563 Theatre, gas and electrical fixtures 96 chairs, lien for 96 Throwsters of silk goods, lien of 521 Torpedoing ^^ Transcript of judgment in court not of record 409 Trial, by jury in lien actions 5 examination of defendant before 376 Trustee, title of 39 may attack validity of chattel mortgage 41 rights of , 565 title of as against conditional vendee 625 782 Index. PAGE Undertaking, service of on nonresident 370 bond 376, 295 form of 302 enforcement lien on vessel 457, 459 to discharge lien on vessel 467 Undisclosed Principal, consent of 72 Unrecorded Deed will not defeat lien 223 U. S. Supreme Court, rulings as to public contracts 144 Validity of chattel mortgage as to after-acquired property 5S5 Value, evidence as to 390 Verbal Contracts, collateral promises 81 quantum meruit under 132 Vendor's Lien for purchase price (Laws 1911, chap. 571) 628 Vendor, rights of, when no title in vendee 602 Vendee, rights of, when title in vendor 602 Verification of notice of ■ lien 200 -without the State 201 by agent 202 omission of officer's signature 203 Vessels, enforcement of liens on 446, 448 duration of lien on ; 457 seizure of on warrant 459 Void Mortgage, rights of mortgagee 568 Voluntary Services, no lien for : 55 Wages, payment of by receivers, to be paid In cash 150 cash payment 150 prevailing rate of 147 Waiver, architect's certificate 129 by agreement 129 Index. 783 Waiver — Continued. p^gj, dissolution of partnership 130 doctrine of j34 none for continuing breacli 130 occupation of premises, not 128 taking security 128 of claim as to part of goods 484 of provisions of statute contrary to public policy b91, 616 law as to 137-129 Warehouseman's Lien 510, 511-514 Warehousemen's Negligence 515 Warehouseman may assail chattel mortgage 515 Warrant for seizure of vessel 459 to seize chattel 534 Wharflng, lien for against vessel 446 Wife, when husband undisclosed principal of 72 Words and Phrases, words " another lien " 253 term " brick work " 388 term " plumbing work " 388 term " alteration " 389 term " legally compelled " 389 term " partnership " 389 term " alterations in plan of construction " 389 term " liable to pay " .-C 398 term " res periit domino " 482 term " to the satisfaction of the officer " 169 term lienor 17 real estate 13 owner 17 improvement, public improvement 10 contractor, subcontractor 19 laborer, materialman 30, 23 excavating 387 to the satisfaction 387 mason work 388 ground floors 389 materialman • 437 784 Indbx. Words and Phrases — Continued. ''•*"'" artisan factor '^""'^ Bubaoquont puroliaser conditional vendor ■ conditional vendee Boe also " Definitions." , Writ of Assistance, when vflll not Ho *''" Yonkers, filing notioe of Hen In ^^^