dom? U ICam ^rljnol ICibtary ,,^.,^ ^Cornell University Library KFN5229.S67 1896 The MejChanics' lien law of the state of 3 1924 022 801 249 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022801249 OTHER WORKS By WILLIAM L. SNYDER. Great Opinions by Great Judges : A Collection of the Most Important Ju- dicial Opinions by Eminent Judges. With very full Notes, Analyses, etc. 8vo, sheep, $5.00 ; cloth, $4.50. Great Speeches by Great Lawyers : A Collection of Arguments and Speeches before Courts and Juries by Eminent Lawyers. With full Introductory Notes, Analyses, etc. 8vo, sheep, $5.00 ; cloth, $4.50. Notaries' and Commissioners' Manual : With Forms. 8vo, cloth, $1.50 ; paper covers, $1.00. The Geography of Marriage ; or. Legal Perplexities of Wedlock in the United States. i2mo, cloth, $1.50. BAKER, rOOBSIS & CO., New York. MECHANICS' LIEN LAW OF THE STATE OF NEW YORK. (Passed May 27TH, 1885.) REVISED AND ENLARGED, WITH ALL THE A IMENDJVr ENTS, AND APPLICABLE TO THE ENTIRE STATE. ALSO, THE LIEN LAWS AS TO MUNICIPAL PROPERTY IN INCORPORATED CITIES, RAILROADS, OIL WELLS, &c., WITH NOTES OF JUDICIAL DECISIONS, AND A FULL COLLECTION OF FORMS. WILLIAM L.' SNYDEE ^c'T OF THE NEW YORK BAR. THIRD EDITION. NEW YORK : BAKER, VOORHIS & CONIPANY. Copyright, 1896, by BAKER, VOORHIS & COMPANY. sal lt% BURR PRINTINQ HOU6E, NEW YORK, PREFACE TO THIRD EDITION. In 1895 the Mechanics' Lien Law was amended so as to author- ize lien for dredging, filling in, and improTing marsh, swamp, and low lands (Laws 1895, Chap. 673), which became a law May 14th, 1895. Another important amendment was that limiting the time within which a lien can be extended by order of court to a period of one year (Laws of 1895, Chap. 161), which became a law May 14th, 1895. Prior to this amendment an order ex- tending a lien where no time was fixed in the order, continued the lien idefinitely, and no new docket would disclose the lien subsequent to the order of continuance. The amending act also terminates the existence of all prior liens extended indefinitely by order, so that they ceased to exist on May 33d, 1 895, unless continued by a new order, or unless they have been sued upon and notice of lis pendens has been filed in the action. Prior to 1895 municipal liens in New York City could not be discharged by giving bonds. This defect has been remedied by Laws 1896, Chap. 605, so as to permit the bonding of municipal liens in New York City under the Consolidation Act. And this provision for bonding municipal liens was extended throughout the entire State by an amendment to Laws 1878, Chap. 315, § 13, by Laws 1896, Chap. 682, which became a law May 15 th, 1896. Another important amendment relates to equitable assignments and orders drawn by the contractor upon a building contract in favor of third persons. By Chap. 915, Laws 1896, effect is given to such orders only when the contract or a statement of the sub- IV PREFACE TO THIRD EDITIOIT. stance thereof, and such assignment or copies thereof, or a copy of such order, shall be filed in the proper county clerk's office, and may then take effect and be enforced as of the time of such filing. An appropriate form to accompany such filing will be found on page 233. Liens were given to stone-cutters, paving-cutters, block-break- ers, and quarrymen by the provisions of Chap. 915, Laws 1896. I have also added some new forms as to judgments and decisions, rendered appropriate by the provisions of § 1022 of the Code of Civil Procedure, allowing a brief decision to be made in place of findings. The authorities referred to in this edition embrace those re- ported in the volumes to and including the 149th New York, 6th Appellate Division, and 16th Miscellaneous Eeports. William L. Snyder. Temple Court, New York, November, 1896. PREFACE TO FIRST EDITION. On the twenty-seventh day of May, 1885, the laws relating to Mechanics' Liens were in a most unsatisfactory condition. ISTo less than twelve distinct statutes were then in force in this State, limited to specific localities. Some of these acts embraced but one county, others a group of counties. New York City was govei:ned by the Consolidation Act. Buffalo had its particular statute. The other cities of the State were governed by Chap- ter 486, Laws of 1880, known as " The Cities Act." The object of the Legislature in passing the Act of 1885 was to repeal these local statutes, and secure in their stead a uniform system. The Act of 1885 covers the subjeci, generally as to liens against private property. Liens upon municipal property in in- corporated cities is governed by Chapter 315 of the Laws of 1878, and this statute has been made applicable to the City of New York, its provisions having been embraced within the Consolida- tion Act, §§ 1824-1838. Liens upon railroad property and oil wells are governed by Laws 1875, Chap. 393, and Laws 1880, Chap. 440, respectively. The entire subject of Mechanics' Liens, therefore, is covered by these four statutes ; the first relating to liens upon private property, the second (Act of 1878 and Consolidation Act) relat- ing to municipal or public property, the third to railroad prop- erty and the fourth to oil wells, &c. The law whereby the rights of contractors, sub-contractors, material men and laborers are secured and protected involves difficult and perplexing questions. The rights of the parties, vi PKEFACE TO FIRST EDITIOS'. and the equities and priorities among various claimants, growing out of a variety of causes, render this branch of litigation ex- tremely tedious and irksome. I have attempted to present the text of the statute, with all the authorities reported to date of publication, including the 131st volume of the Kew York Eeports. My object has been to group the decisions so as to furnish, in the most convenient form, the information which the busy lawyer requires. I have made use of Mr. John S. Derby's very valuable work, retaining the material collected by him. I have, however, re- written most of the notes, and re-arranged and classified the authorities, and have added all decisions reported since the last edition of Mr. Derby's book. There are certain fundamental principles underlying the lien laws enacted throughout the Union, however these laws may vary in detail. The decisions rendered by judicial tribunals in other States may, therefore, be useful in solving questions aris- ing under our own statutes. Such authorities as relate to funda- mental rules of jurisprudence applicable to the subject of liens will be found in these pages. "William L. Sittdee. Temple Court, New York, December, 1890. TITLES TO THE ACTS EELATING TO MECHANICS' LIENS. 1 860. CHAP. 446. An Act for the protection of boarding-house keep- ere. Passed April 16, 1860. 1 870. CHAP. 385. An Act to regulate the hours of labor of mechan- ics, workingmen and laborers in the employ of the State, or otherwise engaged on public works. Passed April 26, 1870. 1 870. CHAP. 529. An Act in relation to mechanics' liens. Passed May 2, 1870. 1871. CHAP. 803. An Act to amend chapter six hundred and seventy- seven, entitled " An Act to prevent fraud and fraudulent prac- " tices upon or by hotel-keepers and inn-keepers," passed April twenty-third, eighteen hundred and sixty -seven. Passed April 27, 1871. 1872. CHAP. 498. An Act for the protection of livery-stable keepers and other persons keeping horses at livery or pasture. Passed May 3, 1872. 1 875. CHAP. 393. An Act for the better security of railroad em- ployees for labor performed. Passed May 18, 1875. 1 876. CHAP. 319. An Act to amend chapter four hundred and forty- six of the Laws of eighteen hundred and sixty, entitled " An " Act for the protection of boarding-house keepers." Passed May 15, 1876 ; three-flfths being present. 1 878. CHAP. 315. An Act to secure the payment of laborers, me- chanics, merchants, traders and persons furnishing materials toward the performing of any public work in the cities of the State of New York. Passed May 23, 1878 ; three-flfths being present. 1 878. CHAP. 315. An Act to secure the payment of laborers, me- chanics, merchants, traders and persons furnishing materials toward the performing of any public work in the municipal corporations, counties, towns, cities, and villages of the State of New York. Passed May 32, 1878 ; three-fifths being pres- ent. [Title as amended by Laws eighteen hundred and ninety- two, chapter 639.] 1 880. CHAP. 145. An Act to amend section one of chapter four hun- dred and ninety- eight, of the Laws of eighteen hundred and seventy-two, entitled " An Act for the protection of livery- " stable keepers and other persons keeping horses at livery or " pasture." Passed April 23, 1880. VUl TITLES TO ACTS. 1 880. CHAP. 440. An Act to provide for the protection of meclianics and others. Passed May 37, 1880. 1 88 1 . CHAP. 429. An Act to amend chapter three hundred and flf. teen of the Laws of eighteen hundred and seventy-eight, en- titled " An Act to secure the payment of laborers, mechanics, " merchants, traders, and persons furnishing materials toward " the performing of any public work in the cities of the " State of New York." Passed May 38, 1881. 1 882, CHAP. 410. An Act to consolidate into one act and to declare the special and local laws affecting public interests in the City of New York. Passed July 1, 1883. 1 884. CHAP. 381. An Act in relation to the rights and liabilities of married women. Passed May 38, 1884. 1 885. CHAP. 342. An Act for the better security of mechanics, laborers and others who perform labor or furnish material for buildings and other improvements in the several cities and counties of this State, and to repeal certain acts and parts of acts. Passed May. 37, 1885. 1 886. CHAP. 383. An Act to limit the operation and effect of chap- ter three hundred and forty-two of the Laws of eighteen hun- dred and eighty-five, entitled " An Act for the better security " of mechanics, laborers and others who perform labor or fur- " nish material for buildings and other Improvements in the " several cities and counties of this State, and to repeal certain " acts and parts of acts." Passed May 14, 1886. 1887. CHAP. 430. An Act to amend chapter three hundred and forty- two of the Laws of eighteen hundred and eighty-five, entitled " An Act for the better security of mechanics, laborers, and " others who perform labor or furnish material for buildings " and other improvements in the several cities and counties of "this State, and to repeal certain acts and parts of acts." Passed May 31, 1887. 1888. CHAP. 316. An Act to amend chapter four hundred and twenty of the Laws of eighteen hundred and eighty-seven, entitled '' An Act for the better security of mechanics, laborers, and " others who perform labor or furnish material for buildings '^' and other improvements in the several cities and counties of " this State, and to repeal certain acts and parts of acts." Approved by the Governor, May 17, 1888. 1 888. CHAP. 543. An Act for the protection of dealers in monu- ments, gravestones, inclosures or other structures in ceme- teries. Approved by the Grovernor, J une 9, 1888. 1 889. CHAP. 880. An Act to regulate the rate of wages on all public works in this State, and to define what laborers shall be em- ployed thereon. Approved by the Governor, June 6, 1889. 1 89 1 . CHAP. 355. An Act to amend chapter three hundred and fif- t?en of the Laws of eighteen hundred and seventy-eight en- titled "An Act to secure the payment of laborers, mechanics _ merchants, traders, and persons furnishing materials toward . • f Pf forming of any public work in the cities of the State ot JNew York, as amended by chapter four hundred and twenty-nme ot tne Laws of eighteen hundred and eielUv-one Approved by the Governor April 35, 1891. TITLES TO ACTS. IX 1 892. CHAP. 639. Ak Act to amend chapter three hundred and fif- teen of the Laws of eighteen hundred and seventy-eight, en- titled " An Act to secure the payment of laborers, mechanics, " merchants, traders and persons furnishing materials toward ' ' the performing of any public work in the cities of the State " of New York," as amended by chapter four hundred and twenty-nine of the Laws of eighteen hundred and eighty-one, and chapter two hundred and fifty-flve of the Laws of eighteen hundred and ninety-one. Approved by the Governor May 16,1893. ^ yi y y 1 893. CHAP. 300. An Act to amend chapter three hundred and forty- two of the Laws of eighteen Ixundred and eighty-five, entitled " An Act for the better security of mechanics, laborers and " others who perform labor or furnish material for buildings " and other improvements in the several cities and counties of " this State and to repeal certain acts and parts of acts." Ap- proved by the Governor April 4, 1893. 1 893. CHAP. 405. An Act to amend chapter four hundred and twelve of the Laws of eighteen hundred and sixty-four, entitled " An " Act to amend an act entitled an act to provide for the regis- " tering of liens and incumbrances upon boats navigating the " canals in this State." Approved by the Governor April 17, 1898. 1894. CHAP. 353. An Act for the protection of inn-keepers. Be- came a law April 4, 1894. 1 894. CHAP. 633, An Act to amend chapter three hundred and eighty-five of the Laws of eighteen hundred and seventy, entitled " An Act to regulate the hours of labor, mechanics, '"workingmen and laborers in the employ of the State or "otherwise engaged on public works." Became a law May 10, 1894. 1 895. CHAP. 161. An Act to amend chapter three hundred and forty- two of the Laws of eighteen hundred and eighty-five, entitled " An Act for the better security of mechanics, laborers, and " others who perform labor or furnish material for buildings "and other improvements in the several cities and counties " of this State, and to repeal certain acts and parts of acts." Became a law March 33, 1895. 1 895. CHAP. 605. An Acr to amend chapter four hundred and ten of the Laws of eighteen hundred and eighty-two, entitled " An Act to consolidate into one act and to declare the special " and local laws afEecting public interests in the City of New " York," concerning when lien against city may be discharged. Became a law May 13, 1896. 1895. CHAP. 673. An Act to amend chapter three hundred and forty- two of the Laws of eighteen hundred and eighty-five, entitled " An Act for better security of mechanics, laborers, or others " who perform labor or furnish materials for building, and " other improvements in the several cities and counties of " this State, and repeal certain acts and parts of acts and the " amendatory thereof." Became a law May 14, 1895. 1 896. CHAP. 738. An Act allowing stone-cutters, paving-cutters, block-breakers, and quarrymen to file notice of lieu for work, 2 TITLES TO ACTS. labor and services rendered in excavating and dressing sand- stone, granite, bluestone or marble. Became a law May 19, 1896. 1 896. CHAP. 863. An Act to amend section thirteen of chapter three hundred and fifteen of the Laws of eighteen hundred and seventy-eight, entitled " An Act to secure the payment of labor- " ers, mechanics, merchants, traders, and persons furnishing " materials toward the performance of any public work in the " cities of the State of New York." Became a law May 15, 1896. 1 896. CHAP. 915. An Act to amend section five of chapter three hundred and forty-two of the Laws of eighteen hundred and eighty-five relative to mechanics' liens. Became a law Mav 37, 1896. TABLE OF CASES. A. Hall Terra Cotta Co. «. Doyle, 103 Abram«. Boyd, 55, 123 Albro V. Blume, 91 Allen V. Carmen, 40 Allen V. Frument Co., 56 Althouae ». Warren, 64, 94, 106 Altieri «. Lyon, 117 Ames «. Dyer, 13 Amidown «. Benjamin, 63, 96, 99 Anderson ». Dillaye, 10 Arata «. Tellurium Co., 73 Atley !). Haviland, 10 Babb ®. Eeid, 83, 83 Bailey ®. Adams, 54 Bailey v. Johnson, 93, 94, 95, 96 Baker v. Fassenden, 13, 17 Banham v. Roberts, 58 Bank «. Curtiss, 20 Barrow «. Knight, 75 Barwick «. Youmans, 181 Bates «. Manufacturing Co., 13 Bates V. Trustees, &c., 28, 32, 41, 54, 79 Bates v. Salt Springs Nat. Bank, 32, 50, 84, 105 Baum V. Covert, 19 Baxter «. Smith, 66 Beals v. Congregation, 64 Beardsley «. Cook, 49, 81, 104 Beecher «. Schuback, 37, 43, 95, 102 Bell v. Mayor, &c. of New York, 143 Bell ■». Vanderbilt, 143, 150 Belmont ». Smith, 10 Beman «. Todd, 91 Benedict ®. Danbury R.R., 50 Benton «. Wickwire, 5 Berry «. Gavin, 7, 23, 28, 65 Bicknell «. Trickey, 56 Biershenk v. Stokes, 6 Bigelow «. Doying, 87 Birmingham Iron F. Co. v. Glen Cove S. Mfg. Co., 19 Bishop v. Boyle, 21 Bishop v. Honey, 19, 34, 55 Black's Appeal, 64 Blakeslee «. Fisher, 15, 41, 43 Blethen ®. Blake, 98 Blytlie a. Poultney, 49, 96, 104 Boody t. Rexford, 109, 110 Bossier «. Putney, 140 Bowen «. Aubrey, 50 Bowers u. N. Y. Christian Home, 90 Boyd ■». Bassett, 73 Boyd «. Stewart, 133 Bradish «. James, 69, 95 Bradley & Currier Co. v. Herter, 16, 100 Bradley t>. Stafford, 51, 79 Brady ®. Anderson, 5, 53 Brainard ®. County of Kings, 49, 53, 144 Brandt «. Bradley, 132 Brandt «. Schmeckenbecher, 89 Brandt v. Verdon, 69 Breuchaud ®. The Mayor, 141, 213 Brill «. Tuttle, 79 Broadway Savings Bank «. Cum- mings, 30, 68, 136 Broderick -». Poillon, 31, 94 Broman ». Young, 156 Bron «. Welch, 67 Brooks V. Tayntor, 164 Brown b. Harper, 7 Brown «. Smith, 73, 110 Brown v. Zeiss, 55, 63, 130 Bryson ®. St. Helen, 4, 5, 6, 71, 98, 136 Bulkley «. Kimball, 69, 107, 133 Bulkley ». Moses, 132 Burkitt v. Harper, 36, 67, 94 Burroughs «. Tostevan, 116 Burrows «. Baughman, 53 Bursts. Jackson, 17, 83 Burton Co. ■». Cowan, 93, 102 Burton u. Ringrose, 134 Butler v. River, 13 Byrne «. Harrow, 31 xu TABLE OF CASES. Caldwell v. Lawrence, 7, 110 Campbell v Coon, 19, 38, 41 Carman «. Mclncrow, 47 Carter v. Byzantium, 54 Casbman v. Henry, 6, 10, 34 Cassidy «. Fontham, 15, 33, 33 Cassidy v. McFarland, 100, 101 Central Trust Co. d. Texas, &c., R. E. Co., 74 Chamberlin ■». McCarthy, 106 Charlton «. Scoville, 44, 97 Cheney ». Troy Hospital, 5, 47, 48, 61, 98 Childs V. Anderson, 56 Childs «. Bostwick, 116 Choteau -o. Thompson, 20 Clark V. Boyle, 99 Close V. Clark, 33, 39, 40, 70, 99 Collins 1). Comley, 41 Conldin ®. Bauer, 85 Conklin «. Wood, 71, 73, 96 Conkrite v. Thompson, 4, 93 Conover v. Lennon, 16 Cook e. Odd Fellows' Fraternal Union, 39, 51, 55 Copley V. Hay, 133 Copley v. O'Neill, 11 Corbett v. Greenlaw, 31, 86 Cornell v. Barney, 6, 80, 33 Cowen ®. Paddock, 38 Cox V. Broderick, 11, 47, 63 Craig V. Swinerton, 27 Crane v. Genln, 47, 48, 58, 61 Cranston ». Union Trust Co., 151 Crawfordsville «. Barr, 95 Cream City Furniture Co. v. Squier, 71 Crean v. McFee, 54 Crocker ■». Lewis, 90 Cronk v. Whittaker, 108 Crouch e. Moll, 108, 117 Crystal «. Flannelly, 130 Cummings ®. Halstead, 130 Cunningham v. Doyle, 72, 105 Cunningham v. Hatch, 135 D'Andre«. Zimmerman, 119 Danziger ■». Simonson, 91 Darrow v. Morgan, 69, 88, 117 Davis «. Alvord, 4, 5, 99 Davis «. Bibsland, 110 Davis B. Humphrey, 26 Davis ■». Livingston, 66 Deady «. Fink, 82 Dean, Matter of, 93, 134 Dean v. Wheeler, 95 Deardorff v. Everhardt, 83 Decker v. O'Brien, 38, 117, 137 Deeves v. Metropolitan &c. Co., 100, 101 Dennis v. Walsh, 35, 36, 101 Dennistown v. McAllister, 15, 83 DeRoude v Olmstead, 32 Develin i). Mack, 98 Diegan v. Brophy, 66 Dixon V. La Farge, 18, 81, 94 Dobschultz V. Hollidav, 20 Donahy «. Clapp, 6, 30 Donaldson ®. O'Connor, 78 Donaldson v. Wood, 5 Donnelly «. Libbey, 67 Dorsey v. Langworthy, 19, 34 Doughty V. Devlin, 47, 94 Dowdney v. McCuUom, 45, 107, 137 Drennan v. Mayor, 143 Driesbach ». Keller, 64 Driscoll v. Hill, 56 Drucker«. Simon, 101 DufEv V. Baker, 74 Duffy v. McMannus, 98, 95 Dugan e. Brophy, 5, 67 Dunbar v. Diem, 64 Dunning v. Clark, 66, 88, 98, 106, 134 Dutro V. Wilson, 20 Kagleson «. Clarke, 106 Egan V. Laemmle, 103, 113, 118 Ehlers v. Elders, 54 Ellenwood v. Burgess, 56 Elting V. Dayton, 95 Emigrant Bank ■». Brown, 87 | English V. Sill. 73, 126 Ernst ®. Reed, 63 Fairchild «. Burt, 56 Fargo V. Helmer, 110, 116, 138 Farmilo v. Styles, 10 Fay ». Adams, 95 Fay ®. Muheker, 33 Ferguson ». Burke, 40 Fettrich w. Totten, 131 Filey «. Thousand Islands Hotel, 65 First Nat. Bank «. Day, 7 First Nat. Bank ®. Redman, 14 Fischer v. Hussey, 91, 133 Flynn v. Butler, 88, 93, 134 Fogarty v. Wick, 66 Fogg V. Suburban Transit Co., 33, 36, 50, 105 Ford v. Bailey, 138 Foshay ®. Robinson, 41, 43 Foster ». Poillon, 93 Foster v. Schneider, 69, 70, 71 Foster ®. Skidmore, 130 Fox V. Kidd, 89, 109, 116 Frazer v. McGuckln, 98 TABLE OF OASES. XUl Fredericks v. Goodman Street Home- stead Assoc. 13 Treeman v. Carson, 55 Freeman v. Cram, 5, 89 Freeman v. Gilpin, 13 French v. Bauer. 46 Frost V. McGlnnis, 40 Fulton Ironworks «. Smelting Co., 94 Galbreath v. Davidson, 18 Gallagher v, Karns, 156 Gambling ■». Haight, 97 Garland v. Van Rensselaer, 85 Garrison v. Mooney, 59, 81 Gaskell v. Beard, 68, 70, 141 Gates V. Whitcomb, 25 Gauher v. Mills, 101 Gauss V. Hussman, 56 Gay V. Brown, 31, 85 Gee ». Torrey, 159, 161 Gibson v. Lenane, 48, 58, 59, 61, 81 Glaucius V. Black, 85 Goodrich v. Gillies, 70 Goodwin v. Elleardsville, 17 Gorham v. Sanger, 53 Gourdier v. Thorp, 98 Graf V. Cunningham, 43 Grant v. Strong, 53 Grant «. Vandercook, 4, 99 Gray «. Holdship, 17 Gray «. Vorhis, 72 Green v. Fox, 54 Greene «. Ely, 54 Gridley v. Rowland, 6 Grogan «. Mayor, 47 Gross V. Daly. 63, 96, 99 Grosz V. Jackson, 18 Grove v. Gather, 21 Guntlier v. Darmstadt, 78 Hackett «. Badeau, 34, 36, 85 Haden «. Buddensiek, 73, 88 Hafker «. Henry, 88, 134 Hagan v. Am. Baptist &c. Soc, 49, 110, 116 Hall «. Dennerlein, 124 Hall V. Pettigrew, 6, 53 Hall ®. Shcehan, 20, 138 Hallahan v. Herbert, 5, 7, 72, 73, 85, 96 Hallej"^ V. AUoway, 19 Haman «. Ashmead, 95 Hamilton v. Coogan, 75 Hammond v. Sheppard, 89 Hankinson v. Riker, 37, 65, 78 Hard wick ®. Royal Food Co., 90, 92 Harris v. Schulte, 18 Hart V. Wheeler, 25 Hartley v. Murtha, 39, 94, 169 Hartness v. Thompson, 6, 34 Haswell v. Goodcliild, 49, 104 Hatch, ■». Coleman, 17, 88 Hauptraan v. Catlin, 10, 19, 67 Hauptman v. Halsey, 65 Havens «. West Side Electric Light Co.. 28 Hayden v. Wulfing, 67 Hazard Powder Co. «. Byrnes, 18 Heckmann i). Pinkney, 88, 85, 47, 50 Heidegger v. Atlantic Mill Co. , 18 Hellwig V. Blumberg, 24, 83 Henderson v. Sturgis, 86 Henlein v. Murphy, 73, 133 Henry ■». Lynch, 90 Henry v. Pitt, 64 Herbert v. Herbert, 48,' 61 Higgins ». McConnell, 13 Highton V. Dessau, 33, 36, 87, 107 Hill «. Newman, 14 Hills V. Halliwell, 34 Hilton Bridge Co. «. Gouverneur R. R. Co., 131 Hilton Bridge C. Co. v. N. Y. Cen- tral & H. R. R. R. Co., 13, 18, 120, 131, 128, 151 Hilton ®. Merrill, 85 Hirshfleld i>. Ludwig, 79 Hoag V. Hillemeyer. 85, 89 Hoar ». McNiece, 103 Hobby V. Day, 25 Holland v. Garland, 64 Holler ®. Apa, 115, 116 Hollister «. Mott, 42 Homans ». Coombe, 4, 99 Hondorf v. Atwater, 78, 97 Hooper «. Sells, 7 Hofgesang v. Meyer, 48, 57, 61 Hopkins v. Forrester, 54 Horgan v. McKenzie, 16, 104, 110, 116 Hoyt «. Miner, 15, 32, 47, 98 Hu'bbell V. Schreyer, 5, 64, 65, 67, 73 Hull of New Ship, 110 Hunter ». Walter, 15, 36, 38 Hurd V. Johnson Park Investment Co., 78 Husted V. Matthews, 6, 10, 34, 38, 34 Hutton Bros. ■». Gordon, 33 In re Poole, 135 Ireland v. Atchison, Topeka, &c., 153 Iron Mfg. Co. v. Bynum, 17 Jackson v. Bunnell, 103 Jackson ». Sloan, 64, 83 Jaques «. Moi-ris, 95 Jenkes v. Parsons, 94 Jennings v. Newman, 113 TABLE OF CASES, Johnson 11. DePeyster, 35 Johnston ®. Dahlgren, 21 Jones -D. Holy Trinity Church, 84 Jones V. Hurst, 64 Jones V. Manning, 11, 12, 27 Jones i>. Moore, 39, 54 Jones Lumber Co. v. Murphy, 48 Kealey v. Murray, 24, 25, 72 Keokler v. Stumme, 93 Keller «. Struck, 31 Kelley v. Kelley, 56 Kelly V. Bloomingdale, 42, 43, 75 Kelly V. City of Syracuse, 37, 80, 142 Kenny v. Apgar, 3, 4, 75, 99, 100, 109, 115, 121 Keogh Manufacturing Co. v. Blsen- berg, 54, 105 Keogh V. Main, 72 Kerby i>. Daly, 82 Kerns «. Flynn, 130 Kerr i>. Moore, 1 10 . Ketchler v. Stumme, 95 Kiel V. Carll, 69 Kinzey -e. Thomas, 53 Kline «. Green, 164 Knapp ®. Brown, 6, 10, 11, 20, 33 Knickerbocker Ins. Co. v. Hill, 109 Knox 9. Starks, 94 Kruger «. Braender, 39, 132 Lang V. Everling, 106 Larkin v. McMuUin, 41, 50 Lauer v. Dunn, 79 Lawrence «. Phlpps, 80 Lawson «. Reilly, 107, 110, 116, 171 Lawton v. Case, 95, 96 Leary v. Gardner, 5 Leeson v. Hart, 88 Lehretter «. Koffmann, 97, 108 Leiegne v. Schwartzer, 69, 95, 96 Lemmer «. Morison, 10, 11, 84, 85 Lenox v. Yorkville Church, 106 Leonard v. Brookl}^, 140 Lind B. Braender, 58 Lindley «. Cross, 73 Linn v. O'Hara, 40 Linneman v. Bieber, 54, 63, 99, 104 Lipman v. Jackson Iron Works, 52 Livingston i>. Mildram, 63, 107 Livingston «. Miller, 20, 107 Lombard «. Pike, 18, 56 Loonie «. Hogan, 9, 30, 31, 47, 85 Lorson v. Horgan, 102 Lowber v. Childs, 120 Lowry v. Woolsey, 27, 38 Lumbard v. Syracuse, 48, 61 Lumber and Wood- Working Co. v. Schneider, 39 Luscher v. Morris, 66, 133 Lutz ». Ey, 54, 66, 69, 73 Lynch v. Feigle, 94 Machier v. Burroughs, 10 Mack 11. CoUeran, 46, 47, 52, 79 Mackellar e. Rogers, 99, 100 Mahon ■». Guilfoyle, 145 Mahoney v. Mc Walters, 51, 63, 79, 99 Manchester v. Searle, 33 Marryatt «. Riley, 109, 115 Marshall v. Cohen, 16, 33 Marston v. Stickney, 10 Martina v. Nelson, 13 Mason Stable Co. ■». Lewis, 164 Matter of Barry, 149 Matter of Christie Mfg. Co., 105 Matter of Dean, 93»434 Matter of Gould Coupler Co., 6, 88 Matter of Hopper,. 135 Matthews «. Daly, 88 Matthews v. Young, 33 Mauch Chunk «. Shortz, 83 Maxey v. Larkin, 6 Mayor v. Crawford, 59, 133 McAdow V. Ross, 98 McAllister «..Case, 90 McAuly «. Mildram, 68, 96 McAveny v. Brush, 135 McBride «. Crawford, 98 McCarthy ». Carter, 11, 34 McCarthy v. Gallagher, 16 McCarty v. "Van Etten, 94 McCauley «. Hatfield, 37 McChesney v. City of Syracuse, 43, 51, 141 McCorkle «. Herrman, 49, 53, 80, 84 McCormick d. Los Angeles, 14 McCrea ». Craig, 95 ^ McDerraott v. McDonald, 141 McDermott v. Palmer, 9 McGraw v. Godfrey, 30,. 31, 86, 117 McGrew v. McCarty, 120 McGuckin ®. Coulter, 103 McKee v. Rapp, 15, 41 McKellar «. Rogers, 3 McLaughlin v. Page, 138 McMahon v. Hodge, 73 McMelean «. Baker, 70 McMillan ®. Seneca, 48, 61 McMurray «. Hutcheson, 83, 106 McSorley ®. Hogan, 96 Meehan v. Williams, 63, 94, 96, 106 Merchants' and Traders' Nat. Bank ®. Winant, 143 Meyer ®. Leebald, 105 Meyers. Beach, 116 Meyers v. Bennett, 55 Miller v. Mead, 34, 44 TABLE OE CASES. XT Miller «. Moore, 54, 98 Mlllei- V. Youmans, 131 Mlms V. Macon R.R. Co., 53 Miner v. Hoyt, 15, 83, 98 Mitchell Vance Co. ■». Daiker, 12 Montandon «. Deas, 21 Moore v. McLaughlin, 71, 73 Moran v. Chase, 20, 65, 68 Moran v. Murray Hill Bank, 8, 97, 141 Morgan v. Arthur, 18 Morgan «. McMahon, 98 Morgan «. Stevens, 14, 48, 61, 109, 115 Morgan v. Taylor, 15, 45, 65, 70 Morosvsky v. Rohig, 95, 102 Morse «. School District, &c., 28 Morton ». Tucker, 88, 107, 121, 132, 171. Mosher v. Lewis, 14, 26 Mountain City House v. Kearne, 67 Muir «. Cross, 54 Muldoon V. Pitt, 6, 9, 11, 32, 99, 103 Mull V. Jones, 42, 52, 68, 115 Mulligan v. Vreeland, 131 Mulvey v. Barrow, 38, 53, 56 Munger i). Curtis, 47, 51, 63, 79, 84 Murdock v. Jones, 37, 103 Murphy v. Adams, .110 Murphy ». Murphy, 56 Murphy v. Stickley SimmondsCo., 4, 5, 35, 136 Murray i). Barth, 91 Murray v. Gerety, 45, 92 Murray s. Rapley, 66 Murry v. Brown, 127 Mushlitt V. Silverman, 5 Mutual Ins. Co.®. Rowland, 13 Myers v. Burnett, 31, 120 Nazarette, &c. Inst. v. Lowe, 10 Nellis «. Bellinger, 24, 25 Neuschatel Asphalt Co. v. The Mayor, 91, 92, 123, 144 New V. Carroll, 26 Newman v. Levy, 77 N. Y. Lumber and Wood-Working Co. V. Schneider, 55 N. Y. Lumber and Wood- Working Co. V. Seventy-third St. B. Co., 63, 99, 131 Nichols .». Hill, 109 Nicols v. Culver, 74 Nobis V. Pollock, 101, 103 Nolan V. Gardner, 15, 33 Nolan V. Lovelock, 94 Norris v. Nesbit, 103 Noyes v. Burton, 63, 64, 82 Nunan ®. Doyle, 35 Gate? V. Haley, 48, 79, 84 O'Brien v. McCarthy, 59, 100 O'Connor v. Schaeffel, 106, 109 O'Donnell v. Rosenberg, 103 Ogden v. Alexander, 8, 40, 43, 43, 44, 101, 111 Ombony v. Jones, 11, 30, 108 Otis V. Cusack, 11 Otis V. Dodd, 24, 26 Ottiwell V. Muxlow, 34 Owens V. Ackerson, 98 Paine v. Bonney, 20 Pairo «. Bethell, 4, 119 Panola County «. Gillen, 140 Paterson v. Pennsylvania, &c., 140 Payne «. Wilson, 48, 58. 63 Peabody v. East Met., &c., 10 Pearsons «. Tincker, 7, 73 Peck V. Bridwell, 53 Peck V. Brummagin, 83 Peirce s. Devlin, 78 Pell V. Bauer, 32; 23, 42, 52 Pendleburg v. Meade, 31 Peyroux v. Howard, 53, 54 Pfister «. Stumm, 134 Phelps ®. The Camilla, 53 Phillips V. Gallant, 35 Phillips v. Gilbert, 56 Phillips V. Hyde, 67 Phillips «. Wright, 17, 83 Phoenix Iron Co. v. Vessell, &c., 19 Pickett V. Tollner, 13 Pike «. Irvin, 47 Poerschke v. Redenburg, 88 Pollock V. Ehle, 6 Portsmouth Iron Co. v Murray, 53 Post V. Campbell, 47, 48, 57, 58 Powers «. City of Yonkers, 45, 103 Powers V. Hogan, 38 Preusser v. Florence, 93 Prior V. White, 89, 90 Protective Union v. Noxon, 66 Quackenbush v. Carson, 67 Quimby v. Wilmington, 54 Quinby v. Sloan, 4, 18, 63, 64, 82 Quinlan v. Russell, 140 Quinn v. 'The Mayor, 94 Quinn v. New York, 31 Raabe v. Squier, 103 Randolph v. Leary, 4 Raven v. Smith, 6, 91, 93, 134 Be Laflin & Powder Co., 134 Regan v. Borst, 37, 38, 30, 45 Reid «. Bank Of Tenn., 10 Reilly v. Poerschke, 131 Reynolds v. Hamil, 109, 114 Reynolds v. Patten, 103 TABLE OF CASES. Richardson & Boynton Co. v. Reid, 25 Riggs V. Chapin, 25, 94 Riggs V. Shannon, 34, 100 Ringle i>. Wallis Iron Works, 5, 35, 68, 70, 71, 73, 93, 95, 97, 102, 103, 117, 137, 136, 178 Rinn v. Electric Power Co., 13, 13 Roberts v. Fowler, 7, 73, 110 Robbins ». Arendt, 46 Robinson v. Fay, 6 Rogers v. Currier, 83 Rogers ». McGuire, 85 Roland v. Centreville, &c., Ry., 153 Roliin «. Cross, 7, 10, 20, 25, 78, 86 Rope «. Hess, 38 Ross V. Derr, 99 Ross «. Simon, 30, 65, 94, 176 Rossi «. MacKeller, 23, 101 Rush V. Able, 14 Ruth V. Jones, 110, 116 Ryan s. Klock, 67 Sands v. Sands, 97 Scerbo v. Smith, 143, 146. 313, 314 Schaettler ». Gardiner, 103, 116, 117, 134 SchafEer v. Weed, 31 Schalks. Norris, 8, 34 Scheahy v. Tomlinson, 100 Scherrer v. Music Hall Co.. 133 Sohilliuger'" Cement Co. ■». Arnott, 100 Schillinger Fire Proof Co. ». Arnott, 4, 37, 95, 96, 97, 100 Schmaltz v. Mead, 9, 36, 85 Schmidt «. Gilson, 54 Schneider «. Hobien, 48, 61 Schulte ». Lestershire Boot and Shoe Co., 115, 124 Schwartz «. Allen, 17, 73 Scott V. Cook, 75 Shannon ». Coursen, 133 Shaw V. Allen, 93 Sheffield «. Loeffler, 41 Sheffield v. Murray, 181 Sheffield v. Robinson, 133 Shotler v. Gardner, 117 ShuckrafE v. Ruck, 55 Sinclair v. Fitch, 63, 94 Smith V. Alker, 84, 39 Smith V. Bailey, 31, 66, 67, 83 Smith D. Coe, 104 Smith V. Corey, 106 Smith V. Ferris, 40 Smith V. Noiris, 35, 85 Smith V. O'Donnell, 36, 104, 117 Smith V. Smith, 38, 117 Smith V. Sheltering Arms, 43, 48 SmuUen v. Hall, 9 Smyth e. Marsich, 49, 81, 104 Southard ». Lavelle, 93 Southard v. Moss, 122 Spence v. Griswold, 121 Spencer «. Barnett, 73, 74 Spioer v. Snyder, 80 Spinard v. Finelite, 105 Sproessig v. Kentel, 37 Spruck e. McRoberts, 28, 65 Spurgeon ». Mcllvane, 19, 34 Stanton v. Gohler, 113 Stapleton v. Mayer, 7, 117 Staubsandt v. Lennon, 73, 104 Stevens v. Ogden, 47, 49, 58, 78, 80, 84 Stevens v. Reynolds, 58 Stevenson v. Stonehill, 83 Striker v. Cassidy, 13 Strobel v. Ochse, 6, 66, 126 Stubbs V. Railroad Co., 95 Stuyvesant v. Browning, 68 Sullivan v. Brewster, 93, 95, 178 Sullivan «. Decker, 130 Suydam v. Holden, 131 Taylor v. Baldwin, 104 Teaz V. Christie, 54 Telfer v. Kierstead, 73 Tewksbury v. Bronson, 7 The St. Jago, 58 Thomas v. Sahagan, 81, 108, 117 Thomai «. Stewart, 38 Thompson's Case, 54 Thompson v. Gilmore, 4 Thompson v. Wickersham, 31 Thompson ». Yates, 47 Thorn v. Whitbeck, 168 Tinker v. Geraghty, 69 Tisdale v. Moore, 96 Tizzard v. Hughes, 14 Tombs B. Rochester R. R. Co., 53 Tooker ». Riualdo, 100 Towner v. Remick, 64 Townsend v. Work, 91, 136 Trask v. Searle, 14 Turbidy v. Wright, 5, 55, 74, 84, 130 Tuttle V. Howe, 110 Urquhart «. Mclver, 7 Volk V. McKenzie, 88, 103, 115 Van Bremer v. Cooper, 6, 34 Vanbroker «. Exstein, 31 Van Clief v. Van Vechten, 50 Van Court v. Bushnell, 54 Vandire v. Hodge, 84 Vogel V. Luitweiler, 69, 82 TABLE OF CASES. xyn "Vogel V. Whitmore, 6, 53, 66, 83, 136 Vreeland «. Boyle, 73 Wademan «. Thorp, 18 Walkam «. Henry, 65, 94 Walker v. Paine, 31, 47, 49, 85 Ward V. Kllpatrick, 17, 88, 91, 101 Watrous v. Elmendorf , 95, 96 Watts-Campbell Co. v. Yuengling, 17,74 Watson V. Crane, 43 Weaver v. Demuth, 53 Weaver v. Sells, 17, 83 Webb «. Van Zandt, 98, 105 Weeks v. Little, 36 Weeks «. O'Brien, 38 Weisman v. City of Buffalo, 51 Welde V. Henderson, 16, 89 Welch V. McGrath, 130 Welsh «. The Mayor, etc., 89 Westervelt v. Levy, 97 Wheeler v. Port Blakely, 66 Whitney «. Coleman, 134 Whitney v. Story, 140 Wilder ». French, 33 Willamette v. Kemick, 13, 14 Williams v. Edison Electric Co., 80 Williams v. Edison 111. Co., 133 Williams v. Root, 71 Williamson «. Hendricks, 109, 115 Wilson V. Niagara City Land Co. , 93 Wolf V. Horn, 36, 38, 103. 104 Woolreich v. Fettretch, 44 Woodward «. Fuller, 35 Wright V. Reusens, 38 Wright V. Roberts, 35, 50, 87, 89, 90 Yates V. Meadville, 83, 140 Yates V. Whitcomb, 85 Yeates v. Wheadon, 34 Yellow Pine Co. v. Board of Educa- tion, 143 Yorke v. Conde, 81 Young V. Lyman, 83 Young «. Stoutz, 84 Ziegler «. Galvin, 38 Zimmermann v. jourgensen, 43, 46 THE MECHANICS' LIEN LAW OF NEW YORK. [Laws 1885, Chap. 342, passed Mat 27.] The people of the State of New YorTi represented in Senate and Assembly^ do enact as follows : § 1. Hew and by Whom Liien Acquired. — Any person or persons, firm or firms, corporation or associa- tion who shall hereafter perform any labor or service, or furnish any materials which have been used or which are to be used in erecting, altering or repairing any house, wharf, pier, bulkhead, bridge, vault, build- ing or appurtenances to any house, building or build- ing lot, including fences, sidewalks, paving, fountains, fish ponds, fruit and ornamental trees, or who shall dredge, fill in, grade or otherwise alter or improve land under water, meadow, marsh,, swamp or other low lands, or who shall hereafter perform any labor or services, or furnish any materials which have been used* in improving or equipping any house, building or appurtenances, with any chandeliers, brackets or other fixtures or apparatus for supplying gas or elec- * Words " or which are to be used" omitted by the amend- ment. Chap. 673, Laws 1895. See note at end of section. 1 3 LAWS 1885, CH. 342, sec. 1. trie light, with the consent of the owner, as hereinafter defined, or his agent or any contractor, or sub-con- tractor, or any other person contracting with such owner to erect, dredge, fill in, grade, alter, repair, im- prove or equip as aforesaid, within any of the cities or counties of this State, may upon filing the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor services, and material upon such house, wharf, piers, bulkheads, bridges, vault, building or appurtenances, and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, or which is graded, dredged or filled in, to the extent of the right, title and interest at that time existing of such owner whether owner in fee or of a less estate, or whether a lessee, for a term of years, or vendee in possession under a contract ex- isting at the time of the filing of said notice of lien, or of the owner of any right, title or interest in such estate, which may be sold under an execution under the general provisions of the statutes in force in this State relating to liens of Judgment and enforcement thereof, and also to the extent of the interest which the owner may have assigned by a general assignment for the benefit of creditors, within thirty days prior to the time of filing the notice of lien specified in the fourth section of this act. But in no case shall such owner be liable to pay by reason of all the liens filed pursuant to this act, a greater sum than the piice stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or, in case there is no contract, then the amount of the value of such labor and ma- CONSTITUTTOKALIXr OF MECHANICS' LIEN LAW. 3 terial then remaining unpaid except as hereinafter provided. (As amended by Laws 1895, ch. 673.) NoTK. — There is a serious error in this amending act, Chapter 673, Laws 1895, by reason of the fact that through apparent inadvertence there has been omitted from the portion of the statute relating to chandeliers, fix- tures, and apparatus for suppl.ying gas and electric lights, the -words " or which are to be used," in defining for what labor services and materials a lien may be had. Prior to the amendment of 1895, the statute in clear and express terms gave tlie right to a lien in anticipation of work, labor and ser- vices. It declared tliat the person " who shall hereafter perform any labor or services, or furnish any materials which have been used, or which are to be vsed, in improving or equipping any house, etc." The words in italic are omitted from the act of 1895, so that the lien for chandeliers, fixtures, and apparatus for supplying gas and electric lights, is given to a person " who shall hereafter performany labor or services, or furnish any materials which have been used,' in improving or equipping any house, etc." The error seems to have been unintentional, because the words " which are to be used" are retained in the first sentence of the section which de- clares that " any person * * * who shall hereafter perform any labor or service or furnish any materials which have been used, or which are to be luied. in erecting, altering, etc." The omission of the words " or which are to be used" in the body of the section is unfortunate, since the language of the section, by reason of this omission, might cast doubt upon all liens, in anticipation of work, labor, and services contracted for chandeliers, etc., filed since May 14, 1895, but not rendered, performed, or furnished at the time of filing the lien. The Courts will, doubtless, sustain liens for future services, and materials to be furnished, in view of the retention of the clear and express words in the first sentence of the section, since it is apparent that the omission of these words later in the section was clearly an over- sight, the intent being to have the law remain unaltered in this respect. Constitutionality of Mechanics' liien Law,— Aa actiou to foreclose a Mechanic's Lien is an equity action, and it seems that neither party has a right to a trial by jury, except as to such issues as might be framed and sent to a jury. As to whether this right to frame issues is absolute or resting in dis- cretion, was not passed upon. Kenny v. Apgar, 93 N. Y. 539. See also McKellar v. Rogers, 109 N. Y. 478. There can be, therefore, no objection to the Constitutionality of chap. 343, Laws 1885, upon the ground that it prescribes that the mode of procedure under it, " shall be the same as in actions to foreclose mortgages on real property," which are wholly within the jurisdiction of Courts of Equity, in which a trial by jury is not a matter of right. Riggs v. Shannon, 16 N". Y. Supp. 939 ; B. c. 44 N. Y. State E. 365, 31 Abb. N. O. 465, 31 Civ. Pro. R. 434. The fact that a local statute, authorizing Mechanics' Liens to be tried by jury in the City of New York (Laws 1844, chap. 320), was in force when the constitution was adopted in 1846, does not render Laws 1885, chap. 343, unconstitutional ; nor violate the clause in that instrument which declares that trial by jury, in all cases in use at the time of its adoption, shall " remain inviolate LAWS 1885, CH. 342, sec. 1. forever. " The right to a Jury trial may be demanded under Sec- tions 823 and 970 of the Code, in so far as to fix the amount of the lien or claim of any party. ScliilUnger Fire Proof Com- pany V. Arnott, 14 N. Y. Supp. 336 ; Same v. Same, 86 Hun, 182. And the Federal Courts have held, that it is np objection to statutes of this character, that personal judgment may be awarded against a debtor. The proceeding to foreclose the lien is never- theless an equitable one, although other property than that to which the lien attaches may be reached upon an execution upon the personal judgment. Davis v. Alvord, 94 U. S. 545. For other authorities as to the right to a jury trial, see " Pro- ceedings in the Action" under § 8, post. The Natuke of the Eemedt. A Proceeding in Kem. — So far as the law seeks to sub- ject the specific property of those against whom no personal judg- ment is asked to the enforcement of the security secured by the lien, the remedy is substantially a proceeding in rem. Conkrite v. Thompson, 1 E. D. Smith, 661 ; Randolph v. Leary, 3 E. D. Smith, 637 ; Quinby v. Sloan, 3 Ab. Pr. 93 ; Thompson v. 6**7- more, 50 Me. 438 ; Romans v. Coombe, 3 Cranch C. C. 365 ; Grant v. Vandercook, 57 Barb. 165. A Proceeding in Equity. — As the remedy requires a judgment for specific property, with directions for its sale, and the distribution of the proceeds as in foreclosure of a mortgage, it partakes of the characteristics of a Bill in Equity. Davis v. Alvord, 94 U. S. 545 ; Kenney v. Apgar, 93 N. Y. 54 ; Pairo v. Bethell, 75 Va. 825. And even in those States where the procedure allows a personal judgment for the amount due, with directions to apply the prop- erty, upon which the lien is claimed upon the execution, if other estate of the debtor cannot be found, this fact does not change the character of the proceeding from one of equity cognizance. Davis V. Alvord, 94 TJ. S. 545. And section seven of the Act of 1885 specifically declares that the procedure to enforce the lien shall be the same as in actions for the foreclosure of mortgages upon real property, except as the act otherwise expressly provides. See Laws 1885, chap. 343, §7, post; Biggs v. Shannon, 37 Abb. N. C. 456 ; s. c. 44 N. Y. State E. 365, 31 Civ. Pro. E. 434, 16 N. Y. Supp. 939. The action is in equity, and the Court will use every effort to do substantial justice between the parties. Murphy v. Stickley Simonds Co. 83 Hun, 158 ; s. c. 63 N. Y. State E. 744 ; 31 N. Y. Supp. 295 ; Bryson v. St. Helen, 79 Hun, 167 ; s. c. 61 N. Y. State E. 390 ; 39 JST. Y. Supp. 524. THE NATURE OF THE REMEDY. 3 Security to tlie liienor.— The design of the statute is to give security to those who, by their labor, skill, and materials, add value to property, by a pledge of the interest of their em- ployer for their payment, and to subordinate other interest to that end. Davis v. Alvord, 94 U. S. 545. Abatemient. — Under former laws, passed prior to the Act of 1885, the proceeding to enforce the lien was held not to con- stitate an " action" within the definition of the Code, and was declared to abate by the death of the owner. Leary v. Gardner, 63 N. Y. 624 ; Hallahan v. Herbert, 57 N. Y. 409. But section seven of the Act of 1885 expressly provides that liens under it shall be enforced by " a civil action," and the decisions above cited are no longer applicable. But under the Act of 1886 it has been held that the right to file a lien terminates with the death of the owner, and a lien filed after such death is void as to all work performed prior to the death of such owner. Turhidy v. Wright, 144 N. Y. 619. Statute to be Construed Liberally. — Under former statutes the courts have held, that in so far as the lienor at- tempted to enforce his remedy against persons other than those with whom he contracted, and encumbered property without the owner's consent, the proceeding was in derogation of the common law. Muslilitt V. Silverman, 30 N". Y. 360 ; Benton v. Wick- tvire, 64 N". Y. 326 ; Davis v. Alvord, 94 U. S. 545. That since the remedy was in derogation of the common law, it could not be extended beyond the reasonable import of the statutory language, and that the statute must be strictly con- strued. Freeman v. Gram, 3 E". Y. 305 ; Mushlitt v. Silver- man, 30 N. Y. 360 ; Hubiell v. Shreyer, 15 Abb. N. S. 300 ; Dugan v. BropJiy, 55 How. 121 ; Brady v. Anderson, 34 111. 110. But the provisions of an act which imposes upon one person the obligation of discharging the debts of another, will not be extended by judicial construction to afford equitable relief to persons not embraced clearly within the enactment. Cheney v. Troy Hospital, 65 N. Y. 383 ; Donaldson v. Wood, 33 Wend. 395. Section twenty-five of the Act of 1885, however, expressly de- clares the law to be "a remedial statute, and is to be construed liberqlly to secure the beneficial interests and purposes thereof." See Laws 1885, chap. 343, § 35, post. Bitigle v. Wallis Iron Works, 149 J^. Y. 439 ; Murphy v. Stickley Simonds Co., 82 Hun, 158 ; Bryson v. St. Helen, 79 Hun, 167 ; s. c. N. Y. State R. 390 ; 29 N. Y. Supp. 524. The Kemedy Cumvilative. — The remedy under a statute creating a lien for labor and materials is cumulative, and hence 6 LAWS 1885, CH. 343, sec. 1. a proceeding to enforce the lien is not of itself a bar to action against the contractor. Gridley v. Rowland, 1 E. D. Smith, 670 ; Maxey v. Larkin, 2 E. D. Smith, 540 : Pollock v. Ehle, Id. 541 ; Biershenh v. Stokes, 46 N. Y. State E. 179 ; s. c. 18 N. Y. Supp. 854 ; Raven v. Smith, 87 Hun, 90 ; Bryson v. Si. mien, 79 Hun, 167 ; s. c. 61 N. Y. State E. 390 ; 39 N. Y. Supp. 524. Plaintiff did work for the Hoboken Turtle Club, upon its club house. He sued the trustees on their personal liability created by Laws 1865, chap. 368, under which the corporation was organ- ized, and also filed a lien, ami proceeded to enforce it. In the suit for personal liability, defendant claimed that the foreclosure proceedings was a bar, though not pleaded as such in their an- swer. Held that even if pleaded, the lien suit was no bar That plaintiff was entitled to both remedies with but one satisfaction. Robinson v. Fay, 'l9 JST. Y. Supp. 120 ; s. c. 46 F. Y. State K. 369. See also Raven v. Smith, 87 Hun, 90. And where the lienor took a mortgage on other property as collateral security, but the foreclosure resulted in a deficiency, he was allowed to proceed with the foreclosure of his lien. Hall v. Pettigrew, 10 Hun, 609. And the fact that the lienor has begun an action at law will not deprive him of the right to procure an order continuing the lien. Matter of Gould Coupler Go. 79 Hun, 206 ; s. c. 61 N. Y. State E. 164 ; 29 N. Y. Supp. 632. The foundation of the claim is an indebtedness, existing upon contract, express or implied, in favor of the person who seeks to subject the property to the lien. Muldoon v. Pitt, 54 ]^. Y. 369 ; Knap'p V. Broton, 45 N. Y. 307 ; Cornell v. Barney, 94 N. Y. 394. By Whom LiEif Acquired. One Capable of Contracting.— Any person legally capable of entering into the contract upon which the claim is based, may acquire the lien prescribed by the statute. Van Bremer v. Cooper, 2 Johns. 279 ; Hartness v. Thompson, 5 Johns. 160 ; Cashman v. Henry, 75 N. Y. 103 ; Husted v. Mathes, 77 N. Y. 388 ; Donahy v. Glapp, 12 Cush. 440. Joint Liien. — If the contractors are not copartners, and they make a joint contract with the owner, and subsequently agree between themselves to divide the work and each perform a certain poition of it, they become sub-contractors under the joint contract, and need not file a joint lien, but each may file a separate lien for the work done by him. Strobel v. Ochse, 14 Misc. 532 ; Vogel v. Whitmore, 73 Hun, 417 ; s. c. 54 N. Y. State E. 882. BY WHOM LIEN ACQUIRED. 7 Assignee.— Under former laws passed prior to the Act of 1885, it was held that a lien could not be acquired in the name of an assignee, because the right to the lien was purely a per- sonal one, which could not be assigned, although after the right is once acquired it may be prosecuted by the real owner. Eob- erts V. Fowler, 3 E. D. Smith, 632 ; RoUin v. Cross, 45 N. Y. 766 ; Pearsons v. Tincker, 36 Me. 384 ; Hooper v. Sells, 58 Ga. 137 ; First Nat. Bank v. Day, 33 Iowa, 680 ; Caldwell v. Law- rence, 10 Wis. 331 ; Tewksbury v. Branson, 48 Wis. 581 ; Brown v. Harper, 4 Oregon, 89 ; and cases cited under section 17, infra. Section seventeen of the Act of 1885, however, expressly de- clares that any person filing a notice of lien, or the assignee of each person after the filing thereof, shall be the plaintiff in action to foreclose. (See, also. Laws 1885, chap. 343, § 25 post.) While the statute still provides that the person who shall perform the labor or furnish the material may file the notice of lien, his assignee is expressly authorized to enforce it as plaintiff in the action. Agent of Liienor.— The courts have recognized the prin- ciple that though a factor cannot pledge the goods of his prin- cipal as his own, he may, nevertheless, deliver them to a third person as security, with notice of his lien, and as his agent to keep the possession for him, in order to preserve the lien. Urquhart v. Mclver, 4 Johns. 116. The Court of Appeals ap- plied this doctrine to liens under the statute, and declared that while the lien was a personal right, given to the mechanic, mate- rial man, and laborer for his own protection ; and that the right to create such lien could not be transferred, unless the assign- ment was made for the benefit of the assignor, and to be held as his agent, so that the lien may be preserved. Rollin v. Cross, 45 N. Y. 771 ; HallaJian v. Herbert, 57 N. Y. 409. And where the work was done by an agent, his principal may file the lien, and the fact that the agent when he did the work failed to disclose the name of his principal is immaterial. Berry v. Gavin, 88 Hun, 1 ; s. c. 68 N. Y. State K. 388; 34 IST.'Y. Supp. 505. Where a sub-contractor told the contractor, when the contract was made, that he was doing business in his wife's name, but failed to state that it was the wife who was making the contract, the wife is the principal, and may file and enforce the lien. Stapleton v. Mayer, 17 Misc. 67. Partner Acquiring Interest of his Firm.— The contractor employed the firm of Oliver & Ogden to perform work and supply materials. During the progress of the work plaintiff, Ogden, purchased the interest of his co-partner and completed 8 LAWS 1885, CH. 342, sec. 1. the work. Held that the plaintifE was not a mere purchaser or assignee, but one of two persons who actually furnished the labor and materials, and by his purchase, on the dissolution of the firm, became the sole party in interest and entitled to file and enforce the lien in his own name. Ogden v. Alexander, 140 ]Sr. Y. 356. Assignee of Contractor.— Lien filed pursuant to pro- visions of Laws 1878, chap. 315 (Consolidation Act, § 1834), under a municipal contract. The contract provided that the owner might deduct from moneys due the contractor the amount which might be allowed lienors. The contractor borrowed money from a bank, and assigned as security moneys due or to grow due under the contract. A second assignment was given by the con- tractor as security for a debt for work and materials used in the building, subject to the prior assignment. Held that the second assignee, not having accepted the assignment in payment of his debt, did not waive his right to file a lien for the work and mate- rials furnished by him. Moran v. Murray Hill Bank, 9 N. Y. Supp. 715 ; s. c. 33 N. Y. State E. 103. See also Sclialk v. Norris, 7 Misc. 30 ; s. c. 57 N. Y. State E, 505 ; 37 N. Y. Supp. 390. The Doctrine of Equitable Assignment. The doctrine of "Equitable Assignments," as applied to as- signments of building contracts or of moneys due or to grow due thereunder, or to orders drawn by any contractor for the payment of such moneys, has been changed by an ameiidment to § 5 of this act (Laws 1896, chapter 915), which provides that they shall have no validity as against those filing liens, unless such assign- ments or orders of copies thereof shall be filed in the oflBce of the County Clerk where the premises, where the work or materials are being performed or furnished, are situated. The authorities, relating to equitable assignments, as the law existed prior to the enactment of chapter 915, Laws 1896, May 37, 1896, will be found under § 5, Laws 1885, chapter 343, post. Meaning of Teem "OvirNER." The Act of 1885, chapter 343, contains a broader and more comprehensive definition of the term " owner" than exists in any of the prior statutes relating to Mechanics' Liens. A person performing labor or services or furnishing materials with the consent of the " owner," as defined in the first section of chap- MEANING OF TERM " OWNER." 9 ter 343, Laws of 1885, " or his agent, or any contractor, or sub- contractor," or any other person contracting with such " own- er," may have a lien, to the extent of the right, title, and interest of such owner, existing at the time of the filing of the lien, " whether owner in fee, or of a less estate, or whether a lessee for a term of years, or vendee in possession under a contract existing at the time of the filing of said notice of lien, or of the owner of any right, title, or interest in such estate which may be sold under an execution," and also to the extent of the interest embraced within a general assignment for the benefit of creditors, made within thirty days prior to the filing of the notice of lien. Section five of the act declares, also, that where an owner has agreed to sell he shall be deemed the " owner" within the statute, until the deed has been actually delivered and recorded. In view of these elaborate provisions, many of the earlier de- cisions made with respect to the language of prior statutes can have no application to the Act of 1885. Definition of Owner Under Prior Statutes. — Under the restricted language of prior statutes, the courts have held that within the Cleaning of the law no person could be re- garded an " owner" who was not a party to the contract. Miil- doon V. Pitt, 54 IST. Y. 269 ; McDermoit v. Palmer, 11 Barb. 9. Under the provisions of the old Lien Law of 1830, a vendor who had made a contract to sell to builders, who were^n posses- sion, erecting buildings, paying for the land in instalments, such vendor was not deemed " an owner." Lootiie v. Hogan, 9 N. Y. 435. Under the peculiar wording of the Lien Law of 1883, chap. 376, it was held, that the only contract contemplated by the statute was a contract with the owner, and did not em- brace work done under a contract of sale. Hence, when the owner contracted to sell land and to complete the houses thereon prior to passing the title, it was held that the land subsequently conveyed was not liable to a lien for work done for the vendor, on a contract made with him to complete the houses. Smulleu v. Mall, 13 Daly, 392 ; compare Schmaltz v. Mead, 125 N. Y. 188. Legal Title. — Under the Lien Law of 1885, it has been held that, where an owner makes a contract to convey premises to a contractor or other person, he shall be deemed to be " the owner" until the deed has been " actually delivered and recorded conveying said premises, pursuant to such agreement." Laws 1885, chap. 342, § 5 ; Sclimaltz v. Mead, 135 N. Y. 188. 10 LAWS 1885, CH. 343, SEC. 1. The person holding the legal title will be regarded as the owner, although he purchased the property with trust funds, and holds the lands for the beneficial enjoyment of his cestui que trust. Yet he may subject the property to the lien. Ander- son V. Dillaye, 47 N. Y. 678 ; Peabody v. East Met., &c., 5 Allen (Mass.), 540. So long as the person holds the legal title he will be regarded as owner, although his grantor retains a lien on the property for the entire amount of the purchase money. Nazarette, Sc. Inst. v. Lowe, 1 Ky. 258. If the vendee fails to properly record the deed, by reason of a defective acknowledgment, the vendor is still deemed the owner within the statute, and the lien will take precedence over the uurecorded deed. Lemmer v. Morisoii, 89 Hun, 277. Equitable Title. — And where it appeared that the con- tractor who subjects his interests to the lien has only an equita- ble title to the premises, he will nevertheless be regarded as the owner, within the meaning of the statute. Belmont v. Smith, 1 Duer, 675. And where the owner of the equity is in possession of the prem- ises, he will be deemed the owner under the statute. Knapf v. Brown, 45 N. Y. 207 ; Rullin v. Cross, 45 IST. Y. 769 ; Reid v. Bank of Tenn., 1 Sneed, 263 ; Atley v. Haviland, 36 Miss. 19 ; Marston v. Stichney, 60 N. H. 112. Husband as Agent of Wife an Undisclosed Prin- cipal. — A married woman was sued to enforce a lien for work done in the erection of a building on her land. Plaintiffs did the work under a contract with defendant's husband, who repre- sented 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 non-suit was error and the facts entitled plaintiffs to submit to the jury the question whether defendant's husband was or was not acting as her agent. Far- milo V. Styles, 5 N. Y. Supp. 579 ; s. c. 52 Hun, 450 ; 24 N. Y. State E. 377. Where the labor is performed at the instance of the husband, and with the knowledge of the wife, it will be sufficient to estab- lish his agency and render her estate liable. Havptman v. Gatlin, 30 N. Y. 247. Married Women.— Under the early statutes, with regard to the separate estate of married women, it was held that a mar- ried woman could charge her separate estate and subject it to the operation of a mechanic's lien. Cashman v. Henry, 75 N. Y. 103 ; Husted v. Mathes, 77 N. Y, 388 ; Madder v. Burroughs, 14 Ohio St. 519. MEANING OF TERM "OWNER." 11 The rights and liabilities of married women have now been ex- tended under chap. 381, Laws 1884, as amended by chap. 594, Laws 1892, so that she may make any contract, as if she were single, and she is also empowered to deal directly with her hus- band. The Act of 1884 is as follows : Act of 1884, — § 1. A married woman may contract with her husband or any other person to the same extent, with like effect, and in the same form as if unmarried, and she and her separate estate shall be liable thereon, whether such contracts relate to her separate business or estate or other- wise, and in no case shall a charge upon her separate estate be necessary. (Laws 1884, chap. 381, passed May 28th, as amended by Laws 1893, chap. 594.) Mortgfagee. — A mortgagee will not be deemed an owner unless he is in actual possession of the premises under his mort- gage. Cox V. Broderick, 4 E. D. Smith, 731 ; Ombony v. Jones, 19 N. Y. 234. Infant.— An infant may subject his estate to the operation of the lien, if after attaining his majority he ratifies the con- tract ; so held under similar statutes in Illinois. McCarthy v. Carter, 49 111. 53. Cruardian. — It has been held, however, that a guardian of the property and estate of infants cannot encumber the property held by him in trust. Copley v. O'Neill, 57 Barb. 299. Merger. — Where the lessee's estate is merged in the fee, such merger does not destroy a lien upon the leasehold estate. Jones V. Manning, 6 N. Y. Supp. 338. Tenant. — A tenant, under the prior statutes, could charge only his interest, whatever it may be, and however temporary its tenure. Knapp v. Brovm, 45 N. Y. 207 ; Muldoon v. Pitt, 54 ISi. Y. 269 ; Onibony v. Jones, 19 N. Y. 234. Tenants in possession of separate portions of joint property under a parol agreement for partition may charge the separate lots. Otis V. Cusach, 43 Barb. 546. For other authorities as to consent of the landlord, see " Con- sent, Express or Implied," p. %1, post. Grantor Prior to Delivery of Deed. — One who contracts for the sale of his real estate will be deemed to be the owner within meaning of Laws 1885, chap. 343, until the deed has been actually delivered to the purchaser and recorded. (See Laws 1885, chap. 342, § 5, post.) Lemmer v. Morison, 89 Hun, ;i77. Vendee Prior to Delivery of Deed. — It has been held that a person who has made a contract to purchase land, 12 LAWS 1885, CH. 343, sec. 1. and has not entered into possession, has no " right, title, or in- terest in such estate whioh may be sold under execution" (citing Bates V. Manufacturing Co., 3 N. Y. Supp. 407 ; Higgins v. McConnell, 9 N. Y. Supp. 588), and is not therefore an " owner" within Laws 1885, chap. 353, §1, whose consent will confer the right to a lien. Mitchell Vance Go. v. Daiker, 19 JST. Y. Supp. 378 ; s. c. 46 N. Y. State E. 189. Purchaser Who Buys Subject to Liens.— A pur- chaser who takes a grant of the fee subject to all liens does not thereby become personally liable for such liens, and he may con- test their validity. Jones v. Manning, 6 N. Y. Supp. 338. See also decisions cited under title " Estate Subject to Lien," pp. 19-31, post. MEANiifG OF Teem " Laboe." Under prior lien laws considerable discussion arose as to the meaning of the term " labor," as used in the statute. The ques- tion has arisen as to the services of draughtsmen, architects, superintendents, which are not regarded as toil or manual labor in the ordinary sense. In the Act of 1885, chap. 342, in view of these decisions the legislature has added the word "services." The statute now provides a remedy not only to persons who perform " auy labor," but to those who render services. The courts, however, under the earlier statutes gave a liberal construction to the word " labor," so as to protect architects and professional men engaged in the erection of the structure upon which the lien is tiled. Any Liabor. — Under the statutory term " any labor," is included the skilled labor of the architect who designs as well as the unskilled labor of the person who aids in the erection of the building or structure. Striker v. Gassidy, 76 N. Y. 50 ; Mutual Ins. Go. V. Rotvland, 36 N. J. Eq. 389. The active part which the architect takes during the construc- tion of the building draws his services within the lien law. An architect is entitled to a lien for such services, and interest on the amount allowed therefor. Rinn v. Electric Power Go. 3 App. Div. 305. The Supreme Court of Ehode Island has held that the remedy extends to all labor ordinarily employed in the construction or repair of a building. Butler v. River, 4 R. I. 38. Preparing Plans.— The Supreme Court of Maine, how- ever, have held that services in preparing a plan of a house or a MEANING OF TERM "LABOR." 13 model of a ship did not properly fall within the definition of the term " labor." Ames v. Dyer', 41 Me. 397. The architect is not entitled to a lien for merely preparing plans, but is entitled to a lien for active participation in the manual function of construction, in superintending the work in accordance with his plans, and for the expenses he is put to and interest thereon. Rinn v. Electric Power Co., 3 App. Dit. 305. Time and Skill. — The Supreme Court of Oregon has held under its statutes that time and skill employed in supervising the building or construction of any structure is embraced in the term labor. Williamette v. Reinick, 1 Oregon, 169. Legal Services. — In an action to foreclose a lien for con- structing a line of railroad, counsel employed by plaintiffs to secure the right of way, who have in their possession contracts, deeds, and other papers, have no lien on the fund due from the owners to the contractors or sub contractors within the meaning of chap. 342, Laws 1885. Hilton Bridge 0. Go. v. N. Y. Cen- tral and H. R. R. R. Co., 145 N. Y. 390. Repairing Machinery.— The courts of Maine have held, also, in construing their statutes with respect to the term labor, that services rendered in altering and repairing machinery will not subject the premises to a lien, unless it be shown affirmatively that the machinery constituted a fixture and formed part of the realty. Baker v. Fassenden, 71 Me. 292. Paper Hanging. — Labor performed and materials fur- nished in papering a building, have been held to fall within the purview of the statutes by the Pennsylvania courts. Freeman v. Gilpin, 1 Phila. 23. Painting. — Under the Illinois Statutes the courts have sus- tained a lien for services rendered and materials furnished in painting a dwelling. Marline v. Nelson, 51 111. 422. Terracing and Sodding.— The language of the statute (Laws 1885, ch. 342, § 1) is broad enough to include a claim for terracing and sodding the yard of a building plot. Pickett v. Tollner, 7 N. Y. Supp. 196 ; s. c. 26 N. Y. State K. 691. Grading Roadways.— A lien may also be acquired for labor and materials in and about grading roadways through a tract of land intended to be cut up into building plots, although the lands are vacant and there are no buildings thereon. Fred- ericks V. Goodman Street Homestead Assoc, 61 N. Y. State K. 650 : s. c. 29 N. Y. Supp. 1041. 14 LAWS 1885, CH. 343, sec. 1. Sidewalk.— Owner's consent to repair sidewalk cannot be implied from a lease that tenant keep the " demised preniises" and " appurtenances" in repair, as a sidewalk is no part of either. Mosher v. Leivu, 10 Misc. 373 ; s. c. 64 ]S^ Y. State E. 117 ; 31 N. Y. Supp. 433. Hoisting. — The courts of Pennsylvania also sustained a lien for service rendered in famishing a hoisting machine and der- ricks and the labor employed in their use in the erection of the building. Tizzard v. Hughes, 3 Phila. 261. Transporting Materials.— There are also authorities to the effect that a lien may be had for the labor employed in conveying or transporting materials to the structure which are to be used in its erection. Hill v. Newman, 38 Penn. 151 ; In re Hope, 1 Sumner, 710. Ferriage Excluded. — The Oregon courts have held that the lienor could not recover under his lien an item for the fer- riage paid in transporting laborers to and from the place where the work was performed. Williamette Falls v. Remic]c, 1 Ore- gon, 169. Postage. — An item for postage and similar charges claimed by the lienor in his claim under his lien were also excluded as not within the purview of the statute. — Ih. Cooking. — The California courts have also excluded an item for cooking food for workmen employed upon the building, as not recoverable in an action to enforce the lien. McCormich v. Los Angeles, 40 Cal. 185. Varnisliing and Painting. — The Maine courts have also excluded items for varnishing carpets in and painting fences about the building as not embraced within the purview of their statutes. First Nat. Bank v. Redman, 57 Me. 405. Moving Building. — In Massachusetts it has been held that services rendered in moving a building or structure from one location to another, do not fall within the remedy contem- plated by the lien law. Trask v. Searle, 121 Mass. 229. Extra Work. — Where extra work is performed for the owner, and in pursuance of employment by him or by his direc- tions, a lien may be acquired therefor. Morgan v. Stevens, 6 Abb. N. 0. 357 ; Rush v. Able, 90 Penn. St. 153. There was a clause in the contract authorizing the owner, during the progress of the work, to request " alterations, devia- DAMAGES WHEN NOT RECOVERABLE IN LIEN ACTIONS. 15 tions, additions, or omissions from said contract," to be added to or deducted from the amount of the contract. Held the amount due for " extra work" is money due the contractor,- and applicable to the satisfaction of the lien. Blalceslee v. Fisher, 21 N. Y. Supp. 217. Where the plans have been changed, and in consequence of the change " extra work" has been performed as requested, plaintiflE is entitled to be allowed for it in addition to the contract price. Cassidy v. Fontham, 14 N. Y. Supp. 151 ; s. c. 38 N. Y. State R. 177. Extra Work— How Pleaded.— An allegation that plaintiff " performed certain extra work in and about the build- ing and premises aforesaid, and furnished certain materials there- for, of the reasonable value," etc., is sufficient. Hunter v. Walter, 13 N. Y. Supp. 60 ; s. c. 35 State E. 363 ; affirmed on opinion below 128 N. Y. 668. Damages When not Recoverable in Lien Actions. The question as to the right to recover damages has arisen in actions to enforce Mechanics' Liens. The authorities on the question of damages are as follows : Damages not Recoverable. — The statute, however, extends the remedy only to work, and labor, and materials fur- nished. Hence the lien does not attach, nor can a recovery in its foreclosure be had for damages arising from a breach of the contractjwhich prevents performance. Dennistowny. McAllister, 4 B. D. Smith, 729 ; Miner v. Hoyt, 4 Hill, 193 ; Hoyt v. Miner, 7 Hill, 525 ; Nolan v. Gardner, 4 E. D. Smith, 727. This is the construction also that has been applied by the courts to Laws 1885, chap. 342. The contractor having com- plied with his agreement to a certain stage of the work, was pre- vented by the owner from iinishing the contract, held that his remedy under the lien law extended only to the work and labor actually performed and rendered, and his remedy for damages for the breach of contract was by an independent action at law. Morgan v. Taylor, 5 N. Y. Supp. 920. Damages Liquidated for Delay. — A claim for liqui- dated damages for delay in completing the contract cannot be allowed in an action to foreclose a mechanic's lien, where no actual damage is shown, and there is no presumption arising from the evidence that any damages were sustained. McKee v. Rapp, 69 N. Y. State R. 291 ; s. c. 35- N. Y. Supp. 175. Rent, When Recoverable as Damages.— Loss of 16 LAWS 1885, CH. 342, sec. 1. rent cannot be recovered as damages, by way of counterclaim, where there is no evidence that the defendant complained of the delay while the work was in progress, and the evidence shows that plaintifE's delay could not have afEected the rental value. Horgan v. McKenzie, 17 N. Y. Supp. 174 ; s. c. 43 N. Y. State K. 131. It must be shown that there were applicants for rooms or that by reason of their not being completed applicants had been re- fused or could not take possession, in consequence of defendant's delay and after notice to him. Otherwise damages for loss of rent cannot be allowed. Mc Carthy v. Gallagher, 4 Misc. 188. See also Conover v. Lennon, 46 N. Y. State E. 18. Damages, Fraud, and Deceit.— In an action to fore- close a mechanic's lien, the defendant cannot interpose a counter- claim for damages founded on fraud and deceit or false and fraudulent representations. Marshall v. Cohen, 11 Misc. 393 ; s. c. 65 N. Y. State K. 188 ; 34 N. Y. Supp. 140. Damages, Counterclaim, Jury Trial.— Defendant in a mechanic's lien action interposing a counterclaim for dam- ages has a right to have issues framed for the trial by jury of his counterclaim, and the quantum of damages arising thereon. Bradley & Currier Co. v. Herter, 33 N. Y. Civ. Proc. E. 408 ; 8. c. 30 N. Y. Supp. 270. Damages Assessed on Default. — Under Laws 1873, chap. 489, damages for value of labor and materials could be assessed by the clerk on default, and an erroneous assessment would not make the judgment a nullity. Welde v. Henderson, 6 N. Y. Supp. 176 ; s. c. 35 N. Y. State E. 511. Articles to Which Lies' Attaches. The property, improvements, and appurtenances to which the lien attaches are designated in the. Act of 1885, chap. 343, in comprehensive terms, and include not only the structure itself, but the appurtenances to any lot, including fences, sidewalks, paving, fountains, fish ponds, fruit, and ornamental trees. By chap. 316, Laws of 1888, the provisions of the act were extended to gas fixtures, brackets, and chandeliers or apparatus for electric lights. The general rule seems to be, however, that the article or object upon which the lien is claimed must be attached to and form part of realty,, unless otherwise declared by the statute, as in case of gas fixtures, brackets, and the like. ARTICLES TO WHICH LIES' ATTACHES. 17 Material Must be for the Structure.— The term materials in the statute embrace whatever is ordinarily used in erecting, altering, or repairing, and whatever is necessarily used for those purposes. Bat the materials must be furnished for and used in the particular building. Phillips v. Wright, 5 Sandf. 345 ; Rogers v. Cunier, 13 Gray, 139 ; Weaver v. Sells, 10 Kan. 609. Material for no Special Structure.— It has been held, under prior statutes, that where materials are not furnished for the particular building or structure on which the lien is claimed, but are sold only in the ordinary course of business and with no knowledge of their intended use, the material man can claim no lien upon ascertaining that they have been used in a particular building. Burst v. Jackson, 10 Barb. 219 ; Hatch v. Coleman, 39 Barb. 201 ; Weaver v. Sells, 10 Kan. 609. Mirrors. — Mirror frames fastened permanently into the structure, and intended to be used in and to pass with it, form part of the realty, and are within the statute. Ward v. Kil- patrick, 85 N. Y. 413. Boiler. — A boiler put into a brew house, and which forms a necessary part of the building, is a fixture within the meaning of the statute, and subjects the property to a lien. Gray v. Holdship, 17 Serg. & K. 413. Machinery. — The test applied in Maine and Tennessee, with regard to machinery for manufacturing purposes, was as to whether such machinery would necessarily pass upon a convey- ance of the realty. Iron Mfg. Co. v.- Bynum, 3 Sneed (Tenn.), 368 ; Baker v. Fessenden, 71 Me. 393. Brewing Apparatus. — Where machinery for a brewery is placed. in a brewery building at the request of the owner of the land and building, it becomes a part of the freehold, and the land and building are subject to a lien under the provisions of Laws 1885, chap. 343, in favor of the person who furnishes the machinery. Watts- Cajnpbell Co. v. Yuengling, 135 IST. Y. 1. Heating Furnace. — A furnace and its appurtenances set up in a dwelling-house during its construction become a part of the freehold, and a lien may be had for the price, under Laws 1885, chap. 343, § 1. Schwartz v. Allen, 7 N. Y. Supp. 5. The same ruling was made under the Missouri statute. Good- win V. ElleardsvUle, 5 Mo. App. 389. Stoves and furnaces set up in a dwelling, and in no way 3 18 LAWS 1885, CH. 342, sec. 1. attached to or forming part of the realty, will not subject the property to lien. Lombard v. Pilce, 33 Me. 141. Saw-Mill Engine. — An engine and boiler erected in a saw-mill is a fixture and necessary appurtenant, and subjects the property to the lien. Morgan v. Arthur, 3 Watts (Pa.), 140. Mill-Stones. — Likewise mill-stones placed in a building of which they form part.' Wademan v. Thorp, 5 Watts (Pa.), 115. Bolting-Clotli, forming an essential part of the machinery of a flouring-miil, is also within the statute. Heidegger v. Atlan- tic Mill Co., 1 Mo. App. 327. Boat. — In Arkansas the courts have held, under a statute giv.ing a lien on a wharf, that a boat which is attached to and forms a permanent portion of the wharf, subjects the structure to a lien. Galbreath t. Davidson, 25 Ark. 490. Liightning-Rods. — When affixed ,to a dwelling-house, form part of the realty within the meaning of the statute, and entitles the party furnishing them to a lien for the price. Quimby v. Sloan, 2 E. D. Smith, 594 ; Harris v. Schulte, 64 Iowa, 539. Powder and Fuses furnished for and actually used in the construction of a building are within the statute. Hazard Poivder Co. v. Byrnes, 12 Abb. Pr. 469. Railroad Construction. — An action seems to have been maintained by sub-contractor upon a contract to construct a line of railroad under the general mechanics' lien law, chap. 342, Laws 1885, See Hilton Bridge C. Co. v. N. Y. Central & H. R. R. R. Co., 145 N. Y. 390. Hoisting Apparatus furnished for and necessarily used in erecting a building, held also to fall within the statute. Dixon v. La Farge, 1 B. D. Smith, 722. Theatre Chairs. — Where theatre chairs were manufac- tured with special reference to the form of the auditorium, and attached to the building, held to form part of the realty, within the meaning of the statute authorizing a lien for labor and mate- rials. Orosz V. Jaclcson, 6 Daly, 463. Theatre Scenery. — The courts of Tennessee have also held that theatre scenery, machinery, and chairs, made and affixed in a similar manner, formed part of the freehold, and a ESTATE SUBJECT TO LIEN. 19 lien could be enforced therefor. Halley v. Alloioay, 10 Lea (Tenn.), 523. Counters. — And where counters in a store were not affixed in such a manner that their removal would injure the structure they were held in Maine not subject to the provisions of the lien law. Baum v. Covert, 63 Mass. 113. Illegal Structure. — A lien cannot be acquired for mate- rials furnished for an unlawful purpose, or for the erection of an illegal structure, where it is shown that the parties had knowl- edge of their intended use. Spurgeon v. Mcllvane, 6 Ohio, 443 ; Dorsey v. Langivorthy, 3 Greene (Iowa), 34 ; Bishop v. Honey, 34 Texas, 245. Foreign Contract, Materials Brought into this State. — The statute (Laws 1885, chap. 342) provides that " any person" may have a lien who, with the knowledge and consent of the owner, shall have furnished materials used in a building within this State. When these facts appear the statute is satis- fied, although the contract was made in another State by non- residents of the State. There is no provision in the statute re- quiring the claimant to be a resident of this State. Gamphell v. Coon, 149 N. Y. 556. Where the contract was executed in Connecticut, whereby cer- tain machinery was made and delivered to a Connecticut con- tractor, in Connecticut, and the machinery was subsequently sold to the defendant, who brought it into this State, it was held, under Laws 1862, chap. 478, that as the materials were neither sold nor delivered in this State, they were not the subject of a lien of a material man, who sold and delivered the machinery in Con- necticut. Birmingham Iron F. Co. v. Glen Cove 8. Mfg. Co., 78 N. Y. 30. But where the contract is made in this State, for materials to be brought into this State, and delivered here, a lien attaches for the value of such materials. Fhosnix Iron Go. v. Vessell, &c. , 43 Hun, 429. Contract Made Prior to Passage of the Act.— The statute operates upon a contract executed and pei formed after the passage of a lien law, although the contract was pre- pared and signed before the law was passed. Hauptman v. Cat- lin, 20 N. Y. 247. Estate Subject to Lien. The Lot.— The meaning of the term "lot," where a me- chanic's lien was iiled, was construed by the Supreme Court of 20 LA.WS 1885, CH. 343, sec. 1. Connecticut to include tbe parcel of land inclosed, or so con- nected with the structure as to be naturally understood by the parties as belonging thereto. Bank r. Curtiss, 18 Conn. 342. And the Supreme Court of Ohio, where there were several lots, held that the parcel covered by the lien embraced the parcel in- cluding several lots which were capable of being used together and were actually used in connection with the structure. Chateau v. Thompson, 3 Ohio St. 114. Blanket Lien on Several Buildings.— Where the lots or parcel of land contains several buildings which are being erected under one contract, the lands and buildings embraced within the conltract will be subject to the lien. Paine v. Bon- Mfi/, 4E. D. Smith, 734 ; Moran v. Chase, 53 N. Y. 346 ; HalU. Sheehan, 66 N. Y. 618. And where the contract proyided for payment in a gross sum, the lienor is entitled to be paid out of all or any of the buildings embraced within the terms of the contract. Livingston v. Mil- ler, 16 Abb. Pr. 371. When a blanket lien covering several buildings is filed, it would be wise, if possible, to state the amount claimed on each. Under earlier lien laws, prior to the Act of 1885, subsequent liens, specifying amount due on each building, were given priority over a blanket lien, specifying a lump sum. Broadway Savings Bank v. Cummings, N. Y. Daily Eeg., Jan. 10, 1884. Tenant's Interest. — Where the contract was made with the tenant, the latter' s interest alone can be subjected to the lien. Muldoon v. Pitt, 54 JSl. Y. 369 ; Enapp v. Broion, ih N. Y. 307 ; Dutro v. WiUon, 4 Ohio St. 101. Where knowledge, acquiescence, or consent of the owner of the fee cannot be shown, and the contract was with the tenant only, the latter cannot subject the fee to the operation of the lien. Cornell Y. Barney, 33 Hun, 134. The interest of the lessee, however, embraces all improvements erected by him which may be removed without injury to the free- hold. Omlony v. Jones, 19 N. Y. 334 ; Dobshultz v. Holliday, 83 111. 371. Equitable Owner. — An equitable owner, under prior statutes, could not charge the legal estate by a contract to which the legal owner is not a consenting party. Rollin v. Cross, 45 N. Y. 766. But if the equitable owner subsequently acquires the fee the estate becomes subject to the operation of the lien. Rollin v. Cross, 45 N. Y. 766 ; McOraw v. Godfrey, 56 N. Y. 610. Contractor who Acquires the Fee. — Where the contractor at the time of the execution of the contract has no CONSENT, EXPRESS OR IMPLIED. 21 title, but subsequently acquires the fee, the fee thus acquired becomes subject to the operation of the lien. Corbett v. Green- law, 117 Mass. 167. ' Perfecting of Defective Title.— And where the title of the contractor is defective, and is subsequently perfected, the benefit of the perfect title enures to the benefit of the lienor. McOravj v. Godfrey, 56 N. Y. 610 ; Montandon v. Deas, 14 Ala. N. S. 33. Inchoate Right of Dower.— A mere right of dower, inchoate, is not such an estate in the land as will become subject to the operation of the lien. Vanbroher v. Exstein, 7 Met. (Mass.) 162 ; Grove v. Cather, 33 111. 334; Schaffer v. Weed, 3 Gilm. (111.) 511 ; Bishop v. Boyle, 9 Ind. 169. Nor can the lieu attach to the inchoate right of dower, although the wife agreed to pay for the improvement. Johnston v. Dahl- gren, 14 Misc. 633. Homestead. — A homestead, though usually exempt from ordinary debts under the laws of the various States, has been held to be subject to the operation of a lien for buildings and improvements erected thereon. Thompson v. Wichersham, 9 Baxter (Tenn.), 316 ; see contra Keller v. Struck, 31 Minn. 446. House of Foreign Minister. — The house of a minister, or ambassador, representing a foreign nation, may be subjected to the operation of the lien, where it is shown that the building was not used for purposes connected with his official duties. The burden of proof is on the owner to show that the lex rei situs does not apply. Byrne v. Harron, 1 Daly, 344. Consent, Express or Implied. In view of the limited provisions and narrow scope of some of the earlier statutes, the rights of sub-contractors and material men were frequently made to depend upon the existence of a contract between owner and contractor, and the strict perform- ance of that contract. Liens of sub-contractors and material men were sometimes defeated for the reason that the original contract had not been performed. The property could not be subjected, in many instances, to such liens, because nothing being due upon the original contract by reason of the breach of the contractor, nothing could be claimed by the sub-contractor. 23 LAWS 1885, CH. 343, sec. 1. ualess his rights could be brought strictly within the narrow pro- visions of the statute! In order to cure defects in the earlier statutes whereby the rights of the sub-contractor might be defeated by a dishonest or defaulting contractor, somewhat clearer provisions were incor- porated in the Lien Law of 1885, which authorizes liens in favor of all persons who perform work or furnisli materials " with the consent of the owner" or " any contractor or sub-contractor." It will be observed that the language of the statute may be so construed so as to render the consent of the contractor or sub- contractor, equivalent to the consent of the owner, in so far as to subject the owner's property to the lien. This liability, how- ever, is carefully limited to " the price stipulated to be paid in such contract," and remaining unpaid at the time of the filing of the lien. But in case there is no contract then the liability of the consenting owner is limited to the value of the labor and materials remaining unpaid. Keeping these provisions of the statute clearly in view the doc- trine of consent may readily be understood, and the apparently conflicting authorities, harmonized. The law governing this feature of the Act of 1885 is thus clearly stated by Mr. Justice Pinch in Pell v. Bauer, 133 N. Y., at page 382. "That law," he says, "to some extent, moves outside the legal contract relations. It takes up an imperfect equity and regulates and enforces it, although between sub-contractor and owner there is no agreement whatever. Proceeding upon the idea that he who furnishes material for, or does labor upon a building, should be reimbursed to some just extent out of the improvement of which the owner gets the benefit, it gives him a lien upon the property as security for the proper payment. All that the statute requires as the condition of the lienor's right to such reimbursement is that the labor shall be done upon, or the material furnished for, the building in process of construction, with the assent of the owner or of the contractors." It may be further observed, that in that class of case^, where the contract provides that the owner may perform the contract, in case the contractor fails to do so, such performance by the owner is deemed performance by the defaulting contractor, so far as sub-contractors are concerned, and their liens attach to such portion of the contract price, if any, remaining unpaid, after deducting the cost of completion by the owner. CONSENT, EXPRESS OE IMPLIED. 23 _ Proof of Consent Essential.— In order to render the lien efEectual to charge the land, it must appear affirmatively either that the work was done, or the materials were furnished at the request of the owner or his agent, or at the request of a person contracting with the owner. In the absence of proof of such request or consent, the ownei^s interest in the land is not chargeable. Eossi v. MacEeller, 13 N. Y. Supp. 827 ; s. c. 37 State K. 503. Consent, in Absence of Contract.— A sub-contractor or material man, under chap. 343, Laws 1885, who performs labor or furnishes material at the request of a contractor, may enforce a lien for his labor and materials, independent of the fact as to whether the original contractor has performed or violated his contract with the owner, if he can establish the fact that the owner consented to the performance of the labor or the furnish- ing of the materials. Schmaltz v. Mead, 125 N. Y. 188 ; Berry v. Gavin, 88 Hun, 1. The design of chap. 342, Laws 1885, was to charge the land' with debts contracted in improving it, if the owner consented thereto. As the lands are enhanced by the labor and materials so performed and furnished, it would be manifestly unjust to permit the owner to enjoy the benefits, without liability for the labor or materials which he consented might be performed or furnished to produce them. — lb. All that the statute requires as to the sub-contractor's right to be re-imbursed. is that he shall perform labor, or furnish material with the assent of the owner or contractor. The statute takes up an imperfect equity, and enforces it, although as be- tween sub-contractor and owner there is no agreement. Where, therefore, a contractor avails himself of the labor and materials of a sub-contractor pro tanto in earning the contract^ price, or makes no objection and takes the benefit conferred, the con- tractor's tacit consent gives the sab-contractor a prior lien on the contract price. Pell v. Bauer, 133 N. Y. 377. Where the evidence was conflicting as to whether there was a written contract, but it appeared that plaintiff furnished the labor and materials with the consent of the defendant owner, the existence of a written contract is not material and defendant's consent will support the lien. Marshall v. Cohen, 11 Misc. 392 ; s. c. 65 N. Y. State E. 310 ; 32 N. Y. Supp. 283. Where the owner contracted with H. to do the work, but be- fore its commencement it was agreed that plaintiff, who was to furnish the materials and money to carry out the contract, might receive the money due under the contract ; held that such an agreement was tantamount to an assignment of the contract to plaintiff, and that the owner consented to pay the money to plaintiff and plaintiff could file and sustain the lien. Schalk v. 24 LAWS 1885, CH. 342, sec. 1. JVorrw, 7 Misc. 20 ; s. c. 57 N. Y. State E. 505 ; 27 N. Y. Supp. 390. Standing By and Taking Benefit.— The legislature, in authorizing a lien where the claim of the laborer or material man arose by the owner's consent, intended to enforce the equita- ble principle that one who knowingly takes the benefit of the property and labor of another, in the form of improvements on his lands, ought to have the land subject to the lien therefor. milis V. Bellinger, 6 Hun, 560 ; Otis v. Dodd, 90 N. Y. 336. Consent Implied by Acts and Declarations.— The doctrine of consent extends to cases where an owner by his acts and declarations impliedly consents to the erection of build- ings on his land. And this implied consent becomes operative to the same extent as if such owner had contracted directly for the improvements. Nellis v. Bellinger, 6 Hun, 560 ; Otis v. Dodd, 90 N. Y. 336. Consent Synonymous with "Permission."— The term " consent" in Laws 1885, chap. 342, § 1, is used with the same eSeot as the term "permission" in Laws 1862, chap. 478 (citing Hackett v. Badeau, 63 N. Y. 476). Miller v. Mead, 127 N. Y. 544. Knowledge Implies Consent.— Where the owner is not a party to the contract, his consent thereto will be implied, if it be shown that the work proceeded with the knowledge and approbation of such owner. Hellwig v. Blumberg, 7 JST. Y. Supp. 746. And the same rule applies where it is shown that the owner had knowledge of the fact that the labor was being performed or the materials furnished, and interposed no objection. Husted v. Matthews, 77 IST. Y. 889 ; Nellis v. Bellinger, 6 Hun, 560 ; Kealey v. Murray, 15 N. Y. Supp. 403 ; s. c' 40 J^. Y. State K. 23. Consent by Acquiescence — Evidence. — The con- tract for improvements was made with the lessee, who was an irresponsible person, and the plaintiff sought to charge the land- lord as having given " consent" under Laws of 1885, chap. 342, § 1. Held that the plaintiff was properly allowed to introduce evidence of the owner's way of dealing with the property, from which his acquiescence may be inferred. The term " consent" defined. Ottiwell v. Muxlow, 6 N. Y. Supp. 518. A party in possession of land under contract to pay in instal- ments, and to forfeit all, in default of any instalment, can sub- ject the land to a lien, if the owner acquiesced in the improve- CONSENT, EXPEESS OB IMPLIED. 25 ments. The buildings improved the security and might inure to benefit of owner. Kealey t. Murray, 15 N. Y. Supp. 403 ; s. c. 40 N. Y. State E. 23. Consent Evidenced by the Contract. — Where the owner has made a written contract with the principal contractor, and himself makes the payments therein provided for in good faith, he cannot be charged further by a sub- contractor on the ground of an alleged " consent" under Laws 1885, chap. 342, § 1. In such a case the written contract is the proper evidence of his " consent" and the measure of his liability. Riggs v. Ghapin, 7 IST. Y. Supp. 765 ; s. c. 27 N. Y. State K. 268. The owner of the land agreed with a purchaser to advance a sum of money for . the completion of certain buildings on the land by the purchaser, and on their completion agreed to convey at a certain price. The purchaser made a contract with the plaintifE for materials, which were furnished and used in the buildings. Held that the owner's agreement was evidence of the " consent" required by Law 1885, chap. 342, § 1, and that the plaintiff was entitled to a lien on the land as against the owner. Miller v. Mead, 127 N. Y. 544. To the same effect (citing Rollin v. Gross, 45 N. Y. 766) Bobby V. Day, 3 ]Sr. Y. Supp. 900 ; s. c. 22 N. Y. State E. 92. Materials Ordered at Owner's Request.— The owner of a lot contracted with a building company for the erec- tion of a house on the same, to be equipped with a furnace and range of a certain size. The company ordered the latter of the plaintiffs. Afterward the owner, with the consent of the con- tractors, ordered the plaintiffs to substitute a larger and more expensive furnace and range on his own responsibility. Held that these facts were sufficient to sustain a lien regularly filed against the owner's interest in the real property. Richardson & Boynton Go. v. Reid, 3 N. Y. Supp. 224. Consent of Owner Making Advances. — The legis- lature intended, also, where the claim accrued with the owner's consent, to authorize a lien against the legal owner who con- tracts to sell his land, and advance money to the vendee for the erection of buildings thereon, though the latter is not strictly a contractor. NelUs v. Bellinger, 6 Hun, 560. So where the owner advances money to a party to whom he has contracted to sell, for the purpose of erecting buildings on the land, though the relation of owner and contractor does not exist, still the latter may be entitled to a lien, as having performed labor by consent. Gates v. Whitcomi, 4 Hun, 137 ; Hart v. Wheeler, 1 T. & 0. 403 ; Smith v. Norris, 120 Mass. 58. So where the vendor agrees with the vendee, that the latter 26 LAWS 1885, CH. 342, sec. 1. shall erect buildings on the land, there is an implied consent by the owner of the fee that the materials for such buildings may be furnished and the labor necessary in their construction may be performed. Hackett v. Badeau, 63 N. Y. 476 ; Davis y. Humphrey, 112 Mass. 309. The owner and her husband made a contract with one Kuhn to convey her land to him upon the completion by the purchaser of certain buildings thereon, and agree to advance moneys to be used in completing the buildings. Liens were filed by certain mechanics and material men. Reld that the owner had given her " consent," within the meaning of Laws 1885, chap. 342, §§ 1 and 5, and became liable, and that such liability was not limited by the sums agreed to be advanced by her. Schmaltz v. Mead, 125 N. Y. 188. Agent's Consent.— The owner's husband acted as her general agent thi oughout the transaction, but the moneys were advanced by her, and the contracts, though made in her hus- band's name, were for her benefit. These facts raise a presump- tion of knowledge and tacit consent on her part, which is suffi- cient to establish the lien. — Ih. Where plaintiff was employed by the contractor, and did the work under the direction of defendant's architect, and the proof was clear that defendant knew that plaintiff was doing the work, and it was completed by plaintiff, held that the owner's consent was established, and plaintiH's lien was properly sus- tained. New V. Carroll, 73 Hun, 564 ; s. c. 56 N. Y. State K. 425 ; 26 N. Y. Supp. 320. Liandlord and Tenant— Improvements. — Where the owner makes a lease, with an agreement that the tenant shall make improvements, which are to become the property of the landlord at the expiration of the term, there is an implied con- sent of the owner to furnish the necessary labor and materials for such improvements. Biirkitt v. Harper, 79 N. Y. 273 ; Otis v. Dodd, 90 ISr. Y. 336 ; Mosher v. Lewis, 10 Misc. 373 ; s. c. 64 N. Y. State K. 117 ; 31 N. Y. Supp. 433. The lease authorized the tenant to keep the " demised prem- ises with the improvements" in good repair at his own expense, and that the lessors " should not be liable therefor." Eepairs and improvements to belong to lessors at expiration of lease. The lease was recorded. Held that the record was not constructiye notice to the contractor that the lessor should not be liable, and that the presence of one of the owners as the work progressed, and his approval thereof, imputed " consent," and that the lien could be sustained as against such owner. Mosher v. Lewis, 10 Misc. 373 ; s. c. 64 N. Y. State E. 117 ; 31 N. Y. Supp. 433. Where the owner agreed with the lessee, that the latter might CONSElirT, EXPRESS OR IMPLIED. 27 make improvements on the land to become part of the premises, and remain thereon the property of the owner, and the lessee agreed with the owner that he would at the expiration of the lease allow the improvements to remain, or restore the premises to their original condition, if the owner so requested, the con- sent of the owner to the improvements will be implied, and a lien for the improvements will attach to the interest of the owner. Hanhinson v. Riher, 10 Misc. 185 ; s. c. 62 N". Y. State E. 484 ; 30 N. Y. Supp. 1040. Such written agreements between owner and lessee cannot be restricted by parol evidence, so as to limit the cost of the im- provements to be made. — lb. See also Lowry v. Woolsey, 83 Hun, 357 ; s. o. 64 N. Y. State E. 860 ; 31 N." Y. Supp. 1110. A landlord who does not by the terms of his lease covenant to make repairs, is not liable to one tiling a mechanic's lien for such repairs, made under a contract with the tenant. In such a case mere knowledge and acquiescence by the landlord will not con- stitute " consent" within § 1, Laws 1885, chap. 342. McCauley v. Haffield, 59 N. Y. State E. 552 ; s. c. 28 N. Y. Supp. 648. where the lease provided that the tenant should not " make any alterations therein without the written consent of the" land- lord, and before the lease was executed, and as an inducement thereto the landlord agreed to allow the tenant to put a tiq^ front in the building, for which the landlord (a corporation) agreed to pay by making an allowance upon the lease, held that the allowance so made by the landlord was payment by him before the filing of liens, and the landlord's interest was not sub- ject to the liens. Regan v. Borst, 11 Misc. 92 ; s. c. 66 N. Y. State E. 193 ; 32 N. Y. Supp. 810. It was held also that it was incumbent upon plaintiff under such a lease to show the written consent of the landlord, and that its consent could not be implied in the absence of the writ- ing. — lb. Under the Act of 1875 it has been held that where the owner who visited the premises while his lessee was making certain improvements, which he had a right to make, and approved of the same, he does not thereby subject his interest to a lien for the value of such improvements on the ground that he has given his consent under Law 1875, chap. 333. Only the lessee's inter- est is liable. Jones v. Manning, 6 N. Y. Supp. 338 ; s. c. 25 ]Sr. Y. state E. 771. To the same effect is the case of Craig v. Stvinerton, 15 N". Y. Superior Ct. E. 144. Defendant Striker, the owner, leased a lot to defendant West Side Electric Light Co. The company erected a building thereon, and placed machinery therein. The owner, acting as a^ent of his tenant, assisted in the erection of the building. Held that since the owner was acting altogether as agent of the 28 LAWS 1885, OH. 343, sec. 1. tenant, his acts were binding on the tenant, and his " consent" as owner could not be inferred therefrom. Havens v. West Side Electric Light Co., 44 State E. 589 ; s. c. 17 N. Y. Supp. affirmed, 20 N. Y. Supp. 764. Where landlord was a corporation, see " Consent of Corpora- tion," infra. As to the interest of a tenant to which lien attaches, see " Ten- ant's Interest," ante, p. 20. Consent— Stipulating to Discharge Liens.— Con- sent to the creation of liens may also be implied where the owner makes a contract to convey the land, and consents to a stipula- tion in the contract of sale, that before delivery of the deed all liens upon the property shall be discharged. Such a stipulation obviously contemplates the creation of liens. Murley v. Bar- roil), 11 Allen (Mass.), 152. The contract contained a provision that no payments should be made thereunder till a county clerk's certificate showing that there were no liens was first obtained. The contractor assigned to a bank all sums due and to grow due under the contract be- came insolvent, and abandoned the work, which was completed by sub-contractors under the contract. Held that the bank was bound by the provision requiring certificate before payment that there were no liens and impliedly consented thereto, and was not entitled to payment till after the liens were paid. Bates v. Trus- tees, &c., 7 Misc. 609 ; s. c. 58 N. Y. State E. 790 ; 27 IST. Y. 951. Married Woman's Consent. — A married womau's con- sent will be inferred when, having knowledge of the fact that improvements are being made on her lands by her husband, she iuterposes no objection thereto. Husted v. Matthews, 77 N. Y. 389 ; Schmaltz v. Mead, 125 N. Y. 188 : Berrv v. Gavin, 88 Hun, 1. It has been held, however, under Laws 1880, chap. 143, a local statute, limited to the city of Buffalo, that a married woman's consent will not be inferred where it clearly appears the contract for the improvements were made expressly with the husband, and the credit is given to him. Ziegler v. Galvin, 45 Hun, 44. But where it is claimed that the husband is the wife's agent, and the agency is denied, the husband may be called and exam- ined on behalf of the wife, on the subject of the agency, and it is error to exclude his testimony. Rope v. Hess, 6 N. Y. State Eep. 710 reversed ; Rope v. Hess, 118 N. Y. 668. Consent of Owner out of Possession.— Where the true owner is not in possession, and the person in possession is a trespasser, having no interest in the land, the statute does not CONSENT, EXPRESS OK IMPLIED. 29 impress a lien upon the land, unless the owner is in some way- connected with the contract, or has given his consent to the im- provements in such a way as to bind him within recognized prin- ciples of equity. Spruck v. McRoherts, 139 N. Y. 193. Where the owner is out of possession of the land, one who con- tracts with a person in possession is bound to inquire as to what interest, if any, the party in possession has in the land. And if the person in possession has no interest in the property the con- tractor can acquire no lien, — Ih. The same principle as between landlord and tenant, and con- tractor, who contracts with tenant, and who is subsequently notified that the tenant has lost his right to the land. Lowry v, Woohey, 83 Hun, 257 ; s. c. 64 N. Y. State R. 860 ; 31 N. Y. Supp. 1110. If the tenant contracts for improvements, but subsequently re- fuses to pay rent or sign a lease,' and the landlord notifies the contractor that the tenant has lost his right to the land, the latter can acquire no lien as against the landlord. Lowry v. Woolsey, 83 Hun, 257. Refusing to Consent— Forbidding Work. — The owner contracted to sell the land to defendant, who failed to make the payments required by the contract, and was forbidden to enter upon the land till the first instalment of purchase-money was paid. The owner becoming aware that work was begun directed it to be stopped. Work was subsequently resumed without proof of owner's permission, and vendee was subse- quently ejected for failure to make the payments required. Held the " consent" of the owner could not be inferred. Cowen v. Paddock, 137 N. Y. 188. Consent of Corporation. — Where the landlord was a corporation, and under the lease the tenant was to make no alterations without the written consent of the landlord, it seetns that personal knowledge of the secretary or treasurer of the cor- poration as to improvements, being knowledge of individuals, would not bind the corporation, as the power to consent implied the power to contract, and the individuals could not consent for the corporation unless authorized by it. Regan v. Borst, 11 Misc. 92 ; s. c. 66 N. Y. State R. 193 ; 32 N". Y. Supp. 810. Corporation — Employment by Building Com- mittee. — Sub contractors performing work upon a structure under one employed by a building committee, duly authorized by vote of the corporation owning the fee, will be deemed to fur- nish their labor by the owner's consent. Morse v. School Dis- trict, £u., 3 Allen (Mass.), 307. Capacity to Consent. — Where consent is relied upon it 30 LAWS 1885, CH. 342, SEC. 1. must be shown that the party whose consent is alleged had the legal capacity to confer the right to perform the work and fur- nish the materials. Donaley v. Vlapp, 13 Oush (Maps.), 440. Same principle, where the party sought to be charged with consent was a corporation, and it was sought to imply its consent from the fact that some of its officers personally knew that the work was being done by the lienor. Held not to bind the cor- poration. Regan v. Borst, 11 xMisc. 92 ; s. c. 66 N. Y. State E. 193 ; 32 N. Y. Supp. 810. Consent, How Pleaded.— The complaint need not state how or under what circumstances the owner's consent was given. After setting forth the performance of the work and furnishing of materials, it will be sufficient to allege that the building was erected by the lessee of the premises, with the knowledge and consent of the owner. Ross v. Simon, 9 N. Y. Supp. 536 ; re- versing Ross V. Simon, 8 N. Y. Supp. 2 ; s. c. 28 N. Y. State E. 137. The Con-tract and its Piiovisioiirs. The second section of the act (Laws 1885, chap. 342) express- ly recognizes all contracts for labor and materials, whether such contracts are " oral or written." Statute of Frauds. — The statute of frauds can have no ap- plication to contracts under the Mechanics' Law, as now existing, not only by reason of the language of the statute expressly authorizing liens for work done under oral contracts, but the con- tracts must be executed before they are or can be enforced. Every contract or agreement before it can avail a lienor must be shown to have been executed, to the extent of the value of the services or materials claimed. The statute of frauds covers only executory contracts and collateral promises, and can have no ap- plication, where the contract has been performed. The Act of 1885, chap. 343, further expressly provides for cases where there is no contract at all, and there is no requirement in the statute that the consent to furnish materials or perform labor shall be in writing. The case of Loonie v. Hogan, 9 N. Y. 435, is not an authority for the proposition that a parol promise by the " owner" to pay for materials furnished to a material man, cannot be enforced ; the Court having expressly held that the defendant was not " the owner" within the statute. That case arose in 1854, under THE CONTKACT. 31 the lien law of 1830, which embraced only claims for work and materials furnished pursuant to " a contract in writing between the owner and builder or other person." The plaintiff, a mate- rial man, sought to hold the seller of the land, for cut stone fur- nished the contractor. The contract was to sell the builders a lot of land, and loan them the money to build thereon, in in- stalments. The deed was to be delivered when the building was enclosed. Under the early lien law of 1830, with its narrow provisions, the Court held that under such a contract the seller was not " the owner" within the meaning of the act, and that his parol agreement to pay the debt of anocher did not render him liable in the action to plaintiff. The more recent statutes and particularly the Act of 1885 fur- nish ample remedies to protect the rights of all parties in inter- est, who have complied with its spirit and provisions, whether the consent, agreement, or contract is written or verbal ; and, as we have observed, the second section of the Act of 1885 expressly recognizes all contracts for labor and materials, whether " oral or written." Verbal Contract.— Claims for work and labor must be executed in order to fall within the operations of the statute. They may embrace agreements which are either verbal or writ- ten. Nor is it 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. Under the lien law of 1830, authorizing liens only where there had been a contract in writing between " the owner" and con- tractor, it was held that a vendor, who had made an agreement to sell to builders, the latter to pay in instalments, being in pos- session, was not " an owner" within the meaning of the Act of 1830, and his parol promise to pay the debt of a contractor could not be enforced against him. Loonie v. Hogan, 9 N. Y. 435. The Contract — The Debt — Particular Clactsbs. The Debt. — The obligation, or indebtedness, existing upon contract, express or implied, in favor of the person seeking to subject the property to the operation of the lien, is the founda- tion of the claim of every lienor. Dixon v. La Farge, 1 E. D. Smith, 722 ; Gay v. Brown, 1 E. D. Smith, 725 ; Pendleiurg v. Meade, 1 E. D. Smith, 728 ; Broderick v. Pnillon, 2 E. D. Smith, 554 ; Quinn v. New York, 2 E. D. Smith, 558 ; Walk- er v. Paine, 2 E. D. Smith, 662 ; Myers v. Burnett, 7 Daly, 33 LAWS 1885, CH. 342, sec. 1. 471 ; De Runde v. Ohnsfead, 47 How. 175 ; Xnapp v. Brown, 45 N. Y. 207 ; Muldoon v. Pitt, 54 N. Y. 269 ; Cornell v. Bar- ney, 94 N. Y.' 394. The Debt Extinguished.— "Where the amount of the indebtedness due the lienor has been paid and the debt extin- guished, the lien is no longer operative and cannot be enforced. Any sum agreed upon in the contract as compensation for dam- ages sufiEered by the contractor, by reason of any default on the part of the owner, cannot be enforced by virtue of the lien, but must be recovered in an independent action at law. Nolan v. Gardner, 4 E. D. Smith, 727 ; Hoyt v. Miner, 7 Hill, 525. Definite and Certain.— The contract upon which the lieu is predicated must be sufficiently certain and definite, to en- able the amount claimed thereon to be determined with reason- able precision and accuracy. Wilder v. French, 9 Gray (Mass.), 393 ; Manchester v. Searle, 121 Mass. 418. Postscript. — A postscript, where the contract is in dupli- cate, written upon one copy, in the presence and with the oral consent of all parties, will be construed to form part of it, and to be valid and binding. Close v. Clark, 9 N. Y. Supp. 538 ; s. c. 30 N. Y. State E. 671. Ambiguities, Uncertainty, Indeflniteness.— Where a contract is ambiguous, indefinite, and uncertain, while it cannot be varied by parol evidence, the testimony of experts is admissible to explain it. Words cannot be added or substituted, but technical words and phrases may be explained. Cassidy r. Fontham, 14 N. Y. Supp. 151 ; s. c.' 38 N. Y. State R. 177. Clause Providing for Discharge of Liens.— A clause in a contract that before receiving final payment the contractor shall furnish proof that all liens and claims for work under the contract had been paid and satisfied, must be complied with, and the contractor cannot recover until such proof has been furnished. Fogg v. Suburban Transit Co., 90 Hun, 274. An assignee of the contract will be bound by such stipulation to the same extent as the assignor. Bates v. Trustees, &c., 1 Misc. 609 ; s. c. 58 K Y. State R. 790 ; 27 N. Y. Supp. 951; Bates V. Salt Springs Nat. Bank, 88 Hun, 236 j s. c. 68 N. Y. State R. 282 ; 34 N. Y. Supp. 598. Clause Waiving Right to File Lien.— Where a con- tractor by a provision on his contract waives his right to file a mechanics' lien, any party interested may demand a strict per- formance of the contract. Mattheivs v. Young, 16 Misc. 525. THE COKTRACT. 33 Term " Excavating" in Contract. — Where the agree- ment provided that the contractor should do " all the excavat- ing," and rock was subsequently discovered, and it was then agreed that the expense of blasting should be borne equally by the contractor and owner. Held that the last agreement consti- tuted a separate contract, and in view of this fact the words " all excavating"' did not necessarily include blasting. Hellwig v. Blumenberg, 7 N. Y. Supp. 746 ; s. c. 38 N. Y. State E. 75. Term "Mason Work."— The contract provided that plaintiff should do the " mason work." Held that he could show by expert testimony that the mason work did not include " plastering and whitewashing." Hightony. Dessau, 19 N. Y. Supp. 395 ; s. c. 46 N. Y. State K. 923, atfirmed 139 N. Y. 607. Term "Alterations in Plan of Construction." — The contract provided for ' ' alterations in the plan of construc- tion." After construction of a portion of the building, water overflowed, through no fault of the contractor, damaging the area walls, so that they had to be taken down and rebuilt. Held that such rebuilding was not embraced within the term " Altera- tions in plan of Construction,' ' in the contract, but was separate, independent work. Fay v. Muhelcer, 30 N. Y. Supp. 671. Term " Plumbing Work." — The contract provided that plaintiff should " furnish all materials and labor for plumb- ing and gas fitting in two houses." Held that plaintiff could show by experts that ranges were not " material for plumbing," nor was setting ranges " labor for plumbing." Cassidy v. Fon- tham, 14 N. Y. Supp. 151 ; s. c. 38 N. Y. State E. 75. Evidence of Custom in Plumbing Trade.— Evi- dence as to whether there is a custom in the plumbing trade when specifications included ranges, for the plumber to furnish and put up the ranges, is incompetent, but an expert may testify as to whether " ranges" are considered " plumber's materials." Cassidy v. Fontham, 14 N. Y. Supp. 151 ; s. c. 28 N. Y. State E. 75. Words " Liable to Pay."— The words " liable to pay" ia Laws 1885, chap. 343, § 1, have been construed to mean liabil- ity to pay under and by virtue of the owner's contract, and in ac- cordance with its terms. Heckmann v. Pinkney, 81 N". Y. 217. An owner, in the absence of an agreement making himself per- sonally liable to a sub-contractor, is liable to the latter only to the extent of the amount remaining unpaid on the contract at the time of filing the lien. Hutton Bros. v. Gordon, 3 Misc. 367 ; s. 0. 33 N. Y. Supp. 770. 3 34 LAWS 1885, CH. 343, seo. 1. Provisions for Arbitration When Not Binding. — Where the contract provided that the differences between the parties shall be submitted to arbitration, andit is no more the duty of plaintiff than defendant to procure their selection, and it did not appear that defendant took any steps to arbitrate, held that the defence is unavailing. Smith v. Alker, 103 N". Y. 87. The Co2>rTEACT — Illegality, Limitations, Identitt. Illegal Contract.— A contract which is illegal cannot be enforced by proceedings to foreclose a lien. Where the agree- ment was to furnish labor or materials for an illegal structure, with the object and intent of aiding and furthering an illegal de- sign, the lienor who knowingly and wilfully aided in the work was denied relief. Dorsey v. Zangwortliy, 3 Iowa, 341 ; Sjmr- geon v. McElwain, 6 Ohio, 444 ; Bishop v. Honey, 34 Texas, 348. Statute of Limitations. — In those States where the statute is so framed that the lien might fall within the statute of limitations, if barred thereby it cannot be enforced. Yeates v. Wheadon, 6 Bush (Ky.), 438 ; Vandire v. Hodge, 4 Bush (Ky.), 538 ; Hills v. Halliwell, 60 Conn. 370. Infant's Contract. — Where the contract has been executed by an infant, he may enforce a lien therefor. The statutory dis- ability of infancy is created solely for the benefit of the infant, and cannot be taken advantage of by another to defeat the in- fant's rights. Van Brenner v. Cooper, 3 Johns, 379 ; Hartness v. Thompson, 5 Johns, 160 ; McCarty v. Carter, 49 111. 53. Married Women's Contract. — A married woman may likewise enforce by lien a contract executed in relation to her separate estate. Cashman v. Henry, 75 N. Y. 193 ; Husted v. Mathews, 77 N. Y. 388. Note. — -The early decisions with regard to married women's contracts have no bearing, since the enactment of chap. 381, Laws 1884, as amended by Laws 1893, chap. 594, authorizing a married woman to contract, even with her husband, as if she were single. See test of the statute on page 38, ante. Identity of Contractor.— Contract Executed by Plaintiff's Agent. — In an action to foreclose a lien by the contractors, the tirm of B. J. Dennis & Son, defendant claimed he made the contract with a third party, not with plaintiff. This third party was an architect and a son of one of the plain- tiffs and brother of the other. He signed the contract " Ernest Dennis, Architect." It was shown that plaintiff did the work, THE CONTRACT. 35 and defendant made one of her checks payable to plaintiffs. Ernest Dennis testified he acted as plaintiff's a"gent in signing the contract. Held sufficient to support finding in favor of plaintiffs. Dennis v. Walsh, 16 N. Y. Supp. 257 ; s. c. 41 State K. 103. The Contract — Substantial Performance Excuse for Non-Performance. Substantial Performance.— Performance of the con- ditions and requirements of the contract are essential to author- ize its enforcement by the lienor. But a substantial compliance' and not a literal perfdnnance of the terms of the agreement is all that justice requires in this class of cases. Ringle v. Wallis Iron Works, 149 N. Y. 439 ; Olaucius v. Black, 50 N. Y. 145 ; John- son T. De Peyster, 50 N. Y. 666 ; Phillips v. Gallaut, 63 N. Y. 264 ; Hevkmann v. Pinkney, 81 N. Y. 211 ; Woodward v. Fuller, 80 N. Y. 313 ; Wright t. Roberts, 118 N.Y. 673, affirming 43 Hun, 413 ; Nunan v. Doyle, 18 N. Y. Supp. 193 ; s. c. 44 State E. 836 ; Murphy v. Stickley Simonds Co., 83 Hun, 158 ; s. c. 63 N. Y. State E. 744, 31 N. Y. Supp. 395. And it has been held that this substantial compliance must be shown affirmatively by the lienor, although not denied specifi- cally in the answer. Hoag v. Hinemeyer, 15 Weekly Digest, 333. The contract provided for a second payment, " when cornice is set, siding on, and floors laid." The evidence showed that a small portion of the siding, which could be done better at a later stage, was omitted. The owner made no objection to the omis- sion, but promised payment. The referee found that there was a substantial compliance, and that the second payment was due. Held no error, and that the finding would not be disturbed on appeal. Rogers v. McGuire, 10 N. Y. Supp. 831 ; s. c. 33 N. Y. State E.- 1104. Substantial performance depends somewhat on good faith ; and if plaintiff intended to and tried to perform, and omitted slight matters by inadvertence, he may be allowed the contract price less an amount which will fully compensate the owner for dam- ages sustained by all omissions. Murphy v. Stickley Simonds Oo., 82 Hun, 158 ; s. c. 63 N. Y. State E. 744 ; 31 N. Y. Supp. 395. Where the contractor intended to perform in good faith, but omitted to do so in some slight particular, and there is nothing to show that the omission was wilful or fraudulent, or other than the result of an honest mistake, and the contractor was not notified of the omission to perform till after the lien was filed, and the owner completed at the expense of the contractor, held that there was a substantial performance. Ringle v. Wallis Iron Works, 149 N. Y. 439. 36 LAWS 1885, CH. 343, sec. 1. Substantial Compliance— Offer to Perform.- When the work was finished, the owner not appearing to be sat- isfied, plaintiff went to him with a carpenter and oEEered to per- form any work he desired to have done to complete the contract. The owner refused to point out or designate any work unfinished. Held a substantial performance. Dennis v. Walsh, 16 JST. Y. Supp. 357 ; s. c. 41 N. Y. State E. 103. Excuse for Non-Performance— Withholding Intermediate Payment.— Where a payment which is not final was withheld because trifling unimportant work remained undone, where such work could have been readily done there- after, and there was no proof that it would not have been done had the payment been made. Held a substantial performance, which entitled plaintiff to the payment. Highton v. Dessau, 19 K Y. Supp. 395, affirmed 139 N. Y. 607 ; Hunter v. Walter 12 N. Y. Supp. 60 ; s. c. 35 N. Y. State E. 363, affirmed on opin- ion below, 138 N. Y. 668. Excuse for Non-Performance. — When the contractor has been prevented by the acts or conduct of the owner from completing the contract, he will not be debarred thereby from enforcing his lien. Insolvency of the owner, which prevented performauce, is a valid excuse for non-performance. Hender- son V. Sturgis, 1 Daly, 336. Where delay has been occasioned by the fault of the owner, or his employees in failing to complete work which in the nature of things had to be first performed, the lienor is excused for the delay. Weelcs v. Little, 9 Abb. N. 0. 415. Where work was done under an oral contract, certain portions of which the owner agreed to reduce to writing, his subsequent refusal to execute the writing is a breach of contract, which ex- cuses further performance on the part of the contractor. 'Smith v. O'Donnell, 15 Misc. 98. Where the contract provided that, before receiving final pay- ment, the contractor should furnish proof that all liens and claims for work under the contract had been paid and satisfied, this proof must be supplied ; and if liens are shown to exist for any of the work, there has been no performance, and the contractor cannot recover. Fogg v. Suburban Transit Co., 90 Hun, 274. If performance was prevented by the owner, the latter can make no claim for expenditures made after his own breach of the contract. Wolf^. Horn, 13 Misc. 100 ; s. c. 66 JST. Y. State R. 860 J 33 N. Y.' Supp. 107. Excuse— Delay of Sub-Contractor by Other Contractors. — Performance by plaintiff, a sub-contractor, was delayed by failure of other contractors to perform promptly. THE CONTRACT. 37 The nature of the work of the contractor rendered it necessary to be done before it was possible for the plaintiff to complete. Afterward plaintiff offered to complete, and was not allowed by the owner to do so. Held the delay under the circumstances was excusable. HigMon v. Dessau, 19 N. Y. Supp. 395 ; s. c. 46 N. Y. State K. 932, affirmed 139 N. Y. 607. A sub-contractor who has agreed to famish the contractor with materials of a special design will be held liable by the contractor for such delay, and must indemnify the contractor for all dam- age arising therefrom. Murdoch v. Jones, 3 App. Div. 221. Excuse— "Violence and Abuse. — Plaintiff, a carpenter, when he had almost completed his contract, was abused and ill- treated by defendant, who called plaintiff a swindler and a fraud, knocked him down, kicked him, and told him to get out, and never come into the building again. Held that plaintiff was ex- cused from further performance, though subsequently notified to complete, and could enforce his lien for sums due. Sproessig v. Kentel, 17 N. Y. Supp. 839 ; s. e. 43 JST. Y. State E. 794. Excuse — The Architect's Certificate.— In the ab- sence of evidence that the architect's certificate was fraudulently or unreasonably withheld, and the contract requires such certifi- cate, a recovery cannot be had under the contract, unless it be shown that such certificate was given. Beeclier v. Sclmiach, 23 JSr. Y. Supp. 604, affirmed 1 App. Div. 309. Plaintiff agreed to do the mason work. The architect refused to give a certificate under the contract because the " plastering and whitewashing" was not done. Plaintiff showed by expert evidence that these items were not included in the " mason work." Held that the refusal to give the certificate was unrea- sonable, and did not preclude a recovery. Highton v. Dessau, 19 N. Y. Supp. 395 ; s. c. 46 N. Y. State E. 922, affirmed 139 N. Y. 607. Where the architect refuses to give a certificate to the subcon- tractor, who has performed, on the ground that he has already given a certificate to the owner, the refusal is unreasonable, and dispenses with the necessity of producing the certificate. Mur- doch V. Jones, 3 App. Div. 221 ; Schillinger Cement Co. v. Ar- nott. 86 llun, 182. When the contract provides that " fifteen per cent, of the amount due" shall be retained to insure faithful performance, if it appears that the expense of completion from a stage in the construction would be substantially the full amount unpaid of the contract price, the architect is justified in refusing a certifi- cate. Kelly V. City of Syracuse, 10 Misc. 306 ; s. c. 63 N. Y. State E. 534 ; 31 N. Y. Supp. 283. Plaintiff may prove by a witness other than himself that the 38 LAWS 1885, CH. 34:2, sec. 1. architect refused to give a certificate, and such evidence will ex- cuse the non-production of the certificate. Decher v. O'Brien, 1 App. Div. 81. After abandonment by the contractor and completion by the owner, the architect's certificate of completion is not necessary as to sub-contractors. WeeJcs v. O'Brien, 141 N. Y. 199 ; Oamp- iell V. Coon, 149 N. Y. 556. Where the contract provided that the architect should have entire supervision of the work, that the work was to be done to the satisfaction of the architect, and that before paynients were made he should certify that the work was done to his satisfac- tion, held that his certificate was final as to the owner. Smith v. Smith, 7 Misc. 37 ; s. c. 57 N. Y. State R. 86 ; 37 N. Y. Supp. 379. Allowance for Work If ot Performed. — The con- tract price was $7,000. The defects found by the referee aggre- gated $375. It appeared that extra work was done, exceeding amount of omissions. The plans were changed and more work done at owner's request than was called for by the specifications. The referee deducted for sums expended by owner to complete. Held that there was a substantial performance in accordance with original contract, and the judgment allowed plaintiff was correct. Valk v. McKenzie, 16 N. Y. Supp. 741 ; s. c. 41 N.Y. State R. 36. Waiver of Performance. ' Waiver of Performance— Quantum Meruit.— Where, after the work has progressed to a certain stage, the con- tract is abandoned by the mutual consent and agreement of the parties, the lien may be enforced upon a quantum meruit. Pow- ers V. Hogan, 67 How. Pr. 355 ; s. c. 13 Daly, 444 ; Wolf v. Horn, 13 Misc. 100 ; s. c. 66 N. Y. State E. 860 ; 33 N. Y. Supp. 173. Where the contractor refused to complete, because the owner failed to comply with his contract, and failed to make the pay- ments as agreed, the contractor may recover the agreed price or reasonable value of the work done and materials furnished to the time of the breach, and have a lien therefor. Wright v. Reusens, 133 N. Y. 398 ; Thomas v. Stewart, 133 N. Y. 580. The owner having failed to perform on his part, is not in posi- tion to terminate the contract, and such failure excuses further performance on the part of the contractor. — lb. Failure of owner to pay instalments when due and payable, justifies the contractor in abandoning the contract. He may then enforce a lien for the value of the work and materials to time of the breach upon a quantum meruit. Hunter v. Walter, WAIVEE OP PERFOEMANCE. 39 12. N. Y. Supp. 60 ; s. c. 35 N. Y. State E. 363, affirmed on opinion below, 138 N. Y. 668. Where the owner employed a contractor to do the work, and plaintifE furnishing^ materials on the promise of the owner to pay therefor, plaintiff is entitled to a lien, though no contract was shown between plaintiff and the contractor. Kruger v. Braen- der, 3 Misc. 375. Waiver of Architect's Certificate. — Acceptance of a building by the owner as completed, operates as a waiver of the requirement that the contractor shall procure the architect's certificate before he shall be entitled to final payment. The contractor, after such acceptance, is entitled to recover though no certificate is given, and the architect is not satisfied. Smith v. Alher, 103 IST. Y. 87. Where the architect's certificate has been waived, by making payments without requiring its production, it may be procured at any time before the trial of the action, and offered in evi- dence. Hartley v. Murtha, 5 App. Div. 408. Waiver — Acceptance of Note When Not. — The acceptance by material man of owner's notes will not defeat the lien, where the term of credit was not extended beyond the time within which the contractor could file his lien. Jones v. Moore, 67 Hun, 109 ; s. c. 23 N. Y. Supp. 33. Waiver hj Arbitration. — The right to file a notice of mechanic's lien is waived and surrendered when the parties have submitted all matters in dispute to a common law arbitration. No recovery can be had upon a lien filed after such submission. N. Y. Lumber and Wood- Working Co. v. Schneider, 1 N. Y. Supp. 441 ; s. c. 16 JST. Y. State R. 698. But where the arbitration is not provided for by the terms of the contract, a sub-contractor is not bound by such arbitration between the owner and contractor to which he did not consent. Notice will not bind the sub-contractor, if he does not become a party to it. Cook v. Odd F.eUows' Fraternal Union, 49 Hun, 33. Waiver — Departure from Plan. — Where there have been departures from the original plan, which has been concurred in by the parties, and made by mutual consent, such consent when acted upon operates as a waiver of the express terms of the contract. Close v. Glarlc, 9 JST. Y. Supp. 538 ; s. c. 30 N. Y. State E. 671. Waiver as to Time. — Where the time prescribed by the contract has expired, and the builder is notified to go on and complete the contract, such instructions operate as a waiver of 40 LAWS 1885, CH. 343, sec. 1. the provision as to completion within the time limited in the contract. Close y. Glarlc, 9 N. Y. Supp. 538 ; s. c. 30 N. Y. State E. 671. Waiver of Forfeiture Clause.— Where the contract permits the owner to forfeit the contract, on the default of the contractor, or to give notice and complete at the expense of the contractor, he may either stand upon the forfeiture or waive it, and complete under the contract. If the forfeiture is waived the liens of sub-contractors will attach to any balance in excess of the cost of completion. Ogden v. Alexander, 140 N. Y. 356. As to Waiver in Subsequent Action.— Where the owner employed a builder and subsequently paid for a portion of the materials used by the builder, thereafter, in an action by a receiver of the builder against the owner for extra work, held that the owner could set ofE the amount paid for the builder's materials, although he did not claim such ofE-set in the action to foreclose the builder's lien, and his failure to do so constituted no waiver in the subsequent action for extra work. Frost v. McGinnis, 3 N. Y. Supp. 241 ; s. c. 22 N. Y. State E. 41 ; 15 Daly, 113. Completion^ of Contract — Abandonkent — Completion BY Owner. Important questions arise where the contract has been aban- doned and the owner completes it. The authorities establish the rule to be that where the contractor abandons the work and there is nothing due him, and the owner finishes the work independent of it on his own account, that sub-contractors and material men who have filed liens could recover nothing in the absence of " consent by the owner," because, as nothing was due or would become due under the abandoned contract, the sub- contractor could recover nothing. But where the owner elects to complete the broken contract as agent of the defaulting contractor, the liens of material men and sub-contractors will attach to whatever remains due upon the contract after deducting the cost of completion. Abandonment. — Under the statutes enacted prior to Laws 1885, chap. 342, it has been held that where the contractor aban- dons his contract, he thereby defeats the sub-contractor's right to recover. Allen v. Carmen, 1 E. I). Smith, 692 ; Linn v. O'Hara, 2 B. D. Smith, 560 ; Ferguson v. Burke, 4 E. D. Smith, 760 ; Smith v. Ferris, 1 Daly, 18. COMPLETION OF CONTRACT. 41 Under Laws 1885, chap. 343, it has been held that where " conseat" was not shown, and the work has been abandoned be- fore completion, the contractor thereby forfeits all right to any balance due under the contract, by reason of his breach ; and the sub-contractor who files his lien is in no better position, as to the amount earned and not paid, than the contractor ; unless he assumes the contract and carries it to completion, so as to protect the owner from further liability than the amount of his ' contract. LarMn v. McMullin, 120 N. Y. 206. The Court holds, that in such a case the sub-contractor may protect himself by demanding an inspection of the contract under which the work is progressing, as he has a right to do under § 3 of the Act of 1885, cliap. 342 —lb. Compare Sheffield v. Loeffier, 3 N. Y. Supp. 150, sustaining sub-contractor's claim to amount earned up to time of abandon- ment. It has been held also that where the contractor abandoned his work and made an assignment for the benefit of his creditors, a lienor who claimed a lien as against the interest of the con- tractor, and who offered to complete the contract, had no right to do so either as a creditor of the insolvent contractor, or as a lienor. That the right to complete, under such circumstances, might Test in the assignee of the contractor, as trustee for all the creditors. Collins v. Comley, 14 N. Y. State Kep. 444. Sub- contractors may file liens after the contractor abandons the work, for work done by them to complete it, if it is com- pleted under the contract and pursuant to its provisions. -Bates v. Trustees, &c., 7 Misc. 609 ; s. c. 58 IST. Y. State 790 ; 27 IS". Y. Supp. 951. Completion Under the Contract.— Where the con- tractor abandons the work and it is completed by the owner under the contract, as the agent of the contractor, material men and sub contractors have liens upon any balance upon the contract price remaining after deducting the cost of completion. McKee v. Rapp, 69 N. Y. State E. 291 ; s. c. 35 N. Y. Supp. 175. Where the contract authorizes the owner to complete after de- fault on the part of the contractor, and he does so under the con- tract, the lien of a sub contractor will attach to whatever sum remains due on the contract price, after deducting therefrom the sums paid by the owner to complete. Foshay v. Robinson, 137 N. Y. 134 ;■ Blaheslee v. Fisher, 21 N. Y. Supp. 217 ; Gamp- bell v. Goon, 149 N. Y. 556. In such a case, the fact that the contractor has been guilty of a breach of the contract on his part will not prejudice the rights of a material man or sub-contractor. — Ih. But where the cost of completion exceeds the original contract price, so that there is no balance remaining upon the contract. 43 LAWS 1885, CH. 343, SEC. 1. there is nothing to which the lien of the sub-contractor can at- tach, and his lien is defeated. Watson v. Gone, 31 N. Y. Supp. 334 ; Kelhj v. Bloomingdale, 139 N. Y. 343. But where the contractor abandons the work, the owner has an option either to treat the contract as forfeited, and complete independent of the contract, or he may waive the forfeiture and complete under the contract. Where the owner waives the for- feiture, the lien of a sub-contractor attaches to any balance in excess of the cost of completion. Ogden v. Alexander, 140 N. Y. 356. Expert Testimony as to Cost of Completion.— Where plaintifE violates the contract, and the owner completes it, after three days' notice to plaintifE, in the mode prescribed by the contract, expert testimony cannot be offered by plaintiff to show what the work might have been completed for. The cost of completion is the sum the owner is entitled to deduct from the amount of the contract, and the plaintiff must show what this amount was. Zimmermann v. Jourgensen, 14 N. Y. Supp. 548 ; s. c. 36 ISr. Y. State R. 414. Where there is authority for owner to complete in case of de- fault on the part of the contractor, it seems that the refusal of the owner to complete will not defeat the lien of the sub-contractor. The latter may show what would be the cost of completion, and if, after deducting this amount, a balance remains, his lien will attach to such balance. Blakeslee v. Fisher, 31 N. Y. Supp. 217. Completion Independent of the Contract.— There was no provision in the contract, and no agreement be- tween the owner and contractor, that the former should com- plete, in case of the latter's default. The contractor, owing to a dispute as to extra expense, failed to complete his contract by refusing to put in lateral sewers and water connections as agreed. This work was done by the owner, and after deducting the ex- pense, a balance remained. Plaintiff filed a lien for work and materials furnished the contractor. Nothing was due the con- tractor when the lien was filed, and nothing became due to him thereafter by reason of his breach. Plaintiff did not allege or prove " consent" of owner. Held that plaintiff's lien could not be sustained. Hollister v. Mott, 133 N. Y. 18. Compare Pell v. Baur, 133 N. Y. 377, and Foshay v. Robinson, 137 N. Y. 134 ; Smith V. Sheltering Arms, 89 Hun, 70. But where the sub-contractor has substantially completed his contract, and complete performance was prevented by the con- tractor's abandonment, the sub-contractor may enforce his lien for the work actually performed. Mull v. Jones, 18 N. Y. Supp. 359 ; s. c. 45 N. Y. State R. 643. And where the contract permits the owner to forfeit the con- COMPLETION. 43 tract, or to give three days' notice, and complete at the expense of the contractor, the owner may either stand upon the forfeiture or complete under the contract. If he stands upon the for- feiture, the rights of sub-contractors fall, and they can recover nothing upon liens because nothing will be due to the contractor. Ogden v. Alexander, 140 N. Y. 356. And the same rule applies to a material man. McCliesney v. City of Syracuse, 75 Hun, 503 ; s. c. 57 N. Y. State E. 676 ; 37 N. Y. Supp. 508. But if the owner elects to waive the forfeiture and complete under the contract, the lien of sub-contractors will attach to any balance in excess of the cost of completion. — lb. Nothing Due Contractor When Liien Filed.— If the contractor abandons the work and sub-contractors file liens, when there is nothing due the contractor, their liens will be sub- ject to the amount due the party who completes the original contract in place of the defaulting contractor. McOhesney v. City of Syracuse, 22 K Y. Supp. 507, affirmed 75 Hun, 503. Nothing Due Contractor When Sub-Contractor Cannot Enforce Lien. — The contractor abandoned the work, and nothing was due him, when the sub-contractor tiled his lien. It was not shown that tHe contract was completed by the owner, or that the owner consented to the work done by the sub-contractor. Held that the sub-contractor could not enforce his lien. Beecher v. Schuback, aS N. Y. Supp. 604, affirmed 1 App. Div. 309 ; Smith v. Sheltering Arms, 89 Hun, 70. And where, after the contractor abandoned the contract, the owner completed at a cost greater than the contract price, the lien was filed by the sub-contractor two days after such abandon- ment, when nothing was due the contractor, held that such a lien could not be sustained. Kelly v. Bloomingdale, 139 N. Y. 343. The lien filed prior to the abandonment by another sub-con- tractor was sustained. — Ih. Completion — Notice to Complete — Eights of Ownek. Notice to Complete. — The owner refused to pay the con- tractor when due a balance of an instalment, after the same had been demanded by the contractor. The owner, after such notice and refusal, then served written notice on the contractor to pro- ceed with the work within two days, and on his failure to do so the owner would consider the work abandoned, and in that case the owner would finish it, and hold the contractor for the dam- ages. Held that the owner being in default in refusing to pay the instalment when due, cannot put the contractor in default for his refusal to complete. Graf v. Cunningham, 109 N. Y. 369. 44 LAWS 1885, CH. 343, SEC. 1. When such a notice has been served upon the contractor, and he remains silent, and the owner finishes the work, the contractor will be deemed to have acquiesced, and the owner, when the work is completed at less than the contract price, will be regarded as finishing the work at the owner's expense, and the sub-lienors will be entitled to the surplus. — Ih. Notice to complete is for the benefit of the contractor and those claiming under him, and may be waived by them ; and where the owner is also the assignee of the defaulting contractor he need give no notice to himself. The owner, by recognizing the sub-contractors after the default of the contractor, was deemed to have waived the forfeiture and completed under the contract. Ogden v. Alexander, 140 N. Y. 356. Stipulation in Contract, When Lien Not De- feated By. — A contract executed by an owner with the build- er, contained a clause, that in case a mechanic's lien was filed against the property it should be subsequent to the liens and claims of the owner. Held that the object of the stipulation was to circumvent the statute and defeat rights given to laborers and material men. That such stipulation could not impair or defeat the statutory rights of persons, not in privity with the owner or contractor, who furnish labor or materials without notice of the stipulation. Miller v. Mead, ]27 N. Y. 544. After Abandonment Recovery May Be Had for Materials Left on Premises. — Plaintiff, after doing part of the work and furnishing part of the materials, abandoned his contract with the defendant, but filed a lien for a portion of the contract price, alleging that the abandonment was because of the defendant's failure to pay the instalments required. Defendant proved that both the work and the materials were defective and that there had been no substantial performance to any extent, although it cost less than one half the contract price to finish the work after the plaintiff abandoned it. The plaintiff can re- cover nothing under the contract. As to materials left by him on the premises and used by the defendant, the plaintiff is in the position of a vendor and is entitled to recover their value. Wall- reich v. Fettretcli, 4 N. Y. Supp. 326. If the owner uses the material left on the premises by the de- faulting contractor, after notifying the latter to remove it, ac- cording to terms of contract, the contractor may have a lien for the value of the materials so used. Charlton v. Scoville, 23 ]Sr. Y. Supp. 883 ; s. c. 68 Hun, 348. Forfeiture— Failure to Complete.— The Common Council of Yonkers by resolution forfeited a contract for grading and improving a street, reciting a breach of one of its conditions FAILURE TO COMPLETE — RIGHTS OF OWNER. 45 as the ground of such forfeiture. Held that in determining the amount due to the contractor and the sub-contractors who had filed liens (under L. 1878, c. 315) for so much of the contract work as had been performed, the city was not limited on the trial to setting up the breach recited in the resolution of forfeiture. Having alleged one sufficient cause, the contract was absolutely forfeited, and the city could prove all the contracitor's deficien- cies in reduction of the amount of his claim. Powers v. City of Yonkers, 114 N. Y. 145. Failure to Establish Lien ; When no Bar to Recovery. — The failure of the plaintiff to establish his claim cannot prevent other lienors from obtaining such relief as they may bo entitled to, in the same action, under Consolidation Act, § 1815, as amended by L. 1883, chap. a76. See also Laws 1878, chap. 315. Morgan v. Taylor, 5 N. Y. Supp. 920 ; s. c. 38 N. Y. State R. 1015. Payment in Specific Property. — Where the contract stipulates for payment in specific property, though a specific per- formance cannot be decreed, yet the contract may be enforced under the lien. Doiodneyy. McCullom, 59 N. Y. 367. Fraudulent Judgment Will not Defeat Lien.— A judgment confessed by one partner against his firm, in favor of his brother and sister, without the knowledge of his co-part- ners, for a debt, of which they were likewise ignorant, is void as against creditors of the firm, and will not defeat liens thereafter filed. Murray v. Gerety, 11 N. Y. Supp. 205 ; s. c. 33 N. Y. State R. 240. ' Failure to Complete — Rights of Owner. Owner's Liability Cannot Exceed Contract Price. — If the principal contractor pays his sub-contractor more than he receives from the owner, the fact of such over- payment cannot extend the owner's liability beyond the contract price. Reqan v. Borst, 11 Misc. 92 ; s. c. 66 N. Y. State R. 193 ; 32 N. Y. Supp. 810. Delay of Contractor— Rights of Owner.— No date was fixed for completion of the contract, but it gave the owner the right to complete on contractor's default after three days' notice. The owner, by reason of unreasonable delay, gave the notice and proceeded to finish the contract. In a suit by the contractor to foreclose a lien for labor and materials, held that though no date was fixed, the contractor was bound to proceed with reasonable diligence, and, if the delay was unreasonable, the 46 LAWS 1885, CH. 342, sec. 1. defendant had a right to stop the work and take the matter into his own hands and finish the Job. Zimmerman v. Jourgenson, 14 N. Y. Supp. 548 ; s. c. 26 N. Y. State E. 414. In such an action, where the plaintiff has delayed the work and the owner completes it, the plaintiff must show what it actu- ally cost the owner to complete, and the cost must be dedacted from the amount of the contract. Plaintiff having broken the contract, could not recover anything, except for the clause which allowed the owner to complete. — lb. The' cost of completion in such a case cannot be shown by ex- pert testimony as to the reasonable cost of completion. The actual cost to the owner is the amount which he is entitled to deduct under the contract. — lb. When Owner and Contractor Protected Against One Employed by a Sub-Contractor.— Except in cases of fraud or collusion, a contractor who has paid the sub-contractor the amount due him by the terms of his con- tract, cannot be compelled to pay a greater sum to a material man employed by the sub-contractor. In such a case the latter can acquire no lien as against the owner or contractor, though there are moneys still due to the latter from the former. French v. Bauer, 134 JST. Y. 548. The owner cannot be compelled to pay any greater sum for the completion of his building than he agreed to pay by the terms of his contract, and this rule applies also to a contractor who has, in turn, in good faith, paid the sub contractor the amount due him, according to the terms of the contract. — lb. But good faith in making such payments must be established, and it must appear that no payments were made in advance or by collusion. — lb. And where the owner in good faith pays the contractor, and the premises are sold and the deed recorded before the filing of a lien of a sub-contractor, the latter can acquire no lien. Bobbins v. Arendt, 148 N. Y. 673. Equities as Between Owner, Sub-Gontractoks, and Material Men. Payment by Owner Prior to Filing Iiien.— Mate- rial men and workmen have no lien upon or equity in money due or paid under a building contract, until their liens are filed. When money due to him comes into the hands of a contractor before liens are filed, it belongs to him absolutely to do with it as he pleases. He violates no equity, therefore, in applying this money in payment of antecedent debts, having no relation to the particular coptract. Mack\. Colleran, 136 N. Y. 617. A sub-contractor can acquire no lien after the contractor has EQUITIES AS BETWEEM- OWNER, SUB CONTEACTORS, ETC. 47 been paid in good faith, the property sold, and the deed record- ed. Boiiins v. Arendt, 148 N. Y. 617. Right of Mortgagee Prior to Filing Lien.— One who performs labor or furnishes materials upon a building is merely a creditor at large until he files his lien. A mortgage re- corded after the work or materials were performed or furnished, and before the filing of the lien, takes priority over the lien, although the mortgagor agreed to pay the claim for which the lien was subsequently filed, out of the mortgage loan. Munger v. Curtis, 43 Hun, 465. See also Stevens v. Ogden, 130 N. Y. 183. Moneys Due on the Contract.— The moneys due upon the contract constitute a fund for the payment of those who furnish labor and materials which enter into and enhance the value of the owner's buildings. Hoyt v. Miner, 7 Hill, 525. The contracts and the payments to become due thereunder constitute the security of mechanics employed by the contractor, who furnish work and materials on the faith of the agreement. Post T. GampMl, 83 N. Y. 383. Moneys thus payable or to become payable can only he divert- ed, so as to defeat liens of sub-contractors, by bona fide payments made by the owner, in accordance with the terms of the con- tract. — lb. It is not necessary to show " collusion," where moneys have been assigned by contractor in payment of debts other than those incurred in erecting the structure. Stevens v. Reynolds, 7 K. Y. Sapp. 771. See also authorities under " Funds in Owner's Hands," p. 48, post. Rights of Sub-Contractor When Dependent on Contract With Owner. — Where the element of " con- sent" is absent, it has been held under prior statutes, that the rights of a sub-contractor, as the term " sub-contract" implies, are necessarily dependent upon the existence of a valid contract between the contractor and owner. Pike v. Irvin, 1 Sandf. 14 ; Douqlity v. Devlin, 1 E. D. Smith, 635 ; Loonie v. Hogan, 1 E. D. Smith, 653 ; Walker v. Paine, 2 E. D. Smith, 653 ; Gro- gan v. Mayor, 3 E. D. Smith, 693 ; Cox v. Broderick, 4 E. D. Smith, 731 ; Thompson v. Yates, 38 How. 143 ; Carman v. Mc- Incrow, 13 N. Y. 70 ; Crane v. Geniti, 60 N. Y. 137 ; Cheney v. Troy Hospital, 65 N". Y. 383 ; Heckmann v. Pinkney, 81 N. Y. 311. Subrogated to Rights of Contractor.— The intent of the statute with relation to the sub contractor was that he should be subrogated to the rights of the contractor, with respect 48 LAWS 1885, CH. 343, SEC. 1. to the funds due or to become dne on the contract. Herbert v. Herbert, 57 How. Pr. 333 ; Schneider v. Hubien, 41 How. 232 ; Hopgesang v. Meyer, 2 Abb. N. C. Ill ; Cheney v. Troy Hos- pital, 65 JSr. Y. 283 ; McMillan v. Seneca, &c., 5 Hun, 12. Money Due Contractor.— The lien of the sub con- tractor, in view of the fact that he is merely subrogated to the contractor's rights, attaches only to the moneys due or to become due on the contract with the owner. The moneys in the hands of the owner, due or to become due to the contractor, constitute a fund out of which the lienors are entitled to be paid. Grane v. Qenin, 60 N. Y. 127 ; Gibson v. Lenane, 94 N. Y. 183 ; Posty. Campbell, 83 N. Y. 283. Sulb-Contractor May Rely on Terms of Con- tract. — Since the contract between owner and contractor forms the basis of the rights of the sub-contractor, the latter has a right to examine it and rely upon its terms, whereby the fund to which his lien attaches is accumulated or disbursed. Lumbard v. Syra- cuse, 55 N. Y. 495. Equities Between Owner and Contractor.— It has been held also that the claims of the sub-contractor, who is simply subrogated to the rights of the contractor, are subject to all equities which exist between the parties to the original con- tract. Morgan v. Stevens, 6 Abb. N. 0. 356. Funds in Owner's Hands. — The moneys due from the owner on his contract, which constitutes a fund to which the liens of sub-contractors attach, can only be diverted from this object by bona fide payments made by the owner, in accordance with the terms of his contract. Crane v. Genin, 60 N. Y. 127 ; Payne v. Wilson, 74 N. Y. 348 ; Gibson v. Lenane, 94 N. Y. 183 ; Jones Lumber Co. v. Murphy, 64 Iowa, 166 ; Post v. Campbell, 83 N. Y. 282. Assignment of Contract.— It has been held, under former lien laws, that where the contractor, in good faith for value, assigns all his rights and interest under the contract, and his right to all payments arising thereunder, a sub-contractor who afterward performs labor can acquire no lien if it be shown that he had knowledge of the assignment and assented thereto. Gates V. Haley, 1 Daly, 338 ; s. c. 13 N. Y. State K. 145. Assignment of Money " Due and to Grow Due." — The contractor may also assign moneys due and to grow due under his contract to secure material men, and also to .secure an antecedent debt. The amount secured by the order EQUITIES AS BETWEEN OWNER, SUB-CONTEACTORSj ETC. 49 was $909.94, of which about $400 was for materials used in the construction of the building. The plaintiff afterward filed a lien on account of lumber used in the building. The sum due from the owner to the contractor is $1,545.48. Held that the assign- ment was valid for the entire debt, and was entitled to priority over subsequent liens, since the Lien Law of 1885 contained no provision prohibiting such assignments. Stevens v. Ogden, 130 K. Y. 18a. Since the amendments of 1896, Laws 1896, chap. 915, the assignment and copy contract must be filed. See § 5, post, also " Equitable Assignment," p. tQ, post. Receiver in Supplementary Proceedings.— Where the order in supplementary proceedings was served on the contractor prior to the filing of liens by the sub-contractors, the title of the receiver relates back to the time of the service of the order (Code of Civ. Proc. § 2469), and gives the latter a prior lien upon the funds due from the owner. The position of the receiver is as good as that of an assignee of the contrac.tor's claim, taken in good faith prior to the filing of the liens. McCorkle v. Herrman, 117 N. Y. 297. Burden of Proof on Sub-Contractor.— The onus prohandi is upon the sub-contractor to show that his labor and materials were performed in accordance with the contract, and that moneys are due from the owner to the contractor in accord- ance with the terms of such contract, or earned under said con- tract. Walker v. Paine, % E. D. Smith, 663 ; Haswell v. Good- child, 13 Wend. ,S73 ; Blythe v. Poultney, 31 Cal. 333. This rule has been recently affirmed in Beardsley v. Cook, 143 N. Y. 143 ; Smyth v. Marsich, 4 App. Div. 171 ; Brainard v. County of Kings, 84 Hun, 390. And where the contractor abandons the work and the owner completes as the agent of the contractor under the contract, th.e burden is not upon the owner to shew the cost of comple- tion, and what balance, if any, remains in his hands. — li. Cancelling Contract. — Where the contract between the owner and contractor was cancelled by applying upon said con- tract an amount of indebtedness which arose upon an independent transaction, it was held that the lien of the sub-contractor was thereby extinguished, though the latter had no knowledge of the ti'ansaction between the owner and contractor. Hagan v. Am. Baptist, &c., Soc, Com. Pleas, Gen. T., Oct., 1886, Larremore, C. J., dissenting. Clause Prohibiting Sub-Letting. — It has been held in other States that where the contract by its terms prohibits the contractor to sublet the work, a sub- contractor making an agree- 4 50 LAWS 1885, CH. 342, sec. 1. ment in violation of said prohibition can acquire no lien. Bene' diet V. Banbury R. R., 34 Conn. 320 ; Bowen v. Aubrey, 22 Cal. 566. Clause that All Claims are Paid. -The contract contained a clause that the contractor would, before receiving final payment, furnish evidence that all claims, liens, and de- mands under the contract had been paid, and satisfied. Held that proof upon the trial that mechanics' liens existed against the property for the work in question was a bar to a recovery, and entitled defendant to a dismissal of the complaint. Fogg v. Suburban Rapid Transit Co., 90 Hun, 274. Bat such a provision enures to the benefit of sub-contractors, and as between them and an assignor of the contractor claiming under an equitable assignment of moneys due and to grow due under the contract, the liens of sub-contractors taise precedence. Bates Y. Salt Springs Nat. Bank, 88 Hun, 236 ; s. c. 68 N. Y. State E. 282 ; 32 N, Y. Supp. 598. When Entitled to Amount Earned. — There is no provision of the statute which, either directly or inferentiaUy, re- quires the contract to be fully performed, in order that the sub- contractor's lien may attach for work and material, furnished by him, and used by the contractor, in the erection of the building. Hence the sub- contractor is entitled to judgment, if it be shown that at the time of the filing of the lien a sum of money sufficient to pay his claim had been earned under the contract, according to the price agreed upon ; which sum exceeded all previous pay- ments made by the owner. And the sub-contractor may recover, notwithstanding the fact that the entire payment, though partly earned, was not technically " due" by the terms of the contract. Wright v. Roberts, 43 Han, 413 ; Van Glief v. Van Vechten, 130 N. Y. 571 ; compare LarMn v. McMulUn, 120 N. Y. 206. Nothing Due at Time of Filing. — The fact that noth- ing was technically due at the time of filing the lien, is not mate- rial, if it be shown that money had been earned. The provision of the statute which provides that the liens must not exceed the amount the owner would otherwise be liable to pay, was intend- ed only to limit the owner's liability to the aggregate amount of the contract. HeckmanuY. Pinhney, 81 N. Y; 311 ; Wrights. Roberts, 43 Hun, 413 ; Van Glief v. Van Vechten, 130 N. Y. 571 ; compare Larkin v. McMulUn, 120 N. Y. 206. See also " Completion of Contract — Abandonment," &c., ante, p. 40 et seq. Municipal Contract — Amount Due Contractor. — The contractor allowed the city of Buffalo to retain 20 per EQUITIES AS BETWEEN OWNER, SUB-CONTRACTORS, ETC. 51 cent, of the contract price for ninety days after tlie completion of the work. The contractor abandoned his work after having been paid more than 80 per cent, of the value of the work he had performed. The plaintiff, a sub-contractor, at this stage filed his lien for work done. The work was completed by the contractor's sureties under a new agreement with defendant. Held that by abandoning the work before its completion the con- tractor forfeited all right to the balance retained by the city, since it did not become due him until three months after com- pletion of the work by him. That as no balance ever became due. the contractor, the sub-contractor acquired no lien on any portion of the balance of the contract price. The contract with the sureties was a new contract. Weisman v. City of Buffalo, 10 N. Y. Scpp. 569. Where the contractor abandoned the work, and made an as- signment for the benefit of his creditors, to his surety, and the surety completed the contract at his own expense. Held that the sarety was entitled to be reimbursed for the moneys expended by him to complete, and was entitled to priority therefor over lienors whose liens were filed when nothing was due the defaulting con- tractor. McChesney v. City of Syracuse, 22 N. Y. Supp. 507, affirmed 75 Hun, 503. Priorities — Rights of Mortgagee.— The owner of a house and lot borrowed money from a savings bank upon a mort- gage covering the premises, with the understanding that the debt due to plaintiff for materials furnished by him and used in the building would be paid out of the sum loaned. The owner ab- sconded the same day with the entire sum ; the mortgage was recorded the next day and still later the plaintiff filed his lieu. Held that plaintiff was merely a creditor at large until the filing of his lien, and his claim mast be subordinated to the mortgage. Hunger v. Curtis, 42 Hun, 465 ; Mahoney v. Mc Walters, 3 App. Div. 248. A mortgage to secure materials to be manufactured and fur- nished for a building is a prior lien to the extent of the valae of materials actually furnished thereander, and also to the extent of a personal debt to the mortgagee. Bradley v. Stafford, 1 •N. Y. Supp. 138. Priorities— Wlien Arbitration not Binding on Sub-Contractor. — One who claims a mechanic's lien upon the sums due from the owner to the contractor is not bound by an arbitration between the owner and contractor, which is not provided for by the terms of the contract and to which he has not given his assent. It is not sufficient to give him notice of the arbitration and an opportunity to be heard. Cooke v. Odd Fellows'' Fraternal Union, 49 Hun, 23. 53 LAWS 1885, CH. 342, sec. 1. Priorities— Receiver in Supplementary Pro- ceedings. — A receiver of the contractor, in supplementary proceedings, has a prior lien upon moneys due from the ovraer, if the order in supplementary proceedings was served upon the contractor before the liens of laborers and material men were filed. The title of the receiver relates back to the time of the service of the order (Code Civ. Pro. § 2469). No other priorities are given than those prescribed by L. 1885, chap. 342, § 5. The position of the receiver is at least as good as if prior to the filing of the liens the contractor had, in good faith, assigned his claim against the owner to the creditor in the supplementary proceed- ings. McCorhU V. Herrman, 117 N. Y. 297. Priorities— As Between Contractors and Sub- contractors. — A material man furnished lumber to a car- penter. The carpenter, together with a^mason, made a joint contract with the owner to erect the building. Held that the mason and carpenter must be regarded as standing upon an equal- ity as contractors, and their right to the amount due must be postponed until the lien of the material man, the sub-contractor, shall be satisfied, although the lumber was sold to the carpenter and not to the mason. Pell v. Bauer, Y6'6 N. Y. 377. Priorities of Material Men Furnishing Sub- Contractors. — Material men who furnish supplies to sub- contractors, as between themselves, acquire a lien only on the sums due to the particular sub-contractor to whom the materials were furnished. Vogel v. Whitmore, 72 Hun, 417 ; s. c. 54 N. Y. State E. 882. Priorities— Consent to Subordinate Liien.— Lienors may consent with mortgagee making advances to subor- dinate their liens to the lien of the mortgagee making such ad- vances. Lipman v. Jackson Iron Works, 128 N. Y. 58. Filing a Lien Affecting Credit of Contractor.— The filing of a lien by the sub-contractor does not excuse the con- tractor from performance. It is, therefore, no defence on the part of the contractor to show that the filing of such a lien in- duced others to be filed, whereby his credit was destroyed and lie was forced to abandon the contract. Mull v. Jones, 18 N. Y. Supp. 359 ; s. c. 45 N. Y. State K. 643. Lien of Material Man on Amount Due Sub- Contractor. — Money which becomes due a sub-contractor alter the filing of a lien by one furnishing labor and supplying materials to the sub-contractor, becomes subject to the lien of such material man. Mack v. Golleran, 136 N. Y. 617. IIEK, HOW WAIVED AND DEFEATED. 53 As to other decisions affecting priorities and as to who are en- titled to preferences among lienor mortgagees, equitable assign- ments and various creditors, see § 5^ post, p. 75 et seq. Lien, How Waived and Defeated. Waiver, Express.— The right to acquire a lien, like any- other right, may be waived by express agreement of the parties. Tombs v. Rochester R. R. Co., 18 Barb. 583 ; Mulvey v. Bar- row, 11 Allen (Mass.), 53. Intent to Waive must be Clear. — The intent to waive the lien must clearly appear, and the security or collateral taken and accepted must be of such a nature as to be wholly incon- sistent with the right to the lien. Pech v. Bridwell, 10 Mo. App. 534. Sub-contractors were unable to finish, and voluntarily surren- dered their sub-contracts to the contractor, authorizing him to finish for the account of the sub-contractors, they to receive half the profits. The sub-contractors declared they did not waive any rights by the surrender. Acceptance of the surrender and completion by the contractor entitled creditors of the sub-con- tractors to their share of the profits. Brainard v. County of Kings, 84 Hun, 390. Waiver by Implication. — Waiver of the right to ac- quire a lien may be either by express stipulation, or such waiver may be implied by the acts and conduct of the parties. Pey- roux V. Howard, 7 Peters (U. S.), 334 ; Mims v. Macon R. R. Co., 3 Kelly (Ga.), 333 ; Portsmouth Iron Co. v. Murray, 38 Ohio St. 333. Where the party entitled to a lien accepts security for the amount of his debt, such acceptance will be construed as a waiver of his right' to file the lien. The St. Jago, 9 Wheat. 416; Phelps V. The Camilla, Taney, 400 ; Brady v. Anderson, 24 111. 110 ; Kinzey v. Thomas, 28 111. 502 ; Burrows v. Baughman, 9 Mich. 313 ; Gorham v. Sanger, 23 Mo. 137 ; Grant v. Strong, 18 Wall. 633. Waiver — Mortgage. — Where the party entitled to the lien makes an agreement whereby he is to receive a mortgage upon the property as security for the labor and materials fur- nished by him, such acceptance will be deemed a waiver of his right to a lien. Weaver v. Demuth, 40 N. J. Law, 338. But where the mortgage accepted as security has been fore- closed and results in a deficiency, the lienor will not thereby be precluded from prosecuting his lien to recover such deficiency. Hall V. Peltigrew, 10 Hun, 609. 54 LAWS 1885, CH. 342, sec. 1. Waiver— Commercial Paper.— Where the party en- titled to the lien accepts as security for his claim negotiable paper, which carries the date of payment beyond the statutory period for acquiring the lien, the extension of credit operates as a waiver of the lien. Miller v. Moore, 1 E. D. Smith, 739 ; AUJwuse V. Warren, S E. D. Smith, 657 ; Lutz y. Ey, 3 E. D. Smith, 631 ; Ehlers v. Elders, 51 Miss. 495 ; Quimhy v. Wil- mington, 5 Del. 26. But where the lienor accepts the debtor's notes, whereby he does not extend the credit beyond the time within which the lien may be acquired, such acceptance will not operate as a waiver of his right to the lien. Teaz v. Christie, 'Z B. D. Smith, 6/il ; Althouse V. Warren, 2 B. D. Smith, 657 ; Carter v. Byzantium, 1 Clifford, 1; Van Court v. Bushnell, 21 111. 624: ;' Greene -v. Ely, 2 Greene (Iowa), 508 ; Schmidt v. Gilson, 14 Wis. 514 ; Hopkins v. Forrester, 39 Conn. 351 ; Jones v. Moore, 67 Hun, 109 ; s. c. 22 N. Y. Supp. 23 ; Linneman v. Bieler, 85 Hun, 477. And where the lienor has accepted commercial paper as secu- rity for his debt, which has been actually negotiated, his accept- ance and negotiation thereof will not operate as a waiver of his lien, provided he regains possession of the paper before the fore- closure proceedings are terminated. Teaz v. Christie, 2 E. D. Smith, 621 ; Carter v. Byzantium, 1 Clifford, 1 ; Bates v. Trus- tees, &c., 7 Misc. 609. Where the lienor accepted notes which he negotiated, he may nevertheless file a lien for the work and materials for which the notes were given, and assign it to the holder of the notes ; and the latter may enforce the lien. Linneman v. Bieber, 85 Hun, 477 ; s. c. 66 N. Y. State E. 739 ; 33 N. Y. Supp. 129. A mere agreement to take notes, where no notes were given, cannot be construed as a waiver of a lienor's right to file his lien. Keogh Manufacturing Co. v. Eisenlerg, 7 Misc. 79 ; s. c. 57 N. Y. State E. 91, 27 N. Y. Supp. 356. Waiver — ^Bond.— It has beeii held, also, that where the lienor accepted as security a bond, the security will not operate as a waiver of the lien, if the credit is not thereby extended be- yond the limitation of the time for the filing of the lien. Thomp- son's Case, 2 Browne (Pa.), 297 ; Crean v. McPee, 2 Miles (Pa.), 214. Waiver— Credit of Third Party. — Where there is an express agreement by the lienor to accept the personal credit of the owner, or of some other person, such acceptance will operate as an implied waiver of his right to the lien. Bailey v. Adams, 14 Wend. .201 ; Muir v. Gross, 10 B. Munroe, 277 ; Green v. Fox, 7 Allen (Mass.), 85 ; Peyroux v. Howard, 7 Peters, 324, LIEN, HOW WAIVED AND DEFEATED. 55 And where there is an agreement by the lienor to accept the credit of a third person, where the agreement is void by the statute of frauds, it will not operate as a waiver of the lien. Abram v. Boyd, 1 Daly, 30. Waiver Iby Arlbitration.— Where the parties consent to submit their respective claims to arbitration, they thereby waive their rights to enforce their demands by filiag liens therefor. N. T. Lumber and Wood- Working Co. v. Schneider, 1 N. Y. Supp. 441 ; B. c. 16 N. Y. State K. 698. But if the arbitration is not provided for by the terms of the contract, an arbitration between the owner and contractor will not bind a sub- con tractor who does not consent thereto, nor im- pair his right to enforce his lien. Oooke v. Odd Fellows' Frater- nal Union, 49 Hun, 33. As to other modes of " waiver" which will excuse strict per- formance of contract, as to time, departure from plans, etc., see ante, pp. 38, 39 and 40. Removal of Building. — The party, by removing the building upon which the labor has been performed and for which the material has been furnished, cannot thereby defeat the lien which attaches thereto. Bishop v. Honey, 34 Texas, 245. Destruction of Buildings. — "Where the building upon which the labor has been performed, and for which the material has been furnished, has been destroyed prior to the filing of the notice, the right to the lien is thereby lost. Shuckraff v. Ruck, 6 Daly, 1. But after the lien has been properly acquired, it attaches to the entire freehold, and the mere destruction of the building will not defeat it. Freeman v. Carson, 27 Minn. 516. Death of Owner. — Under the Act of 1885 it has been held that the right to file a lieu terminates with the death of the owner, and that a lien filed after such death is void as to all work performed prior to the death of such owner. Turbidy v. Wright, 144 N. Y. 519. To the sameefEect are the decisions under prior statutes, where it has been held that as the right of the lien depends upon con- tract with the owner, the ownership must continue during the performance of the contract, and that the death of the owner before the filing of the notice of lien terminates the ownership, and so far defeats the contract as to extinguish the right to the lien. Meyers v. Bennett, 1 Daly, 471 ; Brown v. Zeiss, 9 Daly, 396. Extraneous OMigations.— It has been held in many 56 LAWS 1885, CH. 343, sec. 2. States that the lien may be lost by including in the claim for which the lien is filed items for which the statute did not ex- pressly authorize a lien ; and these were so intermingled that the exact amount to which the lienor was properly entitled could not with certainty be ascertained. FaircMld v. Burt, 11 Pick, 245 ; Lambard v. Pike, 33 Me. 141 ; Bichnell v. Trickey, 34 Me. 273 ; Kelley v. Kelley, 11 Me. 135 ; Oauss v. Hussman, 32 Mo. App. 115 ; Murphy v. Murphy, Id. 18. And where the contract under which labor and materials are furnished embraces items for which a lien is authorized, as well as those not within the terms of the lien .law, for a lump sum for all items, whereby the amount of lienable items cannot clearly be shown, the right to the lien is lost and defeated. Ellen- wood T. Burgess, 144 Mass. 534 ; Mulvey v. Barrow, 11 Allen (Mass.), 153 ; Ckilds v. Anderson, 138 Mass. 108. And where the lienor has accepted general payments under a contract which embraces both classes of items, some of which the lien laws authorizes and others which are not so authorized, so that the amount of the lien account cannot be fixed, the con- tractor has no right to the lien. Driscoll v. Hill, 11 Allen (Mass.), 154. Inadvertence or Mistake.— But where improj)er items, not authorized by the lien law, are embraced in the claim by mistake or inadvertence, and can be easily distinguished or separated, the right to the lien is not thereby defeated. The ob- jectionable items may be stricken out and the Hen preserved. Allen V. Frument Co , 73 Mo. 688 ; Sands v. Sands, 74 Me. 239. Rig^ht Cannot be Revived. — It has been held also that where the right to acquire a lien has been once defeated or lost absolutely, the right so lost cannot again be acquired or revived. Phillips V. Gilbert, 3 McArthur, 415. § 2. Payments in Advance or by Collusion.— If the owner or such person in interest as aforesaid, of any house, wharf, pier, bulthead, bridge, vault, build- ing or appurtenances, piece, parcel, tract, land under water, marsh, swamp, low or farm land, for or toward the construction, altering, repairing or improvement of which, labor and service have been performed or materials have been furnished by contract, whether oral or written, shall for the purpose of avoiding the provisions of this act or in advance of the terms of any PAYMENTS BY COLLUSION. 57 contract, pay by collusion any money or * valuable thing on sucli contract, or give a mortgage or make any other lien or incumbrance upon said house, wharf, vault, building or appurtenances, lot, premises, piece, parcel, tract, meadow, marsh, swamp, low, parcel or farm of land upon which the same may stand or be intended to stand, or said improvement shall be made, and the amount still due or to become due to the con- tractor, sub-contractor or assignee after siich payment has been made shall be sufficientf to satisfy the claims made in conformity with the provisions of this act, the owner or other person in interest as aforesaid shall be liable to the amount that would have been unpaid to said contractor, sub-contractor or assignee,- had said owner or other person in interest made no such pay- ment, or given no such mortgage or effected no such lien or incumbrance, at the time of filing the notice of lien prescribed in the fourth section of this act, in the same manner as if no such collusion, J payment, mortgage, lien or incumbrance had been made, given or affected. (As amended by Laws 1895, chap. 673.) Payments by Collusion or in Advance of the Terms of THE Contract. Collusion. — Where it appears that a payment has been made by collusion, for the purpose of avoiding the provisions of the lien law, it is wholly immaterial whether such payments have been made in advance of the terms of the contract. A collusive payment intended to evade the statute, cannot be allowed to operate to the prejudice of the lienor. Hofgesang v. Meyer, 2 Abb. N. C. 111. Under the Act of 1885, it has been held (distinguishing Posty. Campbell, 83 N. Y. 283), that it is not enough to show that a * "Word " other" omitted from amending act. f So in original. Should be "insufficient." X Original act contained the words " collusive payment ;" amending act contains the words " collusion, payment," &c. 58 LAWS 1885, CH. 3i2, sec. 3. payment has been made in advance of the terms of contract, ia order to hold the owner liable under the provisions of chap. 342, Laws 1885, § 3. It must also appear that such payment was made by collasion. Lind v . Braender, 7 N. Y. Supp. 664 (N. Y. Common Pleas, Gen. Term). The words " by collusion" in the statute apply to two classes of payments, viz. : such as are made " for the purpose of avoid- ing the provisions of the Act," and such as made " in advance of the terms" of the contract. — Ih. But see Banham v. Jioierts, 78 Hun, 246 ; s. c. 59 N. Y. State R. 877, 28 N. Y. Supp. 288. But where it appears that the contractor has assigned moneys due or to grow due under his contract, in payment of debts other than those incurred in erecting the structure, is not necessary, in order to defeat such an assignment, that the money was paid " by collusion." Stevens v. Reynolds, 7 N. Y. Supp. 771. But see Stevens v. Ogden, 130 N. Y. 182, holding such an as- signment valid if made prior to the filing of the lien. The rule as to " equitable assignments" has been changed by Laws 1896, chap. 915, amending section five of the Mechanics' Lien Law, by requiring all orders or assignments made by the contractor to be filed. See p. 75, ;post. It has been held, also, that moneys due from the owner, upon his contract with the builder, constitutes a fund to which the liens of sub-contractors attach ; and that this fund can only be diverted by })ona fide payments, made by the owner, in accord- ance with the terms of the contract. Crane v. Oenin, 60 N. Y. 127 ; Payne v. Wilson, 74 N. Y. 348 : Gibson v. Lenane, 94 N. Y. 183. Advance Payments. — Under Laws of 1862, chap. 478, it was held that where payments are made in advance of the terms of the contract, they cannot operate to the prejudice of the lienor, although made without fraud or collusion. The sub-con- tractor has a right to rely on the terms of the contract. Post v. Camplell, 83 N. Y. 279. This rule has been followed and recognized as applicable under the provisions of chap. 842, Laws 1885. Banliam v. Roberts, 78 Hun, 246 ; s. c. 59 N. Y. State R. 8^7 ; 26 X. Y. Supp. 838. Lienor Alone Can Question Payments. ^The pro- visions of the Lien Law with regard to premature or collusive payments were intended solely for the protection and benefit of the lienor, and he alone can assail their validity. The person to whom the advances were made cannot take advantage of these provisions. Post v. Campbell, 83 N. Y. 279. Acceptance of Order, When Payment.— The ac- ceptance of an order for the payment of money, or legal assurap- PAYMENTS BY COLLUSION. 59 tion of liability by the owner on account of the contractor, is equivalent to a payment, and has the same effect. Oihson y. Lenane, 94 N. Y. 183 ; Garrison y. Mooney, 9 Daly, 218. Bee also authorities under head of " Equitable Assignment," under § 5, post. Payment. — Liens were filed pursuant to Laws 1878, chap. 315 (Consolidation Act, §§ 1834-1838), relating to municipal contracts. The city paid the money claimed to certain claim- ants who executed a bond of indemnity to the city. Held that such payment in no wise prejudiced the rights of the proper claimant, and could not relieve the city from liability to the party to whom it was adjudged the money rightfully belonged. Mayor v. Crawford, 111 JST. Y. 638. Application of Payments. — Where adjoining owners make separate contracts with the same contractor, the right of the latter to apply payments made on the respective contracts will depend upon the facts and circumstances of the particular case. O'Erien v. McCarthy, 71 Hun, 437 ; s. c. N. Y. State K. 532 ; 34 N. Y. Supp. 1108! § 3. Demand upon Owner for Terms of Con- tract. — Any person or persons, firm or firms, corpora- tioQ or association, performing any labor or service, or furnishing any materials for any of the purposes specified in the first section of this act, to or for any person other than the owner, may at any time demand of such owner or of his authorized agent, the terms of the contract or agreement by which said house, wharf, pier, bulkhead, bridge, vault, building, meadow, marsh, swamp, land under water, or other low lands or ap- purtenances is being erected, altered, dredged, filled in, graded or otherwise repaired or improvements made to any such house, building or building lot, meadow, marsh, land under water, or other low lands, and the amount due or unpaid the person or persons, firm, corporation or association erecting, altering, repairing, dredging, filling in, grading or improving the same ; and if such owner or his said agent at the time of said demand shall neglect or refuse to inform the person 60 LAWS 1885, CH. 343, sec. 3. making sucli demand of the terms of the contract or agreement under which the same are being erected, altered, repaired or made, and the amount due and unpaid upon such contract or agreement therefor, or shall intentionally and knowingly falsely state the terms of said contract or agreement, or the amount due or unpaid thereon; and if the person, persons, firm, firms, corporations or associations furnishing such materials or performing such labor or service, shall sustain loss by reason of such refusal or neglect or false statement, the said owner shall be liable to them in an action therefor and the return unsatisfied of an execution against the party to whom such materials were furnished or for whom such labor and service were performed, in an action for the col- lection of the value thereof, shall be presumptive proof of such loss, and the person or persons, firm or firms, corporation or association furnishing such materials or performing such labor and service or making such im- provement, shall, by filing within the time and in the manner the notice of lien prescribed by this act, have a lien upon the house, wharf, vault, pier, bridge, bulk- head, building or appurtenances, and upon the lot, premises, parcel, piece, tract, meadow, marsh, swamp, land under water, low or farm of land upon which the same may stand or be intended to stand, or improve- ment is made, as in this act provided, for all the ma- terials furnished and labor and service performed after such neglect, refusal or false statement. (As amend- ed by Laws 1895, chap. 673.) Terms of the Contract.— This provision of the statute, authorizing parties to demand the terms of the contract, was in- tended for the benefit of sub contractors, laborers, and material men. Since the contract between the owner and contractor VATMENT8 BY OOLLUSIOIT. 61 forms the basis upon which their rights attach, they have a right to rely upon its terms, whereby the fund in which they have an interest is accumulated and disbursed. Lumbard v. Syracuse, 55 N. Y. 494. Doctrine of Subrogation. — As between the contractor and sub-contractors, laborers, and material men, the doctrine of subrogation applies, and the latter become subrogated to the rights of the former with respect to funds due, or to become dtie on the contract. Herbert v. Herbert, 57 How. Pr. 333 ; Schnei- der V. Hobein, 41 How. Pr. 333 ; Hofgesang v. Meyer, 2 Abb. N. C. Ill ; Cheney v. Troy Hospital, 65 N. Y. 283 ; McMil- lan V. Seneca, &c., 5 Hun, 13 ; Crane v. Oenin, 60 N. Y. 137 ; Gibson v. Lenane, 94 N. Y. 183. Equities Existing. — Sub-contractors and material men, being subrogated to rights of contractor, are so subrogated sub- ject to all the equities existing between the owner and contractor. Morgan v. Stevens, 6 Abb. K C. 356. See also authorities under heading " Equities as Between Owner, Sub-Contractors, and Material Men," ante, pp. 46-49. § 4. Notice of Lien — Filing and Requisites of— Notice upon Owner. — At any time during the per- formance of the work or the furnishing of the ma- terials, or within ninety days after the completion of the contract or the final pei'formance of the work, or the final furnishing of the material for which a lien is claimed, dating from the last item of work performed or from the last item of ma- terial furnished, the person or persons, firm or firms, corporation or association furnishing such ma- terials or performing such labor or service may file a notice of lien in writing in the clerk's office in the county where the property is situated against which the lien is asserted, containing the names and resi- dences of the claimants, the nature and amount of the labor and service performed, or the materials furnished or to be furnished, with the name of the owner, lessee, general assignee or person in possession of the premises against whose interest a lien is claimed ; the name of 62 LAWS 1885, CH. 342, sec. 4. the person or persons, firm or firms, corpoi'ation or as- sociation by whom he was employed, or to whom he furnished or is about to furnish such materials, or whether all the work for which the claim is made has been actually performed or fui-nished, and if not, how much of it, and also a description of the property to be charged with a lien sufficient for identification, and if in a city or village the situation of the building or buildings by street and number, if the street and number be known. But the failure to state the name of the true owner, lessee, general assignee, or person in possession shall not impair the validity of the lien. The said notice of lien must be verified by the per- son or one of the persons, member of a firm or firms, an officer of the corporation or association making the claim or his, its or their agent, to the effect that the statements therein contained are true to the knowledge or information and belief of the person making the same. The county clerk of each county shall provide and keep a book in his office to be called the " lien docket," which shall be suitably ruled in columns headed " claimants," " against whom claimed," " owners and parties in interest," " premises," " amount claimed ;" in which he shall enter the particulars of such notice of lien together with the date, hour and minute of filing of the notice of lien, and what proceedings have been had, the names of the owners and persons in interest, and other persons against whom the clairas are made shall be entered in said book in alphabetical order. A fee of twenty cents shall be paid to said clerk on filing such notice of lien. MODE OF ACQUIRING LIEN. 63 Every claimant shall within ten days after filing his notice of lien, as herein provided, serve a copy of such notice upon the owner, or other person in inter- est by delivering the same to him personally or by leaving a copy thereof at his last known place of resi- dence in the city or town in which such lands or part thereof are situated, with some person of suitable age and discretion, or if such owner or person in interest has no such residence, or such person cannot be found, by affixing a copy thereof conspicuously on said prem- ises described in said notice of lien, between the hours of nine o'clock in the morning and four o'clock in the afternoon. And after such service such owner or the person in interest shall not be protected in any payment made to such contractor or other claimant. Mode of Acquibing Liek. Filing Notice. — The lien is acquired by the filing of the notice prescribed by the statute, and dates from the time of such filing. Conveyances made ia good faith prior to such filing will defeat the lien. Noyesv. Burton, 29 Barb. 631 ; Ernst y. Eeed, 49 Barb. 367 ; Quinby v. Sloan, 2 Abb. 93 ; Sinclair v. Fitch, 3 E. D. Smith, 677 ; Cox v. Broderich, 4 E. D. Smith, 721 ; Brown v. Zeiss, 9 Daly, 242 ; Stuyvesant v. Browning, 33 Supr. 203 ; Livingston v. Mildram, 19 N. Y. 440; Payne v. Wilson, 74 N. Y. 348 ; Munger v. Curtis, 42 Hun, 465. Bona Fides of Conveyance. — Where 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 iona fide and the validity of the transfer may be tested in the action to foreclose the lien. Meehan v. Williams, 36 llow. 743 ; Gross v. Daly, 5 Daly, 540 ; Amidown v. Benja- min, 126 Mass. 276 ; Malioney v. Mc Walters, 3 App. Div. 348 ; Linneman v. Bieber, 85 Hun, 477 ; s. c. 66 N. Y. State E. 739, 33 N. Y. Supp 129 ; N. Y. Lumber & Wood- Working Co. v. Seventy -Third St. B. Co. 5 App. Div. 87. Assignee for Benefit of Creditors.— Where the 64 LAWS 1885, CH. 342, sec. 4. owner is insolvent and makes an assignment for the benefit of creditors, such assignee under prior statutes took the property free from the lien, unless the notice of lien was filed prior to the assignment. Noyes v. Burton, 29 Barb. 631 ; Quimby v. Sloan, 2 Abb. Pr. 93 ; s. c. 4 E. D. Smith, 594 ; Jackson v. Sloan, 2 E. D. Smith, 617 ; s. c. 2 Abb. Pr. 104. Note.— Chapter 343, of the Laws of 1885, § 1, now provides that an as- signee for the benefit of creditors takes the property subject to liens filed within thirty days after such assignment. The Notice — Form and Kequisites of. The liberal provision of the Act of 1885, chap. 342, with re- spect to the contents of the notice of lien, relieves the lienor from the embarrassment and responsibility which might arise from delay occasioned in ascertaining the name of the true owner, or person in possession. While the statute provides that the no- tice shall state " the name of the owner, lessee, general assignee, or person in possession," yet there is a saving clause which de- clares specifically thd,t the failure to do so " shall not impair the validity of the lien." Form of Notice. — The mere form in which the notice is framed is immaterial, so long as its allegations substantially con- form to the requirements of the statute. Beals v. Congregation, 1 E. D. Smith, 654 ; Dunbar v. Diem, 9 Weekly Dig. 231 ; Hub- bell V. Schreyer, 14 Abb. N. S. 387 ; Towner v. Remich, 19 Mo. App. 237. Certainty to a common intent is all that is required in order to fulfil the requirements of the statute. Driesbach v. Keller, 3 Pa. St. 77 ; Holland v. Garland, 13 Phila. 544. The object and purpose of the notice is to put the owner and other parties in interest on their guard, and to convey to them the statutory information for that purpose. Henry v. Pitt, 84 Voluntary Association, How Named. — The statute requires that the names and residences of the claimants must be contained in the notice of lien. Where the claimant is a volun- tary association, it has been held that the names of the persons composing the association should appear, Beales v. Congrega- tion, 1 E. D. Smith, 654. Firm Name. — But as to a copartnership, it has been held that the firm name may be used without setting forth the names of the individual members. Blade's Appeal, 2 Watts & S. (Pa.), 179 ; Jones v. Hurst, 67 Mo. 568. THE NOTICE — FORM AND BEQUISITES OF. 65 Name of Owner. — If the owner's name appears anywhere in the notice of lien, it will be sufficient, although the claim is inadvertently made against another person. Moran v. Chase, 53 N. Y. 347. The word " owner," as used in a notice of lien, should be taken in its ordinary sense as owner of the fee. HanMnson v. Riker, 10 Misc. 185 ; s. c. 63 N. Y. State E. 483, 30 N. Y. Supp. 1040. Omission of Owner's Name. — That provision that the failure to state the name of the true owner shall not impair the lien, renders an omission of the name immaterial, where the name of the reputed owner appears. Spurck v. McRolerts, 19 N. Y. Supp. 138 ; s. c. 45 N. Y. State E. 634. Eeversed on another ground. Spurck v. McRoherts, 139 N. Y. 193 ; and see Berry v. Gavin, 88 Hun, 1. The notice will be sufficient if it sets forth the names of the persons against whose interests the lien is claimed, with a state- ment of the facts subjecting their interests to the lien. The statute (Laws 1885, chap. 343, §§ 1, 4) does not require the no- tice of lien to state, in so many words, that the lien is claimed against the interest of any particular person or owner. Ross v. Sim-on, 9 N". Y. Supp. 536 ; Ross v. Simon, 8 N. Y. Supp. 3, reversed. An error in a notice of lien, where the wrong person is named as owner through mistake or inadvertence or uncertainty as to who is the true owner, will not impair the validity of the lien. HanMnson v. Riker, 10 Misc. 185 ; Walkam v. Henry, 7 Misc. 633 ; s. c. 37 N. Y. Supp. 997. Change of Ownership.— Where there is a change of ownership during the pfogress of the work, the person in whom the fee is vested at the time of the filing of the notice is the owner, against whom the claim should be made. Filey v. Thou- sand Islands Hotel, 9 Hun, 434. Name of Claimants.— Laws of 1883. chap. 376, §14, required the notice to state the name and residence of " all the claimants." Held that the statute did not contemplate all the claimants against the same property, but all those interested in any specific claim or demand. Morgan v. Taylor, 5 N. Y. Supp. 930. Joint Contractors. — Where the indebtedness accrues to several persons as joint contractors, the names of all the claim- ants may be used, and a notice by one of them in his own name is insufficient. Hubbell v. Schreyer, 14 Abb. Pr. JST. S. 396 ; Hauptman v. Halsey, 1 E. D. Smith, 668. 5 66 LAWS 1885, CH. 342, sec. 4, The rule is otherwise if the joint contractors agree sub- sequently to divide the work among themselves. Strobel v. Ochsi, 14 Misc. 532 ; Vogel v. Wliitmore, 72 Hun, 417 ; s. c. 54 N. Y. State R. 882. See "Joint Lien," ante, p. 6. Nature of the Claim. — The notice should set forth clearly the nature of the claim, so that it may appear that the claimant has taken all the material steps necessary to acquire the lien. Murray v. Rapley, 30 Ark., 568. Sums Due. — The notice must contain also a clear state- ment of the sums alleged to be due, the manner in which the alleged indebtedness accrued, and the fact that the labor for which the lien may be had has been performed. Fogarty v. Wick, 8 Daly, 366. And the amount for which the lien is claimed must be set out in such a manner that the balance can be clearly determined, and the judgment is limited to the balance so claimed. Protec- tive Union v. Noxon, 1 E. U. Smith, 671 ; Dunning v. Clark, 2 E. D. Smith, 535 ; Lutz v. Ey, 2 E. D. Smith, 631. If, from the notice taken as a whole, and its different state- ments construed together, the actual amount due can be ascer- tained, it will be deemed sufficient. Wheeler v. Port Blakely, 2 Wash. 71 ; Baxter v. Smith, 2 Wash. 97. Credits and Offsets.— All just credits and ofEsets should be deducted, and the notice should set up a claim only for the balance due upon the claim. Diegan v. Brophy, 55 How. Pr. 121 ; Davis v. livingston, 29 Cal. 383. But the claim of the contractor is not necessarily limited to the exact amount paid by him to workmen or laborers, but may include also disbursements necessarily incurred for labor. An- derson V. Dillaye, 47 IST. Y. 678. Bill of Itemis. —So the notice with respect to the amount due, may have annexed thereto a bill of items purporting to con- tain '■' a correct statement of the work done, and moneys paid, and balance due." And this may be taken to form part of the notice. Smith v. Bailey, 8 Daly, 128. A notice of lien, filed pursuant to Laws 1885, chap. 342, § 4, stated that the claim was "for work, labor, and services ren- dered, and materials furnished in the erection, altering, and re- pairing of a two-story frame dwelling," and stated also the place or location of the dwelling. Held that the omission to state " the nature, amount," etc., and " whether all the work has actu- ally been performed or furnished, and if not, how much," was a fatal defect, and that the notice was not a substantial compliance with the requirements of the statute. Luscher v. Morris, 18 Abb. K 0. 67. THE NOTICE — FORM AND REQUISITES OF. 67 Consent. — The fact that the work was performed or mate- rials furnished with the "consent" of the owner, must be al- leged in the complaint, and proven at the trial. But this allega- tion as to consent need not necessarily appear in the notice of lien. BurUtt v. Harper, 79 N. Y. 273. Date When Debt Accrued. — It has been held that the notice should show also the date when the indebtedness accrued, so that it shall appear upon the face of the notice that the same has been filed within the period of limitation prescribed by the statute. Phillips v. Hyde, 45 Ga. 330 ; Hayden v. Wulfing, 19 Mo. App. 353. But our courts have held that this fact is sufficiently shown by the date at the end of the notice. Ryan v. Klock, 36 Hun, 104. Contract in Writing. — Claims for work and labor must be executed, in order to fall within the operation of the statute. They may be verbal or written. But the notice of lien need not state that the contract under which the work was performed was in writing. Smith v. Bailey, 8 Daly, 128. See also authorities and note under " Statute of Frauds," ante, pp. 30, 31, Name of Employer. — The notice should set forth the name of the employer, and not the name of the employer's agent with whom the contract was made. Hauptman v. Gatlin, 30 N. Y. 217. But where there were several joint employers the notice was held to be sufficient, though it contained only the name of one employer: Bron "v. Welch, 5 Hun, 583 ; Dugan v. Brophy, 55 How. Pr. 121. A claim against both the owner and the contractor may be Joined in the same notice. Hubbell v. Schreyer, 14 Abb. N. S. 384. Description of Premises. — The description of the premises must be sufficiently definite to identify the property. In Illinois, under a similar statute, it has been held that an im- perfect description may be rendered sufficient by such a reference to facts and circumstances of occupation as to enable the parties by extrinsic evidence to precisely locate the premises. Quacken- iush V. Carson, 21 111. 99, But a description of the premises sufficiently definite to iden- tify the property is absolutely essential to the validity of the claim. Donnelly v. Libhy, 1 Sweeney, 259. A description will be sufficient where the notice contains such a recital of the situation and peculiarities of the premises as would suffice for their' identification. Mountain City House v. Kearne, 103 Pa. St. 304. 68 LAWS 1885, CH. 343, sec. 4. One of Several Buildings.— When the lien covers a number of buildings a conveyance of one building may be made without removing the lien as to the others. McAuly v. Mildram, 1 Daly, 396. Amount on Each Building. — Several contiguous build- ings or a row of buildings may be covered by the lien. Moran v. Chase, 53 N. Y. 347. Prior to the Act of 1885 (Laws 1885, chap. 343) it was held that where there was a blanket lien covering a number of houses, it should state the amount claimed against each building. And where subsequent liens so specify, they will be given priority over a blanket lien, specifying only a lump sum. Broadway Sav- ings Bank v. Gummings, N. Y. Daily Eeg., Jan. 10, 1884. See also authorities under head of " Blanket Lien," ante, p. 30. False Statements, Ekroks and Omissions. Good Faith — Unintentional Mistake. — A state- ment in a notice of lien that claimant has performed must be construed to mean a substantial, not a literal performance. It seems that in order to vitiate a lien, the statement in the notice must not only be untrue, but must be wilfully and intentionally false in some important or material respect, and this fact must affirmatively appear. Ringle v. Wallis Iron Works, 149 N. Y. 439. The inference that a lien becomes void in consequence of un- truthful statements in the notice is the result of Judicial con- struction, and not of any express declaration of the statute. In the absence of a provision iu the statute declaring a lien void for false statements in the notice, whether this disqualification has been properly engrafted on the statute, queers Mingle v. Wallis Iron Works, 149 N. Y. 439. The law requires a truthful statement from the creditor. Where a fraudulent augmentation of the debt is intended, which would prejudice the claims of others, such false statement in the notice will defeat the lien. But where the error is unintentional, and results from an honest mistake, which is satisfactorily ex- plained, the error will be disregarded. Qaskell v. Beard, 58 Hun, 101 ; s. c. 11 N. Y. Snpp. 399i 33 K Y. State 853. A misstatement in the notice, in order to invalidate it, must amount to a material misrepresentation, calculated to mislead other claimants or the public. Where the statements are sub- stantially true, it will be sufficient. A statement, therefore, that all the work had been actually performed, when it had been in fact substantially performed, held sufficient. Mull v. Jones, 18 N. Y. Supp. 359 ; s. c. 45 N. Y. State E. 643. FALSE STATEMENTS, ERRORS AND OMISSIONS. 69 The contract price was $8,000, payable in instalments. Plain- till refused to complete by reason of failure of owner to pay a balance due on second instaliaent. The notice of lien did not claim the balance due on the entire contract for work " to be performed," but set forth the amount due and earned when the lien was filed, stating " that all the work and materials for which the claim is made, has been actually performed and furnished," held, distinguishing Foster v. Schneider, 50 Hun, 151 ; s. c. 19 N. Y. State E. 449 ; 3 IST. Y. Supp. 875, sufficient ; BulMey v. Kimball, 19 N. Y. Supp. 672 ; s. c. 46 N. Y. State R. 543. There were four contracts, and but one notice of lien ia which the various contracts were mentioned, together with a statement that the work had been done. As matter of fact the work had all been done upon three of the contracts, but not upon the fourth. Held that justice and equity will be done by holding the notice good, as to the three completed ccmtracts, and bad as to the fourth. Brandt v. Verdon, 18 N". Y. Supp. 119 ; s. c. 44 ISr. Y. State E. 885. Where there are incorrect statements in the notice of the amount due, and it appears that such statements were made through inadvertence, and without intent to deceive, and no per- son has been thereby actually misled, the error will not invali- date the claim. Kiel v. Carll, 51 Conn. 440. So where the notice contained an error, as to the name of the owner, discovered after the notice was filed, it was held not to vitiate the claim, since the name can be corrected in the com- plaint by setting forth the error and naming the true owner. Leiegne v. Schwartzer, 10 Daly, 547. Where the sub-contractor omitted to state the character of the material, furnished by him to another sub-contractor, for which he claimed a lien, his claim is not vitiated as against the con- tractor, where it appears that the latter has not been surprised or misled through such omission. Vogel v. Luitwieler, 5 N. Y. Supp. 154. And where, through inadvertence, the number of acres con- tained in the lot upon which the lien was filed was overstated, it was held that the error would not invalidate the lien. Bradish v. James, 83 Mo. 313. And where the name of the county was omitted in the notice the error will not be regarded as fatal where the notice is correct in other respects, and has been filed in the proper county. Tinker v. Geraghty, 1 E. D. Smith, 687. The sub contractor, who claims that he furnished materials to the contractor, should state that fact in his notice, and should state also the relation of the contractor to the owner ; but a fail- ure to do so is not a fatal omission, and will not invalidate the lien. Lutz v. Fy, 3 B. D. Smith, 631 ; Darrow v. Morgan, 65 IST. Y. 333. 70 LAWS 1885, CH. 342, sec. 4. Under Laws of 1883, chap. 276, § 14, it was held that the mere fact that the amount claimed in the notice was for more than it appeared the claimant was entitled to, would not invalidate the claim for the work and materials actually performed and fur- nished. The lienor is justified in claiming what he believes he is justly entitled to in any event. Morgan v. Taylor, 5 N. Y. Supp. 930. The statute does not require that the notice of claim itself should show the facts, when the work was done, nor when it was completed, nor " the time given." These facts may be shown on the trial. Where the claim arises through contract with a sub- contractor, it need not appear in the claim against the contractor that the sub-contractor has not been paid. — lb. The notice of lien was " for labor and services performed," setting forth amount of contract, amount paid, balance due, and extra work. The evidence showed a substantial performance, lit- eral performance having been prevented by failure of defendant to supply materials of small value. Held notice was sufficient. McMelean v. Balcer, 11 1^. Y. Supp. 781 ; s. c. 34 N. Y. State E. 535. Wilful and Fraudulent Misstatements.— The opinion rendered by the Court of Appeals in Ringle v. Wallis Iron Works, 149 N. Y. 439, seems to cast some doubt on the authorities ( Close v. Clark, 9 N. Y. Supp, 538 ; Foster v. Schnei- der, 50 Hun, 151) quoted below. The Court of Appeals, in the case first cited, says that if a false statement contained in a notice of lien will in any case oper- ate to avoid the lien, the falsehood must be shown to be wilful and intentional and untrue in some material respect, and must be affirmatively shown. But the Court expresses doubt whether, in the absence of a provision of the statute declaring that the lien shall be void in such a case, the Court has power to declare it so. The authorities in the lower courts on this point are as follows : Where it appears that the statements contained in the notice of lien were wilfully made, including materials which were rejected as claimant well knew, the lien is thereby invalidated and cannot be enforced. Goodrich v. Gillies, 31 IST. Y. Supp. 400. But where, on a new trial, the Court found that plaintiff had reason to believe the statement in the notice of lien was true, and was so informed by his agent, it was held that the case was within Gaskell v. Beard, 58 Hun, 101, and that the lien could be en- forced. Goodrich v. Gillies, 83 Hun, 18 ; s. c. 63 N. Y. State E. 318, 31 N. Y. Supp. 76. Where it appears that the statements and allegations in the no- tice of lien are false and might mislead the public and subsequent lienors, and appear to have been wilfullv made, the lien must be declared invalid. Close v. Clark, 9 N. Y. Supp. 538. VERIFICATION OF THE NOTICE OF LIEN. 71 Laws 1885, chap. 343, § 4, requires that the notice shall state " whether all the worlc for which the claim is made has been actually performed or furnished, and if not, how much of it." A notice stating positiYely that all the work has been performed, when in fact it has been only performed in part, is false and mis- leading, and does not entitle the claimant to a lien. This re- quirement of the statute is jurisdictional, and renders a substan- tial compliance necessary. Foster v. Schneider, 2 JST. Y. Supp. 875 ; s. c. 50 Hun, 151, 19 N. Y. State E. 449. Notice no Estoppel. — The plaintiff in an action to fore- close a mechanic's lien is not estopped by the recitals in his no- tice, BO as to prevent him from showing upon the trial that the materials were actually sold to another person. Williams v. Root, 14 Weekly Dig. 238. The point that the notice of lien contained false statements, if not raised below, cannot be raised for the first time on appeal. Mingle v. Wallis Iron Works, 85 Hun, 279. Where the parties are not misled, an error as to the amount iu the notice of lien will not justify a reversal of the judgment. Bryson v. St. Helen, 79 Hun, 167 ; s. c. 61 N. Y. State E. 390 ; 29 ]Sr. Y. Supp. 534. Failure to Subscribe Notice. — The notice of claim was not subscribed by the claimant, but was verified in the lan- guage of the statute. Held that Laws of 1885, chap. 343, § 4, requires a notice of lien iu writing, but does not declare that it shall be subscribed or signed by the lienor. And where the names of claimants were set forth at the commencement of the notice, and verified, it was held to be sufficient. Moore v. Mc- Laughlin, 21 1^. Y. Supp. 55. Verification of the Notice of Lien. Verification. — The notice of claim filed must be verified, and without verification the claim is a nullity. Conklin v. Wood, 3 B. D. Smith, 663 ; Hallahan v. Herbert, 57 N. Y. 409. Verification Without the State. — The lien was veri- fied in AVisconsin, before a commissioner for New York, and was filed in the County Clerk's Office, without any certificate of the Secretary of State that the person before whom the verificatioQ was made was such commissioner. Held that the lien was void, as the Laws of 1850, chap. 370, § 4, requires such certificate to be affixed in any case where a commissioner, without the State, acts officially, before the instrument can be used, recorded or read in evidence. Cream City Furniture Co. v. Squier, 31 N. Y. Supp. 972 ; s. c. 3 Misc. 438. 72 LAWS 1885, CH. 342, sec. 4. Verification in Language of Statute.— A verifica- tion in the language of the statute (Laws 1885, chap. 342, § 4), that the statements therein contained are true to affiant's knowl- edge " or information and belief," will be sufficient to support the lien. Staubsandt v. Lennon, 3 Misc. 90 ; s. c. 23 N. Y. Supp. 544 ; Moore v. McLaughlin, 21 N. Y. Supp. 55 ; Boyd v. Bassett, 16 N. Y. Supp. 10 ; s. c. 40 N. Y. State R. 658 ; Kea- ley V. Murray, 15 N. Y. Supp. 403 : Schwartz v. Allen, 7 N. Y. Supp. 5 ; Cunningham v. Doyle, 5 Misc. 219 ; s. c. 54 N. Y. State R. 784. A substantial compliance with this provision of the statute as well as with other provisions will be sufficient. The courts have held good a verification, although the word or term " statement" used in the language of the statement is omitted therefrom. Schwartz v. Allen, 7 N. Y. Supp. 5. Under prior statutes it has been held that a verification " to the best of his own knowledge" was insufficient. Keogh v. Main, 50 N. Y. Superior Ct. Rep. 183. A verification, likewise, that the statements contained in the notice were " in all respects true to his knowledge and belief," was held bad under the former statute. Grey v. Vorhis, 8 Hun, 613. And under a similar statute in California, it was held that where the language of the verification was that the notice was " true," without adding the words " to his knowledge," was bad. Arata-v. Tellurium Co., 65 Cal. 240. Section twenty-five of the Act of 1885 also declares that the statute must be construed liberally, and a substantial compliance with its several provisions shall be sufficient. Laws 1885, chap. 343, § 35. The question of defective verification is a mere irregularity, which cannot be raised for the first time on appeal. Moore v. McLaughlin, 31 N. Y. Supp. 55. Verification by Partner. — The verification stated that the affiant was one of the firm of D. A. & W. A. Moore, and one of the persons making the foregoing claim, ffeld that this was sufficient ; and although the lienors did not subscribe the notice that the verification clearly indicated who the lienors were, and was a substantial compliance with the statute under § 25, of the Laws of 1885, chap. 343. Moore v. McLaughlin, 21 N. Y. Supp. Amendment.— After a notice of lien has been filed, it can- not be amended. Hallahan v. Herlert, 57 N. Y. 409 ; ConUin v. Wood, 3 E. D. Smith, 662. And even where no rights of third parties have intervened, the rule as to amendment is the same, if the statute contains no pro- VERIFICATION OF THE KOTICE OF LIEN. 73 vision authorizing the amendment of a notice of lien. Lindley v. Cross, 31 Ind. 106 ; Vreeland v. Boyle, 37 N. J. Law, 346. Second Notice.— Where the first notice was cancelled, in reliance upon an absolute promise of payment, which promise was not fulfilled, the lienor may file a second notice, provided the time limited by the statute has not expired. Haden v. Bud- densiek, 6 Daly, 3. Assignment. — The right to acquire a lien is a purely per- sonal right, and prior to the filing of the notice it cannot be as- signed or filed by an assignee. Roberts v. Fowler, 3 B. D. Smith, 633 ; Rollin v. Cross, 45 N. Y. 766. But where the assignment is merely nominal, such assignee may file the claim for the benefit of the real owner and in his behalf. Bollin v. Cross, 45 N. Y. 766 ; Halahan v. Herbert, 57 N. Y. 409. After the notice of lien has been filed, and the lien acquired, it can be assigned, and the assignee has full right, power, and authority to enforce the lien so acquired and assigned. Pear- son V. TincJcer, 36 Me. 387 ; Brown v. Smith, 55 Iowa, 31. And the Act of 1885 (Laws 1885, chap. 342, § 17) provides that such assignee shall be plaintiff in the action to foreclose. A notice of lien signed and verified, but not filed, does not con- stitute a lien, and when assigned, confers only the right to ac- quire a lien. English v. Sill, 18 N. Y. Supp. 576 ; s. c. 63 Hun, 572 ; 45 N. Y. State E. 463. Time of Filing. — In order to secure the benefit of the statute the lien must be filed within time limited by the statute. If the notice is not filed within the time prescribed the claim is void absolutely. Donaldson v. 0' Connor, 1 E. D. Smith, 695 ; Lutz V. Ey, 2 E. D. Smith, 631 ; Htibbell v. Schreyer, 14 Abb. ]Sr. S. 384 ; Spencer v. Barnett, 35 N. Y. 94 ; McMahon v. Hodge, 3 Misc. 334 ; s. c. 50 N. Y. State E. 758 ; 31 N.Y. Supp. 971. Time of Filing Before Work Done.— A contractor may file his lien before all the work is done or all the materials are furnished for the entire contract price, provided the contract is thereafter completed. Henlein v. Murphy, 3 Misc. E. 47 ; 8. c. 33 N. Y. Supp. 713 ; Ringle v. Wallis Iron Works, 85 Hun, 379. Time of Filing— Death of Contractor.— Where the contractor died, and moneys were due him under the contract at the time of his death, the notice of lien may be filed after the death of such contractor. Telfer v. Kierstead, 3 Hilt. 577. 74 LA.WS 1885, CH. 343, SEC. 4. Filing After Death of Owner.— The right to file a lien under the Act of 1885 terminates with the death of the owner, and a lien filed after such death is void as to all work performed prior to the death of such owner. Turbidy y. Wright, 144 N. Y. 519. The Ninety Days Runs from Completion and Acceptance.— The plaintiff completed the erection of the machinery in a brewery on the 13th of June and the engine was started, but plaintiff's constructing engineer had charge of the work and was making alterations until the Slst of June, when the machinery worked to his satisfaction. It was afterward ac- cepted by the owner as a completion of the contract. Held that a lien for the price filed by the plaintiff on the 17th of Septem- ber was filed within ninety days after the completion of the work. Watts- Camplell Go. v. Yuengling, 135 N. Y. 1. When Time of Filing Cannot be Extended.— The statutory period within which the notice must be filed can- not be extended by tacking one lien onto another, so as to bridge over the lapse of time. Spencer v. Barnett, 35 N. Y. 94. Where the claimant had completed his contract and agreed upon the amount due thereon, it was held that incidental assist- ance, voluntarily rendered in the re-adjustment of part of the work apparently for the purpose of sustaining a claim that the notice was filed within the statutory period, which had expired prior to the supplemental services, could not under the circum- stances become available to extend the time of filing. Duffy v. Baker, 17 Abb. N. C. 357. The labor must be shown to be part of a continuous work, or performed at the instance and request of the owner. It cannot avail if it appears to have been resorted to as a pretext for evad- ing the law. — lb. Where it is shown that the work done after the completion of the contract was necessary, and was performed in good faith, at the special instance' and request of the owner, the statutory period will be deemed to run from the time of completion of this supplemental or additional work. Nicols v. Culver, 51 Conn. 177. And items of an open and running account are preserved and taken as part of continuous work within the meaning of the hen law, if the last item fall within the statutory period authorizing the filing of the lien. Central Trust Co. v. Texas, Sc, R. B. Co., 25 Fed. Rep. 673._ But where the additional work is not necessary to complete the contract and was not incurred at the request of the owner, the time of filing cannot embrace these items. So held, where the additional work was painting weather-strips, where the item of TERIFICATION OF THE NOTICE OF LIEN. 75 painting was not required by the contract. Scott v. Coolc, 8 Mo. App. 193. And it was held under a similar California statute, that merely supplying a few bolts, after all the materials provided for in the contract had been furnished, and which were not necessary, could not extend the period for filing the lien. Barrow v. Knight, 55 Oal. 155. Service upon Owner. — The provisions of the statute which require that within tea days after filing, the claimant shall serve notice of his lien upon the owner or other person in inter- est, does not affect the validity of the lien, and such service is not necessary to preserve it. The object of the service is no- tice, and to prevent payments by the owner after filing the lien. Kenny v. Apgar, 93 IST. Y. 54-1 : Hamilton v. Coogan, 7 Misc. 677 ; "s. c. 31 Abb. N. C. 297 ; 58 N. Y. State E. 370, 38 N. Y. Supp. 21. Personal service upon the owner or other person in interest is not absolutely essential. The mode of service as prescribed, pro- vides that it may be made by serving a copy of the notice, by de- livering the same personally to the owner or other person in in- terest, "' or by leaving a copy thereof at his last known place of residence in the city or town in which such lands or part thereof are situated, with some person of suitable age and discretion, or if such owner or person in interest has no snch residence, or such person cannot be found, by affixing a copy thereof conspic- uously on said premises described in said notice of lien, between the hours of nine o'clock in the morning and four o'clock in the afternoon." Laws 1885, chap. 342, § 4. Payment by Owner after Notice. —The owner was notified by material men on July 17th, 1890, that the contractor was indebted to them for lumber in a sum exceeding $1,900. A day or two later the architect certified that $2,600 was due the contractor, stating that " notice of claim" had been filed for lumber. Liens were filed July 19th, but before copies could be posted or served on the owner, the latter, on July 21st, paid the contractor a, sum in excess of the amount of the liens. Held that the rights of the claimant as against the owners of the prop- erty became final upon filing the notice. And that the owner was not protected in the payment made by him after such notice, though the money was paid before copies of the lien were tech- nically served on the owner. Kelly v. Blooming dale, 139 N. Y. 343. § 5. Priority of Liens— Building Contract.— The liens provided for in this act shall be preferred as 76 LAWS 1885, CH. 343, sec. 5. prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in fourth section of this act, and prior to advances made upon any mort- gage on the premises after the filing of such notice of lien, and prior to the claim of the creditor who has not furnished materials or performed labor upon any land, or towards the erection or improvement of prem- ises described in said notice of lien, and which have been assigned by the owner, lessee or person in pos- session thereof by a general assignment for the ben- efit of creditors within thirty days before the filing of the notice of lien provided for in the fourth section of this act. No assignment of any contract for the performance of any labor or services or the furnishing of any materials for ,any of the purposes specified in the first section of this act ; nor of the moneys due or to become due therefor, nor of any part thereof, nor any order drawn by any contractor or sub-contrac- tor for the payment of such moneys shall have any force or validity until the contract, or a statement con- taining the substance thereof, and such assignment, or copies thereof, or a copy of such order, shall be filed in the ofiice of the clerk of the county wherein the premises are situated upon which such labor or ser- vices have been or are to be performed, or such mate- rials have been or .are to be furnished, and may then take effect and be enforced as of the time of such filing. The clerk of the county shall immediately index the same in the " lien docket" provided for in section four of this act. But nothing in this act shall affect the priority of the amount actually owing on a mortgage given for purchase-money. Liens, claims, LAW APPLICABLE TO EQUITABLE ASSIGNMENTS. 77 assignments and orders of contractors, sub-contractors, laborers and material men shall be preferred over any other claim in the distribution of any fund pursuant to the provisions of this act. In cases in which' the owner has made an agreement to sell and convey the premises to the contractor or other person, such ow^ner shall be deemed to be the owner within the intent and meaning of this act until the deed had been actually delivered and recorded conveying said premises pursu- ant to such agreement. (As amended by Laws 1896, chap. 915.) Payment in Absence of Notice. — Where a contractor gave an order on the owner in favor of a third person, and the money was paid on the order in good faith by the owner, and at the time of payment he had no notice or knowledge of the filing of a lien, the owner will be protected, though a lien was actu- ally filed at the time of payment. Neivman v. Levy, y4 Hun, 47« ; s. c. 65 N. Y. State E! G»6 ; 33 X. Y. Supp. 557. Law Applicable to Equitable Assignments Before Chap- ter 915, Laws 1896. Before the amendment to § 5 of Laws 1885, chap. 342, the law did not require the contract and the assignment thereof, or of moneys due or to grow due thereunder, or an order for the payment of money to be charged against a building contract to be filed or recorded. The amendment to the section, chap. 915, Laws 1896, gives priority to all liens duly filed, unless the orders or assignments, and the contract or a statement of the substance thereof, have been filed in the proper county clerk's office. The authorities given below, governing the law of equitable assign- ments, are applicable only, so far as the question of priority is concerned, to cases arising prior to May 37th, 1896, the date when chap. 915, Laws of 1»96, became a law. Extent and Scope of Equitable Assignment. — The law is now well settled, that not only choses in action but contingent interests and things which have no present actual exist- ence, as contracts to be entered into in future, not only with in- 78 LAWS 1885, CH. 342, sec. 5. dividuals but with municipal corporations, may be the subject of an equitable assignment. Peirce y. Devlin, 22 N. Y. Supp. 20a. But such an assignment will not be extended by implication to embrace future contracts, unless such intention is clearly ex- pressed, so as to bring the expected obligations within the terms of the assignment. — lb. An order was given, negotiable in form, to pay " to A. S. or order $2,000, and charge the same to the balance due on my contract for the erection of two buildings," etc. Nothing was due the drawer when he signed the order, and there was nothing expressed in the order extending it to moneys to become due, and no evidence to that effect. Held not to operate as an equi- table assignment on future payments. Gunther v. Darmstadt, 14 Daly, 368 ; s.c. l3 N. Y. State R. 135. Lease Assigned. — The owner of a leasehold estate assigned the lease after improvements were made; but before any liana were filed. The assignee of the leasehold was a ionafide holder of the lease without notice. Held that the assignee took the es- tate free from any liability for the obligations of the assignor for improvements made. Hankin^on v. Riker. 10 Misc. 185 ; s. c. 62 N. Y. State R. 484 ; 30 N. Y. Supp. 1040. Equitable Assignment not a Violation of Lien Law. — There is no provision in the Statute (Laws 18«5, chap. 342) forbidding a contractor to pay his creditors out of moneys due, or to become due him from the owner, to the exclusion of laborers and material men. Such an assignment creates a valid preference, if given prior to the filing of subsequent liens. Ste- vens V. Ogden, 130 N. Y. 1«2. The lien law has been amended since the decision in Stevens v. Ogden, and all assignments and orders made by contractors, in order to secure priority, must be duly filed with a copy of the contract, or statement of the substance thereof (Laws 1896, chap. 915). lu order to constitute an equitable assignment the order must not be general in its terms, but must be drawn upon a particular fund or upon a particular contract. Hurd v. Johnson Park Investment Co., 13 Misc. 643 ; s. c. 69 N. Y. State R. 141; 34 JST. Y. Supp. 915. Such an assignment extends to the amount of the contractor's indebtedness to his assignee at the time of making the assign- ment. Hondorf v. Atwater, 75 Han, 369 ; s. c. 57 N. Y. State R. 694 ; 27 N. Y. Supp. 447. No right is acquired by sub-contractors and material men until their liens are filed. Money coming into the hands of the con- tractors prior to the filing of liens may be disposed of absolutely LAW APPLICABLE TO EQUITABLE ASSIGNMENTS. ^D or ia payment of antecedenh debts. Mack v. Colleran, 136 N. Y. 617 ; Mahnney v. Mc Walters, 3 App. Div. 248. The contract contained a proviBion that no payments should be made under it until a county clerk's certificate showing that there were no liens was first obtained. An assignment of money due and to grow due was made by the contractor to a bank. The contractor became insolvent, abandoned the work, and it was completed by sub-contractors under the contract, who subse- quently filed liens. Held that the bank was bound by the pro- vision requiring the liens to be satisfied before payment, and that the liens took priority over the assignment. Bates v. Trustees, dc, 7 Misc. 609 ; s. c. 5« N. Y. State E., 790 ; 30 N. Y. Supp. 270. Mortgage. — A mortgage given upon moneys due and to grow due under a building contract, as security for labor and materials, and also for a personal debt of the mortgagor, operates upon the fund, and if filed or recorded prior to subsequent liens is a pre- ferred security. Bradley v. Stafford, 1 N. Y. Supp. 13s ; Mun- ger v. Curtis, 42 Hun, 465. The contractor may in like manner assign his contract and all payments arising thereunder, and lienors who assent thereto and afterward perform labor or furnish material without objection can recover nothinsr until the debt secured by the assignment is paid. Gates v. Haley, 1 Daly, 33« ; s. c. 13 N. Y. State E. 145. Order for Moneys Due and to Become Due.— Where, for a valuable consideration, a contractor makes an order directing the owner to .pay a sub-contractor for materials fur- nished or work performed, out of a particular fund then due, or to become due from such owner to the contractor, it operates as an assignment pro tanto of the fund. Brill v. Tuttle, «i N. Y. 454 ; Hirshfield v. Ludwig, 69 Hun, 554. Refusal of Owner to Accept, Will not Defeat Order. — The contractor, Herle, gave to Lauer & Co., sub-con- tractors, the following order, upon the owner, for labor and materials furnished : " RocHESTBK, N. Y., April 19, 1888. " Mr. B. Dunn : " Please pay A. E. Lauer & Co. seven hundred dollars, and charge to contract, and oblige " WiixiAM Herle. " The order was presented to the owner, who put off payment, and shortly afterward liens were filed on the building. In an action upon the instrument, it was held to operate as an assign- ment juro tanto of the fund in the owner's hands, and hfnce took precedence over the liens subsequently filed. Lauer v. Dunn, 80 LAWS 1885, en. 342, sec. 5. 115 N. Y. 405 ; Kelly v. City of Syracuse, 10 Misc. 306 ; s. c. 63 ¥. Y. State E. 534 ; 31 N. Y. Supp. 283. The contractor directed the owner to pay the material man and " charge to account" of drawer, on his contract with owner, " for the carpenter wori." The payee accepted the order. The owner did not accept the order in writing or promise to pay it. Held that the order operated as an assignment pro tanto of the fund, and gave payee prior right over liens filed subsequent to giving of order. Stevens v. Ogden, 130 N. Y. 182. A refusal to accept will not change the rights of the payee. After notice, the drawee becomes a trustee of so much of the fund as has been assigned, and he has no right to divert or mis- appropriate it. Williams v. Edison Electric Co., 16 N. Y. Supp. 857. The rights of lienors begin only from the date of filing their liens. Upon " filing the notice of lien" they acquire their right to a lien. Prior to such filing, mechanics, laborers and material men have no preferential right to be paid from the fund due from the owner to the contractor, bat stand in the position of creditors-at-large. McGorkle v. Herrman, 117 N. Y. 297 ; Ste- vens V. Ogden, 130 N. Y. 182 ; Mack v. Colleran, 136 N. Y. 617. Where the contractor assigned his contract, and the moneys due and to grow due thereunder, as security for the price of lumber furnished him to perform his contract, it vests in the as- signee an equitable interest, operating upon the indebtedness as it arises from time to time. Payments made by the contractor, as required by his contract, for labor and materials, were held to be proper and satisfied the contract to the extent of such pav- ments. Spicer v. Snyder, 21 N. Y. Siipp. 157 ; s. c. 34 X. Y. State R. 376 ; see also 12 N. Y. Supp. 744. When Conditional Acceptance May Discharge Owner. — The orders directed payment from " any money due under the contract." The owner chose to modify the acceptance as follows : " The within order accepted, payable when the build- ings are entirely finished." The acceptance on second order was : " Accepted payable as the buildings progress, or when the same are completed." The payee acquiesced in this modified acceptance. Held to impose a condition as to owner, that there would be money in his hands due the drawer with which to pay the orders, and the owner's liability on the acceptance extended only to such moneys. Latorence v. Phipps, 67 Hun, 61 ; s. c. 22 N. Y. Supp. 16. In such case, where owner's liability extends only to moneys due drawer, the owner has a right to show that no moneys were dae, and the exclusion of such evidence is error. — lb. Acceptance — ^When Requires Owner to Retain PRIORITIES IN ACQUIRING LIEN. 81 Funds. — "Where the order drawn by the contractor on the owner directs the owner to pay " from last payment to be made," and is accepted by the owner, such acceptance contem- plates a performance of the contract by the contractor, so as to entitle him or his assignee to the last payment, and the burden of proof is on plaintiff to show that there is an amount remain- ing in the hands of the owner, after completion of the contract by the latter, applicable to the payment of the order. Beards- ley V. Cook, 143 N. Y. 144 ; see also Smyth v. Marsicli, 4 App. Div. 171. Acceptance, TFhen Equivalent to Payment.— When the owner accepts unequivocally an order for the payment of money, or assumes a legal liability on account of the con- tractor, such acceptance is equivalent to a payment, and has the same effect. Gibson v. Lenane, 94 N. Y. 183 ; Garrison v. Mooney, 9 Daly, 218. Parol Assignment. — Since a chose in action may be as- signed by parol, an equitable assignment may be created by parol, if founded upon a valuable consideration. Contractors agreed that if defendant would endorse their notes for materials, they should have the avails of their contract when the same was com- pleted and the endorsements were given. In an action at law, upon a written subsequent assignment, held that the prior parol agreement was an equitable assignment, and having been executed and founded on a valuable consideration, was entitled to priority over the subsequent written assignment. Yorke v. Gonde, 15 N. Y. Supp. 380 ; s. c. 61 Hun, 26 ; 39 JST. Y. State E. 945. As to when owner will be protected in payments made after liens are filed, see, " Payment by Owner," ante, p. 75. Priorities in Acquiring Lien. Assignee for Benefit of Creditors. — The owner refused to make a second payment due contractors, and the lat- ter made an assignment. In an action by sub-contractors to foreclose liens the assignee was made a party, and pleaded the breach of contract with his assignors, in refusing to make the second payment when due. Held that the assignee, under Laws 1885, chap. 342, § 15, was entitled to a personal judgment against the owner for the balance due his assignors on the second payment after discharging the liens of the sub- contractors, though no lien had been filed either by the contractors or their assignee. Thomas v. Sahagan, 10 N. Y. Supp. 874 ; s. c. 32 N. Y. State K. 1075. Under prior statutes it has been held that an assignee for the benefit of creditors takes the property of the assignor free from 6 83 LAWS 1885, CH. 343, SEG. 5. the lien, unless it has been perfected by filing the notice prior to the assignment. Quimhy v. Sloan, 3 Abb. Pr. 93 ; s. c. 3 E. D. Smith, 594 ; Jackson v. Sloan, 3 E. D. Smith, 616 ; s. c. 3 Abb. Pr. 104 ; Noyes v. Burton, 39 Barb. 631. _ But where the contractor executes an assignment for the bene- fit of creditors, it has been held that he could not thereby cut off the sub contractors' liens. Smith v. Bailey, 8 Daly, 138 ; McMurray v. Hutcheson, 10 Daly, 64. The liberal provisions of the Act of 1885, § 1, however, pre- serves the rights of laborers and material men, and extends the lien to the interest which the owner may have assigned for the benefit of creditors within thirty days prior to the time of filing the notice of lien. Receiver in Supplementary Proceedings.— A balance being due to the contractor from the owner of the build- ing, the plaintifi was appointed receiver of the property of the contractor in supplementary proceedings under a judgment. Liens were subsequently filed to secure claims for materials fnr- Eished the contractor. The receiver having begun this action against the owner and the lienors, the owner paid the balance due into court. Held that the receiver's title to the fund was subject to all the equities existing against the contractor, and his position was the same as that of an assignee in a general assign- ment, and that the material men were entitled to be paid first. Deady v. Finh, 5 N. Y. Supp. 3 ; s. c. 34 N. Y. State E. 734. Sub-Contractor — Material Man. — Claimant filed a lien under Laws 1885, chap. 343, for painting materiais fur- nished to a sub contractor. Held that he was entitled to a lien although it appeared that the materials were furnished on the personal credit of the sub contractor and charged against him in the books of the claimant. Vogel v. Luitwieler, 5 N. Y. Supp. 154 ; s. c. 53 Hun, 184 ; 33 N. Y. State R. 313. Owner. — An owner of a building cannot prejudice the rights of others by acquiring a lien in his own behalf. Bahh v. Reid, 5 Rawle, 151 ; Stevenson v. Stonehill, 5 Whart. 301. Nor will an owner be permitted to acquire such lien, through one acting as his agent, though the latter shall himself subse- quently pay the claim. Kerby v. Daly, 45 N. Y. 84. Where a material man furnished supplies to a sub-contractor, the equities as between him and others who furnished materials to another sub- contractor require that the lien of the material man can attach only to the sums due the sub-contractor to whom the materials were furnished. Vogel v. Whitmore, 73 Hun, 417 ; s. c. 54 ¥. Y. State E. 883. PRIORITIES IK ACQUIRING LIEN. 83 A Husband. — It has been held in California, where there is community property, that a husband cannot create a lien upon a structure erected with community funds upon the wife's land. Peck V. Brummagin, 31 Cal. 440. Members of Voluntary Association.— It has been held upon the same principle in Pennsylvania that individual members of a voluntary unincomporated association cannot charge the joint property of the society. Babb v. Reid, 5 Rawle, 151. But where the title stauds in the name of trustees, individual members may acquire a lien as against such trustees. Young v. Lyman, 9 Penn. St. 449. Municipal Corporation. — A muuicipal corporation, being an artificial person in law, can acquire the right to ac- quire a lien only through the express provisions of the statute. Yates V. Meadville, 56 Penn. 21 ; Mauch Chunk v. Sliortz, 61 Penn. St. 399. Material for no Particular Building.— It has also been held that where a lumber merchant furnishes materials to a contractor, without any previously existing contract, and without any intention or understanding that they shall be applied to a particular building, he is not within the statute, and can acquire no lien upon the owner's interest. Hatch v. Coleman, 29 Barb. 201 ; Burst v. Jackson, 10 Barb. 219 ; Weaver v. Sells, 10 Kan. 609. The statute affords security only for labor and materials which have actually entered into the construction or repair of the struc- ture upon which the lien is claimed. Phillips v. Wright, 5 Sandf. 343 ; Miner v. Hoyt, 4 Hill, 193 ; Dennistoion v. McAllister, 4 E. D. Smith, 729 ; Rogers v. Currier, 13 Gray, 129 ; Bear- dorff V. Eeerhardt, 74 Mo. 37. It affords security only for labor and materials which have actually entered into the (instruction or repair of the structure upon which the lien is claimed. Phillips v. Wright, 5 Sandf. 342 ; Miner v. B«ff, 4 Hill, 193 ; Dennistown v. McAllister, 4 E. D. SmitJ^ 729 ; Rogers v. Currier, 13 Gray, 129 ; Bear- dorffY. Ev0fhardt, 74 Mo. 37. For atfeer decisions as to acquiring lien, see notes under " Ac- quiring Lien" and " Form and Requisites of Notice," under see^Ofl four of the Act of 1885, ante, p. 64 et seg. Mortgage to Secure Iioan.— "Where money was loaned by a bank to the owner, who gave a mortgage on the premises to secure the loan, which was recorded two days prior to the filing of the notice of lien, it was held that the mortgage preceded the 84: LAWS 1885, CH. 343, sec. 5. lien, although the bank knew of the lienor's indebtedness, there being no evidence of collusion between the bank and the owner to defeat the claim. Munger t. Curtis, 43 Hun, 465. Priorities, Devise under Will.— The statutory right to fill a lien under Laws 1885, chap. 342, terminates with the death of the owner. The rights of devisees under the owner's will take precedence over a lien filed after the owner's death, and such lien as to work done prior to the death of the owner is void. Tubridy v. Wright, 144 N. Y. 519. Priorities —Assignment of Contract. — A contractor may in like manner assign all his right and interest under his contract, and to the moneys due and to grow due thereon. And such assignment, if made for value in good faith, will be pre- ferred to liens of sub contractors subsequently filed who had knowledge of the assignment and assented thereto. Oates r. Haley, 1 Daly, 338. Priorities — Equitable Assignments. — Priorities may also be created by written orders drawn upon the owner by the contractor, to secure advances, as well as for antecedent debts. Stevens v. Ogden, 130 N. Y. 182. See also McCorUe v. Herrman, 117 N. Y. 297, and authorities under " Equitable As- signment," ante, pp. 76, 77 et seq. But where the contract provides that no payment shall be ■ made until the contractor procures a county clerk's certificate that no liens remain unsatisfied of record, the provision enures to the benefit of sub- contractors, and their liens take precedence over an equitable assignment by the contractor of money due and to grow due under the contract. Bates v. Salt Spring Nat. Bank, 88 Hun, 236 ; s. c. 68 IST. Y. State K. 282 ; 34 N. Y. Supp. 598. Priorities — Unrecorded Deed. —A deed which is im- ' properly acknowledged is not entitled to be recorded. A lien filed after such a deed had been spread upon the record takes priority over the deed, as the statute prefers a lien to a deed " which has not been recorded" at the time of the filing of the lien. Lemmer v. Morison, 89 Hun, 377. Constructive notice of an unrecorded deed will not defeat the right to the lienor to file and enforce his lien. — lb. Attachments. — The lien of the laborer or material man, when duly filed, takes precedence over subsequent attachments, granted in actions against the owner or contractor. Jones v. Holy Trinity Church, 15 Neb. 81 ; Young v. Stoutz, 74 Ala- bama, 574. PRIORITIES IN' ACQUIRING LIEN. 85 Owner Contracting to Sell.— Under the lien laws in force prior to the enactment of Laws 1885, chap. 342, an owner who contracted to sell the land to 'the contractor, and to loan such contractor the money with which to improve the property, was not deenied an " owner" within the lien law, though the title was still in him. In order to establish the lien it was necessary to show the express consent to the owner with the sub-con- tractor. Hallaghan v. Herbert, 11 Abb. N. S. 326; Oaij v. Brown, 1 E. D. Smith, 735 ; Walker v. Paine, 2 E. D. Smith, 663 ; Loonie v. Hogan, 9 IST. Y. 435 ; Conhlin v. Bauer, 62 N. Y. 620 ; Yates v. Whitcomb, 4 Hun, 137. Although under the laws in force prior to the Act of 1885, the relation of owner and contractor was not deemed to exist between the mechanic, where the owner had made a contract to sell and loan the vendee the funds with which to build, yet the sub-con- tractor could sustain his lien, if he could show the consent of such owner to the furnishing of the labor and materials. Yates v. WJiitcomb, 4 Hun, 137 ; Hackett v. Badeau, 63 N. Y. 476 ; Hil- ton V. Merrill, 106 Mass. 528 ; Smith v. Norris,- 120 Mass. 58. The owner made a contract to convey the premises to the con- tractor, Kuhn, who agreed to erect houses thereon. The title, however, was not to pass until Kuhn had completed the build- ings. Then he was to execute to the vendor a mortgage for the purchase money, and the moneys advanced to the contractor to erect the buildings. The contractor died before the buildings were finished, and his contract was not performed. Sub-con- tractors and material men filed liens. Ileld that as the title never passed from the owner to the contractor^ she must be deemed to be the owner under § 5, Laws 1885, chap. 343, until the actual delivery and recording of her conveyance. That since the design of the statute was to charge the land with debts con- tracted in improving the land, with the owner's consent, liens to secure such debts could be enforced, although the contract had not been performed by the original contractor. Schmaltz v. Mead, 135 K Y. 188. An owner who contracts to sell the land is deemed the " own- er" within § 5, Laws 1885, chap. 343, until his deed has been actually delivered to the purchaser and recorded. Garland v. Van Rensselaer, 71 Hun, 3. And if the vendee fails to properly record the deed by reason of a defective acknowledgment of the vendor, the latter is still the owner within the statute. Lemmer v. Morison, 89 Hun, 377. Contractor Acquiring Fee. — It has also been held, under laws in force prior to the Act of 1885, that where the owner contracted to sell to the builder and loan him money to make improvements, and thereafter such contractor acquired the fee, the conveyance of title enured to the benefit of the sub-con- 86 LAWS 1885, CH. 343, sec. 6. tractor. Rollin v. Gross, 45 K. Y. 766 ; McGraw v. Godfrey, 56 N. Y. 610 ; Corbett v. Greenlaw, 117 Mass. 167. § 6. Limitation and Continuance of Lien~Lis Pendens. — No lien provided for in this act shall bind the property therein described, for a longer pe- riod than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same ; and if the action is in a court of record, a notice of the pendency of such action is filed with the county clerk of the county in which such no- tice of lien is filed, containing the names of the parties to the action, the object of the action, and a descrip- tion of the premises affected thereby, and the time of filing the notice of lien. Or unless within the year from the time that the lien has been so docketed, an order be made by a court of record continuing such lien, and a new docket be made stating such fact. In such case the lien shall be continued for a period of one year from the making of such order and no longer, but a new order and new docket may be made in each successive year. And when a claimant is made a party defendant to any action brought to enforce any other lien, such ac- tion shall be deemed an action to enforce the lien of such defendant, who is a claimant within the pro- visions of this act. The neglect to file the notice of pendency, provided for by this act, shall not abate any action which may be pending to enforce the lien, but such action may he prosecuted to judgment against the person or persons, firm or firms, corporation or association liable for the debt. If a notice of lien has been duly filed in accordance LIMITATION AND CONTINUANCE OF LIEN. 87 with the provisions of section four of the act hereby- amended, and an order has been heretofore granted extending such lien an indefinite time, such lien shall cease at the expiration of sixty days after this act takes effect,* unless within that time an action to en- force such lien be commenced and a notice of the pen- dency of such action be filed or an order be granted for a further extension of time in accordance with the provisions of section six of said act as hereby amended. (As amended by Laws 1895, chap. 161.) Order Continuing Lien— No Time Fixed in.— Before the amendment of 1895 it was held that the court might, in its discretion, limit the continuance of the lien in the order, or vacate for proper cause, or refuse it altogether. But where the order fixes no time, but provides that the lien " be and here- by is continued pursuant to § 6, chap. 343, of the Laws of 1885," the lien is thereby continued indefinitely until the order is vacat- ed or the lien disposed of- Bigelow v. Doying, 13 N. Y. Supp. 362. The effect of the amendment of 1895 (Laws 1895, chap. 161) upon an order extending a lien, in which no time was fixed for its expiration, would be to limit the lien by operation of the statute to sixty days after March 23d, 1895, the date when the amending act took effect. Order Continuing Lien. — An order continuing the lien is not necessary under Laws 1885, chap. 342, § 6, where judg- ment of foreclosure is obtained within one year from the filing of notice of lien. Wright v. Roberts, 8 N". Y. Supp. 745 ; affirmed 118 N. Y. 672. Such an order for continuing the lien applies only to the lien upon the land and buildings. If the realty had been sold under foreclosure, and the lien was valid at the time of sale, it attaches to the surplus money arising thereon ; and an order continuing the lien is not necessary to preserve it, as to the fund. Emi- grant Bank v. Brown, 75 N. Y. 127. The fact that the lienor has commenced an action at law is no valid reason for refusing an order continuing the lien. The lien- or's remedies are cumulative, and the Court will interpose in its reasonable discretion for the preservation of the rights of the par- * The act took effect March 33d, 1895. LAWS 1885, CH. 342, sec. 6. ties. Matter of Gould Coupler Co., 79 Hun, 306 ; s. c. 61 N. Y. State E. 164 ; 29 N. Y. Supp. 632. Where aa order continuing the lien was made, and the clerk refused to docket it for an alleged clerical error, and the lienor's agent took the order away and failed to leave it with the clerk, it was held that the lien expired, as the granting of the order, without docketing or filing, was not sufficient to preserve it. Matthews v. Daly, 7 Abb. N. S. 379. The order continuing the lien may be made by any court hav- ing jurisdiction to foreclose the lien. Darroto v. Morgan, 65 K". Y. 333. Notice of application for such an order is not necessary unless the Court directs such notice to be given. The original lien is created ex parte, and an order continuing it may be made ex parte. — li. The order of continuance,, however, cannot be made after the year expires, and no order can thereafter be made to operate nunce pro tunc. Poerschke v. Redenlurg, 6 Abb. N". S. 172. In computing the time in which the order can be made, the day on which the notice is filed is to be excluded. Haden v. BudensicJc, 6 Daly, 8. Order of Continuance Unnecessary when Lien Discharged. — When the lien as to the realty has been dis- charged by a deposit, it shifts from the land to the fund so de- posited (citing Ward v. Kilpatrich, 85 N. Y. 413). But there is no provision in the statute that the lien upon the fund shall be discharged by lapse of time, and the fund will be charged with the lien until notice has been given to foreclose it and an order made thereon in the manner prescribed by subdivision 5 of § 34 of the Lien Law. Hafker v. Henry, 5 App. Div. 258 ; Lee- son V. Hart, ]Sr. Y. Daily Eeg., Aug. 27th, 1890. After the lien has been discharged by deposit, the Court can- not entertain an ex parte application to direct repayment of the fund to the party who deposited it. Such an application must be made on notice. — lb. In such a case the deposit can be reached only when the claimant has established his lien in an action to foreclose it. Flynn v. Butler, 61 How. Pr. 274 ; Dunning v. Clarh, 2 E. D. Smith, 535. The giving of a bond to discharge a lien under Laws 1885, chap. 342, § 34, discharges the land, and the bond so given be- comes subject to the lien, and may be proceeded upon in an action to foreclose it. Morton v. Tucker, 145 N". Y. 344. Limitation of Lien. — After the lapse of one year from the time of filing the notice, the lien expires by limitation, and ceases absolutely for all purposes, unless suit is brought to fore- IiIMITATION AN"D CONTINUAKCE OF LIEN". 89 close and a lis pendens is filed, or unless an order of court is made extending the lien. Welsh v. The Mayor, etc. 19 Abb. Pr. 133. And even in case the action has been tried, the lien neverthe- less expires af tei* the lapse of one year, in case no lis pendens has been filed. Prior v. White, 32 Hun, 14. If proper proceedings are commenced within the year to fore- close the lien, it continues till final jadgment, and if the judg- ment is for defendant, and is subsequently reversed, the lien still continues. Fox r. Kidd, 77 ]^.. Y. 489 ; Hoag v. Hillemeyer, 41 Hun, 390. Under the early statutes, which were strictly construed and defective in many respects, it was held that the lien could not continue beyond the year in any event, and that even the recov- ery of jadgment within that time did not continue it beyond the expiration of the year. Freeman v. Cram-, 3 N. Y. 305. The rule is otherwise under Laws 1885, chap. 343, § 6. See Wright y. Roherts, 8 N. Y. Supp. 745 ; affirmed 118 N. Y. 673. The lien expires in one year after filing if no action is begun by or against the lienor, or no order is made extending the lien. After the lien expires, it will not be restored to life by bringing in as defendants the parties whose liens have expired by a supple- mental summons. Brandt v. Schmeckenbecher, 89 Hun, 406. Summons. — Under the provisions of Laws of 1873, chap. 489, no summons was required in an action to foreclose a lien. Laws 1885, chap. 343, § 36, saves the rights of lienors under such prior act. Welde v. Henderson, 6 IST. Y. Supp. 176. Limitation— Delivery of Summons to Sheriff. — The summons was delivered to the sheriff within one year after filing of notice of lien, the time limited for the commencement of the action by Laws 1885, chap. 343, § 6. The defendants were served by the sheriff after the expiration of the year. Held that the action had been seasonably commenced against the de- fendants thus served. What constitutes " the commencement of an action" in a court of record is defined by Laws 1885, chap. 343, § 8, and by the Code of (Jivil Procedure, § 399. An action to foreclose a mechanic's lien is not within the exception provid- ed by Code Civ. Pro. § 414. Hammond v. Sheppard, 3 N. Y. Supp. 349. Limitation— Service on All Defendants.— Plain- tiffs were sub-contractors under one having a contract with the city of New York. The (iefendants in the foreclosure action were the city, the contractor, and the assignee of the contractor's claim against the city pursuant to §§ 1834-1838 of the Consoli- dation Act (Laws 1883, chap. 410). The summons was served within tlie time limited by the statute only upon said assignee 90 LAWS 1885, CH. 343, sec. 6. ' and afterward upon the other defendants. Held that the action could not be maintained against the other defendants, as they were not united in interest with the defendant served. Henry v. Lynch, 1 N. Y. Supp. 780. Lis Pendens. — The filing of a Us pendens or notice of pendency of action is essential in order to keep the lien alive. If no such notice is filed within a year after the filing of notice the lien expires, notwithstanding the fact that the case has been tried. Prior v. White, 32 Hun, 14. The statutory period for filing the lis pendens cannot be ex- tended beyond the year. And under the prior statutes the strict and rigid construction was declared, that if the last day fell upon Sunday the statutory period expired on Saturday, and it was too late to file on Monday. Bowers v. ^V. Y. Christian Home, 64 How. Pr. 509. The office of a lis pendens is to give notice ; and any person taking a mortgage or transfer of the property after the filing of the lis pendens is bound by all proceedings in the action in which the lis pendens is filed as if he had been made a party to such action. Crocker v. Leivis, 79 Hun, 400. The filing of a complaiut in an action to foreclose a mechanic's lien is notice of the pendency of such action, within the mean- ing of Laws 1885, chap. 343, § 6, which provides that a lien shall not bind the property longer than a year, unless an action is commenced and a notice of the pendency of such action is filed. Wright V. Rolerts, 8 N. Y. Supp. 745 ; affirmed 118 N. Y. 672. Under the liberal construction required to be given to the Act of 1885, it has been held that where plaintiff filed a notice of lis pendens, it preserves also the liens of defendants, as if each de- fendant lienor had filed a separate notice of pendency of action. Consolidation Act, as amended by Laws 1883, chap. 376, § 17, distinguished. McAllister v. Case, 5 N. Y. Supp. 918. An appeal was allowed to the Court of Appeals, in the case last cited by the General Term of the Common Pleas, on the ground that the Act of 1885 was a general law. McAllister y. Case, 7 N. Y. Supp. 600. The Court has jurisdiction over all parties served with piocess in the action, and the rights and priorities of the respective lienors may be adjudicated, although such lienors may have failed to appear or answer in the action. Hardiuich v. Royal Food Co., 78 Hun, 53 ; 60 N. Y. State R. 490 ; 38 K Y. Supp. 1086. But under the provisions of Laws 1882, chap. 410, § 1813 (Consolidation Act), as amended by Laws 1883, chap. 376, it was held that a lienor, who is made a defendant in an action for the foreclosure of a mortgage, who by his answer demands the fore- closure of his mechanics' lien, must file a notice of the pendency of the action iu his own behalf before the expiration of ninety LIS PENDENS — ACTION TO ENFORCE LIEN. 91 days after the filing of his lien. His lien is not preserved by the notice of pendency of action filed by the plaintiff. Danziger V. Simonson, 116 JST. Y. 329. Under this statute it has been held that if an action is begun in time, and all necessary parties are included in it, and service is effected either upon the contractor or upon the owner or holder of the fund within the ninety-day limit, the action is deemed begun in behalf of every party entitled to enforce his lien when plaintiff's action was begun. Neuchatel AspJialt Co. v. The Mayor, 12 Misc. 26. A Us pendens is necessary only to continue in force the lien. But where the lien has been discharged by a deposit as prescribed by the statute, it is not necessary to show the filing of a lis pendens. Ward v. Kilpatrick, 85 N. Y. 413. The lis pendens may be cancelled of record after a dismissal of the complaint pursuant to § 1674 of the Code of Civil Procedure, if the lienor unreasonably neglects to prosecute the action. Townsend v. Work, 79 Hun, 381 ; s. c. 61 K. Y. State K. 497 ; 29 N. Y. Supp. 791. A lis pendens cannot be cancelled on giving deposit and dis- charging lien. Such a notice can be cancelled only in the cases in which the statute authorizes it. Citing Beman v. Todd, 124 N. Y. 114 ; Fischer v. Hussey, 11 Misc. 529 ; s. c. 66 N. Y. State E. 91 ; 32 N. Y. Supp. 732 ; Murray v. Barth, 24 N. Y. Supp. 921 ; s. c. 30 Abb. K C. 303. Piling a notice of lis pendens without any complaint creates no lien on the land. Albro v. Blume, 5 App. Div. 309. § 7. Action to Enforce Lien.— Any claimant who has filed the notice of lien mentioned in the fourth section of this act, may enforce his claim against the property therein mentioned, and against the person or persons, firm or firms, corporation or association, liable for the debt, by a civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a Judgment in an action founded upon a contract, for a sum equal to the amount of the lien. County Court — Jurisdiction. — A county court has jurisdiction of an action to foreclose a mechanic's lien where the property is within the county, although the defendant does not reside therein. Raven v. Smith, 148 N. Y. 415. 92 LAWS 18S5, CH. 342, sec. 7. An action to enforce a mechanic's lien is a proceeding in equity, and the Court acquires jurisdiction of all subsequent lienors, irrespective of their place of residence.— /S. Jurisdiction over Defendants in Default.— Where subsequent lienors have been made parties and served with process, the Court has jurisdiction over them, and may ad- judicate as to the priority of their respective liens, although such lienors may have failed to appear or answer. Hardwick v. Royal Food Co., 78 Hun, 53 ; 60 JST. Y. State R. 490 ; 28 N. Y. Supp. 1086. City Court of New York— Jurisdiction as to Fraudulent Transfer. — The statute having conferred on courts of limited jurisdiction power to foreclose mechanics' liens, the power to declare fraudulent a transfer intended to defeat the lien is incidental and embraced within the power giving such jurisdiction. Murray v. Gerety, 11 N". Y. Supp. 205. Foreclosure, when Begun. — Although the steps to acquire the lien may be taken at any time, the action to foreclose cannot be commenced until the money claim under the contract is due. Preusser v. Florence, 4 Abb. N. C. 136 ; Sullivan v. Brewster, 1 B. D. Smith, 681. Plaintiff may begin his suit to foreclose his lien if there is any- thing due at the time of the commencement of the action, and may recover all that has become due up to the time of the trial. Ringle v. Wallis Iron Works, 85 Hun, 279. Any lienor may begin a separate action to foreclose his lien subject to the right of any party to move to consolidate the actions. But as between the parties, no action is pending against a person till he is served with process. Burton Go. v. Cowan, 80 Hun, 393 ; s. c. N. Y. Supp. 317. Service on one defendant, either the contractor or owner of the fund, enures to the benefit of all defendants under the Consolidation Act, § 1827 ; and if made within the ninety days, the action is deemed begun as to every defendant entitled to en- force his lien when the action was begun. Neuchatel Asplialt Co. V. The Mayor, 12 Misc. 26. Another Action Pending. — And a lienor may proceed to judgment in his action, notwithstanding another lienor in a separate suit has settled his claim. If the actions were not con- solidated, the defendant is not required to serve his answer on his co-defendant if no personal claim is made against such co- defendant. Wilson V. Niagara City Land Co., 79 Hun, 162; B. c. 61 N. Y. State E. 374 ; 29 N. t. Supp. 517. PLEADINGS IN FOEEOLOSURE ACTIONS. 93 Foreclosure to Reach Deposit. — And where the lien has been discharged by depositing the money with the Court, as provided by the twenty-fourth section of the Act of 1885, yet the claimant has no right to the money until he has established it by an action to foreclose. Flynn v. Butler, 61 How. Pr. 274 ; Dunning v. Clarke, 2 B. D. Smith, 535 ; Raven v. Smith, 76 Plan, 60 ; Matter of Dean, 83 Hun, 413. § 8. Procedure to Enforce — Pleading. — The maimer and form of instituting and prosecuting any such action to judgment, or an appeal from such judg- ment, shall be the same as in actions for the foreclos- ure of mortgages upon real property, except as herein otherwise provided. A certified copy of the notice of lien filed, as herein provided, shall be entitled to be read in evidence, with the same force and effect as if the original were provided [produced], and such copy shall be prima fade evidence of the execution and filing of the orig- inal. Pleadings in Foreclosure Actions. Allegations in the Complaint. — The complaint must allege that the plaintifE has taken the necessary steps to acquire •the lien. An ordinary complaint for work, labor and services will be set aside on motion. Conhright v. Thompson, 1 E. D. Smith, 661 ; Foster v. Poillon, 3 E. U. Smith, 556 ; Bailey v. Johnson, 1 Daly, 61. It must state all the facts which are essential to an enforcement as well as an acquisition of the lien. Southard v. Lavelle, 4 Monthly Bulletin, 30 ; KecUer v. Stumme, 4 Jones & S. 337. The material allegations in the complaiut may be grouped as follows : 1. As to Description. — The complaint should set forth a de- scription of the premises sought to be charged, sufficiently minute to identify them and to determine the exact estate to be sold. Duffy V. 'McMannus, 3 B. D. Smith, 657 ; Shaw v. Allen, 24 Wis. 563. It is not necessary in every case in the notice of lien to de- scribe the property by metes and bounds. A description by the street and street number, if the property can thereby be identi- 94 LAWS 1885, CH. 342, sec. 8. fled and located, will be sufficient. Walkam v. Henry, 7 Misc. 532 ; s. 0. 27 N. Y. Supp. 997. The complaint should also allege the interest of the parties in the premises described, since the proceeding requires not the property but the interest of the parties therein to be sold. Bai- ley T. Johnson, 1 Daly, 61 ; Sinclair v. FUch, 3 E. D. Smith, 677 ; Jenkes v. Parsons, 2 Hun, 667 ; Knox v. Starhs, 4 Minn. 20 ; McCarty v. Van Etten, 4 Minn. 461 ; Althotise v. Warren, 2 E. D. Smith, 657 ; Meehan v. Williams, 3 Daly, 367. 2. As to the Contract. — The complaint should also set forth the contract under which the labor was performed or materials furnished, or state the facts relied upon as constituting the con- tract. Nolan V. Lovelock, 1 Mont. 224 ; Fulton Iron Works v. Smelting Co., 80 Mo. 265. One who has performed a special contract for work and mate- rials is not bound to declare upon the contract, but may declare generally for materials furnished and work performed, and upon the trial the contract may be used to determine the rights of the parties. Hartley v. Murtha, 5 App. Div. 408. The nature and character of the services must also be alleged. Lynch v. Feigle, 11 Phila. 247. In an action by the sub-contractor it must be alleged in the complaint, and proved at the trial, that the labor was performed or the materials furnished in conformity with the contract be- tween the owner and contractor. Doughty v. Devlin, 1 E. D. Smith, 625 ; Dixon v. La Farge, 1 E. D. Smith, 722 ; Brod- erick v. Foillon, 2 E. D. Smith, 554 ; Quinn v. The Mayor, 2 E. D. Smith, 558. 3. As to the Consent. — Where the plaintiff relies upon the fact that the work was performed and , materials furnished with the owner's consent, he must allege that fact in the complaint. Burkett v. Harper, 79 N. Y. 273. The complaint in an action by a sub-contractor against the owner and contractor set forth the contract between such owner and contractor, and alleged that there was a balance due thereon to the latter from said owner. The complaint did not allege the " consent" of the owner, or his promise to pay. Held that the consent not being alleged could not be proved by plaintiff for the purpose of charging the owner personally, nor could his promise to pay be shown. -Higgs v. Chapin, 7 N. Y. Supp. 766. It will be sufficient to allege that the work was performed and the materials furnished with the knowledge and consent of the owner, without alleging how, in what manner or under what cir- cumstances such conseot was given. Moss v. l^imon, 9 N. Y. Supp. 536 ; Moss v. Simon, 8 N. Y. Supp. 2, reversed. 4. As to Performance. — The complaint must also allege that PLEADINGS IN FORECLOSURE ACTIONS. 95 the contract was daly performed, or that the work and labor was duly performed or the materials furnished and actually used in the structure upon which, the lien is claimed, and that at the time of the commencement of the action there was an amount actually due plaintiff therefor. Hainan v. Ashmead, 60 Cal. 439; Jaques v. Morris, 2 B. D. Smith, 639 ; Bailey v. Johnson, 1 Daly, 67 ; Liegne v. Schwartzer, 10 Daly, 547 ; iStubbs v. Rail- road Co., .63 Iowa, 280 ; Bradish v. James, 83 Mo. 313. The allegation is sufficient, if it sets forth that the amount claimed was due plaintiff at the time of the commencement of the action. Though the notice of lien may be filed at any time, the action to foreclose cannot be prosecuted till the debt becomes due. /Sullivan v. Brewster, 1 E. D. Smith, 681. Where a portion of the contract price was due when the action was commenced, plaintiff may recover all that has become due up to the time of the trial. Jtingle v. Wallis Iron Works, 85 Hun, 279. If plaintiff relies upon excuse for non- performance, he must specifically plead it. Where performance is pleaded, evidence to show excuse for non-performance is not admissible without amendment. Morowsky v. Rohig, 4 Misc. 167. It must also be positively alleged that the materials or labor furnished were actually . used in, as well as that they were fur- nished for the particular building or structure upon which the lien is claimed. Watrous v. Mmendorf, 55 How. Pr. 461 ; (Jrawfordsville v. Barr, 45 Ind. 258 ; Lawton v. Vase, 73 Ind. 60. Wliere the issue presented by the pleadings is as to whether there has been a substantial performance, the plaintiff cannot show excuse for non-performance and completion by the owner without amending the complaint. Beecher v. Schuback, 1 App. Div. 359 ; Elting v. Dayton, 17 N". Y. Supp. 849. 5. As to the Notice. — The complaint must allege that the no- tice of lien was duly filed within the statutory period, and prior to the commencement of the action. Bailey v. Johnson, 1 Daly, 67; McGrea v. Craig, 23 Cal. 522; Bean v. Wheeler, 2 Wis. 224. The plaintiff's right to the remedy must be shown by proper allegations, and a mere recital of the filing of the notice is not sufBcient. Duffy v. McMannus, 3 E. D. Smith, 657. An allegation in the complaint that the notice claimed to have been filed was " a notice in conformity with the statute" is a mere conclusion, and is not sufficient. Ketchler v. /Stumme, 56 N. Y. Supr. 337 ; Fay v. Adams, 8 Mo. App. 566. The allegation as to the notice should set out the details re- specting it contained in Laws 1885, chap. 342, § 4. A mere allegation of the filing of the notice as required by the statute. Held insufficient on demurrer. iSchillinqer Fire Proof (Jo. t. Arnott, 14 N. Y. Supp. 376. 96 LAWS 1885, CH. 342, sec. 8. But the complaint need not allege all the facts required in the notice. An allegation that the claimant filed a notice in the manner and form required by the statute will be suflBcient. Watrous v. Mmendorf, 55 How. Pr. 461. But the time of docketing the notice of lien must be alleged in the complaint, and it must appear upon the face of the complaint that the action was seasonably commenced. McSorley v. Hogan, 1 Code Eep. N. S. 385. The complaint should allege also that the notice filed was duly verified, as the verification of the notice is jurisdictional. Hal- lahan v. Herlert, 57 N. Y. 409 ; (Jonhlin v. Wood, 3 E. D. Smith, 662. 6. As to Other Allegations. — The complaint must allege also that at the time of the filing of the lien, or subsequent to such filing and prior to the commencement of the action, a payment was due, or has become due, from the owner to the contractor, on the contract. Bailey v. Johnson, 1 Daly, 61 ; Leigne v. Schwartzer, 10 Daly, 547 ; Blythe v. Pultney, 31 Cal. 338 ; Lawton v. Case, 73 Ind. 60. The complaint should allege also service of a copy of the no- tice of lien upon the owner, within ten days after the filing thereof, as affecting subsequent payments, if any, made by the owner, and a statement of other liens if any pending at the time of the commencement of the action, to enable the court to ascer- tain if all parties have been brought in. See Laws 1885, chap. 343, § 17. If the name of the owner has been incorrectly stated in the notice of lien, that fact must be alleged in the complaint and the true name of the owner set forth. Leigne v. Schwartzer, 10 Daly, 547. If a transfer of the property has been made to defeat the lien, and the plaintiff seeks to set it aside, he must set forth in his complaints the facts relied upon to establish that fact, so that proof as to the fraudulent nature of the transfer may be ad- mitted. Meehan v. Williams, 36 How. Pr. 73 ; 'Jisdale v. Moore, 8 Hun, 19 ; McAuley v. Mildrum, 1 Daly, 396 ; Ami- down V. Benjamin, 136 Mass. 376 ; Gross v. Daly, 5 Daly, 540. Introductory matter preceding the body of the complaint is de- scriptive and traversable. A statement that " the plaintiff above named, a corporation organized under the laws of the State of N'ew York, and doing business in New York City, by J. V. V. its attorney complaining of the defendant alleges," is not sufficient, where no such allegations appear in the body of the complaint. Schillinger Fire Proof Co. v. Arnott, 14 K Y. Sapp. 336. Where the lien has been discharged by giving a bond, the com- plaint need not allege an assignment of the bond to plaintiff, nor is it necessary to specifically allege that the bond was given " in PLEADINGS IN FORECLOSURE ACTIONS. 97 an action or special proceeding." It will be sufficient if the complaint sets forth that the amount of the bond was duly fixed and an order was duly made approving the bond and directing the discharge of the lien. RingU v. WalKs Iron Worhs, 16 Mis. 167. Parties, Individually and in Representative Capacity. — A defendant had an interest in the subject matter of the action " as a trustee." He was made a defendant indi- vidually. Held insufficient, it not appearing that he was sued "as trustee." ScMlUnger Fire Proof Co. v. Arnott, 14 N. Y. Snpp. 326. Amendments. — The manner and form of instituting and prosecuting proceedings to enforce the lien shall be the same as in foreclosure actions. Hence the pleadings may be amended in like manner as in foreclosure actions or other actions. Gam- bling V. HaigU, 58 N. Y. 623 ; Sands v. Sands, 73 Me. 339. An amendment of pleadings to conform to the proof pursuant to § 733 of the Code of Civil Procedure must be made at Special Term. Such an amendment cannot be allowed at General Term. Hondorf v. Atwater, 75 Hun, 369 ; s. c. 57 IST. Y. State E. 694 ; 37 N. Y. Supp. 447. Amending Answers to Conform to Proof. — It is within the discretion of the Court after the hearing to amend answer to conform to proof, so as to deny an allegation admitted in original answer, where it appears that the matters sought to be pleaded were brought out by plaintiff. Charlton v. Scoville, 33 N. Y. Supp. 883. Allegations in the Answer — Defences. — As to the right of a sub-contractor under § 1830 of the Consolidation Act (Laws 1878, chap. 315, § 7) to set up a lien in a prior action in which no claim had been filed by him, see Moran v. Murray Hill Bank, 9 ¥. Y. Supp. 715. In an action brought by a lienor for labor and materials fur- nished a sub-contractor, the owner may set up in his answer that there are liens prior to the plaintiEE's, exceeding the amount due him to the contractor, the payment of which will exhaust the funds due from the owner upon the contract. Lehretter v. Koff- mann, 1 E. D. Smith, 664. Bat where the suit is brought by the contractor against the owner, he cannot plead in bar of the action outstanding claims of material men. Westervelt v. -Levy, 3 Duer, 354. If a money Judgment has been rendered in another action for the same debt secured by the lien, the judgment must be set up in the answer as a plea in bar to be available as a defence. Hry- 7 98 LAWS 1885, CH. 342, sec. 8. son T. St. Helen, 79 Hun, 167 ; s. c. 61 IST. Y. State R. 390 ; 39 IST. Y. Supp. 524. Where the action is brought by the sub-contractor, or a lienor who has furnished labor and materials, the owner, if he desires to avail himself of the defence of a breach of contract on the part of the contractor, must allege the facts constituting the breach in his answer. Blethen v. Blake, 44 Cal. 117. By contesting the claim upon the merits, the defendant waives informalities in the notice. McBrids v. Crawford, 1 E. D. Smith,' 658. The following defences, set up by way of answer, have been held not to be frivolous or irrelevant : (1) that the contract pro- vided for payment in instalments, and that the notice was not filed after the first instalment fell due, within the statutory period ; (2) that an action at law was pending between the par- ties. Wehb V. Van Zandt, 16 Abb. Pr. 190. Where it appears that the action is for materials furnished to a contractor, and is tried upon that theory, and it appears there was money due such contractor from the owner at the time of filing the lien, defendants may show, though the allegations are not set up in the answer, that the contractor has not completed his work ; what remains uncompleted, cost of completing, and payments made to contractor. IST. Y. Superior Ot., 1890. Fra- zer T. McOuckin, 9 N. Y. Supp. 435. As to Counterclaim. — The answer may set up facts con- stituting a counterclaim, as between the contractor and sub-con- tractor. Morgan v. McMahon, 4 E. D. Smith, 754 ; Miner v. Eoyt, 4 Hill, 193 ; Hoyt v. Miner, 7 Hill, 525. And as between the owner and contractor, the answer may set up facts constituting a counterclaim, which would be available as such in a personal action between the parties. Owens v. ■Acherson, 1 E. D. Smith, 691. As between the owner and one who has furnished labor or materials to the sub contractor, the owner can plead only dam- ages growing out of the original contract, through the fault or negligence of either the contractor or sub-contractor, abandon- ment of the contract, defective work and the like. Cheney v. Troy Hospital, 65 N. Y. 282 ; Miller v. Moore, 1 E. D. Smith, 739'; Gourdier v. Thorp, 1 E. D. Smith, 698 ; Develin v. Mach, 2 Daly, 100. In an action by a sub-contractor, the owner may set up as a counterclaim the plaintiff's guaranty that the building should be erected in a workmanlike manner, and completed within a given time ; this being matter growing out of the subject of the action. McAdow v. Ross, 53 Mo. 199. See also as to rights of parties under § 1 , " Equities as between Owner, Sub-contractors and Material Men," ante, p. 46 et seq. PKOCBBDINGS IK THE ACTION". 99 General Denial, "What may be Proved under. — Where the complaint alleges that the plaintiffs furnished all the materials for the building, and the answer is a general denial, the defendant may show that certain materials and lumber were furnished by her. Close v. Clark, 9 IST. Y. Supp. 538. Proceedings in the Action". An Action in Equity. — An action to foreclose a me- chanic's lien is in the nature of a bill in equity, and governed by the rules applicable to chancery causes. Davis v. Alvord, 94 N. S. 545 ; Ross v. Derr, 18 111. 245 ; ClarTc v. Boyle, 51 111. 104. And § 8 of Laws 1885, chap. 342, specifically declares that the proceeding shall be governed by the rules applicable to actions for the foreclosure of mortgages. Proceeding in Rem. — As against the owner and all par- ties against whom no personal judgment is sought, the proceed- ing partakes of the nature of a proceeding in rem. Homans v. Coomhe, 3 Cranch 0. Ct. Eep. 365 ; Grant t. Vandercook, 57 Barb. 165. Bona Fides of Conveyance. — And where the com- plaint alleges that any conveyance has been made in fraud of the rights of the claimant, the bona fides of the transfer may be in- quired into and the equities existing betweea the parties adjusted ia the action. Gross v. Daly, 5 Daly, 540 ; Amidown v. Ben- jamin, 126 Mass. 276 ; N. Y. Lumber & Woodworlcing Co. v. Seventy-third St. B. Co., 5 App. Div. 87 ; Mahoney v. McWal- ters, 3 App. Div. 248 ; Laineman v. Bieber, 85 Hun, 477. Trial toy Jury, Right to. Questioned. — An action to foreclose a mechanic's lien is an action in equity, triable by the Court without a jury. It seems in such an action neither party has a right to a jury trial, except as to such issues as might be framed and sent to a jury. Kenney v. Apgar, 93 N. Y. 539. See also Mackellar v. Rogers, 109 N". Y. 468. And where issues are framed, and these specific issues are sent to a jury, the findings upon application to the Court for final judgment, or upon appeal, may be disregarded, and judgment given upon the merits as equity requires. Muldoon v. Pitt, 54 N. Y. 269. Where the plaintiff's entire claim is denied by the owner and contractor, and it is possible that the examination of a long ac- count may be involved, the Court cannot order a compulsory ref- erence unless it affirmatively appears that the examination of a 100 LAWS 1885, CH. 342, sec. S. long account will be necessary and becomes an issue to be disposed of on the trial. Order of reference reversed. Oassidy v. McFarland, 139 N". Y. 201. Trial Iby Jury, may be Demanded.— Laws of 1885, chap. 342, when construed' in connection with §§ 823 and 970 of the Code of Civil Procedure, authorizes a party to a mechanic's lien suit, to have the amount of his lien or claim fixed by the verdict of a jury, if the right is seasonably demanded. The case would then have to be sent back to Special Term, to be finally disposed of as to priorities and equities existing. SchiUinger Fire Proof Co. v. Arnolt, 14 K. Y. Supp. 326. Compare Ken- ny V. Apgar, 93 K. Y. 539. See also SchiUinger Cement Co. v. Arnott, 8t) Hun, 182. Trial by Jury — Waiver. — If a party is entitled to a jury trial in an action to foreclose a mechanic's lien, he will be deemed to have waived his right to it under § 1009 of the Code, subdiv. 4, by moving the case for trial, or if the adverse party moves it, by failing to claim a trial before the production of any evidence. Kenney v. Apgar, 93 N. Y. 539. See also McKcllar v. Rogers, 109 N. Y. 468 ; O'Brien y. McCarthy, 71 Hun, 427. Trial by Jury as to Damages upon Counter- claim. — If § 970 of the Code of Civil Procedure, as amended by Laws 1891, chap. 208, has any application to proceedings under Laws 1885, chap. 342, issues can be framed to be tried by a Jury, only upon two questions : first, as to the value of the property ; second, as to the quantum of damages, claimed to have been suffered by reason of plaintiEf's failure to perform his contract. Biggs v. Shannon, 16 K Y. Supp. 939 ; s. c. 44 IST. Y. State E. 3d5 ; 27 Abb. K C. 456 ; 21 Civ. Pro. R. 939. Where an application is seasonably made by a defendant inter- posing a counterclaim for damages in an action to foreclose a mechanic's lien, the Court must grant an order to frame issues to try the counterclaim before a jury. Bradley S Currier Co. v. Herter, 23 IST. Y. Civ. Pro. E. 408 ; s. c. 30 N. Y. Supp. 270 ; Beeves v. Metropolitan &c. Co., 6 Misc. 91 ; affirmed 141 N. Y. 587. Eule 31 of the General Eules of Practice requiring notice of motion to frame issues within ten days after issue joined has no application to such a case. — Ih. Reference. — The action may properly be sent to a referee ■when the owner sets up payment in full and the trial will requite the examination of a long account. Tooher v. Einaldo, 11 Hun, 154. The reference, when ordered, may be as to the entire matter in controversy. Scheahy v. Tomlinson, 1 Weekly Dig. 24. PROCEEDIKGS IN THE ACTION. 101 Where an issue directly involved necessarily requires the exami- nation of a long account, and the answer puts in issue the per- formance of the work, which it was alleged aggregated 8184,985, the Court has power to order a compulsory reference. Beeves v. Metropolitan (So. Co., 6 Misc. 91 ; affirmed 14 L JST. Y. 587. See also Vassidy v. McFarland, 139 N. Y. 201. The Court may also appoint a referee to sell and report the deficiency as in actions for the foreclosure of mortgages. Gauher v. Mills, 2 Abb. N. C. 114. Where the reference is to hear and determine the issues, it has been held the judgment should be entered by the clerk without application to the Court. Ward v. KilpatricTc, 1 Mon. Law Bul- letin, 31. The rule requiring exceptions to the referee's report to be heard in the first instance at Special Term, does not apply to the refer- ence of the issues in this proceeding. Drucker v. Simon, 4 Daly, 53. Findings. — In an action to foreclose a mechanic's lien, where the Court made certain findings not contained in a case on appeal, the General Term has power to remand the case, to have proper findings prepared. Nobis v. Pollock, 6 N". Y. Supp. 273. The trial judge deeming the findings of fact and conclusions of law presented by plaintiff in conformity with his decision signed them at the foot, and adopted them as his decision. Held a sufficient compliance with § 1022 of the Code of Civil Procedure. Dennis v. Walsh, 16 N. Y. Supp. 257 ; s. c. 41 IST. Y. State K. 103. An Appellate Court will sustain a judgment in the absence of an express finding, only when the case discloses evidence suffi- cient to warrant the finding, or when none of the evidence is printed. But where the evidence as printed does not warrant it, the finding will not be presumed in order to sustain the judg- ment. Rossi v. McKellar, 13 N. Y. Supp. 827 ; s. c. 37 N. Y. State E. 503. An Appellate Court may, in order to support a judgment, under certain circumstances assume or find a fact, and is at lib- erty to gather from the evidence any needed fact such as could have been sustained if it had been actually found, and especially one which must have been involved in the findings of fact. Ogden v. Alexander, 140 N. Y. 356. In the absence of a finding whether the owner, after abandon- ment by the contractor, stood on a forfeiture, or completed under the contract, the Court, from the evidence in the case, supj)lied the missing fact, and found completion by the owner under the contract to support the judgment. — Tb. But in the absence of evidence, an Appellate Court cannot 103 lAWS 1885, CH. 342, sec. 8. surmise as to whether a building was completed by the owner, according to the plans, and what the cost of completion was. Beecher v. Schubach, 1 App. Div. 359. A finding which is contrary to the evidence will justify a re- versal of the judgment. Reynolds v. Patten, 5 Misc. 215. Facts not found, aad as to which no findings are requested, may not be considered for the purpose of reversing a judgment. Raahe v. Sqxder, 5 Misc. 220. Where findings of fact are made upon evidence, which is im- properly admitted, they are without evidence to support them and justify a reversal of the judgment. MorowsJcy v. Rohrig, 4 Misc. 167. Findings on Conflicting Evidence. — The evidence as to extra work was conflicting. Held that where there is evi- dence to support the finding, though resting on the testimony of plaintiff alone, it ought not to be disturbed on appeal. Valh v. McKenzie, 16 K Y. Supp. 741 ; s. c. 43 N. Y. State E. 26. And findings should not be disturbed where it cannot be said that the evidence so clearly preponderates as to justify with rea- sonable certainty the conclusion that the trial court erred. Ringle v. Wallis Iron Works, 86 Hun, 153 ; Burton Co. v. Coiuan, 80 Hun, 392 ; s. c. 30 N. Y. Supp. 317. An appellate court will not disturb findings in an action to foreclose a mechanic's lien where the evidence is conflicting both as to terms of contract and adequate performance of the work. Hoar V. McNiece. 1 App. Div. 549 ; s. c. 37 N. Y. Supp, 433 ; 72 N. Y. State E. 488. Appeal. — The appeal will not operate to stay the proceed- ings, even where a deposit has been made, unless an undertaking has been given.- Lorson v. Horgan, 2 Monthly Law Bulletin, 74. Upon an appeal, the Appellate Court may render judgment contrary to the findings of the jury, if equity requires it. Such findings are not conclusive. Muldoon v. Pitt, 54 N. Y. 269. The Appellate Court, in reversing a Special Term order dis- charging a lien and vacating an order continuing a lien, may in- clude in its order of reversal an order requiring the county clerk to restore the lien and the record of the order continuing it. McGucMn v. Coulter, 33 Superior Ct. 328. The Appellate Court has no power to reverse the portion of a judgment, holding that the lien of a sub-contractor is void, where the suit was brought by the contractor, and the sab-coQ- tractor failed to make the owner a party to his appeal by neglect- ing to serve such owner with notice of the appeal. Murdoch v. Jonesf, 3 App. Div. 221. Where a judgment contains provisions which the Court below had no power to grant, an Appellate Court is not obliged, under § 3213 of the Code of Civil Procedure, to reverse it, but may PROCEEDINGS IN THE ACTION. 103 modify the judgment by eliminating therefrom the illegal provi- sions. Egan v. Laemmle, 5 Misc. 224 ; s. c. 54 N. Y. State E. 789. The Appellate Court has power, also, where findings were made by the lower court and were not contained in the case, to remand the cause and have the proper findings prepared and inserted. Nobis V. Pollock, 6 N. Y. Supp. 73. The objection that it does not appear that a copy of the notice was served on the owner, cannot be first taken on appeal. Schaettler v. Gardiner, 4 Daly, 56. The objection that the notice of lien contained false statements cannot be raised for the first time on appeal. Ringle v. Wallis Iron Worhs, 85 Hun, 379. The objection that the answer contained a counterclaim, which was admitted by a failure on the part of plaintiff to serve a reply, cannot be raised for the first time on appeal. Wolf v. Horn, 12 Misc. 100 ; s. c. 66 N. Y. State E. 860 ; 33 N. Y.'Supp. 173. The Appellate Court will reverse a judgment in claimant's favor, if it appears uncontradicted that the lien had expired by reason of failure to tile proper notice of lien. O'Donnell v. Romiberg, 14 Abb. N. S. 59. _ . In an action in the city of New York, plaintiff made certain defendants parties, as holding an apparent prior lien, and by the judge, such prior lien was declared to be invalid. In the mean- time said defendants obtained a judgment foreclosing their al- leged apparent lien in the District Court, the plaintiffs herein not being parties. Held that the plaintiffs could not obtain an injunction against the defendants in this action after proceeding to the final judgment, but must bring a new action. Jackson v. Bunnell, 113 N. Y. 216. Appeal to Court of Appeals. — Where the amount in controversy in an action to foreclose a mechanic's lien is less than $500, the judgment of the lower courts are not reviewable in the Court of Appeals. Such an action is within subdivision 3 of § 91 of the Code of Civil Procedure, since it affects " title to real es- tate, or an interest therein." Norris v. Nesiit, 123 IST. Y. 650 ; A. Hall Terra Gotta Co. v. Doyle, 133 IST. Y. 603. The respondents insist that as the amount of their respective liens as sub-contractors is less than $500, no appeal can be taken to the Court of Appeals from the judgment as to them. Held that the amount in controversy, however, is the sum of $2,454.94, adjudged to be due the contractor from the city by the judgment from which the appeal is taken, and as that amount must be established before any lien upon it can be en- forced, tbe case is appealable. Powers v. Gity of Yonkers, 114 N. Y. 145. Evidence — Burden of Proof.— In foreclosure proceed- 104 LAWS 1885, CH. 343, sec. 8. ings, the burden of proof is upon the claimant to establish the facts and circumstances upon which he seeks to establish his lien and charge the property. Taylor v. Baldwin, 10 Barb. 626. The burden of proof is upon the sub contractor to show that the moneys to which he claims his lien attaches are due from the owner to the contractor. Haswell v. Goodchild, 13 Wend. 373 ; Blythe v. PuUney, 31 Cal. 333. This rule has been recently affirmed in Bardsley v. Cook, 143 N. Y. 143 ; Smyth v. Marsicli, 4 App. Div. 171. Upon proof of the indebtedness, and the facts as to filing the notice, having been found, the question as to the liability of the owner becomes a question of law. Smith v. Coe, 29 N. Y. 666. When a conveyance is assailed in an action to foreclose a hen the burden of proof is on the purchaser to relieve himself from the effect of the fraudulent intent of the grantor, by proving that he was a purchaser for a valuable consideration. Linne- man v. Bieber, 85 Hun, 477 ; s. c. 60 N. Y. State E. 739 ; 33 N. Y. Supp. 139. Evidence — Harmless Error. — The price agreed to be paid by the contract for work, is evidence of its value. The ad- mission of expert testimony as to value in excess of the agreed price, if error, is harmless where only the contract price was awarded, and may be disregarded on appeal. Horgan\. McEen- zie, 17 N. Y. Supp. 174 ; s. c. 43 N. Y. State E. 131. Evidence Prejudicial to One Defendant.— If de- fendants are not Jointly liable, errors which are prejudicial to one defendant only do not furnish ground for a reversal of the Judg- ment as to the other defendants. Code of Civil Procedure, § 1394. -Wolf V. Hor7i, 12 Misc. 100 : s. c. 66 N. Y. State E. 860 ; 33 N. Y. Supp. 173. Evidence on Issue Not Pleaded. -When upon the trial evidence is offered as to an issue not pleaded, a failure to object to such evidence is deemed an acceptance of the new issue. Smith V. O'Donnell, 15 Misc. 98. Evidence — Inadmissibility when Waived. — Where improper evidence is received without objection, the question as to the competency of the evidence cannot be raised for the first time on appeal. Staubsandt v. Lennon, 3 Misc. E. 90 ; s. c. 23 N. Y. Supp. 544. Evidence— Price and Value of Work.— When the wntract specifies the price and value of the work to be performe'l, it is proved by the contract when in evidence. Horgan v. Mc- Kenzie, 17 N. Y. Supp. 174 ; s. c. 43 N". Y. State E. 131. See PEOCEEDINGS IN THE ACTION. 105 also Cunningham v. Doyle, 5 Misc. 319 ; s. c. 54 N. Y. State R. 784. Where the bill rendered specified the amount of the claim, and subsequently an itemized bill is rendered increasing the amount, the claimant is bound by the original bill unless the reason for the increase is explained. Spinard v. Finelite, 6 Misc. 259. Evidence of Existing Liens. — When the contract pro- vides that before receiving final payment the contractor will fur- nish evidence that all claims, liens, and demands for work under the contract had been paid and satisfied, proof of the existence of liens will defeat an action by the contractor. Fogg v. /Suburban Transit Co., 90 Hun, 274. Proof by plaintifE that no liens existed was, under the contract, a condition precedent to a recovery. — lb. But a contract providing that no payment shall be made until the contractors obtain a certificate from the county clerk that no liens remain unsatisfied of record, is intended for the benefit of sub-contractors, and liens filed by sub-contractors take priority over the claim of a bank to whom the contractor assigned all pay- ments due and to become due under the contract. Bates v. Salt /Springs Nat. Bank, 88 Hun, 236 ; s. c. 68 N. Y. State R. 282 ; 34 N. Y. Supp. 598. Evidence — Declarations of Agent. — The declara- tions of a person who is shown to have been a representative of defendant at the building, and upon whom defendant relied for information in relation thereto, are admissable. Keogh Manufac- turing Co. V. Eisenberg, 7 Misc. 79 ; s. e. 67 IST. Y. State E. 91 ; 27 N. Y. Supp. 356. Injunction and Receiver. — As to the granting of an injunction and appointment of a receiver in these proceedings, see Webb v. Van Zandt, 16 Abb. Pr. 314 ; Metjer v. Leebald, 11 Abb. Pr. N". S. 326. Receiver of Corporation Maj^ Pay.— Where the contractor was a corporation, and the building was completed on the day following its voluntary dissolution, the court may direct the receiver of the corporation on receiving the funds from the owner to pay the lien of a sub-contractor from such fund. Matter of Christie Mfg. Co., 15 Misc. 588 ; s. c. 36 N. Y. Supp. 923 ; 72 N. Y. State R. 350. Injunction — When Improper against Ovraer. — Plaintiff contracted with lessees, to tit up leased premises with radiators, steam fittings, &c., for Turkish bath establishment. Upon completion of the work plaintifE filed a lien. The lessees 106 LAWS 1885, CH. 343, sec. 8. abandoned the premises, haying failed to pay the rent, before commencement of the action to foreclose. Held that plaintifl was not entitled to an injunction to restrain the defendant owner from usins; the radiators pending the foreclosure action. Gham- ierlin v. McCarthy, 13 N. Y. Supp. 317. The Judgment and its Provisions. As to Sale. — The judgment must direct a sale, not of the property, but of the owner's interest therein, and must prescribe also the manner in which the proceeds shall be distributed. Alt- house V. Warren, 2 E. D. Smith, 657 ; Lenox y. Yorkville Church. 3 E. D. Smith, 673 ; Smith y. Corey, 3 B. D. Smith, 643 ; Meehaii y. Williams, 3 Daly, 367. Upon Default. — Where judgment is taken by default in an action by the sub-contractor against the owner, the judgment should direct a sale of the owner's interest in the premises ; the application of the proceeds to the claim and costs, and for any deficiency against the contractor. Eagleson y. Clarke, 3 E. D. Smith, 644. Writ of Assistance. — The court has power to issue a possessory writ, or writ of assistance, to enforce a judgment of foreclosure and sale in a mechanic's lien action. O'Connors. Schaeffel, 11 N. Y. Supp. 737 ; s. c. 33 N. Y. State E. 143 ; 19 Ciy. Pro. E. 378. A " life tenant" is an " owner" within the meaning of Laws 1885, chap. 343, and where a purchaser at foreclosure of the lien bought the interest of such life tenant, such purchaser can main- tain summary proceedings to remove a tenant from the property so purchased. Lang v. Everting, 3 Misc. 530. Lien Discharged by Deposit. — It has been held under former lien laws that when the lien has been discharged by pay- ment of the money into court in the mode prescribed by the stat- ute, the judgment should not declare or adjudge a lien against the property. Dunning v. Clarke, 3 E. D. Smith, 539. The lien of a sub-contractor was filed after the contractor had failed and made an assignment for the benefit of creditors. The assignee proceeded with the contract and completed the work, and discharged the sub contractor's lien by payment of the amount into court. Held that the judgment should proyide that the sub-contractor should be paid from said deposit, with costs. McMurray v. Hutchinson, 10 Daly, 64. Liien Discliarged l>y Bond. — Where the lien has been discharged by giving a bond pursuant to Laws 1885, chap. 342, THE JUDGMENT AND ITS PROVISIONS. lO? § 24, the bond takes the place of the property and becomes the subject of the lien, and the land is discharged. Morton v. Tuck- er, 145 N. Y. 244. The remedy of the lienor is not an action at law upon the bond, but an action in equity against all parties in interest, in- cluding the obligors upon the bond, and it is not a condition precedent to such an action that the lienor shall have exhausted his remedy against the land, as the land is discharged, by the bond.— /5. The complaint should be in the usual form of an action to foreclose the lien, but it should allege the giving of the bond and the discharge of the lien. It should demand judgment, not for the sale of the property, but against the obligors upon the bond for the amount due and payable upon the lien. — lb. The lienor is entitled also to personal judgment against the party owing the debt. Lawson v. Reilly, 13 Civ. Proc. Eep. 390. Although it appeared that defendant had given a bond to se- cure the lien, held that a formal judgment against the property was nevertheless proper, and the only form authorized by Laws 1885, chap. 342. Eighton v. Dessau, 19 N. Y. Supp. 395 ; s. c. 46 N. Y. State E. 922 ; affirmed 139 N. Y. 607. Lien Discharged after Action Begun. — It seems that where the lien has been discharged after issue joined, de- fendant should procure leave to file a supplemental answer set- ting up the discharge. In such case the court may render judg- ment so as to protect the rights of the plaintiff under the condi- tions of the bond, as required by the statute. Judgment modified accordingly on appeal, upon plaintiff's consent. (City Court of Brooklyn), Bulkley v. Kimlall, 19 N. Y. Supp. 672 ; s. c. 46 N. Y. State E. 543. See also authorities under § 24, "post. Specific Performance. — -The judgment in an action to foreclose a mechanic's lien cannot provide for a specific perform- ance as to the mode of payment, although the contract expressly provides for payment in specific property. Dawdney v. Mc C'til- lorn, 59 N. Y. 367. Subsequent Lienors' Riglits.— The rights of subse- quent lienors should be protected as far as possible by the court in ordering a sale under the foreclosure of a prior lien, and the judgment should provide therefor. Livingston v. Mildram, 19 N. Y. 440. Subsequent liens are cut off by a judgment and sale under and in accordance therewith. Livingston v. Miller, 16 Abb. Pr. 371. As to Prior Liens. — The judgment should provide as to 108 LAWS 1885, CH. 342, sec. 8. prior liens existing at the time of the filing of the notice of lien. These prior liens must be taken into consideration in the fore- closure, so as to determine the amount for which the owner is liable. Cronk v. Whittaher, 1 E. D. Smith, 647. If it appears that such prior liens are sufficient in the aggre- gate to absorb the fund realized upon the sale, the lien of the plaintifE will be cut ofE. Lehretter v. Koffman, 1 B. D. Smith, 647. Property of Tenant. — A building erected by a tenant at will, and which, as between such tenant and the landlord, is re- movable at the tenant's pleasure, may be sold under a judgment of foreclosure and sale against the tenant. Ombony v. Jones, 19 ]Sr. Y. 234. Personal Judgment. — It was held under the Cities Act (Laws 1880, chap. 486, § 7, now repealed), that a personal judg- ment against the owner of premises was proper, in an action to foreclose the lien, though by reason of the foreclosure of a prior mortgage pending the action on the mechanics' lien, it becomes improper to foreclose the latter. Crouch v. Moll, 8 IST. Y. Supp. 183. Personal Judgment where no Lien Estab- lished. — The contract provided for a second payment on the architect's certificate. The architect unreasonably refused a cer- tificate, and the owner refused to make the second payment. The contractors thereupon made an assignment for the benefit of creditors, and the sub-contractors filed liens. Neither the con- tractors nor their assignee filed liens. The sub-contractors sued to foreclose, and made the assignee of the contractors a defendant, and the latter, in his answer, asked damages against the owner for breach of contract in refusing to make the second payment. The judgment awarded the balance due on the second payment after satisfying the liens to be paid to the assignee. Held no error. That although no lien was filed by the contractors or their as- signee, Laws 1885, chap. 342, § 15, provides that any claimant who fails to establish a valid lien may recover a judgment for whatever is due him, which he might recover in an action on contract against the said party. Thomas v. Sahagan, 10 N. Y. Supp. 874 ; s. c. 82 N. Y. State R. 1075. Note. — See further as to personal judgment. Laws 1885, chap. 342, § 15, post. Rights of Purchaser. — A purchaser under a judgment of foreclosure and sale in these proceedings may contest the claim of a prior mortgagor, and set up usury as against such THE JUDGMENT AND ITS PROVISIONS. 109 prior mortgagor. Knickerbocker Ins. Co. t. Hill, 6 Thomp. & C. 285. The purchaser may claim, also, that a prior mortgage was void for want of consideration. Nichols v. Hill, 6 Thomp. & C. 335. The court has power to grant a writ of assistance to let a pur- chaser into possession of lands bought in at foreclosure sale iu mechanic's lien suit. O'Connor v. Schaefel, 11 N. Y. Supp. 737 ; 8. c. 33 N. Y. State K. 143 ; 19 Oiy. Pro. E. 378. Amendments. — A judgment in these proceedings may be amended, as in foreclosure actions. And an execution directing a sale of defendant's interests in the lands, as of a date earlier than the lien may be amended. A sale under such an execution is not void. Boody v. Rexford, 13 Weekly Digest, 130. Payment Before Service of Summons. — Where after the notice of claim is filed, and the lien is acquired, the amount of the claim is paid before a summons is served, the claimant is not entitled to costs. Reynolds v. Hamil, 1 Code Kep. N. S. 230. Offer of Judgment. — Laws of 1885, chap. 342, § 19, pro- vides for an offer of Judgment as in civil actions. In case of fail- ure to accept the offer, plaintiff must pay costs, unless he recovers a more favorable judgment than that embraced in the offer. See § l'A,post. Costs Against Executor. — It has been held that in an action against an executor or administrator, where the claim has not been unreasonably resisted, the court may properly refuse costs. Marry att v. Riley, 3 Abb. N. C. 119. Costs — Owner should Discharge Lien. — An owner against whom a notice of lien is filed for an amount actually due, and not in excess of the sum owing, must discharge the lien by. deposit if he would protect himself against costs. Williamson v. Hendricks, 10 Abb. Pr. 98. And the court may require the owner to pay the costs in addi- tion to what is due the contractor where the owner defends the action. Kenny v. Apgar, 93 N. Y. 535. See also as to the owner's liability for costs where there are several liens, prosecuted by different claimants, which suits have been contested by the owner. Morgan v. JUtevens, 6 Abb. N. C. 356. Costs Out of Fund. — As to the propriety of directing that costs be paid out of the proceeds of the sale, not by the owner personally, see Fox v. Kidd, 77 N. Y. 489. 110 LAWS 18«5, CH. 342, sec. 8. Costs in Suit Begun under Prior Law.— It has been held, also, that where an action to foreclose the lien was begun prior to the passage of the Act of J 885, chap. 343, the amount of costs to be recovered must be governed by the Laws of 1885, the action having been tried and concluded after the Act of 1885 went into effect. Fargo v. Helmer, 43 Hun, 17. Extra Allowance. — It was held under former lien laws, that as an extra allowance was not in express terms authorized by the statute, none could be made to a successful party. Ruth v. Jones, 1 Monthly Law Bui. 61 ; Hagan v. American Baptist Hoc, Gen. Term Com. Pleas, Oct., 1866, Larremore, C. J., dis- senting ; 6 N. Y. State Eep. 21:^. But under the provisions of Laws 1885, chap. 342, § 14, it has been held that an extra allowance might be granted to the suc- cessful party. Laiuson v. Reilly, 13 Civ. Proc. Eep. 290 ; Hor- gan v. Mckenzie, 17 IST. Y. Supp. 174 ; s. c. 43 N. Y. State R. 13 L Note.— See further as to costs, Laws 1885, chap. 343, § 14, post. Assignee of Lienor. — The lien must be filed by the per- son who performed the labor or furnished the materials. But the Act of 1885, chap. 342, § 17, provides specifically, that after the lien has been acquired the assignee of the lienor may enforce it as plaintiff in the foreclosure action. This rule was recognized also under prior lien laws. It has been held that although the assignee of the contractor, laborer, or material man cannot acquire the lien, he may take an assign- ment of it after the lien has been acquired, and enforce his claim by foreclosure. Broion v. Smith, 55 Iowa, 31 ; Roberts v. Fow- ler, 3 E. D. Smith, 632. And see authorities under § 1, " As- signee," p. 8, ante. There has been doubt in many States upon the question as to the right of a leinor to assign his lien. But the weight of author- ity is in favor of the rule that a lien, once acquired, may be as- signed and enforced by the assignee for his own benefit. Mur- phy V. Adams, 71 Me. 113 ; Kerr v. Moore, 54 Miss. 286 ; Tut- tle V. Howe, 14 Minn. 150 ; Davis v. Bibsland, 18 Wall. 659 ; Hull of Mw Ship, Daveis, 199 (Dist. of Me.) ; Caldtoell v. Law- rence, 10 Wis. 331. And where several liens, created at different times and by different persons, have been duly assigned to one person, such as- signee may enforce them in one action, if no other rights have intervened between the several filings. Boody v. Rex ford, 13 Weekly Dig. 130. Assignee of Lienor— Partner Succeeding to Rights of his Firm.— The contractor employed the firm JUEISDICTION OF COURTS ITOT OF EECOKD. Ill of OliTer & Ogden to perform work and supply materials. Dui - ing the progress of the work plaintifE Ogden purchased the inter- est of his co-partner in the firm, and completed the work. Held that the plamtifE not only succeeded to all the firm assets, but could not be regarded as a mere purchaser or assignee, but one of two persons who actually furnished the labor and materials, and by his purchase, on the dissolution of the firm, became the sole party in interest and entitled to file and enforce the lien in his own name. Ogden y. Alexander, 140 N. Y. 356. Judgment for Deficiency.— As to mode of entering judgments for deficiency, see § 23, post. § 9. Jurisdiction of Courts not of Record — Summons and Complaint. — An action to foreclose a lien, provided for in this act, may be brought in a court not of record, which would have jurisdiction to render a judgment in an action upon a contract for a sum equal to thie amount of the lien, and shall be com- menced by the personal service anywhere within this State, of a summons and a complaint verified according to the provisions of section five hundred and twenty- six of the Code of Civil Procedure, upon the owner or other person in interest as described heretofore in this act. The complaint must set forth substantially all the facts contained in the notice of lien filed with the clerk of the county as provided in section five [four] of this act, and the substance of the contract. The form and contents of the summons shall be the same as prescribed by the Code of Civil Procedure for the commencement of an action in a court not of record. * The summons must be returnable not less than twelve nor more than twenty days after the date when it is issued. _ Jurisdiction as to Executor.— A district court in the city of New York, being a court not of record, can acquire no 112 LAWS 1885, CH. 343, secs. 10, 11. jurisdiction of an executor defendant in an action to foreclose a mechanic's lien. Stanton v. Gohler, 16 Misc. 383. The limitation as to jurisdiction provided for by subdivision 5 of § 3863 of the Code of Civil Procedure is not abrogated by the general provisions of the Mechanics' Lien Law. — lb. Jurisdiction of Courts Not of Record.— In an action to foreclose a mechanic's lien in a court not of record, the court has no power to direct a judgment of foreclosure and sale. The right, title, and interest of an owner at the time of filing of lien may be reached on an execution out of a court not of record, l^!gan v. Lacmmle, 5 Misc. 334 ; s. c. 54 N. Y. State E. 789. § 10. Service of Summons by Publication in Courts Not of Record.— When the summons in aa action in a court not of record cannot be served per- sonally on the owner or party in interest, by reason of absence from the State or concealment therein, such service may be made by leaving a copy of such sum- mons at the last place of residence of such owner or person in interest, as aforesaid, and by publishing a copy of such summons for thi'ee weeks in succession in a newspaper published in the city or county where the property is situated. If the service of the summons is made by publica- tion, the time when said summons is returnable shall commence to run from the day of the last publication. § 11. Procedure in Courts Not of Record.— At the time and place specified in the summons for the return thereof, issue must be joiiied if both parties ap- pear, by the owner or other person in interest filing with the Justice an answer in writing verified as herein provided for verifying the complaint, and which may contain a general denial of each allegation of the com- plaint or a specific denial of one or more of the ma- terial allegations thereof; it may also set forth any TRIAL OF ISSUES IN COURTS NOT OF RECORD. 113 legal or equitable defence or counterclaim to such com- plaint. If the owner or other party in interest fails to ap- pear on the return day of the summons on proof by affidavit of the service of the summons and complaint, if personal service thereof be made, or if by publica- tion or [onj proof of the service of summons by adver- tisement, judgment may be entered for the amount claimed in the complaint vrith the costs ; execution may thereupon be issued for the collection of said judgment and costs, the same as upon judgments in actions on contract in such courts, except that the ex- ecution shall direct the officer to sell the right, title and interest of the owner or other person in interest as aforesaid in the premises, upon which the claim set forth in the complaint was a lien at the time of filing the notice of lien prescribed in the fourth section of this act. Form of Justice's Judgment. — A justice's jadgment in the ordinary form held, in connection witii the previous pro- ceedings, a sufficient judgment to establish the lien. Jennings v. Ncioman, 52 How. Pr. 382. Execution Readies Title of Owner. — A court not of record has no power to decree a judgment of foreclosure and sale. The owner's right, title, and interest at the time of filing the lien may be sold on an execution issued out of a court not of record. Egan y. Laemmle, 5 Misc. 224 ; s. c. 54 K. Y. State E. 789. § 13. Trial of Issues in Courts not of Record.— The issue joined as provided in the preceding section, must be tried the same as other issues are tried in the respective courts in w^hich the action is brought, and the judgment thereon be enforced ; if for the claimant as provided in the preceding section, if for the owner or other person in interest it must be enforced the 8 114 LAWS 1885, CH. 342, SECS. 13, 14. same as in actions arising on contracts in the respec- tive courts. § 13. Appeals from Courts not of Record.— Appeals may be taken from sucli judgments rendered in courts not of record, in the same manner and accord- ing to the same provisions provided by statute for ap- peals from judgments in actions in such courts arising on contract for the recovery of money only. § 14. Costs. — Costs and disbursements, except in courts not of record, in which they shall be the same as allovred in civil actions in such courts, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defend- ants, or any or either of them as may be just and equitable except as provided in section nineteen of this act, and shall be included in the judgment recov- ered therein. The expenses incurred in serving the summons by publication may be allowed in courts not of record, and added to the amount of costs now allowed in said courts. When an action is brought in a court of record such direction shall be made in the discretion of the court, as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid. No Cost where Lien Paid Before Suit.— Where the amount of the lien, which has been duly acquired, is paid before the summons in the foreclosure suit is served, the claimant is not entitled to costs. Reynolds v. Hamill, 1 Code Eep. N. S. 330. Costs after Offer of Judgment.— Offer of judgment can be made pursuant to Laws 1885, chap. 342, § 19, as in a civil action. If plaintiff refuses to accept the offer he cannot recover COSTS. 115 costs, unless he recovers a more favorable judgment than that embraced in the oflEer. See § 19, post. Costs Against Executor.— Where the lien is foreclosed against an executor or administrator, and the claim is not unrea- sonably resisted, the court may, in its discretion, refuse to award costs. Marryatt v. Biley, % Abb. N. C. 119. Owner may Protect Himself as to Costs by Dis- charging liien. — An owner against whom a notice of lien is filed for an amount actually due and not in excess of the sum owing, must, in order to protect himself against costs, discharge the lien by deposit in the mode prescribed by the statute. Williamson v. Hendricks, 10 Abb. Pr. 98. If the owner concedes a certain amount to be due, and fails to offer to pay the same into court or to execute or deposit security therefor, as provided by Laws 1885, chap. 343, § 19, he becomes liable for costs, if plaintiff succeeds in the action. Mull v. Jones, 18 N. Y. Supp. 359. Where the owner fails to defend the action, and prove the exact amount due between himself and the contractor, he takes the risk of a judgment, against his property in excess of what he may deem to be the amount of his indebtedness. The owner, there- fore, may subject his property to the amount of the claim and costs of the action. Holler v. Apa, 18 N, Y. Supp. 589 ; s. c. 47 N. Y. State E. 485. Where the plaintiff does not recover a judgment more favor- able than that offered him by the owner, he can recover costs only to time of the offer, and must pay the owner all costs which accrued subsequent to the time when he might have accepted the offer. Schulte v. Lestershire Boot & Shoe Co., 88 Hun, 226. When Owner Liable for Costs. — And the court may, where the owner defends the action, require him to pay the costs in addition to the sum actually due the contractor. Kenny v. Apgar, 93 N. Y. 535. See also as to the owner's liability for costs where there are several liens prosecuted by different claimants, where the suits have been contested by the owner. Morqan v. Stevens, 6 Abb. N. C. 356. Costs— Recovery Less than Amount Claimed. — Where there has been no oSer of judgment, payment or deposit, as required by Laws 1885, chap. 342, § 19, plaintiff is entitled to costs, though he recover less than the amount claimed. Rule same as in actions at law. Valk v. McKenzie, 16 N. Y. Supp. 741 ; s. c. 43 N. Y. State R. 36. 116 LAWS 1885, CH. 343, SEC. 15. Costs Out of the Fund.— As to the propriety of directing that costs be paid out of the proceeds of the sale, not by the owner personally, see Fox y. Kidd, 77 N. Y. 489. Costs— If otice of Taxation. — If the owner fails to de- fend the action, and makes default, he is not entitled to notice of taxation of costs. Holler v. Apa, 18 N. Y. Supp. 589 ; s. c. 47 N. Y. State E. 485. Costs in Action Begun Under Prior Liien Law. — It has been held, also, that where action to foreclose a lien was begun prior to the passage of the Act of 1885, chap. 342, the amount of costs to be recovered must be governed by the Act of 1885, the action having been tried and concluded after said Act of 1885 went into effect. Fargo y. Helmer, 43 Hun, 17. Extra Allowance. — Under prior lien laws no provision being made therefor an extra allowance could not be made. Ruth V. Jones, 1 Monthly Law Bui. 61 ; Hagan v. American Baptist Sac, 6 State Eep. 312. But under the provisions of chap. 343, Laws 1885, § 14, it has been held that an extra allow- ance may be granted to the successful party. Lawson v. Reilly, 13 Civ. Pro. Eep. 390 ; Horgan v. McKenzie, 17 N. Y. Supp. 174 ; s, c. 43 N. Y. State E. 131. See also as to provisions as to judgment, under 8 14, ante, p. 114. § 15. Personal Judgment.— Whenever in any ac- tion brought under the provisions of this act, any claimant shall fail, for any reason, to establish a valid lien, he may nevertheless recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him, and which he might recover in an action upon a contract against the said party or parties. Rule under Prior Laws.— Prior to the enactment of this provision the power to render a personal judgment was mere- ly incidental to the enforcement of the lien. If no lien had been acquired no personal judgment could be rendered. Burroughs v. Tostevan, 75 N. Y. 571 ; Meyer v. Beach, 79 N. Y. 409 ; Ghilds v. BostwicTc, 65 How. 146. But the court having once acquired jurisdiction such judg- ment could be rendered as justice required. Bchaettler v. Gardi- TKANSCEIPT OF JUDGMENT. 117 ner, 47 N. Y. 10 ; McGraw t. Godfrey, 59 N. Y. 610 ; Dar- row v. Morgan, 65 N. Y. 338. Personal Judgment. — The plaintiS is entitled to a judg- ment commensurate with the'relief to which he shows himself entitled. He may have judgment establishing his lien, and also a personal judgment for deficiency in the same action. Ring- ler V. Wallis Iron Works, 86 Hun, 153 ; Decker v. O'Brien; 1 App. Div. 81. Personal Judgment in Absence of Lien. —An as- signee of a contractor for the benefit of creditors was made de- fendant in a foreclosure suit by a sub-contractor. The assignee in his answer claimed damages against the owner for a breach of contract on the part of the owner in refusing to pay an instal- ment when due. The judgment, after providing for the pay- ment of the sub-lienors, awarded the balance to the contractor's assignee. Held that the judgment in favor of the assignee was proper, even though such assignee had not, nor had his assignor filed a lien. Thomas v. Sahagan, 10 !N". Y. Supp. 874. And where the mechanic's lien cannot be foreclosed, by reason of the fact that a prior mortgage had been foreclosed against the premises, a personal judgment against the owner, in the me- chanic's lien suit is proper. Grouch v. Moll, 8 N". Y. Supp. 183. If the proof shows that the lien is defective, or that the action was not begun in time, the lienor may necertheless recover a personal judgment against the defendant, with whom the con- tract was made. Altieri v. Lyon, 13 N. Y. Supp. 617 ; 37 N. Y. State E. 881 ; 59 Superior Ot. K. 110 ; Smith v. Smith, 7 Misc. 37. Plaintiff failed to prove his lien, but his complaint contained allegations showing a cause of action for work, labor, and ser- vices. Held that the complaint should not be dismissed, and that plaintiff was entitled to personal judgment against the party liable for the debt. Smith v. Smith, 7 Misc. 37 ; s. c. 57 N. Y. State K. 86 ; 37 IST. Y. Supp. 379. Where one of two tenants in common made a written contract for the work, the consent of the other tenant in common to the improvements will not render him liable to a personal judgment. Smith V. O'Bonnell, 15 Misc. 98. Personal Judgment for Balance. — Where the lien is established for a portion of the claim, a personal judgment may be rendered against the contractor for any balance due over and above the amount for which the lien is established. Staple- ton V. Mayer, 17 Misc. 67. § 16. Transcript of Judgment.— A transcript of 118 LAWS 1885, CH. 342, sec. 17. every judgment rendered under and according to the provisions of tWs act headed " lien docket " shall be furnished by the clerk of the county where rendered and docketed to the successful party, v?ho may file the same with the clerk of any other county, and if the judgment is for twenty-five dollars or upwards exclu- sive of costs, the same shall thereafter be a lien on the real property in the county where the same is filed and docketed of every person against whom the same is rendered, in like manner and to the same extent as in other actions for the recovery of money arising on contracts. When the action is tried and the judgment ren- dered in a court not of record, the justice of the court in which the action is tried, or other person authorized to furnish transcripts of judgments therein, ■ shall fur- nish the successful party a transcript thereof, who may file. the same with the clerk of the county with whom the notice of lien is filed. The filing of such transcript shall have the same effect as the filing of transcripts of judgments rendered in such courts not of record. In all cases where the judgment is against the claimant or claimants the county clerk shall enter the word "discharged" under the last head in his lien docket. For authorities as to the judgment and its provisions, see § 8, ante, pp. 108, 116. As to deficiency judgment, see § 23, post. § 17. Parties to Action.— Any person or persons, firm or firms, corporation or association, filing a notice of lien, or the assignee of such person or persons, firm or firms, corporation or association, after the filing thereof, shall be the plaintifE in such action. PARTIES TO ACTION. 119 The plaintiff must make the parties wto have filed notice of liens against the property, as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendant. And as to all persons, firms, corporations or asso- ciations against whom no personal claim is made, the plaintiff may with the summons serve a notice stating briefly the object of the action, and that no personal claim is made against it or them. And all persons, firms, corporations or associations, who have filed notice of liens under this act shall by answer in such action set forth same, and the court in which the action is brought may settle and deter- mine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims of all parties to the action and upon every counter-claim or set-off alleged therein, to the extent of their respec- tive jurisdiction. The provisions in this section in regard to making parties who have filed notices of liens against the property, as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendants shall not apply to proceedings to enforce liens instituted in courts not of record. Adjustment of Various liiens. — A bond was given discharging the lien after the commencement of the action. The bondsmen were brought in by a supplemental pleading. Held that the Court had power in such an action to adjust the respec- tive claims of various lienor defendants against plaintiff. D' An- dre V. Zimmerman, 16 Misc. 499. Parties— Assignee of Contractor. — Where the con- tractor has made an assignment for the benefit of his creditors, or has assigned his contract, such assignee is a proper party, and must be joined in the foreclosure proceedings. Pairo v. Bethell, 75 Va. 825. 120 LAWS 1885, CH. 343, SEO. 17. Parties— Executor and Administra< or.— It has been held under the provisions of Laws 1885, chap. 342, that the right to file a lien terminates with the death of the owner, and a lien filed after the owner's death is void as to all work performed prior to the death of the owner. TurUdy v. Wright, 144 N. Y. 519. To the same eEEect are the decisions under prior laws, where it has been held that if the owner dies before the lien is acquired, it cannot be thereafter enforced against the executor or admin- istrator of the deceased owner. Meyers v. Bennett, 7 Daly, 471 ; Brown v. Zeiss, 9 Daly, 340. But after the lien has been acquired, it may be enforced against the executor or administrator of the deceased owner. Gumming s v. Halstead, 26 Minn. 151. If, however, the fee of the land to which the lien attaches does not vest in the executor or administrator, it has been held they are not proper parties to the action. Crystal v. Flannelly, 2 E. D. Smith, 583. In other States, also,, it has been held that the lien attaches to the land. If after the lien is acquired the owner dies, and his realty vests in his heirs in fee, the heirs of such deceased owner are the proper parties in the action to foreclose. McGrew v. McCarty, 78 Ind. 496 ; and see also Welch v. McGrath, 59 Iowa, 519. Parties — Contractor. — In an actiou by a sub-contractor to foreclose a lien he must make the contractor a party. Kerns v. Flynn, 51 Mich. 573. Where the suit is by a sub-contractor against the owner, and the owner's liability is predicated upon payments made to the contractor in advance of the terms of the contract, the con- tractor is a proper and necessary party, and may be brought in by amendment. Hilton Bridge G. Go. v. N. Y. Central & H. R. JR. E. Co., 145 N. Y. 390. But it has been held, under prior lien laws, that where all the statutory requirements have been complied with, the fact that the contractor was not made a party defendant is not ground for defence. Foster v. SMdmore, 1 E. D. Smith, 719. Where the action is brought by a material man, who furnished materials to the contractor, and the owner is the only defendant, the Court will not dismiss the complaint for failure to join the contractor, but will proceed as in other cases where only one necessary party has been served. Lowber v. Ghilds, 3 E. D. Smith, 577. On proper application, the contractor may be brought in and made a party to the actioa. Sullivan v. Decker, 1 E. D. Smith, 699. Parties— Subsequent Lienors. — Where the action to PARTIES TO ACTIOK. 121 foreclose a lien has been begun, and others subsequently acquire liens upon the property, plaintiff is not bound to join such sub- sequent lienors as defendants. Suydam v. Holden, 11 Abb. N. S. 329. But upon proper application, subsequent as well as prior lien- ors may be brought in and made parties to the action, and the equities will be adjusted in accordance with their respective rights. Kmney v. Apgar, 93 N. Y. 539. Parties — Assignee. — Where a defendant corporation has become insolvent and made au assignment, the assignee of the insolvent defendant, though not a necessary party, is a proper party under the circumstances, and should be brought in by order, that the judgment may be binding upon him. Hilton Bridge C. Go. v. N. Y. Central & H. R. B. R. Co., 145 N. Y. 390. See also Hilton, Bridge Go. v. Gouverneur R. R. Co., 90 Hun, 584. Where the contractor assigned moneys due and to grow due under the contract, and subsequently abandoned the contract, it was held that the assignee was not a proper or necessary party in an action to foreclose liens by sub-contractors, although their liens were filed after the assignment. Mulligan v. Vreeland, 88 Hun, 183. Parties— Husband and Wife.— Plaintiff sued defend- ant to foreclose a mechanic's lien, and it appearing that de- fendant's wife was the real owner, plaintiff moved for leave to substitute the wife and her grantee as defendants. Held that the provision of Laws 1885, chap. 342, that a lien shall not be invalid because of a mistake in the name of the owner, does not apply to this case, and plaintiff must bring a new action. (N. Y. Common Pleas, Sp. T., Van Hoesen, J.) Spenee v. Griswold, t N. Y. Supp. 145 ; s. c. 23 Abb. N. C. 239. Parties — Bondsmen. — After the lien has been discharged by giving of a bond, as provided by § 24 of chap. 343, Ijaws 1885, the bond becomes the subject of the lien, and the remedy is not an action at law on the bond, but a suit in equity to es- tablish the lien against all parties in interest, including the obligors upon the bond. Morton v. Tucker, 145 N". Y. 244. And see post under § 24, p. 13. Parties— Intermediate Lessee of Unrecorded Lease. — A party in possession of certain leasehold premises, ordered work and materials from plaintiff, who filed a lien. In the action to foreclose, plaintiff made Maria Moss a party because she received an assignment of the leasehold from Casimear de E. Moore, and subsequently assigned said lease to defendant before 133 LAWS 1885, CH. 343, sec. 17. the contract had been made with plaintiff. Her lease and as- signment, however, were not recorded. Held that Maria Moss was not a proper or necessary party, she not having been in pos- session nor vested with any interest in the premises when plain- tiff's contract was made ; and as to her there was no record title. Southard v. Moss, 30 N. Y. Supp. 848 ; s. c. 3 Misc. 131. New Parties, Right to Continue the Action.— Where prior or subsequent lienors have been brought in and made parties to the foreclosure, they have a right to carry on the action for their own benefit and to enforce their liens respec- tively, if the plaintiff abandons the action. Abram v. Boyd, 5 Daly, 331. As to Bringing in Otlier Lienors. — Whether a plain- tiff, foreclosing a mechanic's lien, can gain priority by making other lienors parties under an allegation such as is usual in fore- closure, that they claim some interest or lien subsequent to his quwre. Luscher v. Morris, 18 Abb. N. C. 67. As to Bringing in, One Claiming an Equitable Assignment.— The contractor, the plaintiff, gave an order on the owner in payment of a claim due a sub-contractor as fol- lows : New York, January 30, 1891. Edison Mlectrie Illuminating Co., 343 Fifth Avenue, N. T. Gentlemen : — Please pay to the Samuel L. Moore & Sons Co., of Eliza- bethport, N. J., the sum o£ twelve hundred and fifty ($1,350) dollars, and charge the same to our account of the Duutscher Verein Club Engine. The payment to be made when the money is due, as per terms and conditions of our contract with you for the above plant. Yours, very truly, Williams & Potter. The drawee refused to accept the order, and plaintiffs, the drawers, attempted subsequently to revoke it. The payees insist- ed on their rights under the order, and did not file any lien within the time provided. Defendant, the Edison Co., moved to have the payees under this order brought into the lien suit and made parties. Held that the order constituted an equitable assignment, that formal acceptance was not necessary, and after notice, the drawee became a trustee of so much of the fund as was assigned. That the drawees apparently had an interest in the funds in controversy, and were necessary and proper parties. Code of Civil Procedure, § 453, Laws 1885, chap. 343, § 17. Williams v. Edison III. Co., 16 N. Y. Supp. 857 ; s. c. 43 N. Y. State E. 136. Parties Having no Interest. — In an action to foreclose a lien for constructing a line of railroad, counsel employed by CONSOLIDATIOlf OF ACTIONS. 123 plaintiff to secure rights of way, and having contracts, deeds, and other papers, have no lien on the fund due from the owner to the contractors, and an order making them parties in the foreclosure suit is error and should be reversed. Hilton Bridge (J. Co. v. N. Y. Central & H. R. R.R. Co., 145 N. Y. 390. § 18. Consolidation of Actions.— Any persons, firms, corporations or associations claiming liens upon the same property may join in the same action, and when separate actions are commenced, the court in which the first action was brought may, upon the ap- plication of the owner of the property, or of any part thereof, or of any party to either action, consolidate them. The provisions of this section shall not apply to actions commenced in courts not of record. Consolidations of Actions in Diiferent Court. — It has beeu held in the City Court of New York, that where the first action was commenced in that Court, and a subsequent action to foreclose lieu on same property was commenced in the Supreme Court, the City Court has power to consolidate the actions, and thereby remove to itself the Supreme Court action. Boyd V. Stewart, 30 Abb. N. C. 127. An action commenced in time, consolidated with one which was not, if the plaintiff in the latter action was a defendant in the former, the consolidated action remains the action of the plaintiff in the suit commenced in time, and any defendant in that action may enforce his lien in the consolidated action. Neuschatel Asphalt Co. v. The Mayor, 12 Misc. 26. § 19. Offer of Payment. — At any time after an action is commenced, the owner or owners of the prop- erty affected, may, in writing, offer to pay into court any amount stated in the offer, or to execute and de- posit any securities or papers which he may describe, in discharge of the lien or liens. If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that on executing and depositing 124 LAWS 1885, CH. 342, sec. 20. with tlie clerk of the county the amount offered or the securities or papers described, the lien or liens be dis- charged and the moneys or securities deposited take the place of the property upon which such lien or liens was or were created, and shall be subject to the same. In case the offer shall not be accepted within ten days, and the plaintiff fails to recover any more favor- able judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer. Costs. — For authorities as to costs and parties liable there- for, see § 14, pp. 114-116, ante. Form of the Offer. — On offer to pay, or to deposit securi- ties, pursuant to Laws 1885, chap. 342, § 19, must conform to the requirements of the statute, and should state that the offer is made " in discharge of the lien or liens.'' Unless these words appear the party making it will not be protected as to costs. Hall V. Dennerlein, 14 N. Y. Supp. 796 ; s. c. 39 N. Y. State R. 67 ; followed with reluctance, in Burton v. Ringrose, 63 Hun, 163 ; s. c. 17 N. Y. Supp. 665 ; 44 N. Y. State E. 487. See opinion of Pratt, J. An offer which fails to state that it is made " in discharge of the lien," is not available to plaintiff, and confers no authority to enter an order upon it, discharging the lien. Hall v. Denner- lein, 14 N. Y. Supp. 796 ; s. c. 39 N. Y. State E. 67. Where the party himself makes a written offer of judgment an acknowledgment thereon is not necessary. An acknowledgment is only necessary in case it is made by an agent. Pfister v. Stumm, 7 Misc. 526. When Owner Entitled to Costs.— If the plaintiff fails to recover a judgment more favorable than that offered, the owner must pay the costs to the time of the offer, and will re- cover all costs subsequent to the time when plaintiff might have accepted the offer. SchuUe v. Lestershire Boot S Shoe Co., 88 Hun, 226 ; Pfister v. Stumm, 7 Misc. 526. § 30. Sub-Contractor ; Definition of Term- Bank of Various Liens.— All persons, firms, cor- porations or associations entitled to liens under the SUB-COlfTRACTOR ; DEFINITION OF TERM. 125 provisions of this act, except those who contracted with the owner, shall be deemed sub-contractors, and the court in the judgment shall dii'ect the amount due sub-contractors and workmen, to be paid out of the proceeds of sales in their order of priority as herein provided before any part of such proceeds are paid to the contractors. In case of several buildings erected, altered or re- paired, or meadows, swamps, or other low lands, or lands under water, whether being dredged, filled in, graded or otherwise improved under one contract, and of conflicting liens, each lienor shall have priority upon the particular building or premises where his labor is performed or his material used. Persons standing in equal degree as co-laborers or various persons furnishing materials, shall have pi'iority according to the date of filing their liens, provided, however, that in all cases workmen or laborers work- ing for daily or weekly wages shall have preference over employers of labor, sub-contractors or contractors without reference to the date when such workmen or laborers shall have filed their liens. Where several notices of liens are filed for the same demand, as in case of a contractor including claims for workmen to whom he is indebted, and the liens by the workmen, the Judgment shall provide for the proper payment in order of priority as herein provided, so that under the liens filed double payment shall not be required and no payments voluntarily made upon any claim which has been filed as a lien, shall impair the lien of any person except the lien of the person so paid to the amount of such payment. (As amended by Laws of 1895, chap. 673.) 136 LAWS 1885, CH. 342, SECS. 21, 22. Joint liien.— If the contractors are not partners, and they make a joint contract with the owner, and subsequently make a contract between themselves each to do a specific portion of the work, each becomes a sub-contractor under the joint contract, and a joint lien is not necessary, as each may file a separate lien. Strobel v. Ochse, 14 Misc. 522 ; Vogel v. Wkitmore, TZ Hun, 417 ; s. c. 54 N. Y. State R. 882. liiens on Contiguous Buildings. — Lienors claiming a lien upon several contiguous buildings who do not specify the amount due on each will be postponed to those who do so specify. Broadway Sav. BJc. v. Cummings, Daily Reg. Jan. 30, 1884. But see authorities under head " Blanket Liens," ante, p. 20. Priorities in Favor of Sub-Contractors. — The rights of a contractor or his assignee, under Laws 1885, chap 342, § 20, are postponed until the amount due sub-contractors have been discharged. In such cases the judgment must direct " the amount due sub-contractors, and workmen to be paid ont of the proceeds of sales in their order of priority . . . before any part of such proceeds are paid to the contractors." Eng- lish V. Sill 18 N. Y. Supp. 576 ; s. c. 63 Hun, 572, 45 N. Y. State R. 462. Priorities— Rights of Sub-Contractor.— As to far- ther provisions under these heads, see § 1, pp. 52, 75, 81-84, ante, and § 21, infra. § 31. Priority of Liens, how Determined.— In every case in which different liens are asserted against property, the court in the judgment must declare the priority of each lien, and the proceeds of the sale of the property must be applied to each lien in the order of its priority. See also authorities under §§ 1, 5, on pp. 51-53, 81-84, ante. § 2'i. Contract for Payment in Specific Prop- erty.— Whenever, by the terms of his contract, the owner has stipulated for the delivery of bills, notes or other obligations or securities, or of any other species of property in lieu of money, the judgment may direct that such substitutes be delivered or deposited as the JUDGMENT FOR DEFICIENCY. 137 court may direct, and the property affected by the liens can only be directed to be sold in default of the owner to deliver said substitutes within such time as may be directed. Substituted Property.— The lien had been held to be enforceable when the contract stipulated for payment in specific property, before the passage of this section. Dowdney y. McCul- lom, 59 N. y. 367. But the court cannot decree a specific performance of such a contract. — Ibid. Upon the failure of the owner to comply with the terms of a contract, by which he was to pay for a building in real estate, the workman may enforce his lien. Murry v. Brown, 91 TJ. S. 257. § 33. Judgment for Deficiency.— Whenever, on the sale of property against vs^hich a notice of lien is filed as provided in the fourth section in this act, there is a deficiency of proceeds, judgment may be docketed for deficiency against the persons, firms, cor- porations or associations named in the judgment as personally liable therefor, and therein adjudged to pay the same in like manner and with like effect as in ac- tions for the foreclosure of mortgages. The provisions of this section shall not apply to actions commenced in courts not of record. Form of Judgment. — The judgment may provide that plaintiff recover the whole amount due ; but it must provide that the property be sold to satisfy the amount of the lien, and that plaintiff leave execution against the party liable for the debt for any deficiency in case the full amount is not realized on a sale of the premises. Decker v. O'Brien, 1 App. Div. 81 ; Rin- gle V. Wallis Iron Works, •fifj Hun, 153. § 34:. Discharge of Lien.— A lien may be dis- charged as follows : 1. By filing a certificate of the claimant or his sue- 128 LAWS 1885, CH. 342, sec. 34. cesser in interest, duly acknowledged or proved, stat- ing that tlie lien is satisfied and may be discharged. 2. By depositing with the county clerk, if before the suit, of a sum of money equal to the amount claimed, with interest to the time of such deposit. 3. After the commencement of the action, by the deposit with the clerk of the county of such sum of money as in the judgment of the court, after due notice to all claimants or parties to the action, will be suffi- cient to pay any judgment which may be recovered against the property. In case the deposit of money is made with the county clerk as provided in subdivi- sions two and three of this section, the same shall be repaid by said clerk to the party making such deposit, or his assigns, upon the lien or liens being discharged by the claimants who have filed a notice or notices of lien or liens. 4. By the lapse of time. When one year has elapsed from the time of filing the notice of lien, and no action has been commenced either to enforce such claim or order of the court made continuing said lien, as provided in section six of this act. 5. By order of the court for neglect of the claim- ant to prosecute the same, as hereinafter provided. The owner of the property or of any part thereof af- fected by any notice of lien filed under this act, or the person or persons, firms, corporations or associations against whom the claim is made, may, at any time after the filing of the notice of lien, serve a notice in writing upon the claimant or any one of several claimants united in interest, or by leaving such notice at his last known place of residence, with some person of suitable DISCHARGE OF LIEK^. 129 ao-e, with direction to deliver the same, requiring said claimant to commence an action to enforce the claim within the time to be specified in the notice, which shall not be less than thirty days from the time of such service; or to show cause at a special term of any court of record, at which a motion might be made in an action to enforce the lien or at a county court of the county in which the property is situated, at a time to be specified in- such notice, why the notice of lien filed should not be vacated and canceled of record. Thereupon, upon due proof of the service of said no- tice, and that no action has been commenced to enforce the claim, the court may make an order that the claim be vacated and canceled of record. 6. By the owner of the premises, person or persons, firm or firms, corporations or associations against whom or which the notice of lien is filed, executing with two or more sufficient sureties, who shall be free- holders, a bond to the clerk of the county where the premises are situated, in such sum as the court may direct, not less than the amount claimed in said notice, conditioned for the payment of any Judgment which, may be rendered against the property. The sureties on said bond must Justify in at least double the sum named in said bond. A copy of said bond, with a notice that the sure- ties will Justify before the court or a Judge thereof, at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the court or a Judge thereof. 9 130 LAWS 1885, CH. 343, sec. 24. 7. All moneys paid to the county clerk, as herein- before provided, shall be considered as paid into court, and shall be subject to the provisions of section seven hundred and forty-five* of the Code of Civil Pro- cedure. And upon such payment, the county clerk shall forth with enter upon the " lien docket," and against the lien for the discharge of which said moneys were paid, the words " discharged by payment." And thereafter the provisions of section seven hundred and fifty-one of the Code of Civil Proceduref shall apply as to the repayment or surrender of said moneys. Nothing in said section, however, shall prevent any court of record having jurisdiction of the parties and of the subject-matter in any proceeding commenced to foreclose said lien, from making the like order as to the surrender or payment of said moneys. (This sub- division was added to section 24 by Laws 1893, ch. 3o0, approved April 4, 1893.) Discharge must he in Accordance with Stat- ute. — The court has no power to discharge a lien, except in the ,*| 745. Money Paid into Court.— Unless the court otherwise specially directs, money, paid into court, must be piid, either directly or by tlie officer wlio is requireu 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 receives it. A bond, mortgage, or other security, or a certificate or transfer of stock, taken upon the inveut- ment 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 sec- tion 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 — Code of Civil Procedure, §745. f § 751. Surrender of Money Paid into Court.— No money, security, or other property whioh 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 property shall have been placed, duly made and entered, directing such dis- position. Each order must be countersigned by the presiding judge by ■whose direction it is made.— Cjde of Civil Procedure, § 751. DISCHARGE OF LIEN". 131 mode prescribed by the statute ; and in accordance with a pro- ceeding taken thereunder. Fettrich v. Totten, 2 Abb. N. S. 364. Bond to Discharge Lien— Owner need not join ju^ — Where a sub-contractor has filed a lien to secure his claim against the contractors, it is not necessary for the owner to join in a bond given by the contractors under Laws of 1885, chap. 342, § 24, subdivision 6. N. Y. Lumber & Wood- Working Oo. v. Seventy-third 8t. Building Go., 3 N. Y. Supp. 837 ; s. c. 22 N. Y. State R. 314. Bond by Surviving Partner. — Two of the three con- tractors having withdrawn from their firm, it is sufficient for the remaining member to execute the bond aS the successor to the firm. — lb. Bond — Leave to Sue. — Sec. 814 of the Code of Civil Procedure provides that leave of court must be obtained to sue a bond given to the people or to a public officer. It has been held that this provision does not apply to a hond given to dis- charge a lien under Laws 1885, chap. 342, § 24, and that such bond may be sued without leave of court. — Reilly v. Poersclike, 14 Misc. 466. Bond— Surety Estopped from Denying Valid- ity. — A bond having been treated as valid by all parties, and upon the faith of which plaintifE's lien was discharged, the sure- ties will not be allowed to deny its validity. Miller v. Youmans, 13 Misc. 59 ; s. c. 68 N. Y. State R. 188 ; 34 JST. Y. Supp. 140 ; Barwick v. Youmans, 13 Misc. 769. Nor is the validity of the bond affected by substituting in the action as owner a person other than the principal in the bond, or because a recovery is had against such person. The condition of the bond does not relate to judgment against a principal, but against the property. — lb. Bond in Excess of Jurisdiction of Court.— An order was made by the City Court of New York fixing the amount of a bond to discharge a lien at $3,100. The bond was given and the lien discharged, no objection having been made by any party. In an action upon the bond it was claimed the City Court had no jurisdiction to fix the amount beyond $2,000. Held that the objection came too late, and the action could be main- tained. Sheffield v. Murray, 80 Hun, 555. Discliarge Prior to Conamencement of Action. — When a bond has been filed and the lien discharged before the commencement of an action, the bond becomes the subject of 132 LAWS 1885, CH. 343, SEC. 24 the lien. The remedy of the lienor is not an action at law upon the bond, but a suit in equity to foreclose the lien against all parties in interest, including the obligors upon the bond, and the judgment demanded should be payment by the obligors of the amount due and payable upon the lien. Morton v. Tucker, 145 N. Y. 244. See also Copley v Hay, 16 Daly, 446 ; s. c. 12 N. Y. Supp. 277 ; Kruger v. Braender, 3 Misc. 275 ; Scherrer t. Music Hall Co., 18 N. Y. Supp. 459 ; s. c. 45 N. Y. State R. 638 ; Sheffield v. Robinson, 73 Hun, 173 ; s. c. 57 N. Y. State E. 146 ; 35 N. Y. Supp. 1098. After the lien has been discharged by giving a bond, the remedy is sdll a suit in equity against all parties in interest, including the obligors on the bond, and it is not a condition precedent to such an action that the lienor shall have exhausted his remedy against the land. Morton v. Tucker, 145 N. Y. 244. The ruling in Brandt v. Bradley, 23 K. Y. Supp 277, distin- guished in above case. Foreclosvire after Discharge of Lien. — Notwith- standing the lien has been discharged by giving a bond, pursuant to subdivision 6, of § 24, of chap. 342, Laws 1885, an action to establish the lien is proper, without making the bondsmen par- ties, but no sale of the premises affected can be directed by the judgment in the action. Kruger v. Braender, 3 Misc. 275 ; Shield V. RoUnson, 73 Hun, 173. But see Morton v. TticTcer, 145 N. Y. 244. In an action against the sureties, after the lien has been dis- charged, plaintiff must make all persons parties in the same man- ner as if he were foreclosing his lien, including the sureties. Plaintiff's right to recourse against the sureties depends upon proof of the same facts which gives the right to recourse against the property, and the liens attach to the bond or deposit instead of to the land, and the equities and priorities of all lienors must be determined, and all are necessary parties. Scherrer v. Music Hall Co., 18 N. Y. Supp. 459 ; s. c. 45 N. Y. State R. 638. Principal and Sureties may be Sued Together. — The plaintiff's lien was discharged by giving bond. The plain- tiff then sued both principal and sureties on the bond. Sureties moved to dismiss on the ground that plaintiff must first exhaust his remedy against principal. Motion denied on the ground that when the lien was discharged, the land could not be sold under it, and plaintiff could sue on the bond. Bulkley v. Moses, 33 N. Y. Supp. 125 (City Ct. Brooklyn Special Term). Discharge after Commencement of Action.— If the lien is discharged after issue joined, it seems defendant should procure leave to file a supplemental answer, setting up the dis- DISCHARGE OF LIEN. 133. charge, bo that plaintiff's rights may be protected under the pro- visions of the bond. (City Court of Brooklyn.) Bulkley v. Kimlall, 19 N. Y. Supp. 672 ; s. c. 46 N. Y. State E. 543. Discharge Cannot be Ordered as to Defendant in Default. — An application was made to discharge plaintiff's lien by directing a deposit with the clerk. There were other liens filed by defendants in the action who failed to appear or answer. The court ordered all the liens to be discharged upon a deposit to cover only plaintiff's lien. Held that the court had no power to cancel the liens of the absent defendants. Fischer v. Hussey, 11 Misc. 529 ; s. c. 66 N. Y. State E. 91 ; 32 N. Y. Supp. 762. Indemnity— Liability of Sureties. — The contractors executed a bond of indemnity to the city of New York, under miinicipal contract, to protect it against liens filed pursuant to chap. 315, Laws 1878 (Consolidation Act, §§ 1824-1838). Held that the sureties were liable, in an action by the city, after recov- ery of judgment directing it to pay the amounts of balance due the contractor, or secured by the indemnity bond, although the judgment provides for no persopal judgment against the city. Mayor v. Crawford, 111 N. Y. 638. A subsequent amendment of such judgment, whereby the clause forbidding a personal judgment against the city is stricken out, does not alter or impair the liability of the sureties on the indemnity bond. — Ih. The contractor fiirst sued the owner after his lien has been dis- charged by filing of bond, and failed to realize on the judgment. Held that he had a right thereafter to sue the sureties on the bond, and the objection that the action was not begun within the year, could not be raised for the first time on appeal. Henlein v. Murphy, 3 Misc. E. 47 ; s. c. 22 N. Y. Supp. 713. Amount of Deposit must be Fixed by the Court. — A motion to discharge a lien upon giving bond cannot be en- tertained, unless the applicant has first had the amount of de- posit fixed by the court. Shannon v. Coursen, Daily Eeg. Oct. 12,1882. Bond Must Cover Entire Lien.— A portion of the property covered by the lien cannot be discharged on motion, unless the bond given shall be sufficient to embrace the entire lien. Ford y. Bailey, 5 Monthly Law Bulletin, 95. But the lienor may, if he chooses, release a portion of the property covered bv his lien, and retain his lien upon the re- mainder. Hall V. Sheehan, 69 N. Y. 618. 134 LAWS 1885, CH. 342, sec. 24. Seal Omitted from Paper Discharging Lien.— Where an instrument filed for the purpose of discharging a lien has no seal afiBxed, but is in other respects in proper form, and has been approved by the courts, and the lien has been dis- charged, liability cannot afterward be evaded by a suit on said instrument, on the ground that it contained no seal. Whitney v. Coleman, 9 Daly, 338. Note. — The law requiring wafer or wax seals has now been amended so as to authorize the word seal or the letters " L. S." opposite the signature. The statute provides as follows : Law of 1§92 as to Seals.— The private seal of a person other than a corporation, to any instrument or writing shall consist of a wafer, wax or other similar adhesive substance affixed thereto, by mucilage or other adhesive substance, or of the word " seal," or the letters " h. S." opposite the signature. (Laws 1893, chap. C77, § 13, approved May 18th, 1893) Money Deposit after Lien Expires.— When a lien has been discharged by a deposit of money, and the time within which to bring the action to enforce such lien has expired, an order of the court, it has been held, is not necessary in order to obtain a return of the money so deposited. Re Laflin, &c. Pow- der Co., 5 Monthly Bulletin, G4. Since the foregoing decision was rendered, the lien law has been amended (Laws 1893, chap. 300) requiring deposits to be treated as money paid into court pursuant to §§ 745, 751 of the Code of Civil Procedure. An order must be obtained directing a return of the money so paid, and such order cannot be made ex parte, but must be upon notice. Hafker v. Henry, 5 App. Div. 258. Wlien Money Deposit Discliarges Owner. — When the suit is brought by a sub contractor against the owner and contractor, and no personal claim is made against the owner, the owner may deposit the money necessary to discharge the lien, and is then entitled to have the proceeding, as to him, dismissed. Schaettler v. Gardner, 4 Daly, 56. After Deposit— Claimant Must Establish Lien. — The deposit of the money to discharge lien does not give the claimant a right to receive the fund so deposited until he estab- lishes his lien. Flynn v. Butler, 61 How. Pr. 274 ; Dunning v. Clarke, 2 E. D. Smith, 535 ; Raven v. Smith, 76 Hun, 60 ; Mat- ter of Dean, 83 Hun, 413. Re-Deposit "When Ordered. — Defendant discharged the lien by deposit with county clerk. The suit to foreclose was upon the calendar, and plaintiff failing to appear, defendant took judgment by default, and drew out the deposit. The court sub- sequently opened the default, and directed defendant to re-de- DISCHARGE OF LIEiT. 135 posit the money. Held proper and within the power of the Court. Gunningham v. Hatch, 18 N. Y. Sapp. 458 ; s. c. 45 N. Y. State K. 685. And where the defendant refused to comply with the order directing the money to be re-deposited, held that such refusal could be punished as contempt of court. Gunningham v. Hatch, 30 Abb. N. 0. 31 ; s. c. 3 Misc. 101. Contempt of Court. — The court has power to compel obedience to its order requiring a party to re-deposit moneys with the county clerk to secure a lien discharged by such deposit by proceedings for contempt. See. 3284, Code of Civil Procedure. Gunningham v. Hatch, 30 Abb. N. C. 31 ; s. c. 3 Misc. 101. The court has such power also, under § 2284 of the Code of Civil Procedure, to punish for contempt a party who wilfully gives a worthless bond or a bond with worthless surety in dis- charge of a lien. McAveny v. Brush, 1 App. Div. 97. But the amount of the fine for such misconduct cannot be fixed by an Appellate Court, but must be ascertained and fixed at Special Term. — Ih. The fine must be limited to an amount sufficient to indemnify the aggrieved party for actual loss so far as it exceeds $250 and costs. — Ih. It seems that the court may, as a condition waiving of the im- prisonment which it has the right to impose, exact the perform- ance of conditions which it cannot impose as a fine. — /S. Where the bondsman who executed the bond was worthless when he made his affidavit of sufficiency, he is guilty of miscon- duct in executing the bond, and may be punished for contempt to the extent of the injury inflicted. Matter of Hopper, 9 Misc. 171. The fact that the sureties were not required to justify is no palliation of the offence. — lb. Vacating Lien for Failure to Commence Ac- tion. — The owner is not entitled to an order, as a matter of right, vacating a lien for failure on the part of claimant to fore- close it, after notice served pursuant to Laws 1885, chap. 342, § 24, sub-div. 5. The court should consider the equities of the case, and grant or refuse the order in its sound discretion. In Re Poole, 14 K Y. Supp. 790 ; s. c. 38 N. Y. State K. 806. Claimant within the 30 days required by the notice, filed the summons and complaint and lis pendens, but was unable to serve the summons on the owner, she being a non-resident. The attorney serving the notice on her behalf refused to appear for her in the action. The court, on the application to vacate, granted the claimant ten days in which to serve the summons or commence service by publication. Publication having been begun 13iS LAWS 1885, CH. 342, begs. 25, 26. within the ten days, the court denied the motion to vacate. Held no error. — Ih. Vacating Lien for Failure to Prosecute Ac- tion. — Where a lienor unreasonably neglects to prosecute his action to foreclose his lien, after timely admonition from the court, the owner of the premises, after a dismissal of the com- plaint, pursuant to § 1674 of the Code of Civil Procedure, may have an order caucelling the lis pendens of record. Townsend v. Work, 79 Hun, 381 ; s. c. 61 N. Y. State R. 497 ; 29 N. Y. Supp. 791. § 35. Construction of Statutes. — This act is here- by declared to be a remedial statute and is to be con- strued liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien, or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same. Liberal Construction.— The statute (Laws 1885, chap. 342) is remedial, and must be liberally construed in aid of every beneficial purpose, which was contemplated in its enactment, and a substantial compliance with its provisions will be sufficient to uphold the lien. Ringle v. Wallis Iron Works, 149 N. Y. 439. Substantial Justice and Equity. — The courts will give effect to this provision of the statute and construe it liberally, and will use every efPort to do substantial justice between the parties. Murphy v. Stickley Simonds Co., 82 Hun, 158 ; Bry- son V. St. Helen, 79 Han, 167 ; s. c. 61 N. Y. State R. 390 ; 29 ]Sr. Y. Supp. 534. § 36. Repealing Clause.— Chapter one hundred and eighty-four of the laws of eighteen hundred and forty-six, chapter one hundred and sixty-nine of the laws of eighteen hundred and fifty-one, chapter three hundred and eighty-four of the laws of eighteen hun- dred and fifty-two, chapter four hundred and two of the laws of eighteen hundred and fifty-four, chapter six hundred and sixty-three of the laws of eighteen REPBALIKG CLAUSE. 137 hundred and fifty-seven, chapter four hundred and seventy-eight of the laws of eighteen hundred and sixty-two, chapter five hundred of the laws of eighteen hundred and sixty-three, chapter three hundred and sixty-six of the laws of eighteen hundred and sixty- four, chapter seven hundred and seventy-eight of the laws of eighteen hundred and sixty-five, chapter five hundred and fiftj'-eight of the laws of eighteen hun- dred and sixty-nine, chapter one hundred and ninety- four of the laws of eighteen hundred and seventy, chapter four hundred and eighty-nine of the laws of eighteen hundred and seventy-three, chapter five hun- dred and fifty-one of the laws of eighteen hundred and seventy-four, chapter three hundred and seventy-nine of the laws of eighteen hundred and seventy-five, chap- ters one hundred and forty-three and four hundred and eighty-six of the laws of eighteen hundred and eighty, sections eighteen hundred and seven to eighteen hundred and twenty-three inclusive of chapter four hundred and ten of the laws of eighteen hundred and eighty-two, sections eleven to twenty-seven inclusive of chapter two hundred and seventy-six of the laws of eighteen hundred and eighty-three and all acts amen- datory of the above-mentioned acts or extending the provisions thereof are hereby repealed. But this act shall not be so construed as to affect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien now pending by virtue of any of the provisions of the acts hereby repealed, nor to revive any other or for- mer acts or parts of act repealed by the acts hereby repealed: § 37. This act shall take effect immediately. 138 LAWS 1885, CH. 343, sec. 27. List of Statutes Repealed by the Act of 1885. —The following are the acts repealed by the preceding section : 1846, c. 184, Eichmond County. 1851, c. 169, Westchester, Ulster and Putnam Counties. 1853, c. .884, Eepealing the last preceding act and enacting a lien law for Westchester and five other counties. 1854, c. 402, Old State Act. 1857, c. 663, Saratoga Act. 1862, c. 478, Kings and Queens Act. 1863, c. 500, Old J^ew York City Act. 1864, e. 366, Onondaga Act. 1865, c. 778, Eensselaer Act. 1869, c. 558, General Amendment to State Act. 1870, c. 194, Amending last preceding Act. 1873, c. 489, State Act. 1874, c. 551, Extending State Act to Erie County. 1875, c. 379, New York City Act. 1880, c. 143, Buffalo Act. 1880, c. 486, Cities' Act. 1882, c. 410, So much of the provisions of the N. Y. City Con- solidation Act as relates to liens against private property ; to wit, §§ 1807-1823. 1883, c. 376, Amending the N. Y. City Consolidation Act, relat- ing to liens against private property, to wit, §§ 1807-1823 of said Act. Validity of Liens Filed Prior to June SY, 1885. — Any notice of lien filed in accordance with any act in force at the time of the passage of chap. 342, Laws 1885, or filed prior to the 27th day of June, 1885. shall not be impaired or afiected by the passage of the latter act, but such liens shall be deemed to be subordinate to liens filed in accordance with said act of 1885. Laws 1886, chap. 382, passed June 37th. Costs Under Prior Acts. — Costs, in an action_ com- menced under a former Mechanics' Lien Law and terminated after the passage of the act of 1885, are governed, as to costs, by § 14 of the Act of 1885. Fargo v. Helmer, 43 Hun, 17. Local Statute Applicable to New York City, in Force September 21, 1883.— The mechanics' lien law of 1875 (Laws of 1875, chap. 379), applicable exclusively to the city of New York, was the only law in force there September 31, 1882, as the General Mechanics' Lien Law of 1880 (Laws of 1880, chap. 486), by its terms applicable to all the cities of the State of New York except Buffalo, did not expressly repeal tho local law. McLaughlin v. Page, 8 N. Y. State Eeporter, 367. MECHANICS' LIENS AGAINST MUNICIPAL PROPERTY UNDER CONTRACTS WITH INCORPORATED CITIES. [Laws 1878. Chap. 3] 5, passed May 22, as amended by Laws 1893, Chap. 639. Consolidation Act (New York City), §§ 1824-1838.] The People of the State of New York, represented in Seriate and Assembly, do enact as folloivs : § 1. Who may acquire Lien — Against what Property Lien to Attach. — Any person or persons wlio shall hereafter as laborer, mechanic, merchant or trader, in pursuance of or in conformity with the terms of any contract made between any person or persons, firms or corporations, and [the city. N. Y. Cons. Act, § 1824] any municipal corporation, county, town, incorporated city or village in the State of New York, perform any labor or furnish any ma- terial toward the performance and completion of any contract made with said municipal corporation, coun- ty, town, city or village, on complying with the sec- ond [next] section of this act, shall have a lien for the value of such labor or materials, or either, upon the moneys in control of said municipal corporation, county, town, city or village, due or to grow due under said contract with said municipal corporation, county, town, city or village, to the full value of such claim or demand, and these liens may be filed and become an absolute lien to the full and par value of all such work 140 LAWS 1878, CH. 315, sec. 1. and materials, to the extent of the amount due or to grow due on said contract, in favor of every person or persons, firms or corporations who shall be employed or furnish materials to the person or persons with whom said contract with said municipal corporation, county, town, city or village is made, or the sub-con- tractors of said person or persons, their assigns or legal representatives, provided that no municipal corpora- tion, county, town, city or village shall be required to pay a greater amount than the contract price or value of the work and the materials furnished when no spe- cific contract is made in the performance of said work by the contractor. (See, also, N. Y. Consolidation Act, § 1824.) New York City— Consolidation Act.— The Act of 1878, with respect to incorporated cities, has been embraced, in the Consolidation Act, §§ 1824-1838, and applies to the city of New York. Counties, Towns, and Villages.— The Act of 1878 was amended in 1891, Laws, chap. 255, and in 1892, Laws, chap. 639, so as to include within its provisions not only " incorpo- rated cities," but " any municipal corporation, county, town or village," and covers not only contracts made with individuals, but also with firms or corporations. Lien as to Municipal Property wholly Statu- tory. — A municipal corporation, being an artificial person in law, not capable of acquiring a lien in the absence of express statutory provision, cannot be subject to liens for labor or mate- rials in the absence of an express statute. Leonard v. Brooklyn, 71 N. Y. 4,98 ; Whiting v. Story, 54 Iowa, 81 ; Patterson v. Pennsylvania, <&c., 92 Pa. St. 229 ; Panola County v. Oillen, 59 Miss. 198 ; Yates v. Meadville, 56 Pa.' St. 21. Except in those cases which the statute expressly authorizes, liens cannot be filed against municipal property. Bossier v. Putney, 53 N. Y. Supr, Ct. R. 456. Funds Liable to Lien. — A lien for labor or materials cannot be enforced against funds retained by a municipal cor- poration for evidence of the payment of mechanics' liens, unless the fund arose upon the particular contract under which the labor was performed or the materials were furnished. Quin- tan V. Russell, 94 N. Y. 350. WHO MAY ACQUIRE LIEN. 141 Parties.— One who is made a party to a proceeding to en- force a lien, under a municipal contract, may have his rights adjudicated in such proceeding without bringing a separate action. McDermott v. McDonald, 50 N. Y. Supr. Ct. K. 153 ; Moran v. Murray Hill Bank, 9 N. Y. Supp. 715. Corporation Entitled to Lien. — Before the Statute (Laws 1878, chap. 315, § 1, Consolidation Act, § 1824) was amended in 1891, so as to include corporations, it was held that a "corporation" was "a person" within the meaning of the statute, and was entitled to acquire a lien for labor and mate- rials. Gashell v. Beard, 11 N. Y. Supp. 399 ; s. c. 33 N. Y. State R. 853 ; 58 Hun, 101. Three Day Clause in Municipal Contract. — Where a contract containing a clause that city may complete after failure of contractor to do so, on three days' Qotice, a surety of the defaulting contractor may complete the work, and the let- ting of a new contract to the lowest bidder will be unnecessary. McChesney v. City of Syracuse, 22 N. Y. Supp. 507. Acceptance of Work by Municipal Corporation Operates as Ratification of Unauthorized Em- ployment. — Where the contractor abandoned his contract with city of Syracuse to build a school house, and the work was finished by the surety of the contractor under authority of the architect employed by the city and the work was accepted after couipletion. Ileld that such acceptance by the city was a ratifi- cation of the unauthorized employment. McChesneij v. City of Syracuse, 22 N. Y. Supp. 507. Where the original contract is finished, the letting of a new contract to the lowest bidder is unnecessary, and the city, after accepting the completed contract, is estopped from saying that the surety was not authorized by it to finish the work.— JJ. Complaint— Allegation of Amount Due or to Grow Due from the City. — An allegation in the com- plaint of a sub-contractor that there was a contract made hetween the city and the contractor ; that the latter entered upon its performance, and " that the same is now in process of comple- tion or completed," fails to show that anything is due from the city to the contractor, or that there ever will be any money due, and does not set forth a cause of action to enforce the lien of a sub-contractor. BreuoJiaud v. The Mayor, 16 IN". Y. Supp. 347 ; B. c. 41 N. Y. State E. 158 ; 61 Hun, 564. The complaint of a sub-contractor must set forth the contract with the city, its performance, and the liability which has arisen under it to the contractor, in the same manner as the contractor 14a LAWS 1878, cii. 315, sec. 3. would be required to do if he sued the city on .the contract. Scerbo v. Smith, 16 Miec. 102. But the objection that the complaint does not particularly set forth the terms of the contract, and allege the exact amount due the contractor, if not raised by the owner or by the mayor can- not be raised by a contractor or sub-contractor. Dennan v. Mayor, 14 Misc. 113. § 3. Claim of Lienor, Contents, Filing.— At any time before the whole work to be performed by the contractor for the municipal corporation, county, town, city or village, is completed or accepted by the munic- ipal corporation, county, town, city or village, and within thirty days after the same is so completed or accepted, any claimant may file with the head of the department or bureau having charge of said work, and with the [Comptroller, N. Y. Cons. Act, § 1825,] finan- cial officer of said municipal corporation, county, town, city or village, notice, stating the residence of the claimantj verified by such claimant's oath or affirma- tion, stating the amount claimed, from whom due and if not due, when it will be due, giving«the amount of the demand after deducting all just credits and offsets, with the name of the person or persons, firms or corpo- rations, by whom employed, or to whom materials were' furnished; also a statement of the terms, time given, conditions of the contract, and also thatthe work was done or materials were furnished to said contract- or, and were actually performed or used in the execu- tion or completion of said contract with said munici- pal corporation, county, town, city or village, but no variance as to the name of the contractor shall eftect the validity of the said claim or lien. (See N. Y. Consolidation Act, § 1825.) Service of Copy Notice.— One of the city oflflcials was served with an original notice, the other with a copy instead of a duplicate original. Held that since the statute dops not re- quire the service of the originals, service of an original on one and a copy upon the other will be sufficient. Kelly v. City of Syracuse, 10 Misc. 306 ; s. c. 63 N". Y. State R. 534 ; 31 N. Y. Supp. 383. CLAIM OF LIENOR, CONTENTS, FILING. 143 School Buildings.— In proceedings to acquire a lien for work or materials furnished toward the erection of school build- ings, the provision for service of notice is sufficiently complied with in the city of New York by filing such notice with the comptroller and the clerk of the Board of Education. Bell v. Vanderlilt, 13 Daly, 467. In an action brought against the defendants. The Mayor, &c., of the city of New York, to foreclose a sub-contractor's lien on certain moneys in the hands of the comptroller to pay the amount due on a contract between one of the defendants and the trustees of the public schools in the Twelfth Ward of the city of New York, for mason work on a building to be erected for school purposes. Held that for the purposes of Laws 1878, chap. 315, such contract, although not expressly, was, in fact, made with the city of New York, and the notice of the claim was properly filed with the clerk of the Board of Education and the comptroller. Bell v. Mayor, &c., of New York, 105 N. Y. 139. In Brooklyn. — Where the contract was made with the Board of Education of the city of Brooklyn, the city treasurer is the proper financial officer upon whom to serve the notice of lien and not the Board of Education. Yelloiv Pine Co. v. Board of Education, 15 Misc. 58. Filing Notice for Street Improvement in New York City. — A contract with the city of New York for a street improvement required all notices of claims to be filed with the commissioner of public works. A sub contractor filed his notice of claim with the comptroller, and testified he did so by direction of an official in the office of the commissioner of public works. The contract was made before the Act of 1878 was passed, and did not fall within its provisions. It also authorized the munici- pal authorities to retain the moneys due the contractor until all claims of which notice had been filed had been fully discharged. Held reversing the court below, that an attempt was thus made in good faith to charge the city with notice of a just claim. That the commissioner of public works was bound to certify to the comptroller as to payments for the work. That the notice to the comptroller, therefore, created an implied obligation on the part of the city to hold unpaid moneys in trust under the contract. That though a lien might not have been technically created, the notice to the city was sufficient to authorize it to retain moneys due under the contract till the claim was dis- charged. That the money being still in the hands of the comp- troller, the sub-contractor could enforce his claim as to the fund, as if a valid lien had been created. Merchants' and Tra- ders' Nat. Bank v. Winant, 123 N. Y. 265. 144 LAWS 1878, CH. 315, secs. 3-6. § 3. Docketing Lien.— The financial officer [the comptroller, N. Y. Cons. Act, § 182«] of said munici- pal corporation, county, town, city or village, shall enter the claims in a book kept for that purpose by him, called the " lien book." Such entry shall contain the name and residence of the claimant, the name of the contractor, the amount and date of the filing, and a brief designation of the contract upon which the claim is made. (See K Y. Consolidation Act, § 1826.) § 4. Duration of Lien— Lis Pendens.— No lien provided for in this act shall be binding upon the property therein described unless an action be com- menced within ninety days from the filing of the same, and a notice of pendency of said action be filed with [the Comptroller K Y. Cons. Act, § 1827] the financial officer of the municipal corporation, county, town, city or village. (See N. Y. Consolidation Act, § 1827.) Service on one defendant, either the contractor or owner of the fund, enures to the benefit of all defendants, and if made within the ninety days' limit, the action is deemed begun as to every defendant entitled to enforce his lien when the action was begun. Neuschatel Asphalt Co. v. Tlie Mayor, 12 Misc. 26. § 5. Extent of Lien.— The lien shall attach from the time of filing thereof to the extent of the liability of the contractor for the claim preferred upon any funds which may be due or to grow due to said con- tractor from said municipal corporation, county, town, city or village, under the contract against which the lien is filed. (See N. Y. Consolidation Act, § 1828.) Liability of County.— Under this act, as amended by chap. 639, Laws of 189-^, the liability of a county is limited to the amount due the contractors. Brainard v. County of Kings, 84 Hun, 390. § 6. Enforcement and Termination of Lien,— Any claimant who has filed the notice mentioned in the second section of this act, [title N. Y. Cons. Act, JUDGMENT — EXECUTION — APPEAL. 145 § 1829] may enforce said claim against the said fund therein designated, and against the person or persons, firms or corporations liable for the debt by a civil action. Actions to determine or terminate said liens may be commenced by the contractor or said munici- pal corporation, county, town, city or village, in any court of competent jurisdiction. (See N. Y. Consoli- dation Act, § 1 829.) Action to Terminate Lien. — "William Guilfoyle, in his lifetime, agreed to pay certain moneys and perform certain work on a contract made by plaintifE with, the mayor, aldermen and commonalty of the city of JS'ew York for grading streets. He was to receive, on completion of the work, a portion of the con- tract price, (xuilfoyle died. His executors failed to complete the work, but filed liens. Held that an action to vacate and can- cel the liens pursuant to § 1829 of the Consolidation Act (Laws 1878, chap. 315, § 6) was proper. Mahon v. Guilfoyle, 18 N. Y. Supp. 93 ; s. c. 44 N. Y. State K. 879. § 7. Parties— Priorities.— The plaintifE must make all parties who have filed claims, the contractor, and the said municipal corporation, county, town, city or village, parties defendant, and as to all parties against whom no personal claim is made, the plaintiff may, with the summons, serve a notice stating briefly the object of the action, and that no personal claim is made, But all parties who have filed claims under this act [title N. Y. Cons. Act, § l8:iU] may, by answer in such action, set forth the same, and the court in which the action is brought may decide as to the ex- tent, justice and priority of the claims of all the parties to the action. (See N. Y. Consolidation Act, § 1830.) § 8, Judgment— Execution— Appeal.— The court in which the action is brought shall determine the validity of the lien, the amount due from the debtor to the contractor under his contract, and from the contractor to the respective claimants, and shall render judgment, directing that the said municipal corporation, county, town, city or village, shall pay 10 146 LAWS 1878, CH. 315, sec. 9, 10. over to the claimants for work done and materials fur- nished in th^ execution of the said contract or con- tracts, whose claims or liens it shall hold to be valid and just, in the order of their priority as determined by said court, to the extent of the sum found due to said claimants from their contractor so much of said funds or money which may be due from the said mu- nicipal corporation, county, town, city or village, to the contractor, under his contract, against which the lien is filed, and will satisfy their liens or claims, with in- terest and costs, to the extent of the amount due from said municipal corporation, county, town, city or village to said contractor. The Judgment rendered under this [title, N. Y. Cons. Act, § 1831] act may be enforced by execution, and an appeal may be taken therefrom in the same time and manner as in civil actions. (See N. Y. Consolidation Act, § 1831.) No Provision for Personal Judgment.— There is no provision in the statute for work done under a municipal contract, which authorizes personal judgment against the con- tractor in case the sub-contractor fails to establish a lien. Scerbo v. Smith, 16 Misc. 102. § 9. Successive Liens— Priority according to Date of Filing. — In case of successive liens, or a num- ber of liens, in favor of different persons, their rights and priorities shall be determined as follows : Persons standing in equal degrees as co-laborers, or various persons furnishing materials, shall have priority ac- cording to the date of the filing of their liens. When several lien notices are filed for the same demand, the Judgment shall provide for the proper payments ac- cording to priority, so that, under liens filed, double payment shall not be required. (See N. Y. Consolida- tion Act, § lb32.) §10. Consolidation of Actions.— When separate actions are commenced, the court in which the first action was brought may, upon the application of the said HOW LIEN MAY BE DISCHARGED. 147 municipal corporation, county, town, city or village, consolidate them. (See N. Y. Consolidation Act, § 1833.) § 11. Costs in the Discretion of tlie Court.— Costs in all actions shall rest in the discretion of the court, and shall be awarded to or against the plaintiff or defendants, or any or either of thera, as may he just. (See N. Y. Consolidation Act, § 1834.) § 13. Rights to Personal Action not affected. — Nothing contained in this [title JS. Y. Cons. Act, § 1835] act shall be construed to impair or affect the right of any person to whom any debt may be due for work done or materials furnished to maintain a personal action to recover such debt against the person liable therefor. (See N. Y. Consolidation Act, § ] 8H5.) § 13. How Lien may be Discharged.— The lien may be discharged as follows : 1. By filing a certificate of the claimant or his suc- cessor in interest, duly acknowledged and proved, stating that the lien is discharged. 2. By lapse of time when ninety days have elapsed since the filing of the claim, and no action shall have been commenced to enforce the claim. 3. By satisfaction of any judgment that may be rendered in actions to foreclose the said liens or claims. 4. By the contractor depositing with the said financial officer of the said cities such a sum of money as shall be directed 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 yeai-, and such additional amount as the justice shall deem sufficient to cover the liability for costs ; which sum of money so deposited shall remain with the said financial officer until the said lien shall have been discharged in the manner provided for in the subdivisions hereof 148 LAWS 1878, CH. 315, sec. 13. marked one, two and three. [As amended by Laws 1896, ch. 682.] In New York City.— Section 1836 of the K. Y. Consoli- dation Act providing for tlie mode of discharging liens against the mayor, aldermen, and commonalty of tlie city of New York, has also been amended by chap. 605, Laws 1895, to read as fol- lows : " ^ 1836. The lien may be discharged as follows : " First. By filing a certificate of the claimant or his successor m interest, duly acl^nowledped and proved, stating that the lien is discharged. "Second. By lapse of time, when ninety days have elapsed smce the filing of the claim, and no action shall have been commenced to enforce the claim. " Third. By satisfaction of any judgment that may be rendered m actions to foreclose said liens or claims. " Fourth. By giving an undertaking, with at least two sureties who shall be residents and freeholders in the State of New York, to the effect that the ixrson or persons from whom the amount set forth in the notice of lien shall be claimed to be due or to grow due, will pay on demand to the claimant or claimants named in such notice of lien the amount of any judgment whicli may be recovered in an action upon the claim or demand specified in buoh notice of lien against such person or persons, not exceeding the sum specified in the undertaliing, with interests and costs. The sum specified in the undertaking must be at least equal to the amount of the said claim or demand specified in such notice of lien, with ten per centum added thereto. Such undertaking shall be approved as to form and amount by a justice of the Supreme Court in the first department, and must be forth- with filed with the comptroller, and a copy thereof, with the notice of the filing, must be forthwith served upon the claimant, if there be one only, and upon one of the claimants in case the lien shall be claimed in favor of more than one person. The claimant when served vdth a copy of such undertaking, may, within three days thereafter, file notice in writing with the comptroller, that he excepts to the sufficiency of the sureties named in such undertaking, and he shall designate in such notice of exception a place In the city of New York where notice of justification may be served ; thereupon the sureties named in such undertaking must justify before a justice of the Supreme Court in the first depaitment upon the like notice and in like manner as provided in the Code of Civil Procedure in resi>ect to bail upon an arrest, or a new undertaking must be given with new sureties, who must justify in like manner. Service of such notice of justification upon the claimant so excepting in person or by leaving a copy thereof at tlie place designated in such notice of exception, shall be deemed a suffi- cient service thereof. If the claimant or claimants do not except as pre- scribed in this section, such claimant or claimants shall be deemed to have waived all objection to the sureties, and the lien shall be terminated upon filing with the comptroller an affidavit showing due service of the copy of the undertaking upon said claimant or claimants, or by leaving such copy at the place designated as hereinbefore required in the notice of exception, and the failure of the claimant or claimants to except to the sufficiency of such sureties, within three days after the service of such undertaking as hereinbefore prescribed. In case of exception to the sufficiency of the sureties, such lien shall be terminated upon the justification of such sure- ties and llie approval and allowance of such undertaking to be indorsed thereon by the justice of the Supreme Court before whom such sureties shall justify. In every instance where the undertaking is proved, it shall be placed on file in the comptroller's office." CASES TO WHICH ACT SHALL APPLY. 149 Court Must Pass on Amount of Bond. -Under chap. 605, Laws 1895, the Justice is required to approve of the amount of the bond as well as its form. In order to deter- mine whether the amount is in conformity to the requirements of the act, he must have before him competent evidence of the contents of the claim as filed. A mere recital of the amount in the undertaking is not evidence of the fact. A certified copy of the claim or lien should be submitted with the proposed bond or undertaking. Beekman, J., Matter of Barry, N. Y. Law Jour- nal, Sept. 10, 1895. § 14. Term Contractor Defined.— The term " con- tractor" as used in this [title. N. Y. Cons. Act, § 1837] act, shall be construed as meaning the person or per- sons, firms or corporations with whom the contract with the said municipal corporation, county, town, city or village, is made, his assigns or legal representa- tives. (See N. Y. Consolidation Act, § 1837.) § 15. When Act to Take Effect— Repealing Clause.— This act shall take effect immediately ; but nothing herein contained shall affect the validity of any claims or liens upon moneys due or to grow due under contracts made by cities prior to its passage. All acts and parts of acts inconsistent with the terms of this act are hereby repealed. (See N. Y. Consoli- dation Act, § 1838.) Section 1838 of the N. Y. Consolidation Act reads as follows : "§ 1838. Nothing in this title contained shall affect the validity of any claims or liens upon moneys due or to grow due under contracts made by the city prior to the twenty-second day of May, eighteen hundred and seventy - eight, but the title shall apply to and include all cases and contracts under which work and materials have heretofore been, or shall hereafter be done and furnished upon any land, the title of which was, at the time of the malsing of the contract, and now is in the city, and for tlie performance of which appropriations have been, or shall hereafter be made and raised hj' the city ; and shall apply to and include actions pending on the twenty-eighth day of May, eighteen hundred and eighty-one, for work done and materials furnished under any such contract." I 15. [16.] Cases to Which Act shall Apply. — This act shall apply to and include all cases and con- tracts under which work and materials have heretofore been, or shall hereafter be done and furnished upon any land, the title of which was, at the time of the making the contract, and now is in any municipal cor- 150 LAWS 1878, CH. 315, secs. 16, 17. poration, county, town, city or village, and for the per- formance of whicli appropriations have been, or shall hereafter be made and raised by any municipal cor- poration, county, town, city or village ; and shall ap- ply to and include actions now pending for work done and materials furnished under any such contract. [Added by Act 1881, chap. 429.] Note. — The above section is numbered sixteen, and was added to the act by chap. 429, Laws of 1881. Tlie Law of 1893, chap. 629, amends this section, but erroneously designates it as § 15. It should be designated as §16. Section 15 of the original act contains repealing clauses. Hoe supra. Contracts \rith Ward Trustees. — This amendment extends the operation of the act to all contracts, whether made with incorporated cities or with the School Trustees of a ward of the city. Bell v. Vanderlilt, 13 Daly, 467. School Buildings. — The requirement of the Act of 1878, that, to acquire such a lien, notice of claim should be filed with the head of the department or bureau having the work in charge, and with the financial officer of the city, is sufficiently complied with, in the city of Xew YorJi, by filing such notice with the clerk of the Board of Education of that city, he having charge of all the papers and records of the Board, and in the office of the comptroller of the city. Bell v. Vanderbilt, 13' Daly, 467. Proceedings Rendered Valid by Act of 1881.— The provision in the amendment of 1881, that the Act " shall apply to and include actions now pending for work done and materials furnished under any -such contracts," although pro- ceedings in actions which were before invalid were thereby ren- dered valid, was within the power of the legislature. Belly. Vanderbilt, U Daly, 467. § 16. [l^.J Title Amended.— The title of said chapter is hereby amended so as to read as follows : " An act to secure the payment of laborers, mechanics, merchants, traders, and persons furnishing material toward the performing of any public work in the municipal corporations, counties, towns, cities and vil- lages of the State of New York." MECHANICS' LIENS AGAINST RAILROAD CORPORATIONS. [Laws 1875, Chap. 393, passed May 18.] The People of the State of New York, represented in Senate and Assembly, do enact as follows : § I. Who may acquire Lien against Railroad Corporation — To what Property Lien Attaches. — Any person who shall hereafter perform any labor for a railroad corporation shall, on filing with the county clerk of any county in which such railroad corporation is situated, or through which the road of such corporation passes, the notice prescribed by the second section of this act, have a lien for the value of such labor upon such railroad track, rolling stock and appurtenances, and upon the land upon which such railroad track and appurtenances are situated, to the extent of the right, title and interest of such railroad corporation in the property existing at the time of filing the said notice. Lien Under Laws 1885, Chap. 342. — An action seems to have been maintained by sub-contractors upon funds due contractors upon a contract to construct a line of railroad under the General Mechanics' Lien Law, chap. 342, Laws 1885. See Hilton Bridge G. Go. v. N. Y. Gentral & H. R. R.R. Co., 145 N. Y. 390. Lien Against Entire Road.— The lien must be en- forced against the' whole railroad, and not against such portion thereof as was benefited by the labor. Cranston v. Union Trust Co., 75 Mo. 29. Or against so much of the road as lies within the jurisdiction 152 LAWS 1875, CH. 392, secs. 2-4. of the court, if the railroad have its termini in other States. Ireland v. Atchison, Topeka, Sc, 79 Mo. 572. Payments in Good Faith.— This lien, like others, is defeated by payments in good faith, and accordinj^ to the terms of the contract, before filing the notice of lien. Roland v. Gen- treville, &c., Ry., 61 Iowa, 380. § 2. Notice of Lien, when and how filed.— Within thirty days after the performance and com- pletion of such labor, such person shall file a notice, in writing, with the county clerk of the county where the property is located, specifying the amount of claim, and the coi'poration against whom the claim is made. The county clerk shall enter the particulars of such notice in a book to be kept in his office, to be called the "lien docket," with the name of claimant, amount claimed, the name of such corporation against which such claim is made, and the date of the filing of the notice, hour and minute. A fee of ten cents shall be paid to said clerk on filing such lien, and said notice, when so filed, shall thereafter operate as an in- cumbrance upon said property. § 3. What Evidence Lienor must Produce upon the Trial.— Any person performing labor, in availing himself of the provisions of this act, shall upon the trial, or at the assessment of damages, pro- duce evidence to establish the value of such labor, and that the same was performed for such railroad corporation. § 4. Action to Enforce Lien, where hrought.— Any laborer performing any work, or assignee thereof^ may, after such labor is performed, and the service of the notice required by the first section of this act, bring an action in any of the courts of the county in which said property is situated to enforce said lien, requiring such railroad corporation to appear, by at- torney, within thirty days after such service 'and answer the same, or, in default thereof, the claimant may take judgment for the amount of claim and costs. HOW LIENS MAT BE DISCHARGED. 153 § 5. Lien to Continue One Year — Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner dis- charged by the court or some legal act of the claimant in the proceedings; but when a judgment is entered therein, and docketed with the county clerk within said year, it shall be a lieu upon the real property of the railroad corporation against whom it is obtained, to the extent that other judgments are now made a lien thereon. § 6. Priority of Liens. — The liens created and established by virtue of the provisions of this act shall be paid and settled according to the priority of the notice filed with the county clerk, as directed by the second section hereof § T. How Liens may toe Discharged. — All liens created by this act may be discharged as follows : 1. By filing with the county clerk a certificate of the claimant, or his successors in interest, acknowl- edged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or dischai'ged ; or 2. By depositing with the court or clerk of the court a sum of money equal to double the amount claimed, which money shall be thereupon held subject to the determination of the lien ; or 3. By an entry of the county clerk, made in the book of liens, that the proceedings on the part of the claimant have been dismissed by the court in which it is brought, or a judgment rendered against the said claimant ; or 4. By an affidavit of the service of a notice from such railroad corporation, or its attorney, to the claim- ant, requiring such claimant to commence an action for 154 LAWS 1875, CH. 392, sec. 8. the enforcement of said lien within twenty days after service of said notice and the failure of said claimant to commence an action as aforesaid. § 8. Personal Liability of Stockholders, how enforced hach and all the stockholders of such corporation shall be jointly and severally liable for the debts due or owing to any of its laborers or servants, other than contractors, for personal service for ninety days' service, or less than ninety days' service, per- formed for such corporation, but shall not be liable to an action therefoi-, befoi-e an execution shall be re- turned unsatisfied in whole or in part against the cor- poration, and the amount due on such execution shall be the amount recoverable with costs against such stockholders ; before such laborer or servant shall charge such stockholders for such ninety days' service or less than ninety days' service, he shall give notice in writing, within twenty days after the performance of such service, that he intends to so hold him liable, and shall commence such action therefor within thirty days after the return of such execution unsatisfied, as above mentioned ; and every such stockholder against whom any such recovery by such laborer or servant shall have been had, shall have a right to recover the same of the other stockholders in such corporation in ratable proportion to the amount of the stock they shall respectively hold with himself. Liens on Railroad Bridges.— Sec. 1. The provisions of the laws relating to mechanics' liens heretofore passed shall apply to bridges and trestle work erected for railroads and mate- rials furnished therefor, and labor performed in constructing said bridges, trestle work and other structures connected therewith, and the time within which said liens may be filed shall be ex- tended to ninety days from the time when the last work shall have been performed on said bridges, trestle work and structures connected therewith, or the time from which said materials shall have been delivered. This act shall apply to all uncompleted work commenced previous to the passage of this act. (Laws 1870, chap. 539, passed May 3, 1870.) MECHANICS' LIENS AGAINST OIL WELLS, &c. [Laws of 1880, Chap. 440, passed May 37, 1880.] The People of the State of New York, represented in Senate and Assembly, do enact as follows : § 1. By whom and against what Property Lien may be Acquired.— Any person who shall hereafter perform any labor in or about the sinking, drilling or completing of any oil well, or any well sunk or drilled for oil, or gas, or other volatile or mineral substances, within the State of New York, or in sinking or drill- ing any water well, sunk or drilled for the purpose of drilling or operating any suchi oil well or other well as aforesaid or who shall erect, build or furnish any tank or other receptacle for oil, gas or water whicli shall be built, erected or furnished for any of the purposes aforesaid, or who shall perform any labor, or furnish any materials in or for the building or erecting of such tank or other such receptacle as aforesaid, or who shall furnish any materials for any of the purposes aforesaid, including tubing, casing, sucker-rods, packers or other appurtenances or appliances to any such well as afore- said, with the consent of the owner, being such owner as in this section hereinafter described, shall, on filing with the county clerk of the county in which the property is situated, the notice prescribed by the next 156 LAWS 1880, CH. 440, sec. 2. section of this act, have a lien for the value of such labor and materials upon such tank or other receptacle as aforesaid, and upon such well as aforesaid, and ap- purtenances, and upon the lot, premises, parcel or farm of land upon which the same shall be situated, to the extent of the right, title and interest of the owner of the property, whether owner in fee or of a less estate, or whether lessee for a term of years thereafter, or vendee in possession under a contract existing at the time of the filing of said notice, or any right, title or interest in real estate against which an execution at law may now be issued under the provisions of the statutes in force in this State, relating to liens of Judg- ment and the enforcement thereof. Torpedoing. — Although the use of torpedoes in oil wells does not primarily produce oil, such use serves to increase the flow of the oil. One who, in the construction and operation of such well, explodes torpedoes therein in the usual and customary man- ner, is entitled to a lien for the value of such labor and material under Laws 1880, chap. 440. Oallagher v. Earns, 37 Hun, 375. Receiver. — A proceeding to enforce a lien under chap. 440, Laws 1880, is an action, and in a proper case the court, in such an action, may appoint a receiver of the property while such ac- tion is pending. Gallagher v. Karns, 37 Hun, 375. Right of Mortgagee. — The right of a mortgagee of a leasehold interest in oil lands, before default, cannot be subject- ed to a lien for work done for the mortgagor. He is not " an owner' ' within the meaning of this section. Broman v. Young, 35 Hun, 173. § 3. Contents of Notice and Docketing of Lien. — Within sixty days after the performance and com- pletion of such labor or the final furnishing of such materials, the conti-actor, sub-contractor, laborer or person furnishing the same, shall file a notice in writ- ing in the office of the clerk of the county where the property is located, specifying the amount of the claim and the person against whom the claim is made, the name of the owner or of the party in interest as afore- said of the premises, lot, parcel or farm of land, to- SERVICE OF NOTICE UPON OWNER. 157 gether with a description of said lot, parcel or farm of land. The county clerk shall enter the particulars of such notice in a book to be kept in his office to be called the "lien docket," which shall be suitably ruled in columns headed " claimant," " against whom claim- ed," owners and parties in interest, " amount claimed," and the date of the filing of the notice, hour and min- ute, what proceedings have been had, the names of the owners and parties in interest and the person against whom the claim is made, shall be entered in said book in alphabetical order. A fee of ten cents shall be paid to said clerk on filing said notice, and no lien shall at- tach to said land, well, tank or other receptacle or ap- purtenances or appliances, unless said notice shall be filed by said clerk, and when so filed said notice shall thereafter operate as an incumbrance upon said prop- erty. § 3. Limitation of Owner's Liability to Sub- Contractor. — Whenever the labor performed or ma- terials furnished shall be upon the credit of any con- tractor who shall have made a contract therefor with the owner of the property, or such party in interest as aforesaid, whether such contract shall be oral or in writing, or express or implied, or for any specified sum or otlierwise, or on the credit of any sub-contractor or the assignee of any contractor or sub-contractor, the provisions of this act shall not oblige the owner or party in interest as aforesaid, to pay for or on account of any such labor or materials, any greater sum or amount than the price stipulated and agreed to be paid therefor by said contract, or the value of such labor and materials except as in the next section provided. § 4. Service of Notice upon Owner — Collusive Payments. — At the time of the filing of said notice prescribed by the second section of this act, the pei'son filing said notice may serve upon the said owner, or party in interest as aforesaid, a written notice specify- 158 LAWS 1880, CH. 440, sec. 4. ing the amount of the claim, the name of the person against whom the claim is made, and for what labor or materials the claim is made, which said notice shall be served, by delivering the same to such owner or party in interest as aforesaid personally, or if there shall be two or more of such owners or parties in in- terest, to either or any one of them, or by leaving the same at the place of residence of such owner or party in interest, or if there be two or more, of either or any one of them, or in case said owner or party in interest shall have no place of residence within the county where such property as aforesaid shall be situated, then by mailing said notice to said owner or party in interest, securely inclosed in a sealed envelope directed to said owner or party in interest at his post-office address, with the postage prepaid thereon, and from the time of the service of such notice as aforesaid, such owner or party in interest shall be liable to said claimant to the amount then due or owing to the con- tractor, sub contractor or assignee of such contractor, sub-contractor, upon whose credit such labor shall be performed or materials furnished as hereinbefore pro- vided. And in any case whether the notice above prescribed shall or shall not be served as above pro- vided upon such owner or party in interest as afore- said, if such owner or party in interest as aforesaid shall pay, or cause to be paid, to any contractor, sub- contractor or assignee, or any other person, any money or other valuable thing for the purpose of avoiding or with intent to avoid any of the provisions of this act, when the amount still due or to grow due to said con- tractor, sub-contractor or assignee shall be insufficient to satisfy the demands made in conformity with the provisions of this act, the owner or other party in in- terest as aforesaid shall be liable to the amount that would have been due or owing to said contractor, sub- contractor or assignee, at the time of the filing of the notice in the second section of this act, in the same manner as if no such payment had been made. ACTION TO ENFORCE LIEN. 159 § 5. Action to Enforce Lien. — Any contractor, sub-contractor, mechanic, laborer, or other person per- forming any work or furnishing any materials as above provided, or the assignee of any such person or per- sons, may, after such labor has been performed or materials furnished, and the filing of the notice pi'o- vided by the second section of this act, when the amount of the claim exceeds fifty dollars, bring an action in the supreme court in the county in which the property is situated, or in the county court of said county, to enforce such lien, which action shall be commenced, and the proceedings therein conducted, and Judgment entered in the same manner and to the same effect as in actions brought in said courts to en- force liens, provided by chapter four hundred and two of the laws of eighteen hxindred and fifty-four,* and the several acts amending the same, and the said courts shall have full power to adjust and enforce all the rights and equities between any or all of the parties to siich actions, and enforce or protect the same by any of the remedies usual in'said courts. Application of §§ 399 and 414 of the Code.— Notwithstanding chap. 403 of the Laws of 1854 was repealed by chap. 342, Laws 1885, § 26, it has been held that the delivery to the sheriff of notice as required by the Act of 1854, was an attempt to commence the action within § 399 of the Code, and was equivalent to such commencement. Gee v. Torrey, 77 Hun, 23 ; s. c. 59 N. Y. State E. 431 ; 28 IST. Y. Supp. 239. § 6. Action in Justice's Court. — When the amount of the lien claimed is two hundred dollars or under, the claimant may commence his action in a Jus- tice's court of the town or city in which the premises are located, which action shall be commenced, and the proceedings therein conducted and the Judgment en- tered, and transcript filed in the same manner and with the efl\?ct as in actions commenced in Justices' courts to enforce liens pursuant to said chapter four hundred * Eepealed by Laws 1885, chap. 343, § 26, pp. 136-138, ante. 160 LAWS 1880, CH. 440, secs. 7-9. and two of the laws of eighteen hundred and fifty-f our, and the several acts amending the same. § 7. Costs Costs and disbursement, in actions to enforce liens provided for by this act, shall be allowed to either party upon the principles and by the same rules as are now allowed by law in actions for relief arising on contract, and shall be included in the judg- ment recovered therein, and the expenses incurred in serving the notice by which such actions shall be commenced by publication may be allowed in justices' courts and added to the amount of costs now allowed in said courts. When the action is brought in the supreme court or in a county court, such direction shall be made in the discretion of the court as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid. § 8. Transcript of Judgment, — A transcript of every judgment rendered under this act shall be fur- nished by the clerk of the county where rendered and docketed to the successful party, who may file the same with the county clerk of any other county, and the same shall thereafter be a lien on the real property in the county, where the same is filed and docketed, of every person against whom the .same is rendered, if foi' twenty-five dollars or upward, exclusive of costs, in like manner and to the same extent and enforceable by execution in the same manner, as in other actions for the recovery of money arising on contract. § 9. Form of Execution.— Whenever any judg- ment shall be entered in any such action as aforesaid, execution shall thereupon issue for the enforcement and collection or .such judgment in the same manner as executions are issued upon other judgments in ac- tions on contract for the payment of money only. CONTINUAKCE OF LIEN. 161 except that when the judgment is in favor of the claim- ant the execution shall direct the officer to sell the right, title and interest which the owner or other party in interest had in the premises at the time of filing the notice prescribed by the second section of this act, and if the same shall be insufficient to satisfy said Judgment, then to collect such deficiency as shall re- main out of the persona] property of such owner or party in interest, or if there be two or more of either of them, or if sufficient personal property cannot be found, then out of the real prope'rty of such owner or party in interest, or if there be two or more, of either of them, in the county to which said execution is issued, on the day such judgment was docketed in said county, or on any day thereafter. But no such defi- ciency shall be collected out of any real property, un- less such deiency* shall amount to or exceed the sum of twenty-five dollars. § 10. Continuance of Lien.— Every lien created under the provisions of this act shall continue until the expiration of six months from the time of filing the notice prescribed in the second section of this act, unless sooner discharged by the court or some legal act of the claimant in the proceedings ; but if within such period of six months proceedings are commenced to enforce or foreclose such lien, then such lien shall continue until judgment shall be entered thereon, and for one year thereafter such lien shall also continue during the pendency of an appeal and for one year after the determination thereof. When a judgment is rendered as aforesaid it may be docketed in any county of this State and enforced as if obtained in an action in a court of record. Note — As to commencement of an action by delivery of notice to the sheriff pursuant to Laws 1854, chap. 402, to preserve tlie lien after the expi- ration of six months. See Oee v. Ton'ey, 77 llun, 33 ; s. c. 59 N. Y. State R. 431 ; 38 N. Y. Supp. 239. * So in original. 11 163 LAWS 1880, CH. 440, SECS. 11-13. § 11. Appeals.— Appeals from judgments rendered pursuant to this act may be taken by either party in the same manner, within the same time, and subject to the same rules and course of procedure as in appeals taken in civil actions arising on contract, and with like costs and disbursements, and the judgment thereon shall be enforced as judgments on appeal are now en- forced and collected. Such appeal shall be had and taken only in the proceeding or action wherein judg- ment shall be given or rendered, but such appeal shall not operate as a stay of proceedings or in any manner to affect the foreclosure or action of any other claim- ant or claimants then pending. § 13. Priority of Liens.— The liens created by vir- tue of the provisions of this act shall be paid and settled according to priority of notice -filed with the county clerk as directed by the second section of this act. § 13. Discharge of Liens. — All liens created by this act may be discharged as follows : First, by filing with the county clerk, a certificate of the claimant or his successor in interest acknowl- edged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged. Second, by depositing with the justice before whom, or the clerk of the court in which proceedings shall be commenced to enforce or foreclose said lien, a sum of money equal to double the amount claimed, which money shall thereupon be held subject to the determi- nation of such proceedings ; or, Third, by an entry of the county clerk made in the book of liens that the proceedings on the part of the claimant have been dismissed by the court or a judg- ment rendered against the said claimant. WAGES. 163 Eight Hours a Legal Day's Work.— Eight hours shall constitute a legal day's work for all classes of mechanice, workingmen and laborers, excepting those engaged in farm and domestic labor, when employed by the State or any municipal corporation therein, through its agents or officers, or in the employ of persons contracting with the State or such municipal corporation. Overwork is permitted for an extra compensation by agreement. A violation of this statute is a misdemeanor. Laws 1870, chap. 385. Mechanics, workmen, and laborers to re- ceive not less than the prevailing rate of wages in the respective trades and callings in which they are employed. As amended by laws 1894, chap. 623. Wages. — The wages of day laborers employed by the State or any officer thereof, shall not be less than two dollars a day, and as to employees other than day laborers, the price shall be at a rate of not less than twenty-five cents per hour. On any pub- lic work in this State preference shall be given to citizens of the State of New York. Laws 1889, chap. 380. See Laws 1895, chap. 883 ; Penal Code, § 383. They must receive not less than the prevailing rate of wages in their respective trades and callings. See Laws 1894, chap. 632. Quarrymen and Stonecutters. — Persons employed in aoy of the sandstone, granite, bluestone, or marble quarries, yards, or docks in this State, where the same is dressed, cut, or quarried, may file lien for work within thirty days after com- pletion of labor, in town clerk's office, or place where chattel mortgages are required to be filed. The lien is to be foreclosed under the provisions of the Code of Civil Procedure entitled " Action to Foreclose Chattel." Lien shall not extend to mate- rial which shall have become part of any building or striicture. Laws 1896, chap. 738. Boarding-House Keepers are entitled to a lien upon the baggage and effects of any boarder to the extent and in like manner as an innkeeper. Laws 1860, chap. 446 ; as amended by Laws 1876, chap. 319. And see Laws 1871, chap. 803. The lien of the boarding-house keeper extends to property of the guest, which is not exempt by law from levy and sale under an execution. Thorn v. Whitiech, 11 Misc. 171. Inn Keeper or Hotel Keeper may acquire lien on bag- gage and efEects of boarder, in same manner as if such person had been received as a guest. Laws 1894, chap. 353, in effect April 4, 1894. lii very- Stable Keepers. — Livery-stable keepers are en- titled to a lien for the board, pasture, or keep of a horse, under 164 LAWS 1880, CH. 440, sec. 13. any agreement with the owner, where notice in writing is given to the owner of intent to enforce the lien. IjEWS 1873, chap. 498 ; Laws 1880, chap. 145 ; Laws 1893, chap. 91. A notice served upon a livery-stable keeper, that the person who left the horse with him is not the owner of the animal, and will no longer be responsible for his keep, imposes upon the liv- eryman the duty of enforcing hie lien at once ov within a reason- able time. Mason Stable Oo. v. Lewis, 16 Misc. 359. The lien of a livery-stable keeper, under Laws 1893, chap. 91, becomes complete on giving the written notice provided by the statute. But possession of the animal is not essential to estab- lish the lien when it has been fraudulently taken from the liv- eryman. JHine v. Green, 83 Hun, 190. liiens on Gravestones and Monuments. — Per- sons or corporations who shall manufacture, sell, or furnish any gravestones, monument, inclosure or other structure, may acquire a lien thereon for the purchase price. Laws 1888, chap. 543. The constitutionality of this statute was raised in a suit for an injunction to restrain defendant from removing a monument, but the Court held the question open. It decided that the stat- ute must be complied with strictly before its provisions could receive consideration. Brooks v. Tayntor, 91 Hun, 338. Liens on Canal Boats. — For the special provisions of law applicable to liens upon boats navigating the canals of this State. See Laws 1864, chap. 413, as amended by Laws 1893, chap. 405. F0EM8. I. Notice of Claim. To THE Clerk or the County of , and to whom it MAy concern : Take notice that , residing at No. Street, in the city of , claims a lien upon the land and prem- ises hereinafter described and buildings thereon, in accordance with the facts below stated, and alleges : I. That the nature of the labor and services performed, and the materials famished and to be furnished, for which said lien is claimed, and the amount justly due claimant therefor, is as follows : [Set forth the nature of the labor, services and mate- rials, amount due or to grow due, extent of performance, and all credits.'\ II. That the name of the owner \or, lessee, general assignee or person in possession\ of the premises against whose interest this lien is claimed is III. That the name of the person [^firm, corporation or asso- ciation'] by whom the claimant was employed [or, to whom he furnished or is about to furnish such materials] is IV. That the labor and materials for which this lien is claimed were actually performed and furnished [and if not how much of it] in accordance with a written contract of the following pur- port ; [If the contract was not in writing, state its substance.] V. That all the work and materials for which this claim is made have been actually performed and furnished toward the construction [alteration or repair] of a house situated in the Ward of the city of , and numbered on Street [and were actually used and are to be used] in the construction and erection of said buildings ; the following being a diagram of the premises upon which said house is situated and this lien is claimed : 166 FORMS. VI. That a lien is hereby claimed against said building, the land upon which it stands, together with the appurtenances thereto, pursuant to the provisions of the laws of this State. Dated, Few York, , 1896. Claimant. ConstY OF , ss.: , the claimant above-named, being duly sworn, says : that he has read the foregoing notice and claim, and knows the contents thereof, and that the statements therein contained are true to the knowledge \or, information and belief] of this depo- nent. Subscribed and sworn to ) before me this ) [If claimants are a firm — [corporation or association]— the firm name may be signed, and the Verification made by " one of the persons, member of firm or firms, an ofBcer of the corpora- tion or association making the claim, or his, its or their agent." —Laws 1885, chap. 343, § 4. The verification by a member of a firm may be as follows :] County of , ss.: Eli Dye, being duly sworn, says, that he is one of the claim- ants mentioned in the foregoing notice of claim, and is a member of the firm of Coffin & Dye, which said firm is composed of Casper Coffin and this deponent ; that deponent has read the said notice and knows the contents thereof, and that the state- ments therein contained are true to deponent's knowledge or in- formation and belief. Sworn to before me this ) day of Sept., 1896. | FOKMS. 167 II. Notice of Claim— Material Man— Another Form. To THE Clerk of the City abtd County of New York, and ALL others whom IT MAY CONCERN. Please take notice that I, Oneius Pompey, residing at 35 West 72d street, in the city of New York, have and claim a lien for the principal and interest of the price and value of the materials hereinafter mentioned, upon the house, building and appurte- nances, and upon the lot, premises and parcel of land upon which the same may stand, or be intended to stand, hereinafter men- tioned, pursuant to the provisions of the Act of the Legislature of the State of New York, entitled, " An Act for the better security of Mechanics and Laborers and others, who perform labor or furnish material for buildings and other improvements in the several cities and counties of this State, and to repeal cer- tain acts and parts of acts," passed May 27th, 1885, being chap- ter 343 of the Laws of 1885. That the nature and amount of the materials so furnished are as follows : I, Cneius Pompey, dealer in building materials, doing business at No. 8 Amsterdam avenue, in the city of New York, sold and delivered to Titus Brown, at his request, certain building mate- rials, consisting of lumber, lath, nails, lime, sand, hair plaster and cement to be used ia the erection and construction of a cer- tain building or buildings upon the premises hereinafter men- tioned, as shown on the diagram below, which said materials were reasonably worth the sum of six hundred dollars, which said Brown promised and agreed to pay me therefor, which said materials were duly furnished by me to said Brown, with the knowledge and consent of said owner of said premises and con- tractors hereinafter mentioned, and were actually used by said Brown in the construction and erection of the building or build- ings upon said premise8,*but said Brown has not paid me for said materials said sum of six hundred dollars, nor any part thereof, except the sum of one hundred dollars, and there is now justly due and owing to me on account of said materials, so furnished as aforesaid, the sum of five hundred dollars. The name of the owner of said premises, against whose interest a lien is claimed, is, as I am informed, Giovanni Colombo. 168 FOBMS. The name of the person by whom claimant was employed, and to whom he furnished such materials is Titus Brown. That all the work and materials for which this claim is made has been actually performed or furnished, and the amount now due claimant therefor is the sum of five hundred dollars, and interest thereon from August 1st, 1896. The property to be charged with a lien is described as follows : [Insert a careful description of the premises iy metes and hounds.'] Dated, New York, August 29, 1896. CxBius PoMPBY, Claimant. [Add ver if cation as in Form I.~\ [For notice of claim under municipal contracts see post, Form XXX.] III. Complaint. Contractor Against Owner. COUET OF COMMON PLEAS. City and County of New York. Joseph Flatteey 1 vs. ► Complaint. J'rank McGakn, The plaintiff complains and alleges : I. That at the times hereinafter mentioned the defendant was, and still is, the owner \if the defendant is not the owner of the FOEMS. 169 fee, set forth specially the interest which he has in the premises'] of the following real estate, situated in the city of New York, and thus described : [^Insert a careful description of the premises ly metes and hounds.] II. That on the day of , the parties hereto entered into a written contract, a copy of which is hereto annexed and made part of this complaint, marked Exhibit A. [i/' 7iot a writ- ten contract, state its substance.]* III. That the plaintiff duly performed for defendant the work and furnished the materials provided for in said contract, and said work was performed and said materials were furnished ■ toward and actually used in the erection [altering or repairing] of the building mentioned in the contract aforesaid on the lot above described ; that the plaintiff duly fulfilled all the condi- tions of said contract on his part to be perfomed, within the time therein specified [or allege any excuses for non-performance upon which plaintiff' relies], and on the day of , at the time of the filing of the lien hereinafter mentioned [or, prior to the commencement of this action]\ plaintiff became entitled to re- ceive from defendant the sum of , which sum has not been paid [except the sum of \ and there is now due the plain- tiff from the defendant the sum of , under said contract. IV. That on the day of , 1«9 , and within ninety days after the completion of the contract above set forth, the plaintiff filed a notice of lien in writing in the clerk's office of the county in which the property aforesaid against which a lien is asserted is situated, on and against the said premises for the amount of labor and material aforesaid, to wit, dollars ; that said notice of lien contained the name and residence of the claimant, this plaintiff, the nature and amount of the labor and service performed and the materials furnished, with the name of * It has also been held that plamtifl is not bound to declare upon a special contract, but may declare generally for materials furnished and work performed, and upon the trial the contract may be used to determine the rights of the parties. Hartley 7. MurtTia, 5 App. Div. 408 ; ante, p. 94. \ The amount must be due on the contract when the lien is filed or when the action is commenced. See ante, p. 95, and foot-note on p. 178. 170 FORMS. the owner as hereinbefore given, against whose interest said lien is claimed ; the name of the person by whom plaintiff was em- ployed ; together with a statement that the work for which the claim was made had been actually performed and the materials actually furnished, and contained also a description of the prop- erty to be charged with the lien sufficient for identification ; that said notice of lien was duly verified and complied in all re- spects with the requirements of the statutes of the State of New York ; and that on the day of , 189 , said lien was daly entered and docketed by said clerk in the lien docket kept in his office. Plaintiff annexes hereto a copy of said notice of lien and makes the same a part of this his complaint, the same being marked Exhibit B. V. That on the day of , and within ten days after filing his notice of lien as hereinbefore set forth, the plaintiff caused a copy of said notice to be served personally upon the owner, the defendant herein. VI. That no other persons have filed liens against said prop- erty nor have subsequent liens or claims by judgment, mortgage, or conveyance. [If there he any such liens or claims, the fact must be stated and the lienor or claimant made a party, and the demand for judgment must ask for a determination of the priority of liens or claims, and an adjudication of the rights of the parties J\ Wherefore plaintiff demands judgment : 1. That he be adjudged to have a lien on said property for the sum of 3. That the defendant and all persons claiming under him be foreclosed of all equity of redemption or other interest in said premises. 3. That the defendant's interest in said premises be sold as provided by law, and that from the proceeds of such sale the plaintiff be paid the amount of his lien aforesaid and interest thereon from , together with the expenses of sale and costs of this action. 4. That plaintiff have judgment against the defendant for any deficiency that may remain due him after sale. FORMS. 171 5. Thatplaintiff may have such further judgment, decree or order as may be necessary to protect his rights in the premises. [If the lien has been discharged by deposit with the clerk, as pro- vided in § 24, the complaint should recite that fact, and the de- mand for judgment should he as follows .•] Wherefore plaintiff demands judgment against the defendant : 1. That it be adjudged that he acquired a valid lien on said premises, and has now a lien on the money in the hands of the clerk for the sum of dollars and interest thereon from , and the costs of this action. 2. That plaintiff have judgment against the defendant for any deficiency that may remain after applying the amount of said de- posit to the payment of his claim, with interest and costs hereof.* 3. That plaintiff have such further judgment, decree or order as may be necessary to protect his rights to the premises.* [If the lien has been discharged by giving a bond, the party may sue the party liable for the debt and the obligors upon the bond. The following form, which was sustained in Morton v. Tucker, 145 N. Y. 344, may be used.\] VII. On the 29th day of August, 1894, said Sarah B. Tucker [the defendant liable for the debt] filed with the Clerk of Kings County a bond to said Clerk duly executed by her with the de- fendants, Owen O'Keefe and Thomas O'Hara [the obligors on the bond], as sureties, who are freeholders in the sum of six hundred dollars, which was the amount duly fixed by the Su- preme Court, conditioned for the payment of any judgment which might be rendered against the said property in any action brought by these plaintiffs by reason of the facts hereinbefore stated, and the said sureties duly justified thereon, and the said * For authorities upon the question as to the form of the judgment and its provisions, see ante, pp. 106-108. f Where an undertaking has been given to discharge the lien, the plain- tiff may demand judgment against the obligors upon the bond for the amount due and payable upon the lien. Morton v. Tucker, 145 N. Y. 344. The formal judgment against the property brings it within the condition of the undertaking. PlaintiflE is also entitled to a personal judgment against the party liable for the debt, in view of the fact the sureties may have become insolvent. Lawson v. Beilly, 13 Civ. Proc. Rep. 290, and see ante, p. 108. 172 FORMS. bond was approved before filing, by a Justice of the Supreme Court of Kings County, and an order was duly made by said Supreme Court discharging the said lien, and directing its can- cellation by the Clerk of Kings County, which order was duly entered and filed in the office of the Clerk of Kings County at the same time with said bond, and thereupon the said Clerk did cancel said notice of lien, and said premises were discharged of said lien. YIII. On the 1st day of October, 1894, an order was duly made by the Supreme Court of Kings County, after due notice to all per- sons interested, including the defendants, which order was on the same day duly entered and filed with the Clerk of the said county of Kings, wherein and whereby these plaintiffs were permitted to maintain an action in their own names against the defendants, as for a breach of the condition of the said bond. Wherefore plaintiff demands judgment against the defendants for said sum of $528.49, with interest from the 12th day of August, 1894, that the said lien may be declared a valid lien until the time of its discharge against the said premises, and that said sureties be declared liable by virtue thereof, and the plaintiffs have the costs of the action. [Verification in usual form.] IV. Complaint. Sub-Contractor against Owner and Con- tractor. COUET OF COMMON PLEAS. City and County of New York. Silas Carter against Complaint. Charles Near and Oliver Wendell. Plaintiff complains and alleges : I. That on or about the first day of January, 1893, the de- fendant C. N. made and executed a written contract with de- FORMS. 173 fendant 0. W., the owner of the premises hereinafter described, whereby the said 0. N. agreed to furnish and provide all the carpenter work and materials for and toward the erection of a dwelling-house on the following described lot : [Insert a careful description of the premises by metes and loundsJ] II. That in and by said contract it was agreed that said de- fendant contractor should be paid by said defendant ownej the sum of three thousand dollars, to be paid in installments as fol- lows : one thousand dollars when said building had been erected to the first tier of beams ; one thousand dollars when the build- ing should be enclosed, and the balance upon the final completion of the building in accordance with the contract. III. That said defendant contractor duly performed all the conditions of said contract on his part to be performed, and so far completed the same as to become entitled at the time of the filing of the notice of claim by plaintiff herein, or prior to the commencement of this action, to receiye thereon a payment of one thousand dollars ; and that at the time of the filing of the notice of lien hereinafter mentioned and prior to the commence- ment of this action, there was due to said defendant contractor from said defendant owner aforesaid the sum of one thousand dollars [or, if the amount is not known, say, " a sum in excess of the amount of the plaintiff's claim herein"]. IV. That on the second day of February, 1893, the plaintiff entered into a verbal contract with defendant C. N., the con- tractor aforesaid, whereby plaintiff agreed to furnish to said con- tractor and to deliver upon the premises aforesaid all the sash and blinds for said building, being part of the materials [or, labor] required and stipulated to be furnished by the contract between the said owner and contractor, for the sum of one hun- dred and fifty dollars, to be paid to plaintiff upon the delivery of the same as aforesaid ; and that in pursuance of said contract and in conformity therewith, plaintiff did so furnish and deliver said sash and blinds, and the same were actually used in and ■upon said building, in the construction thereof. V. That said sum of one hundred and fifty dollars become due to the plaintiff upon the sixth day of April, 1893, upon which 174 FORMS. day the last of the materials aforesaid were famished, and that said sum is now due to plaintiff. VI. That on the twentieth day of April, 1893, and within ninety days after the completion of the contract above set forth, plaintiff filed a notice of lien in writing, in the clerk's office of the couaty in which the property against which the lien is as- serted is situated ; that said notice of lien contained the names and residences of the claimants, this plaintiff, the nature and amount of the labor and service performed, and the materials furnished, with the name of the owner as hereinbefore given ; the name of the person by whom the plaintiff was employed ; together with a statement that the work for which the claim was made had been actually performed and the materials actually furnished, and contained a description of the property to be charged with the lien sufficient for identification ; that said no- tice of lien was duly verified and complied in all respects with the requirements of the statutes of the State of New York, and that on said twentieth day of April, 1 893, said lien was duly en- tered and docketed by said clerk in the lien docket kept in said office. PlaintiS annexes hereto a copy of said notice of lien and makes the same a part of this his complaint. VII. That on the twenty-first day of April, 1893, and within ten days after the filing of the notice of lien aforesaid, plaintiff caused a copy of such notice to be served personally upon the owner, said 0. W., one of the defendants herein. VIII. That no persons have filed liens against said property nor have subsequent liens or claims by judgment, mortgage or conveyance. [If any such liens or claims exist, state the fact and make the lienor or claimant a party. \ [Allege, also, that notice of claim was served upon the con- tractor or other persons in interest, as required by Laws 1885, chap. 343, § 4.*] Wherefore plaintiff demands judgment : — , 1. That he be adjudged to have a lien on said property for the * For the provisions of the statute as to service of the notice of lien on the owner and other persons in interest, see ante, p. 63. For form of the allegation, see;pM«, Form VI., paragraph X., p. 179. F0RM3, 175 sum of one hundred and fifty dollars and interest from April 6, 1893. 2. That defendants and all persons claiming under them be forever foreclosed of all equity of redemption or other interest in said premises. 3. That said premises be sold as provided by law, and that from the proceeds of such sale plaintiff be paid the amount of his lien aforesaid, and interest, with expenses of sale and costs of this proceeding. 4. That plaintiff have Judgment for any deficiency that may then remain against said defendant, 0. N". 5. That plaintiff have such farther judgment, decree or order, as may be necessary to protect his rights in the premises.* [If the lien has been discharged ly deposit, insert as in preced- ing form, demand for judgmeyit on p. 1?].] V. Complaint. Contractor against Lessee and Owner who has Consented to the Erection. COURT OF COMMON PLEAS. City and Coukty op Nevt York. Caius Nicras «^«*''*'^^ y Complaint. Opalcus WiifEBUR&andLucuLLUS Edwards. Plaintiff complains and alleges : I. That on the first day of January, 1893, plaintiff made and executed a written contract with the defendant L. E., lessee in possession of the premises hereinafter described, whereby the plaintiff agreed to erect a building thereon. Said premises are described as follows : [Give a specific description of the premises upon which the lien is claimed.] * For authorities as to the form of the judgment and its provisions, see ante, pp. 106-108. 176 FORMS. II. That between said first day of January and the sixth day of April, 1893, plaintiff furnished, at the special instance and request of the said L. E., certain labor and materials in and tow- ard the erection of the building aforesaid, a more specific state- ment of which is shown by the bill of particulars hereto annexed and made a part of this complaint ; that said labor and materials were reasonably worth the sum of five hundred dollars. III. That said sum of five hundred dollars is still due to the plaintiff, and that said labor and materials were performed and furnished for the erection of, and were actually used in and upon the building aforesaid. IV. That the defendant 0. W. is and was at all the times herein mentioned, the owner of the premises hereinbefore de- scribed, and on the day of , executed a lease thereof to defendant L. B. for the term of five years, and that said L. E. thereafter entered into and has since continued in possession of said premises. V. That defendant 0. W., the owner of said premises, con- sented to the erection of the building aforesaid, and the labor and materials for which the plaintiff claims a lien were furnished and performed with the knowledge and consent of said owner.* [Follow Form III., from paragraph III. to end.] VI. Complaint. Material Man against Owner, Contractor and Sub-Contractor. Fuller Form. SUPREME COUET. New York County. Cneius Pompet - Complaint. against Titus Brown, • Cornelius Flaherty, Publius Jones, and Giovanni Colombo. The plaintiff complains and alleges : I. That at all the times hereinafter mentioned, the plaintiff * This form of allegation has been held sufficient. Bass v. Simon, 9 N. Y. Supp. 536. See ante, p. 94. FORMS. 177 was and still is a dealer in building materials, carrying on busi- ness in the city of New York. II. That at all the times hereinafter mentioned the defendant, Griovanni Colombo, was and still is the owner of the following described premises in said city of New York, to wit : " All that certain lot, &c., &c." [Give description of premises upon which lien is claimed.'] III. Plaintiff further alleges, upon information and belief, that at and prior to the tinies hereinafter mentioned, defendants, Cornelius Flaherty and Publius Jones, were and still are co-part- ners, carrying on business as contractors and builders, under the firm name and style of Flaherty & Jones. That as such co-part- ners they made a contract with the defendant, Giovanni Colom- bo, the owner of the premises above described, whereby said Flaherty & Jones agreed to furnish and provide all the carpenter work and materials for and toward the erection of a dwelling- house on the said premises of defendant Colombo, above de- scribed. IV. Upon information and belief, that in and by said contract it was agreed that said contractors should be paid by said owner in instalments as said work progressed, at particular stages of said work, and the balance or final instalment upon the comple- tion of said contract. [i/" pleader has terms of contract he may set them forth. In the absence of the contract above form is convenient.] V. That after the making of said contract said contractors en- tered into an agreement with the defendant Titus Brown, where- by said Brown agreed to furnish and provide the mason work, plastering, brick and carpenter work, and the labor and mate- rials for and toward the erection of said dwelling-house agreed to be erected by said Flaherty & Jones, for said defendant Colombo, on the premises aforesaid, which said agreement was made with the knowledge and consent of said defendant Colombo. VI. Upon information and belief, that at the time of the fil- ing of the notice of claim and lien by plaintiff as hereinafter set forth, said contractors, Flaherty & Jones, had duly performed part of the conditions of said contract on their part to be per- 13 178 FORMS. formed and so far completed the same as to become entitled at the time of the filing of said lien * to a payment on accoant of said contract, and at the time of filing said lien * there was due and owing to said contractors and to the sub contractor, Titus Brown, from said owner Colombo, a sum in excess of the amount of plaintiff's claim herein, and there was remaining unpaid at the time of filing said lien, a balance and a sum agreed to be paid under said contractor for work done and about to be done, far in excess of the amount of the plaintiff's claim herein. VII. That at divers times between June 16 and August 1, 1893, plaintiff sold and delivered and furnished to said defendant, Titus Brown, at his request, certain building materials consisting of lumber, lath, nails, lime, sand, hair, plaster and cement, which said materials were furnished for and used in the construc- tion and erection of said dwelling-house on the premises of de- fendant Colombo, aforesaid, which said materials were reasonably worth the sum of six hundred dollars [or, which, at prices agreed upon amounted in the aggregate to the sum of six hundred dol- lars, which said sum defendant promised and agreed to pay plain- tiff therefor], which said materials were duly furnished by plain- tiff with the knowledge and consent of said owner, defendant Colombo, and with the knowledge and consent of the agents and contractors of said defendant Colombo, to wit, said defendants Flaherty & Jones, and said materials were actually used in the erection and construction of said dwelling-house with said knowl- edge and consent of defendants as aforesaid. VIIL That ST,id defendant, Titus Brown, has not paid said sum of six hundred dollars, nor any part thereof, except the sum of one hundred dollars. IX. That on or about the thirtieth day of August, 1893, and within ninety days after the furnishing of said materials as afore- said, plaintiff filed a notice of lien in writing in the office of the * Tke plaintiff may allege that the amount of the claim was due plaintiff at the time of the commencement of the action. Though notice of lien may be filed at any time, the action to foreclose cannot be prosecuted till the debt, or a portion of it, becomes due. Siillivan v. Brewster, B. D. Smith, 682, and see ante, p. 95. He may then recover whatever has be. come due up to the time of the trial. Single v. Wallis Iron Works, 85 Hun, 279. See ante, p. 95. FORMS. 179 clerk of the city and county of New York, where said premises are situated, and against which a lien is asserted on and against said premises for the value of materials furnished and sold as above set forth, to wit ; Five hundred dollars, with interest thereon from August 1st, 1893, and said notice of lien contained the name and residence of the claimant, this plaintiff, and the entire amount of the materials furnished, with the name of the owner as hereinbefore set forth, the name of the person to whom plaintiff furnished said materials, and also a description of the property to be charged with said lien sufficient for identification, said notice was duly verified and complied in all respects with the requirements of the statutes of the State of New York, a copy of which said lien is hereto annexed. On the thirtieth day of x^ugust, 1893, said lien was duly entered and docketed by said clerk in the lien docket kept in his office. X. That within ten days after filing said notice of lien, plain- tiff caused to be served a copy of said notice personally upon said owner, the defendant Colombo, and upon defendants Brown, Flaherty, and Jones. [Or, if the contractors and sul-contr actors have no residence in the town or city where lands are situated, or cannot ie found therein, allege as follows :] That within ten days after filing said notice of lien, hereinbe- fore set forth, plaintiff caused a copy of said notice to be affixed conspicuously on said premises hereinbefore described, and de- scribed in said notice of lien, between the hours of nine o'clock in the morniag and four o'clock in the afternoon, said defendants, Titus Brown and Flaherty & Jones, as plaintiff is informed and believes, have not, nor has either of said defendants a residence in the city and county of New York, or in the town in which said lands above described or a part thereof are situated, and said defendants could not, nor could either of them be found therein.* Wherefore plaintiff demands judgment : [Follow Form III., prayer for judgvient, and demand deficiency judgment against the sub-contractor, Titus Brown, liable for the debt, and add verification.] * This mode of service is prescribed by § 4, Laws 1885, cliap. 342, see ante, p. 63. 180 FORMS. VII. Lis Pendens. SUPEEME COUET. New York County. Cneius Pompet, Plaintiff, Laws 1885, chap. 343, § 6, ante, Titus Brown, Cornelius P^-g^^ 86-90. Flaherty, Publius Jones and Giovanni Colombo, Defendants. Sir: ISTotice is hereby given that an action has been commenced, and is now pending in this court, by the above-named plaintiff against the above-named defendants, the object of which said action is to foreclose a mechanic's lien, notice of which said lien and claim was duly filed in the office of the clerk of the city and county of New York on the thirtieth day of August, 1893. The following is a description of the premises affected by said lien in said action : [Here insert description of premises as set forth in the com- plaint in the action.^ Dated New York, November 1, 1896. Edward Coke, Plffs. Atty., 120 Broadway. [To the Clerh of the City and County of New York."] Sir : Please index the foregoing notice against all the de- fendants. Edward Coke, PlfEs. Atty. [For Lis Pendens under municipal Contract, see post, p. 218, Form XXXIV.] FORMS. 181 VIII. Order of Reference. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the County Court House in said city on the day of , 1893. Present, Hon. Joseph F. Daly, Chief Judge. Antokio de Gamma See authorities, pages 100, 101, ante. KiNALDo UE Balboa. A motion having been made on the pleadings herein by the plaintiff for a reference of all the issues in this action, and after ' hearing the parties by their respective counsel, 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 here- in, due deliberation being had, on motion of M. J. E., 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, counsellor-at-law, as sole referee to hear and deter- mine the same. IX. Report of Referee. COURT OP COMMON PLEAS. For the City and County of New York. Antonio de Gamma against \ Referee's Report. Einaldo de Balboa. To the Court of Common Pleas for the City and County OF New York. Ij , the Eeferee named in the order made herein and 183 FORMS. dated the day of , 1893, 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 com- plaint mentioned, prior to the day of , 18 , the de- fendant was the owner in fee of the lot of land described in the complaint in this action. Second. That on or about the day of , 18 , the plaintilf made a contract with the defendant, whereby plaintiff agreed to construct for said defendant and furnish to him seventy rear and gable window frames aad sash for the price of two hun- dred and forty dollars, which sum defendant promised and agreed to pay to the plaintifE, for the work and materials aforesaid. Third. That thereafter, and between said day of , 18 , and,bhe day of j 18 , the plaintifE, under and pursuant to the terms of the contract aforesaid, performed cer- tain work, consisting of constructing the window frames and sash aforesaid, and furnished to said defendant, pursuant to said contract, materials, being the window frames and sash aforesaid. Fourth. That all of the work performed and materials fur- nished as aforesaid were agreed to be, and were so performed and furnished to be used, and were actually used in and toward the erection of five buildings on the land hereinbefore mentioned and in the complaint described, and were so performed and furnished under, pursuant to and in conformity with the terms of the con- tract aforesaid ; that plaintifE performed all the conditions of said contract on his part to be performed, and prior to the filing of the lien hereinafter mentioned became entitled to receive from said defendant, under and by the terms of said contract, the sum aforesaid, to wit, the sum of two hundred and forty dollars. Fifth. That said sum has not, nor has any part thereof been FORMS. 183 paid, and in said sum and interest thereon from , 18 , said defendant is now justly indebted to plaintiff. Sixth. That within ninety days after the completion of said contract, and on the day of , 18 , the plaintiff caused to be filed in the office of the clerk of the city and county of New York, a notice of claim and lien on and against said buildings and land (which are situate in said county) for said sum of two hundred and forty dollars, 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 required 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 pur- suant to said statutes. That on said day of j 18 , said lien was duly entered and docketed by said clerk on the lien docket kept in his office. Seventh. That said lian has not been paid, cancelled or other- wise discharged of record, and no other action or proceeding has been had or commenced to recover said debt or foreclose said lien, and that no persons have filed liens against said property nor have subsequent liens or claims by mortgage, judgment or conveyance on or against said premises, and that on the day of , 18 , within one year after the filing of said lien, a notice of the pendency of this action, which is brought to fore- close the same, was duly filed and recorded in the office of said clerk. AND AS CONCTiUSIONS OF LAW. First. That under and by the terms of the contract aforesaid, and for and on account of the work, and Materials aforesaid, the defendant was at the time of the filing of the lien hereinbefore mentioned, and when this action was commenced was and now is justly indebted unto the plaintiff, in said sum of two hundred and forty dollars, and interest there on from , 18 . Second. That by the performance and furnishing of said work and materials and the filing and docketing of said lien, the plain- tiff acquired and now has a good and valid mechanic's lien on all the right, title and interest which the defendant had on the day of , 18 , at the time of the filing of said lien, in and to the buildings and lands hereinbefore and in the complaint mentioned. 184 FORMS. Third. That the plaintifE is entitled to judgment against the defendant, barring and foreclosing him of all interest and equity of redemption in and to said premises, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing said lien, and for the payment to plaintifE from the proceeds of such sale of said sum of two hundred and forty dollars and interest thereon from , 18 , which, at this date, amounts to four dollars and eighty cents, making together two hundred and forty-four dollars and eighty cents, and the plaintiff's costs and disbursements of this action, to be taxed, which are hereby granted to him ; and also in case said proceeds be insufficient to pay the sum aforesaid plaintiff is entitled to judgment against the defendant for the amount of any deficiency so remaining. And I order and direct judgment accordingly. All which is respectfully Submitted. Dated New York, , 18 . Referee. X. Notice of Filing Referee's Report for Confirmation there- of, and for Judgment. NEW YORK COUET OF COMMON PLEAS. AifTONio BE Gamma against ^ ""''''j^^ZtZ/^ C.nfi.nation, EiNALDo DE Balboa. Gentlemen : Please take notice that the report of , Esq., the ref- eree herein, dated , 1893, was duly filed in the office of the clerk of this court, in the Court House in the city of New York, on the day of , 1893, and that upon said re- port and upon the pleadings and all the papers and proceedings herein, a motion will be made at a Special Term of this court, to be held at the Court House in the city of New York, on the day of , 1893, at eleven o'clock in the forenoon, or as soon thereafter as counsel can be heard, for the confirmation of FOKMS. 185 said report, for an extra allowance, and for judgment and decree thereon, in conformity with said report. Dated New York, , 1896. Yours, &c.. To Matthew Hale, Ovid Oldham, Plaintiff's Attorney, Defendant's Attorney. Temple Court, N. Y. Judgment on Report of Referee. XL Judgment on Report of Referee. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the County Court House in said city on the day of , 18 . Present, Hon. Joseph F. Daly, Chief Judge. PiTBLiDS Cornelius SciPio, Plaintiff, against Marcus Poetius Cato, Defendant. This action being for a foreclosure of a mechanic's lien, and the issues therein having been referred to , Esq., as sole referee, to hear and determine the same, by order duly made and entered herein bearing- date , 18 , and the said referee having duly made his report dated ,18 , and which has been duly filed, whereby he orders and directs judgment in favor of the plaintiff against the defendant, barring and foreclosing him of all interest and equity of redemption in and to the prem- ises described in the complaint herein, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing the lien described in the complaint herein, and for the payment to plaintiff, from the proceeds of such sale, of the sum of two thousand and forty-four dollars and eighty cents, being the amount of plaintiff's claim and interest to the date of said report, and the plaintiff's costs and disbursements of^this 186 FORMS. action to be taxed, and an extra allowance of two hundred dol- lars, 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 deficiency so remaining, and the plaintiff's costs having been duly taxed at ninety-six dollars : Now, on motion of M. J. E., plaintiff's attorney, It is ordered, that said report be, and the same is hereby, in all respects, confirmed, and on like motion. It is adjudged and decreed, that all the right, title and interest which the defendant had in and to the premises de- scribed in the complaint herein, and hereinafter particularly de- scribed, on the day of ,18 , at the time of filing plaintiff's Hen described in the complaint herein, be sold in one parcel at public auction in the city and county of New York, by or under the direction of , Esq., of the city of New York, eounsellor-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 par- ties to this action may purchase at said sale ; that said referee deliver to the purchaser or purchasers a deed or deeds of the premises sold ou 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 two hundred and ninety-six dollars, the costs taxed as aforesaid and allowance hereby ad- judged to said plaintiff with interest thereon from this date, and that he further pay to the plaintiff or his attorney two thousand and forty-four dollars and eighty cents, the amount of claim 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 sai.d referee pay the surplus arising on said sale, if any, to the Chamberlain of the city of New York to the credit of this action, to be drawn only on the order of this court signed by the clerk and a judge thereof, within five days after he receives the same ; that he make a report of such sale and file it with all convenient speed with the clerk of this court ; that if there be any deficiency remaining on such sale said referee specify the amount thereof in his report of sale, and FORMS. 187 that the plaintiff recover of the defendant the amount of defi- ciency so remaining and have execution therefor, and that the purchaser be let into possession on production of the referee's deed. And it is fuktheb adjudged, that the defendant and all persons claiming under him subsequent to the filing of the notice of pendency of this action (which, as appears by said referee's report, was filed in the office of the clerk of the city and county of New York on the day of , 18 ) 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 iy metes and bounds.'] XII. Decision for Plaintiff after Deposit* SUPREME COURT, KINGS COUNTY. Nathaniel Nosegay, Plaintiff, against \- Decision. Henry Honeyman, Defendant. The issues in this action having been tried before me, at a Special Term of this Court, and after hearing the proofs and allegations of the parties, I decide that plaintiff is entitled to judgment 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 preponderance of evidence that the defendant, Henry Honeyman, is indebted to the plaintiff in the sum of 13500 upon his contract for work, labor, and services and materials furnished said defendant, which * Instead of preparing findings, a party may prepare a decision, and the Court is authorized to file a decision pursuant to § 1023 of the Code of Civil Procedure, and judgment may be entered thereoh. 188 FOKMS. were actually used in the erection, and construction of a dwelling house upon land and premises described in the complaint, and for which plaintiff filed a'lien as stated in the complaint. On July 26th, 1896, the defendant, Honeyman, deposited with the clerk of the county of Kings $2600 in discharge of the lien. The lien attaches to the deposit. Plaintiff is entitled to judgment establishing his lien, and for the recovery of 83500 the amount due thereon with interest from April 17th, 1896, besides the costs and disbursements of this action to be taxed, with an allowance of five per cent, upon the amount claimed, and said costs and allowance are hereby awarded to Nathaniel Nosegay, the plaintiff herein, against the defendant, Henry Honeyman. And I hereby order and direct judgment in favor of the plain- tiff accordingly, and direct that plaintiff have liberty to pro- ceed according to law to collect the deposit of two thousand six hundred dollars ($2600) made in discharge of the lien herein, and to proceed according to law against the defendant, Henry Honeyman, to collect and recover the remainder due upon said judgment over and above the amount of said deposit. Dated Brooklyn, August 17th, 1896. W. W. G., J. s. a XIII. Judgment on Decision for Deposit. At a Special Term of the Supreme Court, Kings County, held at the Court House in the city of Brooklyn, this 24th day of August, 1896. Present, Hon. "William "W. Goodrich, Justice. Nathaniel Nosegat, Plaintiff, against }■ Judgment and Decree. Henry Honeyman, Defendant. This action being to foreclose a mechanic's lien, and the Court at Special Term having tried the issues and having made and FORMS. 189 filed its decision herein on the seventeenth day of August, 1896, 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 Kings on the twenty-sixth day of July, 1896, of two thousand six hundred dollars ($2600), and that plaintiff is entitled to judgment for two thousand six hundred and eighty-seven dollars ($2687), the amount due on said lien, with interest thereon from April 17th, 1896, besides the costs and disbursements of this action, and an allowance of five per cent upon the amount claimed, which said costs are awarded in favor of plaintiff against the defendant, Henry Honeyman, and directing that plaintiff have liberty to proceed according to law to collect the deposit of two thousand six hundred dollars ($3600), and to proceed according to law against the defendant, Honey- man, to collect and recover the remainder due upon said judg- ment over and above the amount of said deposit. And plaintiff's costs having been taxed on notice at two hun- dred and fifty-six dollars and ten cents ($356.10), now on motion of A. B., plaintiff's attorney, It is adjudged and decreed that the lien filed herein by Nathaniel Nosegay in the office of the clerk of the county of Kings, on the seventeenth day of April, 1896, for two thousand five hundred dollars ($2500), is and was a good and valid lien on the property described in the complaint, to wit : [Here set out description of property by metes and bounds as in complaint.^ It is further adjudged and decreed that the amount due on said lien is two thousand five hundred dollars ($3500), with in- terest thereon from April 17th, 1896, upon contract between plaintiff and defendant for work, labor, and services and mate- rials furnished in and upon said premises, and the erection of a dwelling thereon, and plaintiff became and was entitled to en- force said lien against said property according to law, and the same was a valid and subsisting lien thereon. That on the twenty-sixth day of July, 1896, the defendant de- posited with the clerk of the county of Kings $2600, and the lien of plaintiff attaches to said deposit. 190 FOEMfi. It is fukther adjudged and decreed that the plaintiff, Nathaniel Nosegay, recover of the defendant, Henry Honeyman, the sum of $3500, the amount of plaintiff's lien, with $187, the interest due thereon to August 17th, 1896, the date of the filing of the decesion herein, making together the sum of $2687, which sum is hereby adjudged to be a valid and subsisting lien upon said deposit of 12600 made with the clerk of the county of Kings on the twenty-sixth day of July, 1896, and said deposit, together with the interest thereon (less commissions, if any), is hereby adjudged to be the property of the plaintiff, and plaintiff is entitled to receive said deposit and the whole of said deposit, and the clerk of the county of Kings (or the county treasurer of Kings County) is hereby directed within five days after service of notice of entry of this judgment upon defendant Honeyman or his attorney to pay said deposit, to wit, $2600, to Nathaniel Nosegay, 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 $2687, said Nathaniel Nosegay recover of the de- fendant, Henry Honeyman, the sum of ^256. 10, the costs and allowance of this action as taxed, and have execution therefor. Enter William W. Goodrich, Granted August 24, 1896. J. S. C. XIV. Decision for Defendant. STJPEEME COUET, NEW YOKK COUNTY. Benjamin Boquet, Plaintiff, against Samuel Summerday, Defendant. Decision. The issues in this action having been tried before me at a Special Term of this Court, and after hearing the allegations and FORMS. 191 proofs of the parties, I decide that the defendant, Samuel Sum- merday, 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 plaintiff has failed to establish by a preponderance of evidence that the defendant, Samuel Summerday, 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, Samuel Summerday, 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, Samuel Summerday, recover his costs and disbursements of this action, to be taxed, and an extra allowance is hereby granted to the de- fondant, Samuel Summerday, of $100, and I order and direct judgment accordingly. Dated New York, October 5, 1896. XV. Judgment on Decision Dismissing Complaint. At a Special Term, &c. Present, Hon. Leonard A. Gieqerich, Justice. Benjamin Boquet, Plaintiff, against Samuel Summerdat, Defendant. Judgment. The issues in the above entitled action having been tried at a Special Term of this court before Hon. Leonard A. Giegefich, Part IV., at the Court House in the city of New York on the iifth day of August, 1896, and the Court having duly made and 192 FORMS. filed its decision, whereby it found that the defendant, Samuel Summerday, is entitled to judgment, dismissing the complaint upon the merits with costs. Now on motion of Peter Pepperday, defendant's attorney, it is ORDEEED AND ADJUDGED that the complalnt herein be and the same hereby is dismissed upon the merits ; and that Samuel Summerday, the defendant, recover of Benjamin Boquet, the plaintiff, $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., J. 8. 0. XVI. Demand upon Owner for Terms of Contract. [Laws 1S85, chap. 342, § 3, p. 59, ante.'\ To , owner of the premises situated \insert description sufficient for identification] . You are hereby notified that I have entered, as sub-contractor, upon the performance of a contract with the contractor, for the furnishing of materials [or, labor] of the following nature [state generally the nature of the materials or labor to he sup- plied] ; that the same is to enter into the construction of the building upon said premises, now in process of erection by said contractor, and that I am now furnishing the same therefor ; and I HEREBY DEMAND Of you the terms of the contract or agreement by which said building is being erected ; and the amount due and unpaid to said contractor under and by virtue of your agreement with him. This demand is made upon you in accordance with the provi- sions of section three of chapter three hundred and forty-two of the laws of eighteen hundred and eighty-five, of this State ; and I shall hold you responsible for all loss that I may be subjected to on account of your neglect or refusal to comply herewith. New York City, , 1896. Sub-contractoTi FOKMS. 193 XVII. Affidavit to Obtain Continuance of Lien. COURT OP COMMON PLEAS, CITY AND COUNTY OP NEW YORK. Charles Kendal Oelando Cromwell, et al. Laws 1885, chap. 342, § 6. See page 86, ante. City and County of New York, ss. : Charles Kendal, being duly sworn, says : I. That prior to the first day of October, 1892, there were fur- nished by me the materials more particularly set forth in the an- nexed notice of claim, which I hereby malie a part of my affida- vit ; and said materials were furnished for and used in the construction of the building therein mentioned. II. That on the said first day of October, and within ninety days after the furnishing of the last item of said materials, I caused to be filed in the office of the clerk of the city and county of New York a notice of lien against the owner of said premises and the contractor for the erection of said building, to whom the materials were furnished. III. That the names of the owner and contractor are, respec- tively, 0. C. and C. N., and that a copy of the notice filed as aforesaid is annexed hereto. IV. That by the terms of the contract between said owner and contractor, the final payment is not yet due from the former to the latter, and the same will not fall due until November first of the present year, and that by the writcen agreement existing be- tween this claimant and said contractor the payment for the materials furnished as foresaid is not due until said last date. V. That affiant's lien expires on the first day of October of the present year, and by reason of the premises the proceedings for 13 194 FORMS. the foreclosure thereof cannot be commenced before Novem- ber 1, 1893. ' ^ Charles Kendal. Sworn to this 28th day of Sep- 1 tember, 1896, before me, f J. J. T., Notary Public. XVIII. Order Continuing Lien. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the Court House in said city on the 30th day of September, 1896. Present, Hon. Leonakd A. Giegekich, Judge. Charles Kendal V. Laws 1885, chap. 343, § 6. See pages 86, 87, ante. Orlando Ceomwell, et al. On the affidavit of C. K., sworn to and filed this day, and on motion of E. & P., his attorneys : It is ordered, That the lien acquired by said Charles Kendal by his notice of lien filed in the office of the clerk of the city and county of New York, October 1st, 1892, upon the following premises [de- scription in notice~\, of which 0. C. is alleged to be owner, and C. N. contractor, for the erection of a building on said premises, be and the same hereby is continued agreeably to section six of chapter three hundred and forty-two of the Laws of eighteen hundred and eighty-five of the State of New York, for one year from the date of the entry of this order.* And the clerk of the city and county of New York is hereby directed to make a new docket of the lien continued hereby, with a reference to this order, and date of entry thereof. * Time of continuance of lien is limited to one year. See Laws 1885, chap. 342, § 5, as amended by Laws 1895, chap. 161, ante, p. 87. FOEirs. 195 XIX. Affidavit for Order Fixing Amount and Directing Filing of Bond. [Laws 1885, chap. 342, § 24, subd. 6. J COUET OP COMMON PLEAS For the City and CouifTT of New York. In the Matter of the Application of Application to fix amount of bond Henry Porter, Owner, for an Order discharging certain Mechanics' Liens filed by James P. Dean, The Sayre i' before suit hegun Iron Company, Goss & Hall Com- pany, Thomas Hart and Daniel Oakley, Claimants. City and County of New York, ss. : Henry Porter, being duly sworn, says, that he is the owner of the premises in the city and county of New York, known as E"os. 51 and 53 Delancey Street, and 145, 147, and 149 Eldridge Street, situated on the southwest corner of Delancey and Eldridge streets, having a frontage of fifty feet on Delancey Street, and oue hundred feet on Eldridge Street ; that the persons herein- after mentioned filed in the office of the clerk of the city and county of New York certain liens against the property of this deponent hereinbefore described, amounting in the aggregate to the SULQ of five thousand eight hundred and fifty-eight dollars and seventy-six cents ($5858.76), as follows to wit : James P. Dean, filed Aug. 1st, 1892 Amt., $546.50 The Sayre Iron Co., filed July 27th, 1893. " 1,283.00 Goss &'Hall Co., filed July 29th, 1892. . . " 2,789.06 Thomas Hart, filed July 30th, 1892 " 140.20 Daniel Oakley, filed July 25 th, 1892 ... . " 1,100.00 Deponent further says, that he desires to execute a bond [or 196 FORMS. proper bonds], with two sufficient sureties, who shall be free- holders, to the clerk of the city and county of 'New York, in such sum as the Court may direct, not less than the amount claimed in said notices of lien respectively, conditioned for the payment of any judgments which may be rendered against the property hereinbefore described, pursuant to the provisions of chapter three hundred and forty-two. Laws of eighteen hundred and eighty-five. That no actions have been commenced to foreclose said liens or either of them. Deponent desires an order of this Honorable Court directing that deponent execiite such bond or bonds in such sum as the Court may direct. Henkt Poetek. Sworn to before me, this 11th ) day of ISTovember, 1896. f J.' F. Coffin, Notary Public. XX. Order Directing Filing of Bond. [Laws 1885, chap. 342, § 34, subd. 6.] At a Special Term of the Court of Common Pleas, held at the Court House, City and County of New York, this 12th day of No- vember, 1896. Present, Hon. Henry W. Bookstaver, Judge. In the Matter of the Application of Henry Porter, Owner, for an Order discharging certain Mechanics' Liens filed by James P. Dean, The Sayre Iron Company, Goss & Hall Com- pany, Thomas Hart and Daniel Oakley, Order fixing amount of bond before suit begun. Claimants. On reading and filing the accompanying^ affidavit of Henry FOEMS. 197 Porter, the owner aboYe-named, and on motion of Joseph Story, attorney for said owner, it is hereby Oebeked and directed that the sum of eight hundred dol- lars be and the same hereby is fixed as the amount of the bond to be giren by said owner to discharge the lien filed herein by James F. Dean, for the sum of $546.50, in the ofBce of the Clerk of the City and County of New York, on the 1st day of August, 1893, against Henry Porter, owner, and Charles Canary, con- tractor, and against the premises on the southwest corner of Delancey and Eldridge streets, having a frontage of 50 feet on Delancey Street, apd 100 feet on Eldridge Street, known as Nos. 51 and 53 Delancey Street, aiid 145, 147 and 149 Eldridge Street. It is further ordered, that the sum of one thousand seven hundred and eighty-three dollars be and the same hereby is fixed as the amount of the bond to be given by said owner in discharge of the lien filed herein by the Sayre Iron Co. for the sum of $1283, in the office of the Clerk of the City and County of New York on July 37th, 1892, against Henry Porter, owner, and Charles Canary, contractor, and against the same premises. It is eurthek ordered, that the sum of four thousand three hundred and eighty-nine dollars be and the same hereby is fixed as the amount of the bond to be given by said owner in discharge of the lien filed herein by Goss Hall Co., for the sum of $3789.06 in the oflSce, etc. [Insert as in preceding paragraph. Insert also like paragraph for each separate lien asked to be discharged. ] It is further ordered, that the sureties on said bonds, and each of them, justify in at least double the sum named in said bonds respectively. That a copy of said bonds, with a notice that the sureties will justify before the Court or a Judge thereof, at the time and place therein named, not less than five days thereafter, be served on each of the above-named claimants or their attorneys. 198 FORMS. XXI. Bond to Discharge Liens and Notice of Justification. [Laws 1885, chap. 343, § 24, subd. 6.] Know All Men by these Presents : That we, Henry Porter, of 191 Broadway, New York, and Frank William Porter, residing at Ifo. 595 Sherman Street, in the city of Brooklyn, and Henry Proctor, residing at No. 64 East 11 6th Street, in the city of New York, are held and firmly bound uato the Clerk of the city and county of New York, in the sum of eight hundred dollars, for which payment well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators jointly and severally, firmly by these presents. Sealed with our seals, dated the 33d day of November, 1896. Whereas, on the 1st day of August, 1896, James F. Dean filed a notice of claim or lien in the oflBce of the Clerk of the City and County of New York, against the property of the above bounden, Henry Porter, in the said City and County of New York, known as Nos. 51 and 53 Delancey Street and 149 Eldridge Street for the sum of $546.50. And whereas, said notice purports to have been made and filed pursuant to the provisions of chapter 343 of the Laws of 1885, of the State of New York, wherein said claimant claims lien for the amount above mentioned, for work, labor and ser- vices, and materials furnished pursuant to agreement made with one Charles Canary, as contractor, as set forth in said notice upon the following-described premises : Property owned by Henry Porter, situated on the southwest corner of Delancey and Eldridge streets, in the city of New York, having a frontage of fifty (50) feet on Delancey Street and one hundred (100) feet on Eldridge Street. And the Court having by an order duly entered in the office of the Clerk of the Court of Common Pleas on the 13th day of November, 1896, directed said owner to execute a bond to said claimant in the FORMS. 199 sum of eight hundred dollars, pursuant to the statute in such case made and provided. Now THE CONDITION of this obligation is such that if the above-bounden said Henry Porter, his heirs, executors or admin- istrators, shall well and truly pay any judgment which may be rendered against said property, in favor of said James F. Dean, his legal representatives or assigns in any action or proceedings to enforce his alleged lien, then this obligation shall be void, otherwise to remain in full force and virtue. Henry Porter, (L. S.) P. W. Porter, (L. S.) Henry Proctor. (L. S.) City anb County of New York, ss.: Frank William Porter, one of the sureties in the foregoing bond, being duly sworn, says that he is a resident and a free- holder within this State, and is worth double the amount of the foregoing bond over all his debts and liabilities, and exclusive of property exempt by law from levy and sale under execution. F. W. Porter. Sworn to before me, this 23d ) day of November, 1896. ) Hugh Scribe, Notary Puilic. [Similar justification for other surety.] City and County of New York, ss.; On this 33d day of November, 1892, before me personally came Henry Porter, Frank William Porter, and Henry Proctor, to me severally known and known to me to be the individuals described in and who executed the foregoing instrument, and severally acknowledged to me that they executed the same. Hugh Scribe, Notary Public, New York County. 200 FORMS. XXII. Order Discharging Lien Before Actions Begun. [Laws 1885, chap. 343, § 24, subdivision 6.] At a Special Term of the Court of Com- mon Pleas, held at the Court House, City and County of New York, this 7th day of December, 1896. Present, Hon. Henry Bischoff, Jr., Judge. In the Matter of the Application of Henry Porter, owner, for an order discharging certain mechanics' liens r iiled by James F. Dean, The Sayre Iron Company, Goss & Hall Com- pany, Thomas Hart, and Daniel Oakley, Claimants. J The Court having duly made an order entered herein on the 12th day of November, 1892, upon the application of Henry Porter, owner of the premises hereinafter described, directing said Heury Porter to execute five bonds to the lienors above named in the sum of $800, S1783, $4389 [insert amottnt of each lond] respectively, con- ditioned for the payment of any judgments which may be rendered against the property of said Henry Porter by the lienors above- named respectively, with two sureties as required by chapter 342 of the Laws of 1885 ; and said Henry Porter having duly executed said bonds bearing date the 33d day of November, 1892, together with Frank William Porter and Henry Proctor, the sureties named, whereby said obligors have bound themselves to pay any judgment that may be rendered against said property of said Porter by said lienors respectively in any action or proceeding to enforce their respective liens, and a copy of said bonds having been duly served upon said claimants and lienors, together with a notice that said sureties would justify on the 7th day of De- cember, at the time and place therein named, and said bonds and notice having been served more than five days prior to said PORMS. 201 ^tli day of December, 1892, and the said sureties having duly justified, and the Court having approved said bonds upon said justification, which said bonds, notice and proof of service and justification are herewith filed. Now, ON" MOTION of Joseph Story, attorney for Henry Porter, owner, it is Ordered that the liens heretofore filed herein upon the prop- erty of said Henry Porter in the office of the Clerk of the city and county of New York by the following named persons, at the dates and for the amounts set opposite their names respectively, as follows, to wit : James F. Dean, filed August 1st, 1893, . Amount, $546.50 The Sayre Iron Co., filed July 37th, 1893, " 1,383.00 Goss & Hall Co., " " 39th, " " 3,789.06 Thomas Hart, " " 30th, " " 140.30 Daniel Oakley, " " 35th, " " 1,100.00 upon the premises of said Henry Porter in the city and county of New York, known as premises 51 and 53 Delancey Street and 145, 147 and 149 Eldridge Street, situated on the southwest corner of Delancey and Eldridge streets, having a frontage of 50 feet on Delancey Street and 100 feet on Eldridge Street, be, and they are each of them hereby discharged, and said clerk of the city and county of New York be, and he hereby is, directed to cancel said liens of record, and to mark upon the lien dockets, indices and other books in his office in which said liens appear, the word discharged with a reference to this order and the date of entry thereof. XXIII. Bond to Discharge Lien After Action Begun. [Laws 1885, chap. 343, § 34, pp. 118-121, ante.] Know all men by these Presents, that we, 0. C, as principal, residing at No. in the city of ; and , residing at No. in said city, and , residing at , as sureties, are held and firmly bound unto the clerk of the city and county of New York, his successors, in the sum of dollars ; to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. 302 FORMS. Sealed with our seals. Dated the day of , one thou- sand eight hundred and ninety Whereas, one Charles Kendal filed with the clerk of the county of Kew York, on the day of October, 1890, a notice of lien agreeably to the provisions of chapter 343 of the Laws of 1885 of the State of ISTew York, wherein he claimed a lien to the amount of dollars for materials furnished by him for the erection of a building upon the following premises [^description as in notice of lien] ; and the said 0. 0. was named as the owner therein and one C. !N". as the contractor for the erection of said dwelling. And whereas an order was duly made, etc. \7iere re- cite order fixing amount of bond]. Now, the condition of this obligation is such that if the said 0. C. or his legal representatives shall well and truly pay any judgment which may be rendered against said property in any proceeding to enforce the aforesaid lien, then this obligation shall be void, otherwise to remain in full force and virtue. (L. S.) (L. S.) (L. S.) Signed, sealed and delivered i in presence of j [Justification of sureties and Acknowledgment as in Form XXI.] I hereby approve the within bond, and of the sufficiency of the sureties therein. , Judge. ' XXIV. Order Discharging Lien on Bond After Action Begun. At a Special Term, &c. Present, Hon. Koger A. Pryor, Judge. Charles Kendal V. _ Laws 1885, chap. 343, § 24, '' sul-div. 6, page 119, ante. Orlando Cromwell, et al. Upon the approval and filing of a bond executed in accordance FOEMS. 303 with section 24 of chapter 343 of the Laws of 1885 of the State of New York, pursuant to an order entered herein the day of , 1896, whereby the obligors therein have bound them- selves to the payment of any judgment that may be rendered, in proceedings to foreclose a lien filed by said Charles Kendal on the day of , 1890, against the following property [de- scription as in lien notice], in which notice 0. 0. is named as owner of said premises, and 0. N. as contractor for the erection of a building thereon, and on motion of G. B. Gr., attorney for said owner : It is ordered. That the lien aforesaid be, and the same hereby is, discharged ; and the county clerk is hereby directed to cancel and discharge the same of record, and to enter upon the lien docket and upon all indices the appropriate entry thereof, with a reference to this order, and date of entry thereof. XXV. Discharge of Lien by Claimant. To THE Clerk of the County of , and to whom it MAT CONCERN : Please take notice that I, Charles Kendal [the claimant or his successor in interest], Do hereby certify, that a mechanic's lien, filed in the oflBce of the clerk of the county of the day of , in the year eighteen hundred and ninety, at o'clock in the noon, for $3000, in favor of , claimant, ap;ainst the follow- ing described property [here describe property], and known as No. Amsterdam Avenue, in the city of New York, owner, contractor, is satisfied, and may be discharged. Charles Kendal. (L. S.) In presence of [Acknowledgment as in Form XXI.] 204 POKMS. XXVI. Offer of Owner in Discharge of Lien. [Laws 1885, chap. 342, § 19, p. 114, ante.] CITY COURT OP NEW YORK. William Rose, 1 Plaiutifl, against Thomas Thorn, George Greenleaf and Philip Petal, Defendants. The defendant, Thomas Thorn, the owner of the premises de- scribed in the complaint, hereby offers to pay into court the su-m of $1500 in discharge of the liens set forth in the pleadings in this action. \If the owner desires to execute and deposit securi- ties or papers instead of money, he must describe them in the notice.] Dated New York, September 27, 1896. Bektrand Bush, Attorney for Deft. Thorn. XXVII. Assignment of Lien. This Indenture, made the day of , between Jerome Valentine, of the city of New York, party of the first part, and , of the same place, party of the second part, witnesseth : Whereas, the party of the first part, on the 4th day of April, 1892, filed in the office of the clerk of the city and county of New York, a certain mechanic's lien for one thousand dollars ($1000) and interest, against the building and lot on 87th street, 300 feet west of Amsterdam Avenue, in the city of New York, known as No. West 87th Street, Suma Sommers owner, and Ola Win- ters contractor. FORMS. 205 Now, the said party of the first part, in consideration of one dollar to him in hand paid by said party of the second part, the receipt whereof is hereby acknowledged, and for other good and valuable considerations, hath sold, and by these presents doth assign, transfer and set over unto the said party of the second part, his executors, administrators or assigns the said mechanic's lien, and all moneys that may be had or obtained by means thereof, or in any proceedings to be had thereupon, and the cause of action whereon said lien accrued. And the said party of the first part doth hereby constitute and appoint the said party of the second part, his executors, admin- istrators and assigns, his true and lawful attorney irreyocable, 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 the moneys due or to grow due thereon, and to bring all suits and take all lawfu Iways for the enforcement of said lien, or the recovery of the said moneys, and on payment to acknowledge satisfaction or discharge the same ; and attorneys one or more under them for the purpose aforesaid, to make and substitute and at pleasure to revoke ; hereby ratifying and con- firming all that said attorneys or substitute shall lawfully do in the premises. In witness whereob, the party of the first part hath here- unto set his hand and seal the day and year first above written. Jerome V.vlentinb. (L. S.) Sealed and delivered in ) presence of j [Acknowledgment as in Form XXL] XXVIII. Affidavit for Deposit to Discharge Lien Prior to Com- mencement of Foreclosure Proceedings. [The County Clerk will not receive moneys to be deposited with him to discharge lien, unless the owner or contractor shall file with said Clerk an affidavit describing the lien and premises and setting forth that no action or proceeding has been com- menced to foreclose the same. The following form will be found convenient.] 206 FORMS. STATE OF NEW YORK, County of New York, ss. : Orlando Cromwell, being duly sworn, says that he i-s the [ owner or contractor] mentioned in a certain mechanic's lien, filed in the office of the Clerk of the city and county of New York, on the day of , 1890, by as claimant against as owner and against as contractor, and against property situated as follows : [ffere describe the property] for the sum of $2000. Deponent further says that no proceedings have been com- menced to foreclose said lien. Sworn to before me, this 1 day of , 1896. ( XXIX. Certificate to Release Deposit, where Lien is Satisfied before Foreclosure Proceedings. [The County Clerk will require a certificate duly acknowl- edged or an affidavit showing that the lien has been satisfied, be- fore he will repay moneys deposited with him to secure such lien. The following form will be found convenient.] STATE OF NEW YORK, County of New York, ss. : I, Orlando Cromwell, do hereby certify that I am one of the [owners or contractors'] mentioned in a certain mechanic's lien, filed in the office of the Clerk of the city and county of New York on the day of , 189 , by as claimants against as owner and against as contractor and against property situated as follows : [Here describe property] for the sum of $2000, and that on the day of , 189 , I deposited the sum of $3000 and accrued interest, to discharge the said lien, which said sum I request be paid to [owner, lienor or attorney, as circumstances warrant] on presentation of satis- faction of said lien. Orlando Cromwell. FORMS. 207 STATE OF NEW YORK, County of New York, ss. : On this day of , 1896, before me came Orlando Cromwell, to me known and known to me to be the individual de- scribed in, and who executed the foregoing instrument, and acknowledged that he executed the same. Hugh Scribe, Notary Public, N. Y. Co. XXX. MUNICIPAL CONTRACTS. Notice of Claim. [Laws 1878, chap. 315, § 1, Consolidation Act, §§ 1824, 1835 ; see ante, pp. 139-146.] To the Neiv Croton Aqueduct Commissioners of the City of New York, and the Comptroller of the City of New York : You and each of you will please take notice that I, Antonio De Marco, residing at Yonkers, Westchester County, New York, have a claim against Lewis & Clark, contractors, of the city of New York, and a lien upon the moneys now due and to become due under the contract between said contractors and the Mayor, Aldermen, and Commonalty of the city of New York, for Sec- tion Eight of the New Croton Aqueduct, bearing date the 18th day of December, 1884. The facts relative to said claim, also a statement of the terms, time given and conditions of the contract are as follows : The said claim arises on the following facts : On or about the 3d day of August, 1889, the said contractors, by Lewis & Clark, employed this claimant to furnish the materials mentioned in the bill of particulars hereto annexed, marked Exhibit A, and agreed to pay therefor the several prices in said bill mentioned and speci- fied, and set opposite the same respectively, and to pay the same upon delivery of the said materials. That said materials have been actually furnished to the said contractors, and were actually used ia the execution and comple- 208 FORMS. tion of said contract with the said Mayor, Aldermen and Com- monalty. That the whole work to be performed by said contractors Lewis & Clark and Rosebud & Hay has not been completed or accepted by the said city. [If the work has been so completed allege that thirty days have not elapsed since the whole work to he performed l)y said contrac- tors Leivis & Clark, has heen completed or accepted.^ And the claimant further alleges that there is now due to him, on the 25th day of December, 1889, for such materials under the said agreement with said contractors, the sum of two thousand dollars, after deducting all just credits and offsets, and that the same is a lien upon the moneys now due and to become due as aforesaid, under said contract between said contractors and the said Mayor, Aldermen and Commonalty. Dated JSTew York, December 26, 1889. Antonio De Makco. (L. S.) Signed and sealed in | presence of \ Felix Malnati. BILL OF PAETICULARS, EXHIBIT A. YoNKERS, E". Y., Oct. 12, 1889. Mess. Lewis & Clark To Antonio De Marco, Dr. To 395 loads sand at 85 cts., for month of Aug. $335.75 " 348 " " " Sept 295.80 " 606 " " " Oct 515.10 " 187 " " " Nov 158.95 For services excavating, as per agreement 600.00 For pasturing seven mules 94.40 $2,000.00 0. K., Oct. 16, 1889. L. & C. 0. STATE OP NEW YORK, County of Westchester, ss. : Antonio De Marco, being duly sworn, says that he is the FORMS. 209 claimant mentioned in the foregoing claim, and that the state- ments therein contained are true to his own knowledge. Antonio De Marco. Sworn to before me, this 26th day of December, 1889. Hugh Scribe, Notary PuUic, W. 0. Co. \ XXXI. School House Contract. Notice of Lien, Sub-contractor against Contractor and City. To the Board of Education of the City of Ifeto York, and to the Comptroller of the City of New York. I'lease take notice, that I, John Frost, residing at No. 3 Fifth Avenue, in the city of New York, doing business at No. 5 Union Square, in said city, have and claim a lien for the prin- cipal and interest of the price and value of the labor and mate- rials hereinafter mentioned upon the moneys in the control of the Mayor, Aldermen and Commonalty of the city of New York now due and to grow due under a contract made between the said Mayor, Aldermen and Commonalty of the city of New York by its officers and agents thereunto authorized, and one William Winter, for the erection of a school house at the Northwest cor- ner of 90th street and Columbus avenue, in said city of New York. I. That the amount claimed by me now due and to become due is a balance of ten thousand dollars (110,000), which said sum is due and to become due under and by virtue of a contract made by said William Winter with me, dated September 1st, 1892, after deducting all just credits and offsets, and said labor and materials were performed and furnished by me to said Will- iam Winter under and by virtue of said contract. A statement of the terms, time given and conditions of said contract are as follows : II. I agreed to well and sufficiently erect and finish all the iron-work for said school building, agreeable to the drawings and specifications made by the Board of Education, and furnished to 14 210 FORMS. said Winter, mentioned in the iron specifications, for fifteen thousand dollars (|15,000) in manner following : [Here state terms and suistanee of contract, time of comple- tion agreed upon, amount of instalments under the contract, and when the several instalments become due.] III. Five thousand dollars Has been paid to me under said con- tract. The sum of five thousand dollars being the second pay- ment under said contract is now due and owing to me, and the work and materials to be performed and furnished to entitle me to the third and final payment has been substantially performed and furnished, leaving only a few small items yet to be famished and the entire balance of ten thousand dollars will be due on the completion of this contract, which can be completed in about fif- teen days or less. [Or state the exact facts as they exist.} TV. That the virork done and materials furnished as aforesaid ■was done, performed and furnished to the said contractor Will- iam Winter, and were actually performed and used in the execu- tion and completion of the said contract of said William Winter with the said the Mayor, Aldermen and Commonalty of the city of New York, and were actually performed on and used in the erection of said school house at the Northwest corner of 90th street and Columbus avenue in said city of New York. That the whole work to be performed by said contractor Will- iam Winter has not been completed or accepted by the said city. V. And I claim and allege that there is now due to me for labor and materials actually performed and furnished under said agreement of William Winter with me the sum of five thousand dollars, after deducting all just credits and ofEsets, and that the remaining five thousand dollars is to grow due under said con- tract as aforesaid, in all ten thousand dollars, after deducting all just credits and offsets, and that the same is a lien upon the moneys now due and to grow due as aforesaid under said con- tract between said William Winter and the said the Mayor, Al- dermen and Commonalty of the city of New York. [If the work has been fully completed, state the facts.] Dated New York, September lOth, 1896. Claimant. [Add verification as in Form XXX., pp. 208, 309, ante.] FORMS. ail XXXII. School House Contract. Notice of Lien. Material Man against Contractor, Sub-Contractor and City. To the Board of Education of the City of Neiv Yorh, mid to the Comptroller of the City of New York. Please take notice that we, Samuel Spring, residing at No. 3 Orchard street, in the city of New York, and Silas Summer, residing at No. 10 Pineapple street, in the city of Brooklyn, and composing the firm of Spring & Summer, doing business at No. 15 Garden street, in the city of New York, have and claim a lien. [^Continue as in preceding Form to Paragraph I., and add paragraphs as folloios : First : The amount claimed by us now due and to become due is a balance of one thousand dollars, which said sum is due and to become due under and by virtue of a contract made by us with John Frost, a sub contractor of said William Winter, after de- ducting all just credits and offsets ; and said labor and materials were performed and furnished by us to said Frost under and by virtue of said contract. Second : The following is a statement of the terms, time given and conditions of our said contract with said John Frost, which said contract was made by us with him on or about October 1, 1892 : — We contracted to furnish and erect the truss roof, etc., com- plete, of the said school house, on the Northwest corner of 90th street and Columbus avenue, in the city of New York, pursuant to said plans and specifications furnished us by said Frost, for the sum of three thousand dollars ($3000), payable as follows : One third of said amount to be paid by check, or by note at two months, with interest at six per cent., when the trusses were delivered and accepted, and the balance in cash as soon as the work was erected. Third : We- duly furnished said materials and duly performed the work under said contract, and the same were accepted by said Frost, and said Frost paid to us on account thereof the sum of two thousand dollars. Fourth : The materials furnished and work done was also ac- cepted by said William Winter as part of the materials and work under the contract of said John Frost with said William Winter, 213 FORMS. dated September 1st, 1892, as we are informed and believe, for the iron-work in said school house at the Northwest corner of 90th street and Columbus avenue in said city of New York. That said materials and work were actually performed and used by said Winter in the execution and completion of his (said Win- ter's) contract with the said the Mayor, Aldermen and Com- monalty of the city of New York, and were actually performed and used in the erection of said school house. The whole work to be performed by said chief contractor Will- iam Winter has not yet been completed or accepted by said city. Fifth : We claim and allege that there is now due for said labor and materials, by reason of the foregoing facts, the sum of two thousand dollars ($2000), after deducting all just credits and ofPsets, and that the same is a lien upon the moneys due and to grow due as aforesaid under the contract between said William Winter and the said the Mayor, Aldermen and Commonalty of the city of New York, and also upon the contract of said John Frost with said William Winter. Dated, New York, September 30th, 1896. Spbing & Summer, Claimants. [Add verification as in Form I., for Co-partner ship, ante, page 166.] XXXIII. Complaint in Action to Foreclose Lien upon Municipal Contract. SUPEEME COXIET, New York Couktt. An'tonio Db Maeco against Tb;e Mayor, Aldermeu and Common- alty oj THE City of New York, James Lewis, William Clark, Richard Eosbbud, Evakder Hay, EoLAND Paek, and Edward Gray. The plaintiff complains and alleges : I. Upon information and belief, that heretofore and at the Laws 1878, chap. 315, Consolidation Act, §§ 1824-1838. FORMS. 213 times hereinafter mentioned, the defendant, the Mayor, Alder- men and Commonalty of the city of New York, was and now is a domestic corporation, duly existing under and by virtue of the laws of the State of New York. II. Upon information and belief, that heretofore and at the times hereinafter mentioned, the defendants James Lewis and William Clark were, and still are, copartners carrying on busi- ness under the firm name and style of Lewis & Clark. III. Upon information and belief, that heretofore, and at the times hereinafter mentioned, the defendants Kichard Eosebud and Evauder Hay were, and still are, copartners, carrying on business under the firm name and style of Eosebud & Hay. IV. Upon information and belief plaintiff further alleges that prior to the times hereinafter mentioned the defendants James Lewis and William Clark were copartners as aforesaid, carrying on business in the city and county of New York and in the county of Westchester and elsewhere, under the firm name of Lewis & Clark, and that as such copartners on or about the 18th day of December, 1884, they made a contract with the Aqueduct Commissioners acting for the city of New York, whereby the said defendants Lewis & Clark agreed to construct a portion of a new aqueduct or water conduit from some point on the Croton Kiver or Croton Lake to some point in the city of New York, SLich portion being known as Section Eight, and to construct one or more "dams to retain such water, and to construct such sluices, culverts, canals, pumping works, bridges, tunnels, blow-ofls, ventilating shafts and other appurtenances as might be necessary to the proper construction, maintenance or operation of such portion of said aqueduct known as Section Eight, and of such dams and reservoirs ; on the lines shown upon the maps in the office of the Aqueduct Commissioners for the prices mentioned in said contract. [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 manner as the contractor would be required to do if he were suing upon it. Brechand v. The Mayor, 61 Hun, 564 ; Screbo v. Smith, 16 Misc. 103, and authorities cited ante, pp. 141, 143. J 314 BOEMS. That said contract was executed in triplicate by the said con- tractors and the said Aqueduct Commissioners, and that one of said originals was delivered to the said contractors, and the other two filed, one in the finance department of the city of New i''ork, and the other with the said Aqueduct Commissioners. And for a fuller description of said contract reference is hereby made to the original contracts so filed as aforesaid. That thereafter the said commissioners or a majority of them certified in writing that the acceptance of said contract would in their judgment best secure the public interest and the efficient performance of the work therein mentioned, and the said con- tract was duly accepted for and on behalf of the defendant, the Mayor, Aldermen and Commonalty of the city of New York. V. Plaintiff farther 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 pay- ment on account of said contract [the pleader must set forth per- formance ly the contractor, and how much is due under the con- tract to the contractor, so as to show an existing liability by the Municipal Corporation to the contractor. Screbo v. Smith, 16 Misc. 103, and see ante, pp. 141, 143], and that there was thea moneys in the control of the said defendant, the Mayot, Alder- men and Commonalty of the city of New York, due under said contract far in excess of the plaintiff's claim herein. VI. That at TSTepperhan, "Westchester County, New York, between and including the 1st day of September, 1889, and the 1st day of February, 1890, the above-named plaintiff sold, deliv- ered and furnished to the above-named defendants Lewis & Clark [and Eosebud Hay] at their request, goods, wares, merchandise and materials at the price and of the value of two thousand dol- lars, no part or portion of which has been paid, although pay- ment thereof has been demanded, and the said sum of 12,000 is now justly due and owing to plaintiff from said defendants. The said goods, wares, merchandise and materials were fur- nished in conformity with the terms of and toward the perform- FORMS. 315 ance or completion of the aforesaid contract, between the de- fendants, Lewis & Clark, and the Mayor, Aldermen and Com- monalty of the city of New York, or as called for and required by the defendants the Mayor, Aldermen and Commonalty, the Aqueduct Commissioners and the engineer-in-charge, in connec- tion with the performance and completion of the same, and were actually used in the execution and completion thereof. VII. That in pursuance of and in conformity with the pro- visions of the Act of the Legislature of the State of New York, entitled " An Act to secure the payment of laborers, mechanics, traders, merchants, and persons furnishing materials toward the performance of any public work in the cities of the State of New York," passed May 23d, 1878, which said act is also em- braced and contained in chapter 410 of the Laws of 1883, entitled " An Act to consolidate into one act, and to declare the special and local laws affecting public interests in the city of New York," known and designated " The 'Consolidation Act," §§ 1834-1838, and the acts amendatory thereof and supplemental thereto, this plaintiff, on or about the 14th day of February, 1890, filed with the Comptroller of the city of New York (being the financial officer of said city), and with the Aqueduct Com- missioners of said city (being the head of the department or bureau having charge of the work under the said contract be- tween the said defendants Lewis & Clark and the said corpora- tion), a notice in writing stating the residence of this plaintiff as such claimant, and verified by his oath, stating that he claimed a lien upon the moneys due, and to grow due, to the said de- fendants, Lewis & Clark, nnder said contract with the said cor- poration, for the said sum of $3,000 and interest, being the bal- ance due him from said defendants, Lewis & Clark, for said labor and materials, so furnished by him as aforesaid upon said contract with said corporation, and that said sum and interest thereon, as aforesaid, was justly due and owing to him, after deducting all just credits and offsets, and that such notice con- tained the names of said defendants, James Lewis and William Clark [and their agents and superintendents, Eichard Eosebud and Evander Hay], as the persons by whom he was employed, and also a statement of the terms, time given, and conditions of their said contract with said defendants, Lewis & Clark, and also 216 FOEMS. that the said materials so furnished and labor performed were actually used and performed in the execution and completion of said contract with said corporation. That at the time of filing said notice with the said Comptroller of the city of New Yorlj, and with the said Aqueduct Commis- sioners, thirty days had not elapsed since the completion or acceptance by said corporation of the said work under the said contract, and that said notice contained all things necessary and requisite under the provisions of the acts aforesaid, to constitute a good and valid lien upon the said moneys under the control of said corporation, due and to grow due to said Lewis & Clark under said contract with said corporation, 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, and that no other proceedings at law or in equity have been commenced for the foreclosure of said lien or the re- covery of the amount due plaintiff as aforesaid. IX. On information and belief that the said contract between Lewis & Clark and said corporation contained a covenant in words and terms as follows : " And it is further agreed by the party of the second part that said party will furnish the said Aqueduct Commissioners with satisfactory evidence that all persons who have done work or furnished materials under this agreement, and who may have given written notice to said Commissioners before, or within ten days after the final completion and acceptance of the whole work under this contract that any balance for such work or materials is due and unpaid, have been fully paid or 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 discharged, or such notice withdrawn." And on information and belief this plaintiff alleges that in pursuance of said covenant and said act the said corporation is retaining a sufficient amount of money from the moneys due and to grow due under said contract to paj» and discharge the claim of this plaintiff and interest and costs. FOKMS. 317 X. That the defendants, Eichard Eosebud, Evander Hay, Roland Park, and Edward Gray have, or claim to have, some lien or interest in or upon said funds due under said contract between Lewis & Clark and said corporation, but plaintiff avers upon information and belief that the said liens, claims or inter- est, if any be valid, are subsequent to the lien of this plaintiff. Wheeefoke, plaintiff prays that it may be adjudged and de- creed 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 The Mayor, Aldermen and Com- monalty of the city of New York, prior to all other liens, claims, interests and demands thereon. Second, That the said The Mayor, Aldermen and Commonalty of the city of New York pay 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 defend- ants, Lewis & Clark, together with the interest thereon and the costs of this action, and that this plaintiff have judgment against the said The Mayor, Aldermen and Commonalty of the city of New York therefor. Third, That plaintiff have personal judgment against the de- fendants, 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, Plaintiff's Attorney, Temple Court, N. Y. [Add usual verification.] 318 FORMS. XXXIV. Municipal Contract. Lis Pendens. [Ohap. 315, Laws 1878, § 4, Consolidation Act, § 1837 ; see ante, page 144.] SUPREME COUET. New York County. Antonio De Marco against Notice of Lis Pendens must ie filed within ninety days from the filing of notice of lien. The Mayor, Aldermen and Common- alty of the City of New York, .James Lewis, William Clark, Richard Rosebud, Evander Hay, Roland Park, and Edward Gray. Sir: Notice is liereby given that an action has been commenced, and is now pending in this court by the above-named plaintiff against the above-named defendants for the foreclosure of a mechanics' lien, of which duplicates were filed with the Aque- duct Commissioners of the city of New York, and in the office of the Comptroller of the city of New York, on the 36th day of December, 1890, by the plaintiff, for the sum of $3,000, and in- terest, under and pursuant to an Act of the Legislature of the State of New York, passed May 33d, 1878, entitled " An Act to secure the payment of laborers, merchants, traders and per- sons furnishing materials toward the performance of any public work in the cities of the State of New York," and the acts amendatory thereof and supplemental thereto (which act also is embraced in the New York Consolidation Act, §§ 1834-1838). That the property affected by said lien is the funds or money now due or to grow due to the firm of Lewis & Clark, or their assigns, under a contract dated December 18th, 1884, made be- tween said Lewis & Clark, and the Mayor, Aldermen and Com- FORMS. 319 monalty of the city of New York, for the construction of Section Eight of the new Croton Aqueduct. Dated, New York, December 37, 1893. Edward Coke, Plffs. Atty. To the Comptroller of the City of New York. XXXV. Notice to Commence Action. [Laws 1885, chap. 343, § 34, subd. 5, ante, pp. ]38, 139.] Sir: Please take notice that you are hereby required to commence an action to enforce the alleged claim for 13,000 and interest, referred to in your notice of claim or lien, heretofore filed by you in the office of the Clerk of the city and county of New York on the 1st day of December, 1896, against the premises described in said notice. No. 8 Amsterdam avenue, in the city of New York, within thirty days from the time of the service of this notice upon you, or show cause at the Special Term of the Supreme Court, to be held at Chambers, at the County Court House in the city of New York, on the 15th day of January, 1894, at 11 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an order should not be made directing tliat the notice of lien filed by you on said 1st day of December, 1893, as aforesaid, should not be vacated and cancelled of record. ■ Dated, New York, December 5th, 1896. Yours, etc.. To HElfRY Hawthorit, Harvey Duff, Owner. Claimant. 220 FOKMS. DISTRICT COURT FORMS. XXXVI. Summons. State of New York, City and County of New York, ss. DISTRICT COURT IN THE CITY OP NEW YORK. EoK THE Sixth Judicial District. C. N., plaintiff, against } Summons. 0. W., defendant. To the defendant above named : You ARE HEREBY .SUMMONED, and required to appear in this action, before Hon. Samson Laohman, Justice of the District Court in the city of New YorJs; for the Sixth Judicial District, in the Court, at the Court Room thereof, No. — 16th Street and Union Square, in the city of New York, on the day of , 18 , at half-past nine o'clock in the forenoon [the return day should ie not less than twelve nor more than twenty days'], to an- swer the complaint of the plaintiff in this action, who will take judgment against you for the sum of dollars, with interest from the day of , one thousand eight hundred and eighty- , together with the costs of this action, if you then fail to appear and answer. Dated, New York, , 18 . Clerk. XXXVII. Complaint in District Court. Follow the preceding forms, omitting the allegations as to persons who have filed liens against the property, and who have subsequent liens or claims by judgment, mortgage or conveyance. FORMS, 221 XXXVIII. Affidavit to Obtain Order of Publication. DISTEICT COUET IN THE CITY OF NEW YORK. PoK THE Eighth Judicial District. C. N. . . AiRdavit for order of against - r n- i- " ^publication. 0. W. City and County of New York, ss. : , being duly sworn, says : I. That he is attorney for the plaintiff herein. II. That this is an action to enforce a mechanics' lien against certain premises situated in the Sixteenth Ward of the city of New York, and more particularly described in the complaint, on file in this Court, of which 0. W., the defendant, is owner, and whose last place of residence Was No. street, in the city of New York. III. That the summons herein was issued on the day of , 18 , returnable twenty days thereafter, and was on the day of its issuing deliyered to James Boylan, marshal, for service. IV. That said summons has been returned by said officer, with a certificate thereon that he is unable to find the defendant, though he has made proper and diligent effort so to do. V. That deponent is informed and belicYes that defendant, at the date of the issuing of said summons, was, and still is, absent 223 FORMS. from the State, and that personal service of said summons can- not be had ; the reason of deponent's belief is as follows : {8tate the facts upon which belief is based.] And deponent prays that an order be made for a service of the summons herein agreeably to the provisions of the statute. [Signed.] Sworn to before me, this ) day of , 18 . f Notary Public. XXXIX. ' Order of Publication. DISTEIOT COIJET IN THE CITY OF NEW YORK. For the Eighth Judicial District. 0. N. 1 against V Order of Publication. 0. W. It appearing from the return of the officer to which the sum- mons herein was entrusted, and from the affidavit of the plain- tiff's attorney on file, that said summons cannot be served per- sonally on the defendant by reason of his absence from this State, It is hereby ordered. That service of the summons in this case be made on 0. W., the defendant, by leaving a copy of such summons at the last place of residence of said 0. W., and it is further ordered, that a copy of said summons be published three weeks in succes- sion in the New York Law Journal, a newspaper published in the city of New York. Dated, New York, , 18 . , Judge. F0EM8. ' 333 XL. Form of Transcript from Justice's Court to Discharge Lien. [Laws 1885, chap. 343, § 16, ante, pp. 117, 118. J [Section 16, of the Laws of 1885, chap. 342, provides, that the person authorized to furnish transcripts in courts not of record, shall furnisli same to the successful party, to be filed with tlie Clerk of the county with whom the notice of lien is filed. Where the Judgment is against the claimant the County Olerk shall enter the word "discharged" under the last head in his lien docket. In such case the Olerk will require a certificate en- dorsed upon said transcript showing that the action in which the judgment was obtained was brought to foreclose a mechanics' lien, names of claimant, &c. The following form will be found convenient :] Action to foreclose mechanics' lien for $89.40, filed in the County Clerk's office December 10th, 1890, by Bertha M. Sand- ford and John M. Grasper against John Standfast, premises 50x100, on west side of Columbus Avenue, 50 feet nortli of 87th Street, in the city of New York. John- Bikd, Clerk. XLT. Notice to Accompany Order on Building Contract. [The County Clerk will require a notice attach'?d to orders and equitable assignments given by owners on building contracts, describing the property affected, etc. The following form may be used.] To THE Cleek of New York County : Please file the annexed copy of Order in your otfice pursuant to the provisions of Chapter 915 of the Laws of 1896, amending Section 5 of Chapter 343 of the Laws of 1885, relative to Me- chanics' Liens, and pursuant to the provisions of said Act index the same in the " Lien Docket" provided for in Section 4 of said Act of 1885. 334 FORMS. Said Order efEect.s, and was drawn and given for furnished towards the erection and completion of the buildings erected on the following described premises situated in the City of New York, on the side of Street or Avenue, feet, of Street or Avenue, about feet front and rear by about feet deep on each side, the Street or Avenue numbers being known and being New York, 189 . Claimant. Attorneys. INDEX. ABANDONMENT of contract, recovery for materials left on premises, 44. when defeats rights of sub-contractor, 40. ABATEMENT, none in foreclosure proceedings under Act of 1885, 5. ABUSE AND VIOLENCE of contractor, when excuses performance, 37. ACCEPTANCE of order, when deemed a payment, 58, 59, 81. conditional, may discharge owner, 80. of commercial paper, when no waiver, 54. of mortgage, eflect of, 53. of bond, effect of, 54. of credit, when constitutes a waiver, 54. See, also, " Waivbk." ACTION to enforce lien, same as in actions to forieclose mortgages, 93. against whom prosecuted, 93, 118-133. pleadings in, 93-99. when may be brought, 93. another action pending, 93. to enforce lien against municipal property where brought, 144, 145. to recover debt, not affected by foreclosure against ^municipal property, 147. to enforce lien against railroad, where brought, 151. to enforce lien against oil well, 155. form of notice to commence, 319. to foreclose liens, proceedings in, 99-111. who proper parties to, 118-133. See, also, " Paktibs." how consolidated, 133. as to municipal property, consolidation of, 146, 147. ACTS repealed by Act of 1885, 137, 138. as to municipal contract, when takes effect, 149. in what cases to apply, 149, 150. See, also, " Statutes." ADVANCE PAYMENTS, when prohibited, 56-59. lienor alone can question, 58. AFFIDAVIT to obtain continuance of lien, form of, 193. for order to fix amount of bond, before suit, 195. 15 226 INDEX. AFFIDAVIT— c of deposit, prior to suit, form of, 205, 306. to obtain order of publication in district and justices' courts, 321. AGENCY, when wife may call husband to disprove, 38. AGENT of lienor, when may file lien, 7. must file in name of principal, 7. when husband acts for wife, 10. of owner, consenting to labor, 36. when partner will be deemed " agent" of his firm, 7, 8. AGREEMENT to convey, 11, 13, 25, 36. to discharge lien, 28, 32. ALLOWANCE may be granted under Act of 1885, 110. may be granted in foreclosure suits, 116. AMENDMENT, notice of claim cannot be amended, 73, 73. to pleadings in foreclosure, 97. of answer to conform to the proof, 97. of judgment in foreclosure, 109. ANSWER, allegations in, 97, 99. APPEAL, will not operate as a stay without undertaking, 103. powers of appellate court, 103, 103. from courts not of record, 114. to Court of Appeals, amount involved must exceed $500, 103. in actions to enforce liens against municipal property, 139. in actions against oil wells, 155. ARBITRATION, when not binding on lienor, 39. when constitutes waiver of lien, 39. when sub-contractor not bound by, 51. ARCHITECT who prepares plans or models entitled to lien, 13, 13. unreasonably refusing certificate, when no bar to recovery, 37, 38. ASSIGNEE can acquire no interest prior to filing notice of lien, 7. acquires interest after lien is filed, 7. of contractor, rights of, 8. may enforce lien after filing by assignor, 73, 110, 111. partner succeeding to rights of firm, held to be, 110, 111. ASSIGNEE FOR BENEFIT OF CREDITORS takes property unencum- bered, when, 63, 64. when stands in place of contractor, 81, 88. when he takes property free from liens, 3, 81, 83. when he takes subject to liens filed within thirty days, 2, 75, 76. 81, 82. liens authorized within thirty days prior to, 3, 75, 76. ASSIGNMENT of contract, as to rights of sub-contractor, 48, 51, 53. of money " due and to grow due," 48, 49. equitable, extends to choses in action, and contingent interests, 77, 78. equitable, not a violation of Mechanics' Lien Law, 78. of chose in action by parol, 81. IXDEX. 237 AS&IQKM.ENT— continued. equitable, as to rights of subcontractor, 80. by parol upheld, 81. prior to filing notice defeats lien, 73. after filing notice is valid, 7, 73. of lien, form of, 204. ASSISTANCE, "WRIT OF, may be Issued to aid purchaser in foreclosure, 106. ASSOCIATION may acquire lien, 83. ATTACHMENTS, priorities as to, 84. BILL OF ITEMS may be annexed to notice, 66. BILL OF PARTICULARS, form of, annexed to notice of claim, 208. BILLS AND NOTES. See Commbbcial Paper, 54. BLANKET LIEN may cover several buildings, 20, 68. BOARDING HOUSE KEEPER, lien of, reference to statute, 163. BOAT, attached to wharf, lien for, 18. BOILER, lien authorized tor, 17. BONA FIDES of conveyance, may be tested in foreclosure, 63, 99. BONt) to discharge lien, 139-131. owner need not join in, 131. by surviving partner, 131. indemnity, liability of sureties, 133. principal and surety may be sued together, 132. must cover entire lien, 133. amount of, to be fixed by the court, 183. discharging lien, form of, before commencemeut of action, 200. discharging lien after commencement of action, 201. order directing filing, and fixing amount of, 196. BREWING APPARATUS, liens authorized for, 17. BRIDGE, lien authorized for, 1. railroad, lien for, 154. BUILDING, removal of, does not defeat lien, 55. destruction of, when defeats lien, 55. BUILDING CONTRACT, provisions as to, 30-36, 76. BUILDING COMMITTEE, when consent of, binds corporation, 29. BULKHEAD, lien authorized for, 1. BURDEN OF PROOF, when borne by sub contractor, 49. in foreclosure suits, 103, 104. CANAL BOATS, liens upon, reference to statute, 164. CEMETERY. See ' ' Monument. ' ' CERTIFICATE for re-payment of deposit before suit, form of, 206. of discharge of lien, form of, 203. CERTIFICATE OF ARCHITECT, when refusal of excuses perform- ance, 37, 38. CHAIRS in theatre, lien for, 18. 238 INDEX. CITIES, liens against municipal property in, 139, 140. CITY OF NEW YORK, form of notice of claim against, 307, 309-211. municipal lien in, how discharged, 148. form of complaint against, 312. CLAIM of lienor, against municipal property, what to contain, 142. for lien, form of notice, 165, 167. form of notice, against city, 307, 2U9-311. CLAIMANT must establish lien after it has been discharged by deposit, 88, 93, 134. COLLUSION, when need not be shown when fund assigned, 57, 58. payments by, prohibited, 56-59. what constitutes, 57-59. as to payments under oil well contracts, 144, 145, 157. 158. COMMERCIAL PAPER, acceptance of, when will not operate as waiver of lien, 54. COMPLAINT, allegations in, 93-97. form of, contractor against owner, 168. form of, sub-contractor against owner, 173. forms of, in other actions, 175-179. form of, against municipal corporation, 212-217. of subcontractors and material men, other forms, 172-176. to foreclose lien against city, form of, 312-216. in justices' and district courts, form of, 330. COMPTROLLER in New York City, notice of claim must be filed with, 142. form of notice to be filed with, 207, 209, 311. CONSENT, express and implied, 31-30. stipulating to discharge liens in contract implies, 38. knowledge implies consent, 34. acquiescence implies, 34. when not inferred under Act of 1875, 28. evidenced by the contract, 35. may be express or implied, 21-30. implied by acts and declarations, 27. standing by, and taking benefit, 24. synonymous with " permission," 34. implied, when owner orders materials, 35. by advancing funds, 25, 26. of agent of owner, 36. of owner, through'tenant making improvements, 26. of owner acting as agent of tenant, 37. of owner out of possession, 28. refusal of owner to consent, 39. of married woman by her husband, 28. of corporation through building committee, 39. how pleaded, 30, 94. capacity to confer, 39, 30. INDEX. 239 CON S^NT— continued. mast be alleged and proven, 33, 67. in absence of contract, 33. C0N80LIDA.T1ON of actions, provisions as to, 133. of actions as to liens against municipal property, 146, 147. CONSOLIDATION ACT, portions of, repealed by Act of 1885, 187, 138. provisions of, as to liens against municipal property, 139-150. form of notice of lien under, 307, 309, 311. form of complaint under, 313-317. form of lis pendens under, 318. CONSTITUTIONALITY OF LIEN LAW sustained, 3, 4. CONSTRUCTION OF STATUTE, statute must be construed liberally, 136. CONTEMPT, refusal to restore deposit pureuant to order, punished as, 135. CONTINUANCE of lien by order, 86-88. not authorized when lien discharged by deposit, 88. of lien against oil wells, 155. of lien, form of affidavit for, 193. form of order for, 194. CONTRACT made prior to enactment of lien law, may be enforced sub- sequently, 19. when evidence of consent, 35. consent in absence of, 33. of married woman by husband, 36, 38. performance and waiver, 35-44. must be definite, 33. postscript, when forms part of, 33. statute of frauds as to, 30, 31. illegal, cannot be enforced, 34. of infant, when enforceable, 34. of married woman, 10, 11, 34. substantial performance of, 35, 86. excuse for non-performance of, 36. allowance for work not performed under, 38. waiver of performance of, 38-40, 58-55. waiver of, from various causes, 88-40, 53-55. after abandonment of, recovery for materials left on premises, 44. forfeiture under, failure to complete, 43, 44, 45. money due under, constitutes lienor's fund, 48. what constitutes contract with owner, 9. clause in prohibiting sub-letting, 49, 50. terms of, may be demanded of owner, 59, 60. priorities as to building contract, 51, 53, 75, 76, 81, 84, 136. how pleaded, 94. meaning of term under municipal contract, 139, 149. with ward trustees, deemed valid, as against city, 143. demand for terms of, form, 193. 230 INDEX. CONTRACTOR, assignee of, rights of, 7, 8. receiver of, in supplementary riglits of, 83. who subsequently acquires title, 65, 85. notice may not be filed after death of, 74. acquiring fee to land, 20, 21, 85. form of complaint of, against owner, 168. identity of, where contract performed by agent, 34. CORPORATION, when bound by act of building committee, 29. See, also, "Municipal Pkopertt." COSTS, as against executor, 109, 110, 114. may be avoided by owner by discharging lien, 109, 110. out of the fund, 109. under prior laws, and Act of 1885, 110, 138. awarded as in civil actions, 116, 117. how owner may protect himself as to, 133, 124. out of the fund, 116. in suits begun under prior laws, 110, 138. in actions to foreclose lien filed prior to Act of 1885, 110, 188. in actions to enforce liens against municipal property discretion- ary, 147. in action to enforce lien against oil well, 160. See, also, " Extua Allowance." COUNTERCLAIM, how pleaded, 98. wliat may be set up as, 98. COUNTERS, when lien for not authorized, 19. COURTS, County Court, jurisdiction of, 91, 92. City Court of New York, jurisdiction of, 92. jurisdiction over defendants in default, 92. COURTS NOT OF RECORD, proceedings in, to enforce lien, 111-116. CUMULATIVE, remedy under lien law is, 5, 6. DAMAGES, lien for not authorized, 15, 16. when assessed by default, 16. liquidated, in contract, not recoverable by lienor, 15. DATE when debt accrued should appear in notice, 67. DAY'S WORK, eight hours to constitute, under municipal and State con- tracts, 163. DEATH of owner, notice may not be filed after, 74. DEBT constitutes foundation of every lien, 31, 32. cancellation of, extinguishes lien, 49. for items not embraced in lien not allowed, 55, 56. date when accrued, should appear in notice, 67. action for may be enforced, notwithstanding lien against munici- pal property, 147. DEED, priority of lien over unrecorded, 10, 11, 84, 85. DEFENCES, what may be set up in foreclosure suits, 97-99. DEFICIENCY, judgment for, 111, 127. IMDEX. ^31 DEFICIENCY JUDGMENT, provisions as to, 127. DEFINITION of term sub-contractor, 124, 125. See, also, " Words and Phrases." DELAY, when excuse for non-performance, 36, 37. DEMAND upon owner for terms of contract, 59, 60. upon owner for terms of contract, form of, 192. DEPOSIT, amount of, to be fixed by the court. 138. when lien discharged by, lis pendens not necessary, 88. when lien discharged by, order extending not authorized, 88. can be reached only in action to foreclose, 93, 134. of money, after expiration of lien, 134. to discharge lien against oil well, 162, 163. prior to suit, form of aflSdaVit for, 205, 306. form of certificate for repayment of, before suit, 206. DESCRIPTION, how pleaded, 93, 94. DESIGN OF THE STATUTE, to give security to lienor, 5. DISBURSEMENTS, allowed in foreclosure suits, li4, 116. DISCHARGE of lien by deposit, when Us pendens not necessary, 91. of lien, form ot judgment after, 106. mode of in lien cases, 106-108, 127-134. of lien must be according to the statute, 130, 131. of lien against municipal property, 147, 148. of liens against railroad property, 151-154. of liens against oil well property, 162. of lien, form of bond, 198. ot lien, form of, 300, 201. form of endorsement on transcript from j ugtice's court to discharge lien, 222, 223. DISTRICT COURT OF NEW YORK CITY, iurisdiction of in lien suits, 111-114. pleadings in, 220, 231. service of summons in. 111. forms of pleadings in, 220, 321. DOWER, no lien upon inchoate right of, 21. EIGHT HOURS constitute day's work under municipal and State con- tracts, 163. ELECTRIC LIGHT FIXTURES, lien authorized for, 1, 2. EQUITABLE ASSIGNMENT operates as an assignment of fund, pro tanto, 77-81. priority of claims of sub -contractors under, 84. notice of must be filed, 77. EQUITABLE OWNER, right and power to charge premises, 30. EQUITABLE TITLE, when person holding, held to be owner, 10. EQUITIES as between owner and contractor, 60, 61. EQUITY, action to foreclose lien, when a proceeding in equity, 4. foreclosure proceedings, actions in, 99. 232 IN^DBX. ERRORS in notice of lien, 68-71. ESTATE, what subject to lien, 3, 19-21. ESTOPPEL, when notice does not create, 71. EVIDENCE of consent by acquiescence, 24. of husband on behalf of wife to disprove agency, 28. of experts as to customs in trade, terms, etc., 33. burden of proof, 103, 104. harmless error, 104. inadmissibility when waived, 104. price and value of work, 104, 105. of existing liens, 105. what facts may be assumed by an Appellate Court, 101. what facts Appellate Court cannot assume, 101, 103. See, also, " Fotdings. " EXECUTION against oil well property, form of, 160, 161. in actions to enforce liens against municipal property, 145, 146 in courts not of record, 113. EXECUTOR AND ADMINISTRATOR, costs against, 109, 115. EXPERT TESTIMONY, as to cost of completion, 45. as to " material for plumbing," 33. as to labor " for plumbing," 33. as to custom in plumbing trade, 33. EXTRA ALLOWANCE may be granted under Act of 1885, 110, 116. EXTRA WORK, when lien may be had for, 15. how pleaded, 15. FALSE STATEMENT by owner as to terms of contract, 60, 68-71. in notice of lien, 68-71. EENCES, lien authorized for, 1, 2. PILING NOTICE, requisites of, 61, 62. PILING, time of, must be pleaded, 95, 96. notice of claim against municipal property, 139-142. notice for school building, 143. notice for streeti'improvement, 143. priority according to date of, against municipal property, 145. FINDINGS in foreclosure actions, 101. in referee's report, form of, 181-184. decision may be filed in lieu of, 187. FIRM NAME, how set forth in notice, 63. form of verification of, 166. FISH PONDS, lien authorized for, 1. FIXTURES, lien attaches to, 17-19. .gas, lien for, 1-2. FORECLOSURE, when a proceeding in rem, 4. when a proceeding in equity, 4. FORECLOSURE ACTIONS, proceedings in, 99-108. pleadings in, 93-99. INDEX. 233 FOREIGN CONTRACT, when lien under may be enforced, 19. FOREIGN STATE, when no lien for materials purchased in, 19. when lien for materials purchased in, authorized, 19. FORFEITURE of rights on failure to complete, 44-45. FORMS of execution against oil well property, 160-161. of notice of lien, 165-168, 307-311. of assignment of lien, ^04-305. of verification of notice, 71-73, 166. of verification by partner or member of firm, 166. of pleadings, 168-179, 213-317. of complaint, contractor against owner, 168-173-176. of complaint, sub-contractor against owner and contractor, 173. of complaint, against lessee and owner, 175. of complaint, material man against owner, 176. of complaint against municipal property, 312-317. of Us pendens, private property, 180. of Us pendens, municipal property, 318. of order of reference, 181. of referee's report, 181. of findings, 183. of decision to reach deposit, 187. of decision dismissing complaint, 190. of judgment to reach deposit, 188. of judgment dismissing complaint, 191. of judgment on referee's report, 185. of demand for terms of contract, 193. of affidavit to obtain continuance of lien, 193. of order continuinglien, 194. of bond discharging lien, 198, 301. of affidavit of deposit to discharge lien prior to commencement of action, 205, 306. of discharge of lien, 303, 304. of order discharging lien, 300-303. of notice of claim against city, 307-309-311. of complaint, in suit against city, 313-317. of bill of particulars, annexed to claim, 308. of Us pendens against city, 318. of notice to commence action, 319. of afladavit for order of publication in justices' and district courts, 231. of endorsement on transcript from justice's court, 113, 333, 323. of endorsement on transcript from justices' and district courts, ~333, 323. of notice of filing referee's report, and for judgment, 184, 185. of affidavit to fix amount of bond before suit, 195, 196. of order directing filing of bond before suit, 196, 197. of notice to accompany equitable assignment or order, 323. 334 INDEX. FOUNTAINS, lien authorized for, 2. FRAUDULENT TRANSFER, must be pleaded, 96. may be litigated in foreclosure, 63, 96, 99. FRUIT TREES, lien for, 2. FUND, to which lien against city attaches, 140. GAS FIXTURES, lien authorized for, 2. GRAVESTONES, liens for, reference to statute, 164. GUARDIAN, when cannot encumber ward's property, 11. HEATING FURNACE, lien authorized for, 17. HOISTING, when lien for authorized, 14. when lien for apparatus, 18. HOMESTEAD, when subject to lien, 21. HUSBAND, when not entitled to lien on community property, 83. when agent of wife, an undisclosed principal, 10. when acts of, bind his wife as owner, 10, 38. when may be called to disprove his agency for wife, 38. HUSBAND AND WIFE, parties in foreclosure, 121. ILLEGAL STRUCTURE, when lien not authorized for, 19. INCORPORATED CITIES, liens against municipal property in, 139, 140. INDEMNITY, liability of sureties on bond of,- 133. See, also, " Bond." INFANT, when may subject property to lien, 11. when guardian of, cannot encumber property, 11. when contract of, enforceable, 34. INJUNCTION in foreclosure suits, 105. 106. INTEREST, nature and extent of, subject to lien, 1, 2. JUDGMENT, form and provisions of, 106-111, 127. upon default, 106. when lien discharged, 106. provisions of, as to subsequent lienors, 107. as to prior lienors, 107, 108. personal, when no lien established, 108. may be amended, 109. ofEer of, 109. 124. for deficiency, 104, 127. form in courts not of record, 113-114. personal, in lien suits, 116, 127. personal, in absence of lien, 117. transcript of, to be furnished, 117, 118. must provide as to priority of liens, 124-136. in actions to enforce liens against municipal property, 145, 146. against oil well property, transcript, 160. form of prayer for, in complaint, 170-173, 174, 175, 217. INDEX. 235 JVDG^IENT— continued. on report of referee, form of, 183. on decision filed. 188, 191. fori^i of endorsement on transcript of, from justices' and district courts, 2S2, 233. of courts, not of record, to enforce lien, 113. JURISDICTION of county courts, 91, 92. of city court of New York, 92. of justices' courts, 112. JURY, trial by, not matter of right, 99, 100. JUSTICES' COURTS, proceedings in, to enforce liens, 113-116, 220. pleadings in, 220. service of summons in. 111. action in, on lien against oil well, 159. form of pleadings in, 159, 160. executions issued from, 113. form of endorsement on transcript of judgment, 222, 223. JUSTIFICATION of surety on bond, 199. KNOWLEDGE, implies consent, 24. LABOR, meaning of term, 12. eight hours constitute a day on State and municipal contracts, 163. LEASE, with privilege to tenant to improve, when binds owner, 26-28. LEGAL TITLE, when person holding held to be owner, 9, 10. LESSEE, form of complaint against by contractor, 175. LIABILITY, extent of, as against owner, 1, 2. of sureties on indemnity bond, 133. of stockholders of railroad, how enforced, 154. of owner of oil well to sub-contractor, 157. LIEN, how and by whom acquired, 1, 2, 6-8. for what lien allowed, 1, 2. extent of interest covered by, 1. 2, 3. owner cannot acquire lien in his own behalf, 8^ when husband cannot acquire on community property, 83. rights of voluntary association to acquire, 83. for preparing plans, 13, 13. for time and skill, 13. for repairing machinery, 13. for paper hanging, 13. for painting, 13. for hoisting materials. 14, 18. for transporting materials, 14. for cooking and ferriage excluded, 14. for varnishing, 14. for moving building, 14. 336 INDEX. LIEN — continued. articles to which lien attaches, 16-19. for boat attached to wharf, 18. for powder and fuses, 18. for hoisting apparatus, 18. for theatre chairs, 18. for theatre scenery, 18, 19. not authorized for illegal structure, 19. for stoves, when not authorized, 17, 18. for terracing and sodding, 13. for saw mill and engine, 18. for mill stones, 18. for lightning rods, 18. for material purchased out of the State, 19. on the lot, 19, 20. on several buildings, 30. on tenant's interest, 20. when title cured, 30, 21. on house of foreign minister, 31. when failure to establish no bar to recovery, 45, 116, 117. cannot exceed amount remaining unpaid, 49, 50. how waived or defeated, 37-45, 58-56. extraneous obligations must not be included in, 55, 56. when not defeated by removal of building, 55. when destruction of building defeats, 55. when death of owner defeats, 55. right to, when lost, cannot be revived, 56. blanket lien on several buildings, 20, 68. limitation and continuance of, 86-89. how continued by order, 86-88. rank and priority of, 81, 84, 134-136. on contiguous buildings, 30, 68. enforced, where agreement was to pay in land, 136, 137. how discharged, 127-130. money deposit after expiration of, 134. must be established by claimant, 88, 93, 134. validity of liens filed prior to June 27, 1885, 138, against municipal property, who may acquire, 139-143. to what attaches, 189, 140. on municipal property, how entered, 144. time within which must be foreclosed, 144. against municipal property, extent of, 139, 140. against municipal property, how discharged, 135, 136. against railroad property within the State, 151. when discharged by payments in good faith, 153. against property for oil wells, how enforced, 155-163. by whom and how. acquired, 155. INDEX. 337 hlEl^— continued. against oil well, how enforced, 159. against oil well, continuance of, 161. against oil well, priority of, 163. against oil well, discharge, 162. continuance of against oil well, 161. priority of against oil well, 163. discharge of, against oil well, 162. form of affidavit to obtain continuance of, 193, 194. form of order for continuance of, 194. form of bond discharging, 198, 201. form of discharge of, 203. form of order discharging, 180, 202, 303. of boarding-house keepers, reference to statute, 163. of livery stable keepers, reference to statute, 163, 164. on gravestones, reference to statute, 164. on canal boats, reference to statute, 164. LIENOR, object of statute to provide security for, 1, 2, 3. alone can question payments, 58. may rely on terms of contract, 60, 61. after lien filed may assign same, 73. LIGHTNING RODS, lien authorized for, 18. LIMITATION and continuance of lien, 86. of lien against railroad, 151-154. LIS PENDENS, when to be filed, 86, 90. failure to file, efiEect of, 90, 91. when must be filed, 86, 90, 91. not necessary when lien discharged by deposit, 91. void unless complaint filed, 91. against municipal property where filed, 144. form of, against private property, 180. form of, against municipal property, 218. LIVERY STABLE KEEPER, lien of, reference to statute, 163, 164. LOT, meaning of term, 19, 30. MACHINERY, lien for repairing, 13, 17. MAILING notice of claim to owner of oil well, 157, 158. MATERIALS, when not furnished for particular building, no lien for, 17, 83. lien for transporting, 14. must be for the particular structure, 17. purchased out of the State, when no lien for, 1S>. purchased out of the State, when lien for authorized, 19. MATERIAL MAN, entitled to lien for materials furnished to credit of sub- contractor, 82. form of notice of lien of, 167. form of complaint of against owner, 176. 238 INDEX. MAERIED WOMAN, when husband can charge separate estate of, 10, 11. rights and liabilities of under Act of 1884, 10, 11. may enforce contract as to her separate estate, 28, 34. when bound by consent of her husband, 10. when may call husband to disprove his agency, 38. See, also, " Husband and Wife." MAYOR, complaint against, to foreclose lien, 213-217. claim against, form of, 207-213. form of Us pendens against, 218. MECHANICS' LIENS, general law applicable to, 1, 3, 3. against municipal property, 189. against railroad corporation, 151. against oil wells, 155. See, also, " Liens." MERGER, when does not destroy lien on leasehold, 11. MINISTER, house of foreign, when subject to lien, 31. MIRRORS, lien authorized for, 17. MISTAKE, in inserting improper items, 56. See, also, " EuRons ;" " Omissions." MONEY, deposit of, after expiration of lien, could be paid without Court order, prior to Amendment of 1893, 134. after deposit, can now be surrendered only upon an order of the Court, 130. MONEY DUE, constitutes fund for payment of liens, 47, 48. after abandonment, 60. lien cannot exceed amount unpaid, .10, 51. constitutes lienor's fund, and cannot be diverted, 48. as distinguished from money earned, 50. statement of, must appear in notice, 66. MONUMENTS, liens for, reference to statute, 164. MORTGAGE, effect of accepting as security, 53. on premises may be contested by purchaser, 108, 109. MORTGAGEE, when will be deemed owner, 11. rights and priorities of, 51. rights of, in lien against oil well, 156. MUNICIPAL CONTRACT, meaning of term " contractor" under, 149. eight hours constitute legal day under, 163. form of notice of claim on, 307-313. form of complaint in suits on, 212. MUNICIPAL CORPORATION, right of, to acquire lien, 140. MUNICIPAL PROPERTY, liens against, in incorporated cities, 139. fund to which lien attaches, 188, 139. when liens againsl, to be,f6r^closed, 144. actions to enforce liens as to, where brought, 144, 145. parties to such actions, 145. priority of claims in, 145. priority as to successive liens against, ] 46. IKDEX. 339 MUNICIPAL PROPERTY— continwd. consolidation of actions to enforce liens, as to, 146, 147. costs in actions as to, discretionary, 147. actions to recover debt, not affected by foreclosure of lien as to, 147. lien against, how discharged, 147, 148. NAME of firm, in notice, 61, 63, 64. of voluntary association, 64. of owner, 65. of claimants, 65. of joint contractors, 65, 66. NATURE OF REMEDY, action to foreclose lien, a proceeding in rem, 4. NEW YORK CITY, portions of Consolidation Act of, repealed, 187, 138. statutes applicable to, in force September 31, 1883, 138. form of notice of claim against, 207-313. form of complaint against, 313. district courts in, forms, 330. form of endorsement on transcript from justice's court in, 238. NOTE, when acceptance. of, defeats lien, 54. when acceptance does not defeat lien, 54. NOTICE, contents and filing, 61-64. service of, upon owner, 63, 75. voluntary associations, how named in, 64. firm name in, 64. name of owner in, 65. name of claimants in, 65. sum due must appear in, 66. credits and offsets in, 66. in name of joint contractors, 65, 66. false statements, errors and omissions in, 68-71. name of employer in, 67. amount on each building shown in, 68. cannot be amended, 73, 73. second notice, filing of, 73. may be filed after death of contractor, 73, 74. may not be filed after death of owner, 55. time of filing of, 73, 74. when time for filing cannot be extended, 74, 75. service of, upon owner, 75. service of copy of sufficient, 143. of order continuing lien, when not necessary, 88. against municipal property, what to contain, 143. when and how filed, 143. how pleaded and proved, 95, 96. against oil well property, 156, 157. of lien, service of, on owner of oil well, 157, 158. 240 IKDEX. SiiOTlCE— continued. of lien, forms of, 165-168. of lis pendens against private property, form of, 180. of claim upon municipal contract, form of, 307-312. of lis pendens against city, form of, 318. to commence action, form of, 219. of offer to pay into court, 204. NOTICE TO COMPLETE, efiect of, 43. 44. intended for benefit of contractor only, 43, 44. OFFER OF JUDGMENT, provisions as to, 128, 134. must be accepted witbin ten days, 124. OIL WELLS, lien against, contents of notice, 156, 157. lien against, how docketed, 156, 157. liability of owner of, to sub-contractor, 157. collusive payment in contracts as to, 157, 158. notice, how served on owner of, 157, 158. liens against property, where situate, 155, 156. torpedoing in, lien for, 156. lien against, how docketed, 156, 157. OMISSIONS in notice of lien, 68-70. ORDER of reference, form of, 181. discharging lien, form of, 300, 302, 303. of publication in justices' and district courts, form of, 223. OWNER liable only to amount of contract, 3. liable for value of labor at time of filing lien, 2. when cannot acquire lien in his own behalf, 82. meaning of term, 8, 9. definition of, under prior statutes, 9. when holding legal title, 9, 10. when holding equitable title, 10. when mortgagee will be regarded as, 11. until deed actually delivered, 11, 77, 84. who stipulates to discharge liens, 38. when husband of, binds, 38. when consent of, implied, 24. agent of, consenting to labor, 26. consent of, when tenant makes improvements, 26-28. when death of, defeats lien, 55. must furnish terms of contract, 59, 60. penalty for making false statement in terms of contract, 60, 61. service of notice on, 75. name of, may appear anywhere in notice, 65. service upon, object of, 78, 77. contracting to sell, 85. should discharge lien to save costs, 109, 123, 124. how he may protect himself as to costs, 128, 134. INDEX. 241 OWH'&'R—aonUnued. when liable for costs, 115. when need not join in bond to discharge lien, 131. when discharged by money deposit, 134. of oil well, liability of, to sub-contractor, 157. of oil well, service of notice on, 157, 158. form of complaint, by contractor against, 168. demand on, for terms of contract, form of, 193. PAINTING, lien for, when authorized, 13. PAPER HANGING, lien for, when authorized, 13. PAROL ASSIGNMENT, when good as to equitable assignment, 81. PARTIES to foreclosure suits, 118-133. assignee of contractor, 119. executor and administrator, 130. contractor, 120. subsequent lienors, 130, 131. husband and wife, 131. bringing in new, 132. to enforce lien under municipal contract, may adjudicate all rights in, 145, 146. in actions to enforce liens against municipal property, 145. PARTNER surviving, may execute bond, 131. PAVING, lien authorized for, 1, 3. PAYMENT, in specific property, 45. in advance or by collusion, 56-58. lienor alone can question, 58. when acceptance o£ order deemed, 58, 59. before service of summons, 109. and ofEer of judgment in foreclosure suits, 123, 124. provision to avoid double payment, 135. in specific property, provisions as to, 135. in good faith, when defeats lien, 153. by collusion, under oil well contracts, 157, 158. PERFORMANCE, when substantial performance deemed sufficient, 35, 36. excuse for non-performance, 36. how pleaded, 94, 95. PERMISSION, synonymous with consent, 34. PERSONAL JUDGMENT, in lien suits, 108, 116, 117. in absence of lien, 108, 117. See, also, " Judgment." PIER, lien authorized for, 1, 3. PLANS, lien for preparing, 13, 13. PLEADINGS, consent how pleaded, 30, 94. in foreclosure actions, 93-99. allegations in complaint, 93-97. allegations in answer, 97-99. 16 242 INDEX. PLEADmGa—coniinned. as to counterclaim, 98. proof under general denial, 99. in courts not of record, 330. form of complaint, contractor against owner, 168. See, also, " Forms." POSTSCRIPT, when forms part of contract, 33, POWDER AND FUSES, lien authorized for, 18. PRIOR MORTGAGE, may be contested by purchaser, 108, 109. PRIORITIES, rights of mortgagee, 51. when arbitration not binding, 51. of receiver in supplementary, 53. of liens, provisions as to, 75-86. of mortgage to secure loan over attachments, 83, 84. as to various liens, 134, 125. how determined, 126. must be provided for in the judgment, 126. of claims in actions as to municipal property, 145. of liens against railroads, 158. of liens against oil well property, 163. PROOF under general denial, 99. See, also, " Burden of Proof," " Evidence." PUBLICATION of summons in courts not of record, 331. form of order for in district and justices' courts, 323. PURCHASER, takes fee subject to liens, 12. rights of, to contest prior mortgage. 108, 109. right of to writ of assistance. 106. right of to maintain summary proceedings, 106. QUANTUM MERUIT, when performance waived, recovery on quantum meruit, 38, 39. QUARRYMEN, reference to statute giving lien to, 163. RAILROAD CORPORATIONS, liens against property of, 151-154. who may acquire, 151. to what property to attach, 151. lien against entire road within the State, 151, 153. notice of lien against, how filed, 153. evidence in lien suits, 153. actions against, where brought, 153. limitation of liens against, 153. priority of liens against, 153. how liens against, discharged, 153, 154. personal liability of stockholders of, 154. lien against bridges of, 154. RECEIVER, rights of, as to funds due contractor, 82. in supplementary proceedings, rights of, 49, 53. INDEX. 348 'R'ECMyEB.—continwa. in foreclosure suits, 105. may be appointed in foreclosure against oil well, 156. REFERENCE, when proper in foreclosure, 100, 101. to hear and determine, 100, 101. form for order of, 181. BBM, action to foreclose lien a proceeding in rem, 4. REMEDY in lien cases a proceeding in rem, when, 4. in equity, when, 4. cumulative, 5, 6. RENT, damages for loss of, when recoverable, 15, 16. REPEALING CLAUSE in Act of 1885, 136-138. in statute as to municipal contract, 149. REPORT of referee, form of, 181-18 . REVIVAL, when right to lien lost, it cannot be revived, 56. SCENERY in theatre, lien for, 18, 19. SCHOOL BUILDING, how notice of lien for, filed, 142, 143. SCHOOL BUILDINGS, lien for, to be filed with Comptroller and Board of Education, 143, 143. SEAL, when omission of, immaterial, 184. Act of 1893 abolishing, 134. SECURITY to lienor the object of the statute, 5. when acceptance of, defeats lien, 53, 54. when does not defeat lien, 53, 54. SERVICE of notice upon owner, 63-75. when all defendants must be served, 89, 90. of notice on owner of oil well, 157, 158. See, also, "Stimmons." SIDEWALKS, lien authorized for, 1, 3. SODDING, lien authorized for, 1, 3, 13. SPECIFIC PERFORMANCE, when judgment cannot provide for, 107. distinguished from specific property, 136, 137. SPECIFIC PROPERTY, contract for payment in, 136, 137. substituted property, 137. specific performance cannot be decreed, 136, 137. STANDING BY AND TAKING BENEFIT implies consent, 34. STATE, eight hours constitute legal day under contracts by, 163. STATUTE must be construed liberally, 5, 136. repeal of, by Act of 1885, 136-138. list of repealed, 138. applicable to liens in New York city in force Sept. 31, 1883, 138. costs in actions to foreclose >mder statutes prior to Act of 1885, 138. STATUTES, cited and referred to. Code of Civil Procedure, Section 745, page 130. 344 INDEX. STA-TUTES— continued. Section 751, page 130. Section 833, ' ' 4. Section 970, ' ' 4. Section 1032, ' 187. 1860. Chapter 446, page 163. 1864, Chapter 413, " 164. 1870, Chapter 385, " 163. 1870, Chapter 529, " 154. 1873, Chapter 498, " 164. 1875, Chapter 393, Section 1, page 151. Section 3, " 153. Section 3, " 153. Section 4, " 153. Section 5, " 153. Section 6, " 153. Section 7, " 153. Section 8. " 154. 1878, Chapter 315, Section 1, page 139, 140. Section 3, " 143. Section 3, " 144. Section 4, " 144. Section 5, " 144. Section 6, " 144, 145. Section 7, " 145. Section 8, " 145, 146. Section 9, " 146. Section 10, " 146, 147. Section 11, " 147. Section 13, " 147. Section 13, " 147, 148. Section 14, " 149. Section 15, " 149. Section 16, " 149, 150. Section 17, " 150. 1880, Chapter 440, Section 1, page 155, 156. Section 3, " 156, 157. Section 8, ' ' 157. Section 4, " 157, 158. Section 5, " 159. Section 6, " 159, 160. Section 7, " 160. Section 8, " 160. Section 9, " 160, 161. INDEX. 245 STATUTES— continued. Section 10, page 161. Section 11, " 162. Section 12, " 163. Section 13, " 162. 1881, Chapter 439. page 150. 1883, Chapter 410, Consolidation Act Section 1834, page 139, 140. Section 1825, ' 143. Section 1836, ' 144. Section 1837, ' 144. Section 1828, ' 144. Section 1839, ' 145. Section 1830, ' 145. Section 1831, ' 146. Section 1833, ' 146. Section 1833. ' 146, 147. Section 1836, ' 148. Section 1837, ' 149. Section 1838, ' 149. [, Chapter 381, p age 11. ), Chapter 343, Section 1, page ,1, 3. Section 3, " 56, 57. Section 3, " 59, 60. Section 4, " 61-63. Section 5, " 75, 76, 77. Section 6, " 87. Section 7, " 91. Section 8, " 93. Section 9, " 111. Section 10, " 112. Section 11. " 113, 113. Section 13, " 113, 114. Section 13, " 114. Section 14, " 114. Section 15, " 116. Section 16, " 117, 118. Section 17, " 118, 119. Section 18, " 133. Section 19, " 123, 124. Section 30, " 134, 125. Section 21, " 136. Section 33, " 126, 137. Section 23, " 137. Section 24, " 137-130. Section 25, " 136. 246 INDEX. STATUTES— continti^d. Section 26, page 136, 137. Section 37, " 137. 1886, Chapter 883, page 188. 1888, Chapter 548, " 164. 1889, Chapter 380, " 168. 1891, Chapter 255, " 140. 1893, Chapter 639, " 140, 150. 1893, Chapter 677, Section 13, page 134. 1898, Chapter 300, page 130. 1893, Chapter 405, " 164. 1895, Chapter 161, " 87. 1895, Chapter 605, " 148. 1895, Chapter 678, " 3, 57, 60. 1896, Chapter 683, " 148. 1896. Chapter 738, " 168. 1896, Chapter 915, " 77. STATUTE OP FRAUDS, as to contracts within, 30, 31. verbal contract, when enforced, 31, 56. STATUTE OF LIMITATIONS, as to contracts barred by, 84. STAY, on appeal, effected by filing undertaking, 103. STIPULATION, to discharge liens, effect of, 38. STOOKHOLDEKS of railroad, personal liability as to, 154. STOVES, lien not authorized for, 17, 18. STREET IMPROVEMENT, how notice of lien for, filed. 143. SUB-CONTRACTOR, when lien claimed for material to, 83. rights of, 46-58. subrogation of. 47, 48. rights to money due, 47. takes fund subject to equities, 48. rights of, to funds in owner's hands, 48. when he must bear the burden of proof, 49. when entitled to amount earned, though not " due," 50. when rights of, defeated by abandonment, 40, 41. when not bound by arbitration, 55. liability of owner of oil well as to, 157. form of complaint of, against owner, 173-175. SUB LETTING, when prohibited by contract, 49, 50. SUBROGATION, doctrine of, as applied to sub-contractor, 47, 48. doctrine of, as between contractor and sub-contractor, 47, 48. SUBSTANTIAL PERFORMANCE, when deemed sufficient, 35. SUCCESSIVE LIENS, as to municipal property, priority as to, 145. SUMMARY PROCEEDINGS may be maintained by purchaser under me- chanic's lien, 106. SUMMONS, when to be served within the year, 88, 89. service of, by publication in courts not of record, 113, 113. form of, in justices' and district courts, 330. IISTDEX. 347 SUPPLEMENTARY PROCEEDINGS, rights of receiver in, 49, 53. SURETIES, liability of, on bond, 133. form of justification of, 199. SURVIVING PARTNER, bond may be executed by, 131. TACKING one lien on another cannot be resorted to to extend time of filing, 74. TENANT may charge his interest with lien, 11. interest of, subject to lien, 20. when consent of, to improvements, binds owner, 26-28. TERRACING, lien authorized for, 1, 2, 18. THEATRE, lien for chairs in, 18. lien for scenery in, 18, 19. TIME for filing notice, 61-63. runs from completion and acceptance, 74. when cannot be extended, 74, 75. as to order of continuance, how computed, 86-89, within which defendants must be served, 89-91. to begin suit, when money " due," 93, 95. of filing notice must be pleaded, 95, 96. within which liens against municipal property must be foreclosed, 144. of filing priority as to municipal property, 146. TORPEDO, use of, in oil wells, lien for, 156. TRANSCRIPT of judgment, provisions as to, 117, 118. in courts not of record, 113. of judgment against oil well property, 160. form of endorsement in justices' and district courts, 333. TREES, fruit and ornamental, lien authorized for, 1, 3. TRIAL of issues in courts not of record, 113. TRUSTEES of ward, contract with, deemed valid, 150. UNDERTAKING, must be filed to stay proceedings, pending appeal, 103. VARNISHING, lien, when authorized for, 14. VAULT, lien authorized for, 1, 2. VERBAL CONTRACT may be enforced, when executed, 30, 31, 56, 67. VERIFICATION on notice of lien, 63, 71, 72. on notice of lien, form of, 166. by one partner, form of, 166. without the State, when avoids lien, 71. VIOLENCE and abuse, when excuses performance of contract, 87. VOLUNTARY ASSOCIATION, rights of members of, to acquire lien, 83. how named in notice, 64. WAGES two dollars a day for labor under State or municipal contracts, 163. 248 INDEX. WAIVER of performance, recovery on quantum meruit, 38, 39. by arbitration, 39. by departure from plan, 39. as to time, 39, 40. as to, in subsequent action, 40. by implication, 53. intent to waive must be clear, 53. of lien by extending credit. 54. WHARF, lien authorized for, 1, 3. boat attached to, lien for, 18. WIFE, when husband agent for, 10, 26. WITNESS, when husband may be called as to disprove agency for wife, 28. WORDS AND PHRASES, term " owner," 8, 9. words " any labor," 12. meaning of term " lot," 19, 20. consent synonymous with " permission," 24. words " liable to pay," 33. meaning of term " all excavating," 33. who deemed a " subcontractor," 134, 135. word " contractor" as used under municipal contract, 149. meaning of term " mason work," 33. term " alterations in plan of construction," 33. term " plumbing work," 33. WRIT OF ASSISTANCE, may be issued to enforce foreclosure, 106.