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MECHANICS' LIEN LAWS 
 
 NEW YORK CITY, 
 
 AND FOB THE 
 
 COUNTIES OF KINGS AND QUEENS. 
 
 NUMEKOUS FORMS. 
 
 BY R. SiGUERNSEY, 
 Cownsellor-at-lMW, 
 
 -^ ( fir , ^* ' 
 
 
 NEW YOEK : 
 1873. 
 
I^O-h^i^ 
 
 js.'^/^n 
 
 Entered according to Act of Congress, in the year 1873, 
 
 Bt R. S. Guernsey, 
 
 In the Office of the Librarian of CongreBB at Washington. 
 
PREFACE. 
 
 The first statute upon the subject of liens for performing 
 work or furnishing materials used in the erection or altering 
 or repairing of buildings in the State of New York, was passed 
 in 1830 ichap. 330), and applied exclusively to the city and 
 county of New York. That act was amended in 1882 {chap. 
 120). Another law was passed in 1844 {chap. 220) relating to 
 New York city only. • All , these laws were repealed in 1851 
 and another law substituted in their place {Laws 1851, chap. 
 513). This was amended in 1855 (chap. 404). These laws con- 
 tinued in force until the Act of May 5th, 1863 {chap. 500), 
 which latter act and amendments thereto in 1866 {chap. 529) 
 and the Acts of 1870 {chap. 529) and 1872 {chap. 669) now con- 
 stitute the only direct statutory law on the subject relating to 
 the city of New York. 
 
 The Statute of 1863 in terms (§ 12) repeals the former laws 
 on the subject, yet it is apparent that this act is mainly hased 
 upon the Laws of 1851 and 1855, and the practice and deci- 
 sions that had grown up under them ; consequently they must 
 be referred to in order to properly interpret and understand 
 the present law, and therefore the Statute of 1851, and every 
 
IV. PREFACE. 
 
 one since that relating to New York city, and also the statutes 
 .relating to the counties of Kings and Queens, are inserted in 
 fuU in orHer to make this book a practical compendium of the 
 law and decisions upon the subject to which it is devoted.* 
 
 Although the " Mechanics' Lien Ijaw,"as it was at first and con- 
 tinues to be designated, was created by special statute and is 
 still professed to be governed by special statute, it may now be 
 said of it, as the late Mr. Justice Best said of the laws of England, 
 that most of the law is derived from judicial decisions. In every 
 reported decision in this State on the subject something will 
 be found that may be useful in the administration of the pres- 
 ent law. The table of cases cited at page 211, post, contains 
 nearly two hundred cases, being all ever reported on the subject 
 in this State. The portion of them digested is mainly that 
 which may be of value at the present time, and relating to the 
 general principles of these laws. 
 
 The author has discussed or stated every question, or the 
 principles of it, that has occurred to him, that has arisen or 
 can arise, which is exclusively confined to the nature of these 
 statutes. 
 
 Viewing this law as a whole, it will be seen that it is now a 
 system founded upon principles that are substantial, and therefore, 
 lasting, and must continue to he the same in substance so long as any 
 liens of that nature are allowed by any statute in any locality, in 
 any State or country where justice to the respective parties is recog- 
 nised and administered according to the established rules of law and 
 equity.f 
 
 * For a fall list of the various laws that have been enacted, relating to Mechan- 
 ics' Liens in this State, see QerarcHs Titles to RealEttate, 2d edition, p. 751. 
 
 •)• For the effect of a change of the laws of this nature that have heretofore ex- 
 isted and that may hereafter be made, see each act for itself, and Sullivan vs. 
 Brewster, 1 E. D. S., 681 ; Brien vs. Clay, 1 M D. S., 649 ; Donaldson vs. CfCon- 
 nor, 1 K D. S., 595 ; Miller vs. Moore, 1 K D. S., 739 ; JBauptman vs. Catlin, S 
 E. D. a., 666, affirmed 20 N. Y., 247 ; HallagJian vs. Herbert, 11 Abb., N. S., 326 ; 
 Moore vs. Maiaert, 5 Lansing, 173 ; Trim vs. Willoughby, 44 Bow., 189. 
 
tKEFACil. V. 
 
 The subjects discussed in the following work will make it a 
 useful reference in procedure in all equitable actions, and in the 
 enforcement of any and all legal or equitable liens icpon specific pro- 
 perty, whether by judgment, or mortgage, or created by statute, 
 or arising by any contract. 
 
 E. S. G. 
 
 New Yoek, Sept. 15th, 1873. 
 
E R R ^ T A^ 
 
 No. 35, Walker vs. Paine, E. D. S., 624, read 2 E. D. SJ, 662 ; 
 and Grogan vs. McMahon, 2 E. D. 8., 754, read 4 jE'. D. 
 8., 754. ' 
 
 No. 54, MusMitt vs. Silverman, read Schafer vs. Beilly, 50 iV". Z, 
 61. 
 
 No. 106, first line, executor's contract, read executory contract. 
 
 No. 161, first line, filed at, read filed and. 
 
 No. 485, first line, p. 1, read p. 15. 
 
 No. 540, referee issuing, read referee usury. 
 
 No. 625, last line, ante, 621, read ante, 622. 
 
 No. 660, last line, post, 651, read ante, 656. 
 
TABLE OF CONTENTS. 
 
 Part I. 
 
 INTEODUCTION AND STATUTES RELATING 
 TO NEW YOEK CITY. 
 
 FAGK. 
 
 Introduction 1—4 
 
 Statutes of 1863 4-10 
 
 " 1866 5 
 
 " 1870 10 
 
 " 1872 11 
 
 " 1851 11-15 
 
 " 1855 15-17 
 
 Part II. 
 
 OF ACQUIEING AND PERFECTING A LIEN. 
 
 HO. 
 
 Chapter 1. Who may acquire a Lien 1-20 
 
 2. For what a Lien may be acquired 21-37 
 
 3. Time of Filing Notice 38-57 
 
 4. Lien, on What and Extent 58-139 
 
 5. The Notice of Lien 140-186 
 
 6. Continuance aud Discharge of Lien 187-221 
 
 Part III. 
 
 OF FOEEOLOSTJEE OF LIENS. 
 
 Chapter 1. Jurisdicticm of Courts 222-234 
 
 " 2. Time and Manner of Enforcing Liens... 235-263 
 
vm. 
 
 so. • 
 
 Chapter 3. Fartiex to the Proceedings 264-404 
 
 4. Pleadings and Claims 405-510 
 
 5. Modes of Trial 511-549 
 
 6. The Evidence 550-661 
 
 7. The Judgment. ] 662-784 
 
 8. Costs 785-827 
 
 9. Execution 828-874 
 
 10. Appeals , 875-899 
 
 Part IV. 
 
 STATUTES EELATING TO THE COUNTIES 
 OF KINGS AND QUEENS. 
 
 Observations on the Laws relating to the Counties of 
 
 Part V. 
 
 Forms 
 
 pxaE. 
 
 181 
 
 Table of Lien Cases died in this Vdwme 
 
 Index 
 
 211 
 
 218 
 
PART I. 
 
 INTRODUCTION AND STATUTES RELATING- 
 TO NEW YORK CITY. 
 
 INTEODUCTION. 
 
 The doctrine of liens rests upon the broad foundation of 
 natural equity and commercial necessity. Nothing is more 
 reasonable than that an artificer or business man should have- 
 a qualified property in the thing upon which he has bestowed 
 time and labor, or with which he has incorporated his materials. 
 
 A Hen at common law is not, in strictness, either &jus in re or 
 &jus adrem,hut it is simply a right to possess and retain prop- 
 erty until some charge attaching to it is paid or discharged. 
 It generally exists in fayor of artisans and others who have be- 
 stowed labor and services upon the property in its repair, im- 
 provement and preservation. (Story's Equity, § 506.) A lien is^ 
 either general or specific ; the latter is specially favored hx 
 law, (2 Kent, 633,) as all tradesmen are allowed a particular 
 lien. (1 Ath., 228.) 
 
 Liens on ships and vessels are allowed by the general mari- 
 time law for seamen's wages, repairs, supplies, &c., in certain 
 cases, (3 Kent, 169,) and this right has been much extended and 
 regulated by State and national legislation. 
 
 Possession of personal property, excepting ships and vessels, 
 is necessary to create a Hen, and it exists during such time on]y 
 
INTKODUCTION. 
 
 as the party has possession, either by himself or his agent, 
 (McFarland vs. Wheeler, 26 Wend., 467 ; Sweet vs. Pym, 1 Mst, 
 4 ; Story's Equity Jurisp., § 1216.) If the owner of the Uen 
 parts with the possession after the lien has attached, as a gen- 
 eral rule the hen is lost. (Id.) The reason of this is, that so 
 long as a party has possession it is constructive notice that a 
 lien may exist, and purchasers are put upon their inquiry as to 
 the extent of such lien. 
 
 Under the common law, a person does not acquire a lien for 
 his services on the money due his employer, the contractor. 
 (Royt vs. Story, 3 Barb., 262.) 
 
 From the common law Uen on personal property is derived 
 the principle of the mechanic's Uen by special statutes which 
 now exist in nearly aU the States, by virtue of which mechan- 
 ics, material men or persons furnishing labor or materials for 
 the erection, alteration or repairing of buildings, are entitled 
 to perfect a Uen therefor on such buildings and the land to a 
 certain extent, which is a preference over other creditors in the 
 payment of debts. This right, given and prescribed by special 
 statute, is of a remedial character, merely providing a new rem- 
 edy without increasing the liabiUty of the owner. 
 
 Liens on lands in similar cases were given by the Koman 
 Law, Domat's Civil Law, §§ 1742, 1744, and by the Code 
 Napoleon, p. 571. Great Britain has not yet any similar law 
 relating to the subject. 
 
 The policy of the system in its early stages among us has 
 often seriously been questioned, and doubts have frequently 
 been expressed as to whether, upon the whole, it works well 
 even for those for whose benefit it was enacted. This is owing 
 entirely to the imperfections of the statutes, or their construc- 
 tion by the courts imder which the system was attempted to 
 be carried out. 
 
 The general recognition by American legislation of the enact- 
 ment of laws of. this nature, as well as special statutes for the 
 purpose of meeting the necessity of some particular locality, are 
 the best proofs of the justice, propriety and utility of the 
 principle. * 
 
 * See HoucIs'b Law of Liens in the United States. 
 
INTEODUCTION. £> 
 
 The principal utility and justice of these liens have more 
 recently been made to protect all persons engaged by the con- 
 tractor, directly or indirectly, by the equitable subrogation or 
 diversion of money due him from the owner for the security of 
 the payment of those to whom the contractor is indebted. 
 This has been, and still is, the principal object of all the 
 various lien laws relating to the city of New York, and in this 
 is their most frequent and beneficial office. 
 
 The object and effect of these statutes is simply to take from 
 the owner money actually owing by him upon his contract and 
 apply it in payment for the labor and materials which sub-con- 
 tractors or material men or others have contributed towards the 
 completion and performance of the same contract. (Sullivan 
 vs. DecJcer, 1 E. B. S., 699 ; Doughty vs. Devlin, 1 E. D. S., 
 625 ; Ferguson vs. Burlce, 4 E. D. S., 760 ; Donaldson vs. Wood, 
 22 Wend., 395 ; Loonie vs. Hogan, 9 N. Y., 435.) This is en- 
 forced by allowing a lien on the property to the extent of the 
 amount due from the owner to the contractor on the contract. 
 
 As to the mode of perfecting such a lien under the statute. 
 Chief Justice Daly says : 
 
 " The whole design of this statute is to render the proceeding 
 " on the part of the mechanic or material man, in imposing and 
 " enforcing his Uen, as simple as possible, and connected with 
 " as little detail as may be consistent with the due protection 
 " of the rights of the owner, or of other parties whose interests 
 " may be affected by the incumbrance created." (Paine vs. 
 Bonney, 4 E. D. S., 734.) 
 
 The lien, when perfected, is only to the extent of the con- 
 tracting owner's interest in the property at the time the notice 
 required by the statute is filed (§ 1, amd. 1866) ; therefore, if the 
 owner has bona fide parted with his interest in the property 
 before the filing, no lien is acquired. Again, the contracting 
 owner or his property is only liable to the amount due from 
 him to his contractor, and if he has paid up according to his 
 contract no lien can be acquired, because he cannot be required 
 to pay a greater amount than the contract price {unless there is 
 fraud) or value of the work and materials furnished upon his 
 land by his contractor (§§ 1 and 3).* 
 
 * The same principle prevails in regard to a common law lieu on personal 
 property, to wit, that if the party who holds the property by virtue of a lien 
 
STATUTES. 
 
 Of the manner of enforcing a lien,. Chief Justice Daly says t 
 " The foreclosure of a lien, whether it arises under th& 
 " Mechanics' Lien Law or otherwise, is a matter of equitable 
 " jurisdiction. It is an equitable, as contra-distinguished from 
 " a legal remedy ; and the course of procedure, whether it re- 
 " lates to the pleadings, the mode of trial, the evidence, or the- 
 " remedy, is in accordance with the courts of equity, except. 
 " so far as it has been modified in this State by statute." 
 {Hubbell vs. Schreyer, 14 Abb. N. S., 284.) . 
 
 These special statutes and the principles involved,in their 
 construction, as to who may acquire a builder's lien, the 
 manner of perfecting it, and the mode of enforcing it, is the 
 object of this work.* 
 
 STATUTES EELATING TO NEW TOEK CITY, 
 
 Laws 1863, Chapter 500. 
 
 AJV ACT to secure the Payment of Meclianics, Laborers and 
 Persons furnishing Materials towards the Erection, Altering or 
 Repairing of Buildings in the City of New York. 
 
 Passed May S, 1863. 
 
 Section 1. Any person or persons who shall hereafter, as- 
 contractor, laborer, workman, merchant or trader, in pursuance 
 of, or in conformity with, the terms of any contract with or 
 employment by the owner, or by or in accordance with the 
 directions of the owner or his agent, perform any labor or fur- . 
 nish any materials towards the erection of, or in altering, im- 
 proving or repairing of any building or buildings, or the 
 
 pledges it for a larger amount than ia due him from the owner, the pledge is only- 
 valid against the owner to the amomjt actually due from him to the pledgor. 
 (Dauhigny vs. Duval, 5 Term R., 604.) 
 
 * The common law right of lien on personal property and the proper mode of 
 enforcing the same, see Tnist v. Pierson, 1 Hilton, 292. 
 
STATUTES. . 5 
 
 appurtenances thereto,* in the city of New York, on comply- 
 ing with the sixth section of this act, shall have a lien for the 
 Talne of such^labor or materials, or either, upon such house or 
 building and the appurtenances and lot: on which the same 
 «hall stand, to the full value of such claim or demand, and 
 "these liens may be filed and become an absolute hen to the 
 full and fair value of all such work and materials and to the 
 extent of the right, title and interest then existing of the 
 owner of said premises, in favor of every person or persons 
 who shall be employed by any owner, contractor, sub-con- 
 tractor, jobber or master workman in manner aforesaid {and 
 ■notwitlistanding any sale, transfer or incumbrance made or in- 
 'Curred at any time after the commencement of the loork or furnish- 
 ing of materials^) provided that aU mortgages given in good 
 faith for full value, which shall have been executed and re- 
 corded at any time prior to any actual work done or materials 
 furnished, shall not ' be affected or impaired by such lien, and 
 provided, also, that no owner shall be required to pay a 
 greater amount than the contract price or value of the work 
 and materials furnished, wlien no specific contract is made, upon 
 his land by his contractor. 
 
 * See Amendment, Laws 18Y0, oh. 529', and 1872. ch. 669, post p. 11. 
 
 f The portion in parenthesis has been repealed as follows : 
 
 LAWS 1866, CH. 752. 
 
 AN A CT to amend " An Act to secure the payment of Mechanics, Laborers and 
 " Persons furnishing Materials towards the Erection, Altering or Repairing of 
 " Buildings in the City of Nem York" passed May fifth, eighteen hundred and 
 ■sixty-three. 
 
 Passed April 21st, 1866. 
 
 Section 1. All persons who shall be or become entitled to have a lien in pur- 
 ■euance of the act entitled " An Act to secure the Payment of Mechanics, Laborers, 
 " and Persons furnishing Materials towards the Erection, Altering or Eepairing of 
 ■" Buildings in the City of New York," passed May fifth, eighteen hundred and 
 sixty-three, and who shall file a notice thereof under and according to said act, 
 shall have a lien for,the full and fair value of their labor and materials, or either, 
 upon such house or building and the appurtenances and lot oh which the same 
 shall stand, to the extent, of all the right, title and interest which the owner shall 
 have therein at the time of filing the notice of lien required by the sixth section 
 of said- act, and to no greater extent. 
 
 § 2. This act shall take effect immediately. 
 
STATUTES. 
 
 § 2. All persons having liens, in order to enforce the same, 
 shall prove their demands in the same manner as, in ordinary 
 actions at law, except that no variance as to the persons named 
 as contractor, owner or debtor in the lien, notice or bill of par- 
 ticulars or statement of claim or in any pleading, shall impair 
 or affect the rights of the claimants as hereinafter defined, and 
 every party shall have relief according to the rights of the 
 parties as they shall appear in evidence. 
 
 § 3. In case of successive liens by the contractor, sub-con- 
 . tractor, workman, person or persons furnishing materials, and 
 of a number of liens iu favor of different persons, their rights 
 and priorities shall be determined as follows : The lien of the 
 laborer, cartman, material man and sub-contractor shall be 
 entitled to a priority over the contractor for the payments due 
 for his services or materials. In case of several buildings done 
 under one contract, in conflicting liens, each shall have priority 
 on the particular building where his labor is performed or his 
 material used. Persons standing in equal degree as co- 
 laborers, or various persons furnishing materials, shall hav& 
 priority according to the date of filing their liens. "Where- 
 several hen notices are filed for the same demand, as in case 
 of a contractor, including claims for workmen to whom he is 
 indebted, and a hen by the workmen, the judgment shall pro- 
 vide for the proper payments, so that under the liens' filed 
 double payment shall not be required, but no payments volun- 
 tarily made shall impair the hen of any persoji, except the one 
 to the person so paid. 
 
 § 4. Any person or persons having filed a notice of lien 
 may, in ten days thereafter, institute a proceeding to en- 
 force or foreclose the lien, and any owner or other person in- 
 terested may also commence such proceedings, and in such 
 proceedings, each and every person or persons who have filed 
 liens shall be parties to, and have notice of the said proceed- 
 ings, and said person or persons fihng liens before final judg- 
 ment, shall be notified to appear and join in the said proceed- 
 ings, by a notice to be served upon said person or persons at 
 least five days before the entering of said judgment. Where 
 the aggregate of liens shall be less than five hundred dollars, 
 the said proceedings may be had before any court in the said 
 
STATUTES. / 
 
 city, and ■where they exceed that sum, when the proceedings 
 are commenced, the 'action shall be conducted in a court of re- 
 cord having equity jurisdiction, and none of the courts in the 
 said city shall be depriyed of jurisdiction by reason of the resi- 
 dence of parties elsewhere, and service of process in such action 
 may be by publication as to any of the parties not residing in 
 this State, or who may have removed therefrom. 
 
 § 5. The proceedings shall be commenced by a notice 
 stating the liens and times of filing, and be served upon all 
 persons having filed notices of lien at the place by them des- 
 ignated, and on the owner and Incumbrancers when they can 
 be found, requiring them to appear in court at a day and hour 
 named, and be served ten days before the time specified, ex- 
 cept those acquiring after-liens, who shall be required to ap- 
 pear sumnjarily at such time as the court or judge thereof shall 
 order, and within ten days after service each party shall file 
 in court or with the clerk, a brief statement of his claim, and 
 any party interested may, in five days, state his objections to 
 such claim, and, if in a court of record, copies of these shall be 
 served on the attorney of any claimant whose claim is to be 
 affected by such objection, and the issue thus made shall be 
 tried as in ordinary actions. The court shall proceed without 
 regard to matters of form, which shall be amendable at all times 
 while the proceedings progress, without costs, and judgment 
 shall be rendered according to the equity and justice of the 
 claims of the respective parties. 
 
 § 6. At any time before the whole work is completed, and 
 within three months* after the work is done or the materials 
 furnished, for which a hen is sought, if the work is then finished 
 or abandoned, any claimant may file with the county clerk, a 
 notice, stating the residence of the claimant, verified by his 
 oath or affirmation, stating the amount claimed, from whom, 
 and to whom due, or if not yet due, when it wiU become due, 
 with a brief description of the premises, by street number or 
 diagram or boundary, or by a reference to maps open to the 
 public, so as to furnish information to persons examining titles, 
 and the supposed owner, although no error in the owner's name 
 shall impair the validity of the Hen. The clerk shall enter in 
 
 * See Amendment, Laws, 1872, ch. 669, post p. 11. 
 
8 STATUTES. 
 
 the lien docket the name and residence of the claimant, the 
 person against whom claimed, the amount and the date of 
 filing, the street and particular place where located, in such 
 manner as to be convenient in searching for the Hens by street 
 and block, and he shall receive ten cents on filing the same. 
 He shall also enter on this docket a notice that a suit is com- 
 menced thereon, upon a notice of that fact and affidavit of ser- 
 vice being filed with him, for which he shall receive five cents. 
 The county clerk shaUmake searches for such liens upon being 
 furnished with a proper description of any property and with- 
 out reference to the individuals against whom the lien is filed, 
 his fees to be five cents per year for the time embraced in said 
 search ; (and the said county clerk shall have the power to ap- 
 point a clerk to aid and assist him in the performance of the 
 duties appertaining to this act, to be designated as the Me- 
 chanics' Lien Clerk, at a salary of the sum of two thousand 
 dollars per annum, to be provided for by the board of super- 
 visors of the said county.) — [As Amended Laws, 1868, 
 cJi. 79, hy adding the portion in parenthesis']. 
 
 § 7. In case the parties notified shaU neglect to appear and 
 object or insist on any^claim, the court may take the proofs and 
 determine the equities of the parties, and in such case, or in 
 cases where they appear and plead, the court may determine 
 the rights of all parties, and the amounts due to each, and by 
 whom to be paid, and may order any question tried by a jury, 
 or refer the whole matter to a referee, to examine and pass upon 
 the rights of the respective parties, and report upon the same 
 in a summary manner, as in case of claims to surplus moneys 
 in mortgage cases, on which every party shall be at liberty to 
 take proofs for or against any claim or lien, and such judgment 
 or decree shall be made thereon as to the rights and equities of 
 the several parties, among themselves and as against any 
 owner, as may be just. Any party aggrieved by any decision 
 may, within ten days after notice of the judgment or decree, 
 appeal from such judgment or any part thereof, if the judg- 
 ment is in a district court or in the Marine Court, to the gener- 
 al term of the Court of Common Pleas, and if in any other 
 court, to the general term of such court ; such appeals to be 
 heard and decided, as in case of appeals from an order at 
 special term. 
 
STATUTES. 9 
 
 § 8. Such appeal shall only stay so much of the proceed- 
 ings as a judge of either the court below or a judge of the ap- 
 pellate court shaU^order to be so stayed, until the hearing of 
 such appeal, and on such terms, as to security or otherwise, as 
 such court or judge may order. On any party being liable for 
 ■or claiming an amount exceeding five hundred dollars to be 
 affected thereby, such party may appeal to the Court of Ap- 
 peals, but such appeal shall in no case stay proceedings, with- 
 out such security as is now required to such court, nor unless 
 the court in which judgment is rendered shall so order. 
 
 § 9. Judgments may be enforced by an execution, on which 
 the property o^ which the lien is adjudged may be sold, and 
 the proceeds distributed as ordered by such judgment, and per- 
 sonal liabilities may be enforced by execution against the prop- 
 erty of any party against whom a personal judgment shall 
 Jiave been rendered. The contractor shall be personally liable 
 to the lienor for the whole amount of his indebtedness, and the 
 owner to the extent of the amount due by him to his con- 
 tractor. 
 
 § 10. The lien so filed may be discharged : 
 
 (1.) By fiHng a certificate of the claimant, or his succes- 
 sor in interest, acknowledged or proved as the satisfaction of 
 mortgage is required to be, stating the hen is discharged. 
 
 (2.) By depositing the amount of any hen and interest to 
 the credit of the hen with the clerk where the lien is filed, 
 provided no action shallXhave been commenced for the enforce- 
 ment of said lien, and in case an action shs^ll have been com- 
 menced, then such additioiial amount as security for the costs 
 thereof as a judge of the court where such action shall have been 
 commenced shall deem proper, which sum shall be held sub- 
 ject to such lien in place of the land and building. 
 
 (3.) By an entry of an order to discharge the same by any 
 judge of a court of record made on due proof that one year 
 has elapsed, and that no action or proceeding has been had 
 on such lien, and a certificate of the clerk that no notice of 
 such proceeding has been filed with him. 
 
 (4.) By a judgment or docket of a judgment exempting such 
 property aifter ten days, on proof of notice of such judgment 
 
10 I STATUTES. 
 
 and that ten days liave elapsed and no appeal has been taken 
 therefrom. 
 
 (5.) By an entry by order of the court that the judgment 
 has been secured on appeal. 
 
 (6.) By satisfaction of any judgment on such hen. 
 
 § 11. Liens shall in all cases cease after one year, unless by 
 order of court the lien is continued and a new docket made 
 stating such fact (without a discharge of the lien). 
 
 § 12. All former acts giving liens in the city of New York to 
 mechanics and others erecting buildingsl in the city of New 
 York are repealed, except so far as may be necessary to carry 
 into effect liens acquired before this act takes effect, and any 
 person or persons performing work or furnishing materials 
 under any contract made prior to July first, eighteen hundred 
 and sixty-three, may thereafter acquire a Ken therefor pursuant 
 to the provisions of this act. ' 
 
 § 13. No transfer or assignment of his interest in the con- 
 tract by the contractors shall be valid as against parties enti- 
 tled to file liens under said contract against said contractor. 
 
 § 14. For the purposes of this act, any person or persons 
 who may have sold or disposed of his or their lands upon an 
 . executory contract of purchase contingent upon the erection of 
 buUdings thereon, shall be deemed the owner and his vendee 
 the contractor, and said owner shall in all respects be subject 
 to the provisions of this act. 
 
 §15. This act shall take effect on the first day of July, 
 eighteen hundred and sixty-three. , 
 
 Laws 1870, Chapter 529. 
 
 AN ACT in relation to Mechanics' Liens. 
 Passed May 2, 1872. 
 
 Section 1. The provisions of the laws relating to mechanics' 
 liens heretofore passed, shall apply to bridges and trestle work 
 erected for railroads, and materials furnished therefor, and 
 labor performed in constructing said trestle work and other 
 structures connected therewith, and the tirne within which said 
 
STATUTES. 
 
 11 
 
 Hens may be filed shall be extended to ninety days from the 
 time when the last work shall have been performed on said 
 bridges, trestle work and structures connected therewith, or the 
 time from which said materials shall have been delivered. This 
 act shall apply to all uncompleted work commenced previous 
 to the passage of this act. 
 
 § 2. This act shall' take effect immediately. 
 
 Laws 1872, Chapter 669. 
 
 AN ACT in relation to Mechanics' Liens. 
 Passed May 13, 1872. 
 
 Section 1. All the provisions of the laws relating to mechan- 
 ics' liens heretofore passed shall apply to wharves, piers, bulk- 
 heads and bridges, and materials furnished therefor, and labor 
 performed in constructing said wharves, piers, bulkheads and 
 bridges, and other structures connected therewith, and the 
 time within which said liens may be filed shall be thirty days 
 from the time when the last work shall have been performed 
 on said wharves, piers, bulkheads and bridges, and structures 
 connected therewith, or the time from which said material shall 
 have been delivered. This act shall apply to all incomplete 
 work commenced previous to the passage of this act. 
 
 § 2. This act shall take effect immediately. 
 
 Laws of 1851, Chapter 513.* 
 
 AN ACT for the better security of Mechanics and others Erecting- 
 Buildings, and furnishing materials therefor, in the City and 
 County of Neio York. 
 
 Passed July 11, 1851. 
 
 § 1. Any person who shall hereafter, by virtue of any con- 
 tract with the owner thereof, or his agent, or any person who,, 
 in pursuance of an agreement with any such contractor, shall,. 
 
 * Repealed by Laws of 1863, Ch. 500, § 12 ante p. 10. 
 
12 STATUTES. 
 
 in conformity with the terms of such contract, perform any 
 labor or furnish materials in building, altering or repairing any 
 house or other building, or appurtenances to any house or 
 other building in the city and county of New York, shall, upon 
 filing the notice prescribed in the sixth section thereof, have a 
 lien for the value of such labor and materials upon such house 
 or building and appurtenances, and upon the lot of land, upon 
 which the same stand, to the extent of the right, title and in- 
 terest at that time existing, of such owner, in the manner and 
 to the extent hereinafter provided ; but such owner shall not 
 be obliged to pay for or on account of such house, other build- 
 ing or appurtenances, in consideration of all the liens author- 
 ized by this act to be created, any greater sum or amount than 
 -the price stipulated and agreed to be paid therefor in and by 
 such contract. 
 
 § 2. Any person furnishing such materials or performing 
 such labor, in pursuance of a written contract with such owner 
 or his agent, shall produce such contract, or the best evidence 
 thereof in his possession, the vahdity of which shall be estab- 
 lished in evidence before the court in which he may bring 
 his suit to recover the value of his lien, and shall recover 
 no more than the price stipulated to be paid to him in such 
 •contract. 
 
 § 3. Any person performing such labor or furnishing such 
 materials, without a written contract with such owner or his 
 ^gent, shall produce evidence as mentioned in the preceding 
 section, to establish the value of such labor or materials, and 
 that the same were used by the said owner or his agent, or the 
 •original contractor, in the erection, alteration or repairing of 
 such building. 
 
 § 4. Any contractor or laborer, or any person furnishing 
 jnaterials in pursuance of any contract made by such con- 
 tractor with such owner or his said agent therefor, may, after 
 such labor has been performed, or materials furnished, en-force 
 or bring to a close such lien, by serving or causing a notice to 
 be served personally on such owner or his agent, contractor or 
 laborer, or person furnishing materials, requiring him to ap- 
 pear in the Court of Common Pleas, or, provided the amount 
 claimed do not exceed one hundred dollars, in a justice's court 
 
STATUTES. 13 
 
 of the judicial district in which, such building is situated, or in 
 the Marine Court of said city and county of N«w York, either 
 in person or by attorney, at a time certain, upon some day to 
 be specified in such notice, not less than twenty days from 
 the service thereof, and submit to an accounting and settle- 
 ment in such court, of the amount due or claimed to be due 
 for the labor thus performed, or the materials thus furnished. 
 
 § 5. At the time, or within fifteen days after the service of 
 such notice, a bill of particulars of the amount claimed to be 
 due shall be served personally on such owner, or his legal 
 representatives, and also a bill of particulars of any off-set 
 which may be claimed to the same shall be served in like man- 
 ner upon the laborer, contractor or person furnishing mate- 
 rials, as the case may be. 
 
 § 6. Within six months after the performance of such labor 
 or the furnishing of such materials, the contractor, sub-con- 
 tractor, laborer or person furnishing materials shall serve a 
 notice in writing upon the county clerk, specifying the amount 
 of the claim, and the person against whom the claim is made,, 
 the name of the owner of the building, and the situation of the 
 building, by its street and number, if the number be known. 
 The county clerk shall enter the particulars of such notice in a 
 book to be kept in his office to be called " The Lien Docket," 
 which shall be suitably ruled in columns headed " claimants," 
 " against whom claimed," " owners," " builders," " amount 
 claimed," and " date of notice, hour, minute," " what proceed- 
 ings have been had." The names of owners and persons 
 against whom the claim is made to be inserted in alphabetical 
 order. A fee of ten cents shall be paid to the county clerk on 
 filing such lien, of which fees an account shall be rendered to- 
 the board of supervisors, as provided by law with regard to 
 other fees. 
 
 § 7. In case said owner shall not appear at the time anii 
 place specified in the notice given, in pursuance of the require- 
 ments of sections four and five, then, on filing with the county 
 clerk, or with the clerk of the Marine Court, or with the jus- 
 tice, an affidavit of the service of such notice, and of the de- 
 fault of the owner to appear, a writ of inquiry may be issued 
 to the sheriff of said city and county to assess the amount of 
 
14 ■ STATUTES. 
 
 sucli claim, or the amount of such claim may be assessed by 
 the Court of Common Pleas, Justice's Court or the Marine 
 Court, as the ease may be, and upon the return of the writ of 
 inquiry, or the assessment by the court, judgment shall be en- 
 tered upon the same, and execution shall issue for the en- 
 forcement of said claim so adjudicated and established, in 
 the same manner as in cases upon other judgments in such 
 courts. 
 
 § 8. On the appearance of both parties in pursuance of the 
 above requirement, issue shall be joined upon the claims made, 
 and notice of set-o£f served, and the same may be noticed for 
 trial and put upon the calendar of said court by either party, 
 and shall be governed, tried, and the judgment thereon en- 
 forced, in all respects in the same manner as upon issues 
 joined and judgments rendered in aU other civil actions for the 
 recovery of moneys in said court. 
 
 § 9. A transcript of every judgment rendered, headed " lien 
 docket," shall be furnished by the clerk of the court or the 
 justice, to the successful party, who may file the same witL the 
 county clerk, whose duty it shall be to enter the name of the 
 coui't and the amount of the judgment, or where judgment is 
 against the claimant, the word " discharged " under the last 
 head in his docket. 
 
 § 10. Costs shall be allowed upon the same principles and by 
 the. same rules, in such proceeding, as they are now allowed 
 by statute in civU actions for the recovery of money, and shall 
 form a part of the judgment recovered in the same. 
 
 § 11. The lien may be discharged as follows : 
 
 1. By filing a certificate of the claimant or his successors 
 in interest, acknowledged or proved in the same manner as 
 the satisfaction of a mortgage, stating that the lien is dis- 
 charged: or, 
 
 2. By the deposit with the clerk of a sum of money equal to 
 the amount claimed, which money shall thereupon be held sub- 
 ject to the lien : or, 
 
 3. By an entry of the clerk made in the book of liens, after 
 one year has elapsed since the filing of the claim, stating 
 
STATUTES. 15 
 
 that BO notice has been given to him of legal steps to enforce 
 the lien : or, , 
 
 4. By an affidavit of service of a notice from the owner to 
 the claimant, requiring him to commence an action for the 
 enforcement of his lien, on or before a certain hour or day 
 specified in said notice, and the lapse of thirty days thereafter, 
 without any affidavit from the claimant being filed of the ser- 
 vice of the notice required in section four. 
 
 5. By satisfaction of the lien, upon an action for the enforce- 
 ment thereof. 
 
 § 12. Every Men created under the first section of this act, 
 shall continue until the expiration of one year from the cre- 
 ation thereof, and until judgment rendered in any proceedings 
 for the enforcement thereof. 
 
 § 13. The act entitled " An Act for the better security of 
 mechanics and others erecting buildings in the city and county 
 of New York," passed April 20, 1830 ; and the act entitled? 
 " An Act for the better security of mechanics and others erect- 
 ing buildings and furnishing materials therefor, in the city and 
 county of New York," passed April 29, 1844, are hereby re- 
 pealed. 
 
 Laws of 1855, Chapter 404.* 
 
 AN ACT to amend an act entitled " An Act for (lie. hetter security 
 of mechanics and others erecting buildings and furnishing mate- 
 rials therefor, in the city and county of New Yo7% " passed 
 July eleventh, one thousand eight hundred and ^fifty-one. 
 Passed AprU 13, 1855. 
 
 § 1. Whenever judgment shall be rendered in favor of the 
 claimant iu any proceeding commenced under the act hereby, 
 amended, such judgment shall direct the sale of the interest of 
 the owner in the land and premises upon which the hen exists, 
 to the extent of the right of such owner at the time of thefihng 
 of the notice of lien, in pursuance of said act, and that the 
 proceeds of such sale shall be applied to the payment of the 
 
 * Repealed by Laws of 1863, Ch. 500, § 12, ante p. 10. 
 
16 STATUTES. 
 
 costs of the proceeding, and of the amount found to be due to 
 such claimant, and that the residue of such proceeds be paid to 
 the clerk of the city and county of New York, to abide the far- 
 ther order of the court. 
 
 § 2. The owner may apply to the Court of Common Pleas 
 for the city and county of New Tork, for an order directing 
 the clerk to pay to him the proceeds of such sale so paid to the 
 said clerk, upon producing the certificate of the clerk of the city 
 and county of New York, that there are no liens docketed in his. 
 office agaiast or affecting the said premises, which have been, 
 filed under this act. 
 
 § 3. If it shall appear that there are other liens on file with 
 the clerk of the city and county of New York affecting the said 
 premises, notice of such application shall be given to the 
 claimants respectively fiHng the notices creating such liens, and 
 thereupon the said court shall distribute such proceeds among 
 the parties entitled thereto, according to their respective rights- 
 and priorities, and may order a reference to take proofs in re- 
 lation to such rights and priorities. 
 
 § 4. In all sales under judgments to be rendered in these 
 proceedings, the interest of the owner shall be sold subject to 
 any prior liens existing thereon, unless the claimants under 
 such liens shaU be made parties to the proceedings, in which 
 case the court shall settle the rights of the claimants, and the 
 payment by the owner of any valid lien or of any judgment re- 
 covered in pursuance of the said act shall enure to him as a 
 payment to the amount thereof to the contractor. 
 
 § 5. When the proceedings are commenced by a person 
 having a claim against a contractor with the owner ; such con- 
 tractor may be made a defendant with such owner, and judg- 
 ment may be rendered against the contractor for the amount 
 ^which shall be found owing by him in addition to the judg- 
 ment hereinbefore provided for against such owner, and the 
 court may award costs against such of the parties as shall be 
 just. 
 
 § 6. Whenever the owner or other person who shall be no- 
 tified by the claimant to appear ia the Court of Common Pleas, 
 and submit to an accounting in pursuance of the provisions oi 
 
STATUTES. 17 
 
 the act hereby amended, shall not appear, the court shall order 
 a writ of inquiry to issue, or appoint a referee to have the 
 damages assessed therein, and the subsequent proceedings 
 thereon shall be conducted as in other actions pending in the 
 said court. In the Marine and District Courts the amount shall 
 be ascertained by the court. 
 
 § 7. The notice to create a lien shall be verified before filing 
 in the same manner as a pleading is now required to be veri- 
 fied by the Code of Procedure. 
 
PART II. 
 
 ACQUIRING Aim PEEFECTING A LIEN. 
 
 CHAPTEE I. 
 
 WHO MAY ACQUIEE A LIEN. 
 
 1. Alien may be obtained " in favor of every -person or persons 
 " who^.shall^be employed by any owner, contractor, suh-contr actor, 
 ^'jobber or master workman," * * "to perform any labor or 
 "furnish any materials towards the erection of, or in altering, 
 " improving or repairing of, any building or buUdings, or 
 the appurtenances thereto." (§ 1.) 
 
 2. Such labor or materials must be furnished in compliance 
 tvith " the terms of any contract with or employment by the 
 " owner, or by or in accordance with the directions of the 
 " owner or his agent." (§ 1.) 
 
 3. The contract may be implied as well as an express con- 
 tract. {Hauptman vs. Gatlin, 20 N. T., 247 ; Spencer vs. Bar- 
 nett, 35 N. Y., 94 ; Knapp vs. Brown, 45 N. Y., 207.) 
 
 4. It may be stated, as a general rule, that where a judgment 
 can be procured by a party in an ordinary action for the work 
 or materials furnished by such party, he is entitled to perfect 
 a lien under this act. 
 
 5. A married woman may acquire a valid lien by filing the 
 notice in her own name, when the matter relates to her sepa-r 
 rate property. 
 
WHO MAY ACQUIEE A LIEN. 19 
 
 6. A lien may be acquired in the name of a minor, for "while 
 an infant has no capacity to sue, a party having received 
 his goods or his services cannot avail himself of the infancy 
 to avoid payment. This is well established. ( Van Bramer vs. 
 Cooper, 2 John., 279; Hartness vs. Thompson, 5 John., -160; 
 Gates vs. Davenport, 29 Barb., 160; Whitmarsh vs. Hall, 3 
 Denio, 375.) 
 
 7. An assignee of a claim under the statute cannot acquire a 
 lien by subsequently filing the notice in his own name. 
 {Roberts vs. Fowler, 3 K D. 8., 632.) The statute confers only 
 a personal right, {Id. Hubbdl vs. Sohreyer, 14 Abb., N. S., 
 284; Bollin vs. Cross, 45 N. Y., 766.*) 
 
 8. If the assignment of the debt is made before notice filed 
 it may be filed afterwards in the name of the assignor, and 
 be valid, and the assignee may enforce it. {Hallaghan vs. 
 Herbert, 11 Abb., N. 8., 326.) 
 
 9. An assignee of a claim is not authorized under the 
 statute to file a lien unless such assignment is for the benefit 
 of the assignor, to be held by his agent so that the lien may 
 be preserved. {Bollin vs. Cross, 45 N. Y., 766.) 
 
 10. It has been impliedly held that two joint contractors 
 might rehnquish and give up to the co-contractor all their joint 
 interest in the claim, and that a notice subsequently filed in 
 his individual name might be valid. In such case, the notice 
 must show all these facts. {Hubbell vs. Sohreyer, 14 Abb., N. 8., 
 284.) 
 
 11. On the principle of the decisions above cited, it would 
 seem that on the death of a party no lien could be perfected by 
 his representatives fihng a notice as claimants under the act. 
 A surviving partner in such case perfected a hen. ( Westervelt 
 vs. Levy, 2 Duer, 354.) 
 
 12. A Hen can only attach for labor performed and materials 
 furnished by the party claiming it, including labor performed 
 by persons employed by him and materials purchased by him 
 on his own credit and used in the construction ; but it does not 
 extend to materials or labor (although actually paid for by the 
 
 * The right to acquire a lien at common law cannot be assigned. (5 Term R 
 606.) 
 
20 WHO MAT ACQXJIEB A LIEN. 
 
 claimant) procured by him as tEe agent for the owner, and in 
 his name and on his credit. {Kirhy vs. Baly, 45 N. Y., 84.) 
 
 13. The contractor cannot assign or transfer his interest in 
 the contract so as to cut off the right of persons' to file liens. 
 (§ 13, Devlin vs. Mach, 2 Daly, 94.) See post as to who is owner, 
 and who contractor. 
 
 14. A contractor may make a hona fide legal or equitable as- 
 signment of a payment due or coming due to him on the con- 
 tract, and a lien subsequently filed will not cut it off or reach 
 it. {Young Stone Co. vs. Wardens, &c., St. Ja7n.es, 61 Barb., 489.) 
 
 15. As to assignment of future earnings, see Cooper vs. Doug- 
 lass, 4A Barb., 409. 
 
 16. A general assignment for the benefit of creditors by a 
 contractor, after making a contract providing for payment after 
 the completion of a building, does not operate to change the 
 relation between the sub-contractor and the owner. The sub- 
 contractor can acquire a lien after the assignment as well as 
 before if such contract was not completed at the time of the 
 assignment. {Ct. of Appeals, MandeviUe vs. Beed, 13 Abb., 173.) 
 
 17. Where a contractor having made an assignment with the 
 consent of the owner, and at that time the sub-contractor had 
 filed his hen, there was nothing due to the contractor, but the 
 owner detained from the contract price the amount of the lien, 
 and under an agreement with the assignee completed his work 
 as contemplated by the original contract, it was held that the 
 sum %o withheld must be applied to the Hen {Henderson vs. 
 
 . Sturgis, 1 Daly, 336.) The court said : " The contract between 
 " them (the contractor and the owner) being an entirety, and 
 " the work not having been done, no lien could have been ac- 
 " quired on the 5th of October, 1861, unless the contract had 
 " ceased to continue by some act of the parties or by operation 
 " of law. The effect of the failure of the contractors and assign- 
 " ment by them was to prevent the plaintiffs from proceeding 
 " with their work, and the contract was at an end. (See Belshaw 
 "vs. Oolie, 1 E. D. S., 213.) And in this respect this case is 
 " analogous to Dennistoun vs. McAllister (4 E. D. 8., 729), in 
 " which the plaintiff recovered against the owner the amount 
 " of his claim, although it was proved that he had not performed 
 
FOR WHAT A LIEN MAY BE ACQUIBED. 21 
 
 " his work, such performance having been prevented by the 
 " contractor." {Henderson vs. Sturgis, 1 Bcdy, 336.) 
 
 18. Whether a transfer of the contract or the amount due 
 under it by operation of law, to wit, bankrupt proceedings, 
 would deprive a person of the right to acquire a lien, is yet an 
 unsettled question; probably it would. (See 3 Bank Reg., 81.) 
 
 19. The death of the contractor does not prevent the acquir- 
 ing of a lien by a notice subsequently filed. ( Tdfer vs. Kier- 
 stead, 9 Abb., 418.) 
 
 20. Taking a note or any security, or the recovery of a judg- 
 ment for the debt, does not of itself prevent the lien from attach- 
 ing by the subsequent filing of the notice. {Althause vs. Warren, 
 2 E. D. 8., 657; Teaz vs. Chrystie, 2 E. D. 8., 621; Miller vs. 
 Moore, 1 E. D. 8., 739.) 
 
 CHA1>TEE II. 
 
 FOE WHAT A LIEN MAY BE ACQUIEBD. 
 
 21. To obtain a lien, the labor performed or materials fur- 
 nished must be used " towards the erection of or in altering, 
 " improving or repairing of any building or buildings or the 
 " appurtenances thereto " (§ 1). 
 
 22. The term " appurtenances " is used precisely as it was in 
 the law of 1844 and 1851. Under the law of 1844, the Court of 
 Appeals held {McDermott vs. Palmer, 8 N. Y., 383) that " the 
 " term ' appurtenances ' may perhaps include, without any 
 " forced construction, the yard and sidewalk ; and work and 
 " labor performed and materials furnished for such appurte- 
 " nances are probably within the spirit of the statute." 
 
 Again, " The right of lien extends to all such materials as or- 
 " dinarily enter into or are used ia the construction of build- 
 " ings, and which are withiu the express or implied terms of the 
 " building contract made between the owner and contractor." 
 {Hazard Powder Co. vs. Byrnes, 12 Abb., 469; and citing Wood 
 vs. Donaldson, 17 Wend., 550, and McDermx)tt vs. Palmer, 8 
 xV. Y., 383.) 
 
22 rOE WHAT A LIEN MAY BE ACQUIRED. 
 
 23. The general rule is, that -whatever would be regarded as 
 immovable between grantor and grantee is a fixture (an appur- 
 tenance), and therefore a hen would attach for such work, ma- 
 terials, &c. {Ombony vs. Jones, 19 N. Y., 234; qfg. 21 
 Barb., 520.) 
 
 24. Eepairs are fixtures, and become part of the realty. 
 (Johnson vs. Sunt, 11 Wend., 136.) 
 
 25. Eepairs to mere personal property, to wit, furniture, no 
 lien can be obtained. 
 
 26. The act contemplates to cover whatever is a legal appur- 
 tenance, and also all that is used-as an appurtenance, although 
 it may not be such in the legal acceptation of that term. A 
 yard, or garden, or stable or other building may be an appur- 
 tenance to a house, although it may consist of one or more dis- 
 tinct city lots. It may, therefore, be a question of fact in some 
 cases whether or not it was used as an appurtenance. If it 
 was, a hen will cover not only the house and lot upon which it 
 stands, but those used as an appurtenance to it. 
 
 As to what is a legal appurtenance to real property, see 
 Abbott's Digest, title " Fixtures " and " Deed." 
 
 27. A lien may be acquired upon a claim for furnishing to 
 the contractor hoisting apparatus and labor in the use of it upon 
 the erection of a building. (Dixon vs. La Farge, 1 E. D. 8., 722.) 
 
 28. Also for lightning-rods furnished, and the labor in attach- 
 ing the same. (Quimby vs. Sloan, 2 E. D. 8., 595.) 
 
 29. Where a building contract required the rock upon the 
 land to be blasted and removed, preparatory to building, powder 
 and fuses necessarily used for that purpose was held to be with- 
 in the term "materials in building " within the law of 1851. 
 (Eamrd Powder Go. vs. Byrnes, 12 Abb., 469.) 
 
 30. Alien maybe obtained for constructing a sewer. (Devlin 
 vs. Mack, 2 Daly, 94.) 
 
 31. In 1870 (ch. 529, arde p. 11) the law was extended in cer- 
 tain cases to railroads, and in 1872 it was extended so as to ap- 
 ply to work and materials on wharves, piers, bulkheads and 
 bridges and structures connected therewith. (Chap. 669, ante, 
 p. 11.) 
 
 32. Where materials are furnished for several buildings upon 
 
FOE WHAT A LIEN MAY BE ACQUIRED. 23 
 
 adjacent lots, under one contract for the construction of all, a 
 single lien charging the whole debt upon all the buildings is 
 proper {Paine ys. Bonney, E. D. S., 734), and in such case the 
 lien holder is entitled to be paid out of aU or any of the houses. 
 {Id.) Where a Hen upon seven houses had been prosecuted to 
 judgment and sale for materials furnished under an entire con- 
 tract, it was held that the lienholder was entitled to the pay- 
 ment of the full amount of his lien, from the surplus moneys 
 arising upon the foreclosure and sale of part of the houses un- 
 der a prior mortgage. {Livingston vs. MiUer, 16 Abb., 371.) 
 
 33. Where, under a single contract, the Henor had furnished 
 materials to the owner, equally for seven houses, and one of such 
 houses had been conveyed away by the owner before the filing 
 of the notice of lien, it was held that the lien was valid as a 
 lien upon the remaining six houses only for their proportionate 
 part of the whole claim (six-sevenths), although some payments 
 had been made by the owner on general afccount. {McAuley vs. 
 Mildrum, 1 Daly, 396.) 
 
 34. Such property, both real and personal, as is devoted to pub- 
 lic use. and belonging to the corporation of New York city, such 
 as public school-houses, public edifices or the pubhc parks or 
 grounds, or such as are legally pledged for the payment of its 
 debts, are public property devoted to specific public uses, and 
 are therefore exempt from sale on execution, and therefore can- 
 not be sold on a judgment in lien proceedings {Brinkerhqff vs. 
 Board of Education, 6 Abb., N. 8., 428, affirmed as PoiUon vs. 
 The Mayor, 47 N. Y., 666,) 
 
 35. This lien was by a sub-contractor, and under the law of 
 1851-55, and xmder it no personal judgment could be rendered 
 against the owner in favor of a sub-contractor. {Quimby vs. 
 Sloan, 2 E. D. S., 595 ; Walher vs. Paine, E. B. 8., 624 ; Cox 
 vs. Broderick, 4 E. D. 8., 721 ; Dennistoun vs. McAllister, 4 E. D. 
 8., 729 ; Grogan vs. McMahon, 2 E. B. 8., 754 ; 1 Crary'sPrac, 
 624.) 
 
 36. The object and effect of this statute is simply to take from 
 the owner money actually owing by him upon his contract, and 
 apply it in paymelit for the labor and materials which sub-con- 
 tractors or material men have contributed towards the comple- 
 
24 TIME OF FILING NOTICE. 
 
 tion and performance of the same contract. {Doughty vs. Devlin, 
 1 K D. S., 625 ; SuUivan vs. Brewster, 1 E. D. S., 699 ; Fer- 
 guson vs. Burke, 4 E. D. S., 760 ; Loonie vs. Eogan, 9 i^^. Y., 
 435 ; Donaldson vs. JFooc?, 22 ^emc?., 395.) 
 
 37. It would be proper, therefore, to hold now that a lien filed 
 on public property exempt from sale on execution, would have 
 the efifect to transfer to the Henor any money diie from the city 
 on account of the contract, and give a general judgment there- 
 for. 
 
 CHAPTEE III. 
 
 TIME OF FILING NOTICE. 
 
 38. The thne within which to file the notice is at any period 
 "before the whole work is completed and within three months 
 " after the work'is done, or the materials furnished for which a 
 " lien is sought, if the work is then finished or abandoned, &c." 
 (§6.) 
 
 39. By the law of 1872 where a lien is sought upon wharves, 
 piers, bulkheads and bridges, and structures connected therewith, 
 the time of filing the notice is limited to thirty days. 
 (Chap. 669.) 
 
 40. The period of when the time commences to run is very 
 important. If the notice is not filed at the proper time no lien 
 is acquired. {Donaldson vs. 0' Conor, 1 E. D. 8., 695 ; Doughty 
 vs. Devlin, 1 E.D. 8., 625 ; Lutz vs. Ely, 3 E. D. 8., 621 ; Hauptman 
 vs. Catlin, 20 N. Y., 247'; 8pencer vs. Barrntt, 35 N. Y, 94 ; Hubbdl 
 vs. Schreyer, 14 Abb., N. 8., 284.) 
 
 41. In cases where the work has been furnished for a hng 
 time continuously, or where there has been a running account, 
 and where there is no specific time or amounts in which pay- 
 ments are to be made, such questions must be determined by 
 analogous cases where similar question arise. 
 
 42. Where the contract price is payable in installments, the 
 time does not begin when each installment becomes due under 
 
TIME OF PILING NOTICE. 25 
 
 it, but when the entire contract is completed. (§ 6 ; Webb vs. 
 Van Zandt, ,16 Abb., 190.) 
 
 43. The Court of Appeals {Spencer vs. Barnett, 35 N. Y., 94) 
 held that under the lien law for Kings County {Laws 1853, 
 Chap. 335) providing that a notice of lien must be filed within 
 sixty days after the materials were furnished, a lien for mate- 
 rials cannot be acquired as to any which were furnished more 
 than sixty days before the fihng unless furnished under a con- 
 tract under which other items specified in the notice were 
 furnished within the sixty days. This case was held to apply 
 in principle to the law of 1863. {EubbeU vs. Schreyer, 14 Abb., 
 N. S., 284.) 
 
 44. When separate items have been furnished according to 
 order, but not under one entire contract, each of ilvem is to be 
 regarded as a separate contract, and the time in which to file 
 a hfen therefore begins to run on the dehvery thereof. {HubbeU 
 vs. Schreyer, 14 Abb., N. S., 284) A payment on general ac- 
 count would not have the effect to extend the time in these 
 proceedings, it only applies to the Statute of Limitations. 
 
 45. Where there are several items of account for goods sold, 
 or work performed at different times, there must be either an 
 express contract, or the circumstances must be such as to raise 
 an implied contract, embracing all the items, to make them a 
 single or entire demand. {Secor vs. Sturgis, 16 N. Y., 548.) 
 
 46. Demands arising out of separate sales made at separate 
 dates, and upon credits expiring at different times constitute 
 independent contracts. {Gashman vs. Bean, 2 Hilton, 340.) 
 
 47. Where, under a parol contract for the future delivery 
 of a fixed quantity of goods at such times and in such parcels 
 as might be required, separate deliveries are made and settled 
 for as furnished ; each delivery is to be considered as in its 
 nature a separate and distinct contract. {Deming vs. Kemp, 4 
 Sand., 147.) 
 
 48. A question may arise whether the fiUng of the notice by 
 the sub-contractor is governed by the completion or abandon- 
 ment of the contract by the owner or by his individual deahngs 
 with the contractor. The period which the contractor has is 
 
26 TIME OF FILING NOTICE. 
 
 plain ; the object of the limitation is to prevent the accumulation 
 of stale demands. 
 
 The work or. materials " for which a Zi'ew is sought" must have 
 been furnished within three months after the completion of the 
 contract or such work was finished or abandoned. (§ 6.) 
 
 49. A Hen will attach before anything has become due from the 
 owner to the contractor. It is sufficient if money may become 
 due afterwards which the owner may be compelled to apply to 
 the satisfaction of the lien. (§ 6 , Doughty vs. Devlin, 1 E. D. 
 S., 625 ; Fendleburg vs. Meade, 1 E. D. 8., 728.) 
 
 50. It is not necessary that the claim of the sub-contractor 
 from the contractor should be actually due in order to acquire a 
 lien. (§6; MiMer vs. Moore, 1 E. D. 8., 739; FendMurg ^a. 
 Meade, 1 E. D. 8., 728.) 
 
 51. It has been held (Devlin vs. Mack, 2 Daly, 94) that- a 
 claimant is entitled to file his notice as soon as he commences 
 the work, for then he has an equitable lien therefor which is valid 
 against all excepting Ixma fide transfers and bona fide incum- 
 brances. This question has not been affected by the law of 
 1866. 
 
 52. Section 6 would seem to contemplate that a notice could 
 be filed for work and materials thereafter to be rendered or fur- 
 nished under a contract, expressed or implied. It says that " at 
 any time before the whole work is completed, &c." 
 
 53. If notice is filed for work, &c., to be thereafter finished, 
 no priority over other liens of the same class could be obtained 
 thereby, only for the amount actually delivered, &c., up to the 
 time of the filing of the latter notices. That is the rule as to judg- 
 ments by confession to secure futiire indebtedness. {Brinher- 
 hof-vs. Marvin, 5 John. CL, 320.) 
 
 54. If the owner conveys the premises in good faith before 
 the notice of Hen is filed, the right to perfect a lien is lost. The 
 law on this poiat is now, by the amendment of 1866 (§ 1), similar 
 in effect to the law of 1851 (§ 1.) So held under that law. 
 (Crystal vs. Flannelly, 2 E. D. 8., 589 ; Sinclair vs. Fitch, 3 
 E. D. 8., &11 ; Cox vs. Broderich, 4 E. D. S., Ill ; Jackson vs. 
 Sloan, 2 E. D. 8., 616; Quimby vs. Sloan, 2 E. D. 8., 594; 
 Myes vs. Burton, 17 How., 449 ; Livingston vs. Miller, 16 Abb., 
 
LIEN, ON WHAT AND EXTENT. 27 
 
 371 ; Ernst vs. Reed, 49 BarK, 367 ; Oates vs. Haley, 1 Z>a??/, 338 ; 
 Meehan vs. Williams, 36 ifow;., 73 ; Mushlitt vs. Silverman, 50 
 J\^. 7., 360, 1 (7rar?/'s Prac, 619.) 
 
 55. If the transfer is hanafide, although with notice that Hens 
 may be filed for unpaid claims for work, &c., still no lien sub- 
 sequently filed will attach, even though the grantee at the time 
 of purchase assume the -payment of said claims. {Sinclair vs. 
 Fitch, 3 E. D. 8., 677 ; Quimby vs. Sloan, 2 E. D. S., 594.) 
 
 56. A bona fide agreement to sell the property does not have 
 the effect of an actual conveyance, and therefore a notice of 
 Hen subsequently filed before the giving of the deed would 
 attach and have a preference over it. The term conveyance 
 does not iaclude executory contracts for the purchase of lands. 
 (3 R. S., 59, § 70.) 
 
 57. A notice may be^^M after transfer or incumbrance for the 
 purpose of foreclosure proceedings to contest the validity and 
 bona fides of such transaction. {Meehan vs. Williams, 36 How., 
 73 ; Schafer vs. Reilly, 50 N. Y., 61 ; Bailey vs. Johnson, 1 Daly, 
 61 ; Quimby vs. Sloan, 2 E. D. S., 594.) 
 
 CHAPTEE lY. 
 
 LIEN, ON WHAT AND EXTENT. 
 
 58. The lien is only against the -premises to the extent of 
 the right, title and interest then existing of the owner of the 
 " house or building, and the appurtenances and lot on which 
 the same shall stand" § (1, amd. 1866.) 
 
 The extent of the land that would be bound by a Hen is im- 
 portant. A yard or garden or stable or other building may 
 be an appurtenance to a house, although it may consist of one 
 or more distinct lots. Therefore, a lien upon a house for work, 
 &c., will cover not only the lot upoii which the house stands, 
 , but other lots if they are used as an appurtenance to the house, 
 {See ante, 26). 
 
28 LIEN, ON WHAT AND EXTENT. 
 
 59. The party whom the act contemplates as the oioner is 
 not always the party who is the owner in the ordinary accepta- 
 tion of the term. The present act is no different in this par- 
 ticular (except § 14), than the previous' laws. Oioner means 
 the contracting owner. {Cox vs. Broderick, 4 F. D. Smith, 721 ; 
 Quimhey vs. Sloan, 2 E. D. S., 594.) 
 
 60. The General Term of the Supreme Court says: "the 
 " word owner as used in the statute is the correlative of con- 
 " tractor. It means the person who employs the contractor, 
 " and for whom the work is done under the contract." McDer- 
 mott vs. Falmer, 11 Barb., 9. 
 
 61. The one for whona a ibmlding is erected, and who is to 
 pay for it, though he has not, the legal title, but only an equit- 
 able interest in the land, may be the owner.* Ombony vs. 
 Jones, 19 N. Y., 234 ; Loonie vs. Eogan, 9 K Y., 435 ; Bollins 
 vs. Cross, 45 N. Y., 766 ; Ecdlaghan vs. Eeriert, 11 Abb., N. 
 S., 326.) 
 
 62. The owners will generally be (1), the owner of the fee ; 
 (2), an estate for years ; (3), an estate for a single year or 
 less; (4), an estate at wiU. 
 
 63. The most difficult and frequent questions as to owner- 
 ship arise in the various relations of landlord and tenant 
 agreements — lessor and lessee. 
 
 The questions that may arise imder this branch of the sub- 
 ject, that is, who should be deemed the owner or contractor. 
 the lessor or the lessee, or both, may be analyzed as foUows : 
 
 (1.) When the lessee is required by the terms of his lease 
 to make all repairs or erect buildings, thereon, besides paying 
 the epecified amount of rent for the specified term. 
 
 * On the strength of this principle, when a claim is made by a sub-contractor 
 some may argue, " the work was done for the contractor, therefore, he is the 
 " owner, and only Ms interest is liable ;" and to a claimant of a sub-contractor they, 
 with the same logic, may say, " you did the work for the sub-contractor and there- 
 " fore he is the owner, and only his interest is liable." The true test of owner- 
 ship in cases of vendees, lessees and contractors is to ascertain what remedy if 
 any, they would have against the yendor, lessor or contracting owner, if the latter 
 declined to carry out his part of the agreement after the vendee or lessee or con- 
 tractor had complied with his portion of the agreement. But see the authorities 
 on this question. 
 
LIEN, ON WHAT AND EXTENT. 29 
 
 (2.) When such repairs are for the benefit of the lessee only, 
 and he receives the advantage of them during his term — such 
 as ordinary wear and use of house. 
 
 (3.) When the repairs required are of such a nature or made 
 at such a time that the lessor would or does derive the entire 
 benefit and advantage of them — for instance, in case a lessee 
 should be dispossessed by the lessor for non-payment of rent 
 immediately after the repairs were made. 
 
 (4.) When the required repairs &o., are of a temporary 
 nature, and solely for the benefit of the lessee. 
 
 (5.) When they are of a permanent nature, and solely for the 
 benefit of the lessor. 
 
 (6.) When the required repairs are for the mutual benefit of 
 both lessor and lessee, and by agreement belong to the lessor 
 at the expiration of the term. 
 
 (7.) When the required repairs are for the mutual benefit of 
 both lessor and lessee, and by agreement are to be made be- 
 fore the term commences, and are to belong to the lessor as 
 soon as completed. 
 
 (8.) When the repairs are to be made at the joint expense 
 of both lessor and lessee, and when the lessor is to allow a 
 specific sum out of the rent for such repairs. 
 
 (9.) When the repairs are permitted to be made by the 
 lessee, although they were permanent, and the lessor is after- 
 wards to reap the benefit of them. 
 
 (10.) When the lessee may be deemed as merely acting as 
 agent or contractor for the lessor, and when not. 
 
 (11.) When such things as are removable as between land- 
 lord and tenant, whether a lien can attach the tenant's interest 
 or be regarded as personal property only. 
 
 (12.) When such things as are not removable as between 
 landlord and tenant, what lien can be acquired, and against 
 whom? 
 
 (13.) When the same is an executory contract, contingent 
 upon any of the foregoing requirements, and when it is an ab- 
 solute lease. 
 
30 LIEN, ON WHAT AND EXTENT. 
 
 65. Under all laws previous to that of 1863, most of these 
 questions would present some embarrassments in trying to ren- 
 der justice under a statutory proceeding where equity was not 
 recognized by the statute. But the law of 1863 has provided 
 for solving all those questions according to justice and right, by 
 adopting equity jurisprudence as a basis of this system. 
 
 It is provided that " the court shall proceed without regard 
 " to matters of form which shall be amendable at all times 
 " while the proceedings progress, without costs, and judgment 
 " shall be rendered according to the equity and justice of the 
 " claims of the respective parties." (§ 5.) 
 
 In fact, the entire tenor of the act is founded upon equity as 
 it shall appear between the different parties. It would seem 
 that at this age of the world all equitable questions could be 
 equitably decided by the courts. * 
 
 66. It was held in effect (McMahon vs. Tenth Ward Sh., 12 
 Abb., 129) that where a building was erected upon land, the 
 party entitled to the reversion should be deemed an owner, and 
 be made a party to the proceeding, as well as the party who 
 was entitled to the immediate use of it. 
 
 67. "Where a sub-tenant erects a building upon the demised 
 premises, which he has the right 1;o remove at the end of his 
 term, he is deemed the owner of the building, and the proceed- 
 ing may be instituted against him. {Ombony vs. JoTies, 19 N. 
 Y., 234.) 
 
 The lien would extend to his interest in the building, and 
 also in the land, if he has any. {Id.) 
 
 68. When the lessee is to make repairs or erect a building pur- 
 suant to his lease or executory agreement with his lessor, and 
 
 * In our day equity is said to be as strict and as well defined as the law, and 
 its principles as binding ; and when the well-established principles of equity are 
 departed from in our courts, we are reminded of what was said of it more than 
 200 years ago, in the time of the quaint John Selden. He tells ns in his Table 
 Talk: 
 
 " Equity is a roguish thing ; for law we have a measure, know what to trust to ; 
 " equity is according to the conscience of him that is chancellor, and as that is 
 " larger or narrower, so is equity. 'Tis all one as if they should make the stand- 
 " ard for the measure we call a foot a chancellor's foot. What an uncertain meas- 
 " ure would this be ? One chancellor has a long foot, another a short foot a third 
 " an indifferent foot. 'Tis the same in the chancellor's conscience." 
 
LIEN, ON WHAT AND EXTENT. 31 
 
 the lessor is to have them after the expiration of the term, how- 
 ever short, the lessee only is regarded as the owner, and the 
 lessor's interest (although accruing after notice filed) cannot be 
 affected by a lien filed for work or materials furnished pursu- 
 ant to such agreement. {Knapp vs. Broiun, 45 N. Y., 207; 
 more fully, 11 Abb., N. S., 118.) * 
 
 * The facta in this case do not fully appear in the report. They were as 
 followB : 
 
 The respondent, Jactson, being the owner in fee of certain premises in New 
 York city, made a written executory agreement, wherein defendant. Brown, 
 covenanted to make certain alterations and to erect a new building and furnish 
 materials, all as fuUy specified and described as any builder's contract could be, 
 said Brown was to have it all completed ^thin three months from May 1st, 1867, 
 under penalty of forfeiture, and was to have the use of the premises and build- 
 ings for five years from said May 1st, ISBY, and to pay the sum of fourteen hun- 
 dred dollars per year, payable monthly, and during said term ; and " at the expi- 
 " ration of the said term the said Brown will go out and surrender the premises 
 " hereby demised in as good state and condition as reasonable use and wear 
 " thereof will permit, damages by the elements excepted, and that all additions and 
 " improvements made by the said Brown shall be left on the said premises." 
 
 This agreement was signed by both Brown and Jackson, and recorded. (See 
 Liber 1013, p. 289.) Brown took the agreement to the plaintiff, Knapp, who 
 thereupon agreed to do all the bijilding, ifec, that was required qf Brown by the 
 agreement for $2,200. Knapp proceeded with the work, and payments were 
 made, and on the 24th of July, 1867, Knapp filed a lien on said premises for a 
 balance due him from Brown of $1,800 for work and materials furnished under 
 said agreement. The notice of lien named Jackson as owner, and Brown as owner 
 and contractor. In this action to foreclose the lien, the complaint alleged all the 
 above facts and set forth a copy of the agreement between Jackson and Brown, 
 and made them both parties defendant. No other lease was executed between the 
 parties. 
 
 The plaintiff demanded judgment directing a sale of the interest of the defend- 
 ants, Jackson and Brown, in the premises and building and appurtenances to the 
 extent of the right of said Jackson and Brown on the 24th day of July, 1867. 
 
 The defendant, Jackson, admitted in her answer that she was the owner of the 
 property, and admitted the making of the agreement with Brown, but the other 
 allegations of the complaint were to be proved. 
 
 After issue was joined. Brown offered to allow judgment against himself for 
 $1,020 ; this the defendant declined, and proceeded with the trial before a referee, 
 and after plaintiff had rested, the referee, on motion, dismissed the complaint as 
 to Jackson without costs, and plaintiff proceeded as against Brown, and recovered 
 a judgment for $966, being less than the offer. 
 
 The plaintiff appealed from the judgment dismissing the complaint as to Jack- 
 eon ; the referee's decision was affirmed by the Common Pleas General Term, and 
 was then taken to the Court of Appeals and was there affirmed. (See Court of 
 Appeals Oases, Vol. Ill, March Term, 1871, Knapp v. Brown, at Library of N. Y. 
 Law Institute. 
 
32 LIEN, ON WHAT AND EXTENT. 
 
 The opinion of the Court of Appeals, upon this point, is as 
 follows : 
 
 " From the facts proved it appears that Mrs. Jackson was 
 " the owner of the premises, and leased the same to Brown 
 " for a term of years, at a specified rent, and that the latter, in 
 " addition to the payment of the rent, covenanted with her to 
 " make, at his own expense, certain specified repairs to and 
 " altering of the building upon the premises, which were to be 
 " left upon the premises by him at the expiration of the term ; 
 " that Brown employed the plaintiff to furnish the materials 
 " for and do the work upon the repairs and alterations." * * * * 
 
 " Mrs. Jackson was the owner of the reversion of the prem- 
 " ises, and would be entitled to the possession of the same 
 " upon the expiration of the term of Brown. By the construc- 
 " tion of this section no lien can be created upon the interest of 
 " any person, as owner of the premises, except such person 
 "shaU either himself or by his agent enter- into a contract 
 " for doing the work, either express or implied, as the lien is 
 " only authorized as against owners so contracting for or em- 
 " ploying persons to do the work ; that this is the true con- 
 " striiction is manifest, npt only by the language of the section, 
 " but by section 14 of the act. The latter section provides 
 " that, for the purposes of the act, any person or persons who 
 " may have sold or disposed of his or their lands upon an ex- 
 " ecutory contract of purchase, contingent upon the erection 
 " of buildings thereon, shall be deemed the owner, and his 
 " vendee the contractor, and said owner shall in aU respects 
 " be subject to the provisions of the act. This provision was 
 " necessary to secure to material- men and others, to whom 
 " such vendee might become indebted in the construction of 
 " such buildings, the benefit of a lien upon the land ; but it 
 " would have been unnecessary for this purpose had the inter- 
 " est of the vendor been subject to the lien created by the act 
 " to such persons by virtue of the first section. Section 9 of 
 " the act leads to the same conclusion. That section pro- 
 " vides that the contractor shall be personally liable to the 
 " lienor for the whole amount of his indebtedness, and the 
 " owner to the extent of the amount due by him to his con- 
 " tractor. This, although confined to the personal liability of 
 
UEN, ON WHAT ASID EXTENT. 33 
 
 " the parties, shows that, to authorize the lien, there must be 
 " an employment by the owner to create any Hability against 
 " him under the act. In the present case there was no em- 
 " ployment of the plaintiff by Mrs. Jackson ; she was in no 
 " respept indebted to Brown for or on account of the work ; 
 " she had conTeyed to him an interest in the land in part for 
 " the consideration of his doing the work. He, alone, em- 
 " ployed the plaintiff to do the work ; he was the owner within 
 " the act, and his interest in the premises only is made subject 
 " to a lien by the act. This is no hardship upon the plaintiff. 
 " He, before entering into the contract, could readily have 
 " ascertained the extent of Brown's interest in the premises, 
 " and, consequently, the adequacy of the lien as security. The 
 " judgment must be affirmed, as to Jackson, with costs." * 
 
 69. Where a lessee is to make improvements hj advances made by 
 the lessor for that purpose, and the improvements are to Ixlong 
 to the lessor at the expiration of the term, the lessee is deemed 
 to be the owner, and only his interest in the property is affected 
 by the filing of a notice of lien by a contractor for such improve- 
 ments. (Stuyvesant v. Brownwg, 1 J. (& S., 203 ; see § M of 
 the act in connection with the authorities cited in this case.t) 
 
 70. As to who is deemed the owner ia case of leases, it may be 
 stated that whatever property is movable as between landlord 
 and tenant, by law or by agreement, expressed or imphed, the 
 tenant is deemed the owner as to that. 
 
 71. As to what the law regarded as pictures between landlord 
 and tenant, without any agreement, see Ombony vs. Jones, 19 
 N. Y., 234. 
 
 * In regard to the questions arising between lessor and lessee, compare the 
 general principles of equity jurisprudence as stated in Story's Eq. Jurisp., §§ 799 
 b, 1234 to 1239 and authorities there cited. 
 
 f The following decision is from the JV. Y. Times of March 31st, 1867, and as it 
 has has never been elsewhere reported, it is inserted in full : 
 
 Ohapin vs. Stewart and others. — This action was for the foreclosure of mechan- 
 ics' liens against the New Tork theatre for materials furnished by the plaintiffs 
 at the request of H. H. Davis, who had an agreement in writing, dated November 
 30, 1865, with A. T. Stewart, which agreement contained the following clauses: 
 
 " In consideration of the snm of $750, paid by Davis to Stewart on the execu- 
 " tion and delivery hereof, Stewart agrees to and hereby does let and rent unto said 
 3 
 
34 LIEN, ON WHAT AND EXTENT. 
 
 As to when a " shanty " may be regarded as a fixture, see 
 Fisher vs. Suffer, 1 E. D. 8., 611. 
 
 72. Where a tenant is to make specified repairs as a part of 
 the rent, and is dispossessed for non-payment of rent after the 
 repairs are made, but before notice filed, it would seem under 
 the decisions, which regard the. tenant as the owner only {Knapp 
 vs. Brown, 11 Abb., N. S., 118 ; Id., 45 N. Y., 207) that no Ueii 
 could be acquired by a notice subsequently filed, as the tenant 
 had no interest in the property. Perhaps in such case a notice 
 could be filed and the right of the lienor to be subrogated in 
 place of the tenant might be asserted. 
 
 " Davis the building known as the (late) Church of the Messiah, situated on Broad- 
 " way, opposite the New York Hotel, in said city, for the term of two weeks, com- 
 " mencing on December 10, 1865, and ending on December 24, 1865. Possession 
 " of said premises shall, h.owever, be given to Davis on December 3, 1865, with the 
 " privilege of making such alterations thereon, subject to the approval of said Stew- 
 " art or his agent, as shall not depreciate the value of said building.'' 
 
 " In making such alterations, Davis may use the scenery, materials, &o., so 
 " far now on the premises, it being understood and agreed that the changes con- 
 " templated in the interior of said building are only such, as will adapt it to the 
 " purposes of a first-class theatre, similai- to Niblo's Theatre." 
 
 " Davis agrees to hire and take said church or building upon the terms and con- 
 " ditions aforesaid, to adapt it to the purposes aforesaid, at his own cost and expense, 
 " ayid at tjie expiration of said term surrender the possession of Said building o-nd pre- 
 " mises to said Stewart, with all the alterations, additions and improvements made 
 " thereon, without any charge whatever therefor." 
 
 The agreement then gives Davis the privilege, " at the expiration of said term 
 " and surrender as aforesaid," of renting the theatre up to May 1, then next, for 
 the sum of $750 for every two weeks, payable in advance. 
 
 No new matter wa^ set up in the answer, The defendant offered no evidence, 
 but relied entirely upon the terms of said agreement between Davis and Stewart. 
 
 On the trial of the action before the referee, said agreement was produced on 
 the part of plaintiffs and read in evidence, and a notice of lien filed January 18th, 
 1866, in favor of plaintiffs, for materials furnished to Davis, was also produced by 
 plaintiffs and read in evidence. 
 
 Plaintiffs then offered to prove that the materials mentioned in said notice of 
 lien, and in the complaint and bill of particulars, were furnished to Davis between 
 December 11th, 1865, and December 23d, 1865, and the value of them, and that said 
 materials were used by Davis in the alterations made by him in pursuance of and 
 in conformity with the terms of said agreement, and that the building was com- 
 pleted at the time required by said contract. 
 
 Such evidence was excluded by the referee (to which plaintiff's counsel excepted), 
 and the complaint was thereupon dismissed. 
 
 The following is the opinion given by the referee, Hon. J. 3. Boswobth, on de- 
 ciding the case : 
 
 By Chap. 500 of Laws of 1863 (p. 859), any person owning a lot of land in the 
 
LIEN, ON WHAT AND EXTENT. 35 
 
 If the notice was filed hefore the tenant was dispossessed, 
 and without notice to the lienor, he could be substituted and 
 acquire all the rights which the tenant had when the lien was 
 filed. {Ombony vs. Jones, 19 N. Y., 234.) 
 
 73. A lien will attach the interest of any person who in con- 
 tracting holds himself out as owner. ( Ombony vs. Jones, 19 N. Y., 
 234.) 
 
 74. In the case of joint owners, the share of the contracting 
 one would be bound, and in the case of tenants in common, the 
 estate of the contracting tenant. {Id. ; Otis vs. Ousack, 48 
 Barb., 546.) 
 
 city of New York, and building thereon, cannot have his estate and interest there- 
 in subjected to any lien in favor of any person performing labor or furnishing 
 materials toward the erection of, or in altering, improving or repairing such build- 
 ing, or the appurtenances thereto, unless such labor was performed or materials 
 furnished "in pursuance of or in conformity with the terms of" a contract with or 
 employment by the owner of such lot and building with some person therefor, or 
 unless such labor was performed and such material furnished " by or in accord- 
 " ance with the direction of the owner or his agent " to some person to perform the 
 work or furnish the materials. {Laws of 186S,p. 859.) 
 
 The person In whose favor such liens may be acquired are only those " who 
 " shall be employed by any owner, contractor, sub-contractor, jobber or master 
 " workman, in manner aforesaid." {Id.) 
 
 The words " in manner aforesaid " refer to the preceding parts of that section, 
 which require that the labor must be performed or the materials furnished " in 
 " pursuance of or in conformity with the terms of any contract with or employ- 
 " ment by the owner, or by or in conformity with the directions of the owner or 
 " his agent." 
 
 The interest of the owner cannot, therefore, be subjected- to a lien for any labor 
 performed or materials furnished, unless he contracted with' or employed, or per- 
 sonally or by his agent directed some one to perform the labor or furnish the 
 materials, and the labor has been performed or the materials furnished in pursu- 
 ance of or in conformity with the terms of the contract or employment, or in ac- 
 cordance with such direction. It seems to me entirely clear that this is the 
 meaning and intent of the statute. It is equally clear that the defendant Stewart, 
 judged by the evidence given or offered to be given, did not employ or direct the 
 plaintiffs, or any other person, nor contract with tliem or any one else, to furnish the 
 materials in question. 
 
 The direction was given by H. H. Davis, and by him only. Is there any 
 just ground for holding him to be the agent of Mr. Stewart in that matter, and 
 that therein he was acting for Stewart as his principal, and not on his own behalf 
 and account ? This question depends for its solution upon the legal effect of the 
 agreement between him and Mr. Stewart, dated Novejpber 30, 1865, and upon the 
 nature of the relation between them iwhich was thereby established. 
 
 That agreement contains, first, a letting of the premises to Davis for two weeks, 
 commencing December 10, 1865, and contains a covenant to lease from time to 
 
36 LIEN, ON WHAT AND EXTENT. 
 
 75. In some cases a contract made by one tenant in common 
 ■would bind the interest of aU. {Story's Eq. Jurisp., § 1234, 
 § 1235. 
 
 76. An equitaUe lien may be acquired upon general principles 
 for repairs, benefits and improvements upon real property in 
 f ertain cases. {See Story's Eq. Jurisp., § 799, aiid §§ 1234 to 
 1239.) 
 
 77. A party who would have an equitable lien upon the 
 property for repairs, benefits and improvements, &c., may be 
 
 time for consecutive terms of two weeks each up to the Ist of May, 1866, on a 
 compliance by Davis with the terms and conditions therein stated. 
 
 By that agreement Davis had "the privilege" of making alterations in the 
 building, which should "not depreciate the value of such building," subject to the 
 approval of Mr. Stewart or his agent. Davis was restricted in respect to the 
 changes and alterations in the building which he had " the privilege " to make, to 
 such, and only such, as would " adapt it to the purposes of a first-class theatre 
 " simUar to Niblo's Theatre." 
 
 He was to make these changes and alterations, not for Stewart, but for himself, 
 " at his own cost and expense." If, perchance, the building, when altered by Davis, 
 at the end of his lease should be more valuable solely by reason of the alterations 
 made by him, the cost of this addition to the building or the increased value of the 
 building by reason thereof, is a part of the compensation which he covenants to 
 make for the use of the premises. 
 
 But whatever the costs of the changes might make, it does not necessarily fol- 
 low that the market value of the building or the value of its rental would be there- 
 by increased. 
 
 The provision in the lease that, any alterations or changes in the building 
 which Davis might attempt to make, " were to be subjected to the approval of said 
 " Stewart or his agent," did not make the relation between Mr. Stewart and Mr. 
 Davis other than that of lessor and lessee, with the privilege to the lessee to make 
 alterations at his own cost and expense, with a view to the better adaptation of 
 the premises to the purposes and business for which it had been rented. • 
 
 By securing to Mr. Stewart the right to disapprove of any attempted changes 
 and alterations, and put a stop to them, it was by agreement left to him or to his 
 agent to determine whether such changes would be unauthorized by the terms of 
 " the privilege" granted by the agreement to Mr. Davis. Neither that provision, 
 nor that with all the other clauses of the agreement, constituted Mr. Davis the 
 agent of Mr. Stewart in making alterations and changes under the privilege in 
 that behalf secured to him by that agreement. 
 
 If a case could be made showing that the agreement was fraudulent and collu- 
 sive in respect to the alleged leasing, with the privilege of making alterations, and 
 that it was made in that form to defeat the just operation of the statute, a different 
 question might arise. 
 
 So, too, in the present case, if it was sought by the proceedings to deal with the 
 lessee as being, in respect of and to the extent of his interest, " the owner," and to 
 
LIEN, ON WHAT AND EXTENT. 37 
 
 deemed a contractor under an implied contract, and those 
 engaged under him could obtain a valid lien which could be 
 enforced, under this statute, against the property. 
 
 78. The statute says that the hen shall be " to the extent of 
 " all the right, title and interest which the owner shall have 
 " therein (in the property) at the time of filing the notice of lien 
 " required by the sixth section of the act, and to no greater ex- 
 " tent." {Laivs 1866, ch. 752, § 1.) 
 
 79. This is not to be taken as literally true, because, as we 
 have seen, the owner, as defined by the courts, may have had 
 little interest in the property at the time the work was done, 
 and afterwards, but before notice is filed, he may become the 
 entire and sole owner in fee of the property ; would a notice 
 then filed be to the extent of his entire interest at the time of 
 filing ? Clearly not ! this is not the intention of the statute. 
 The statute, as construed by the coui'ts, means that the extent 
 
 create a lien on and reach and apply that interest, a different question would also 
 be presented. 
 
 This case, if I understand it, presents the naked question whether a lessee with tlie 
 privilege of making alterations at his own cost and expense, with a view to the better 
 adaptation of the premises to the business for which they were rented, is the agent of 
 the lessor in making such alterations, so that a lien for the agreed price therefor or the 
 cost thereof can be imposed upon the lessor's interest in the premises thus disposed of. 
 
 In my view of the statute, this question must be answered in the negative. In this 
 view, tJie complaint should be dismissed, with costs to the defendant Stewart. 
 
 There is no pretence that the plaintiflfe were misled by Mr. Stewart or by any 
 one acting for him as to the relations existing between him and Mr. Davis, or that 
 plaintiffs did not understand it when they furnished the materials. As I under- 
 stand their position, they consider it proper, under the advice of counsel and for 
 their interest, to test the question of Mr. Stewart's liability as owner under the 
 statute first cited; and if unsuccessful, they should pay the costs which they 
 thereby make it necessary for Mr. Stewart to incur. 
 
 It is useless to cite decisions to aid a possible future examination of this case by 
 the learned court which has expounded all the statutes in respect to mechanics' 
 liens relating to the city and county of New York. So far as any of these former 
 statutes were similar to the present one in respect to the main question involved in 
 this case, the decisions containing them call for the construction which I have 
 given to the present one (Heroy vs. Hendricks, 4 E. D. Smith, 768 ; Loonie vs. 
 ffogan, 5 Selden, 435 ; 2 E. D. Smith, 681; Ombony \a. Jones, IWN. Y., 234; 
 Hauptman vs. Gailin, 20 N. Y., 247). 
 
 The appeal taken from the above decision has not yet been decided. 
 
 N.B. — It is to be observed that in the case cited in the text, the tenant was not to 
 surrender up to the landlord the improvements until after his term expired ; in the 
 latter case, the improvements were to be surrendered as soon as completed, and 
 before his term expired, and was an executory contract. 
 
38 LIEN, ON WHAT AND EXTENT. 
 
 of the lien on the contracting owner's interest shall not be 
 greater at the time the lien is filed than it was when the work 
 was commenced or completed'. In regard to the subsequently 
 acquired interest in the property, the contracting owner is to 
 be regarded the same as any other third party. (See post, 84 
 and 85.) 
 
 80. "Where A, owning the fee of land, agrees to ultimately 
 convey it to B, and immediately to loan B money to aid in 
 erecting a building thereon, and the latter accordingly pro- 
 ceeds to erect such building, A is not the owner of the build- 
 ing, under the hen law of 1851-55, so that his interest in the 
 premises can be subjected to a lien for the value of work or 
 materials furnished by third parties under the employment of 
 B. (WalTcer vs. Paine, 2 E. B. S., 662 ; HaEaghan vs. Herbert, 
 11 Abb., N. S., 326.) 
 
 81. Under the former statutes on the subject, the vendee in 
 such case was deemed the owner of the premises, and no hen 
 could be acquired against the vendor. (Loonie vs. Hogan, 9 N. 
 Y., 435 ; Randolph vs. Oarvey, 10 Abb., 179 ; Oay vs. Brqwn, 1 
 E. D. 8., 725 ; Kennedy vs. Paine, 1 E. D. S., 652 ; Miller vs. 
 Clarlc, 2 E. B. 8., 543 ; WaRer vs. Paine, 2 E. D. 8., 662 ; 
 Cox vs. Broderich, 4 E. B. 8.,. 721 ; Bdmont vs. 8mit'h, 1 Duer, 
 675; HaOaghan vs. Herbert, 11 Abb., N. 8., 326, 1 Crary's Prac., 
 618.)* 
 
 82. A notice of lien, filed before the giving of the deed in 
 such cases, only affected the title of the vendee. (Id.) 
 
 83. The statute now declares that " any person or persons 
 " who may have sold or disposed of his or their lands upon an 
 " executory contract of purchase, contingent upon the erection 
 " of buildings thereon, shall be deemed the owner, and his 
 " vendee the contractor." (§ 14.) 
 
 * The learned editor of E. D. Smith's Reports, in a note to Miller ys. OlarJc (2 
 JS. D. S., 54S), says that a careful examination of the cases of Loonie vs. Hogan (9 
 .V. T., 435), Gay vs. Brown (1 E. B. S., 726), Belmont vs. Smith (1 Duer, 615), Miller- 
 ys. Clark, lE.D.S., 543 (to -which may now be added iSoHw vs. CVoss, 45 iPiy., 766, 
 and Hallagan TS. Herbert, 11 Abb., N. S., 326) on the one hand, and of McDermott vs, 
 Pahner, 11 Barbour, 9, on the other, will reveal no ground for a difference in prin- 
 ciple between them, and then shows that such is the fact, although the Court of 
 Appeals, in Loonie vs. Hogan, expressly dissentedfrom the views expressed in the 
 latter case. Section 14 of the present act was for the purpose of counteracting 
 some of the misunderstood decisions on this point, and to restore the well estab- 
 lished principles of equity jurisprudence in such cases (see ante, 76 and^bii!, 106.) 
 
LIEN, ON WHAT AND EXTENT. 39 
 
 This provision does not apply to the ordinary contract of sale 
 where the erection of buildings are not reqidred by the terTns of 
 the contract, or contingent thereon. 
 
 84. A Hen cannot be acquired for work done or materials 
 furnished under a contract with an equitable owner as against 
 one holding the legal title, unless the building is constructed 
 by permission of the latter (under the law relating to Kings 
 and Queens). But if the equitable owner permits the building 
 to be erected, and before lien filed, by the performance of a con- 
 tract of purchase, becomes the legal owner, the conveyance 
 will be held to relate to the time when the contract of pur- 
 chase was made and such owner to be within the statute. 
 {Rollin vs. Oross, 45 N. Y., 766.) 
 
 85. " In the absence of any definition in the statute, it might 
 " well be that a person having an equitable title to the land 
 " upon which the work was done, and a right to a conveyance of 
 " the property, would be regarded as the owner of the land, 
 " within the statute, and that the lien under a contract made 
 " with a party having such a relation to it would attach to the 
 " equitable interest, as upon a contract made with the owner. 
 " The vendee, in such contract, is treated in equity as the owner, 
 " and many of the incidents to a legal title attach to the 
 " interest of a vendee imder a contract of sale." — ^Andrews, J. 
 (BoUin vs. Cross, 45 N. Y., 766 ; see Smith vs. Oage, 41 Barb., 
 61.) 
 
 86. The vendee,, under an ordinary contract, not within the 
 provision of §14, cannot obtain a vahd lien under it against the 
 vendor. His remedy is for specific performance or for dam- 
 ages. {Story's Equity Jurisp., § 717.) This provision was made 
 for the protection of persons engaged under the vendee. 
 
 87. The vendee's right to perfect a lien in such case will de- 
 pend, however, upon the terms and construction of the contract 
 of purchase^to wit, the nature of the penalty against the 
 vendor. (See peculiar contract, Bandolph vs. Garvey, 10 Abb., 
 179.) 
 
 88. Where the owner makes a contract of sale and agrees to 
 make advances for the purpose of erecting buildings thereon, and 
 when completed to give a deed and take back a' mortgage for 
 
40 LIEN, ON WHAT AND EXTENT. 
 
 such advances and for the purchase-money, and the vendee 
 failed to complete his contract, the vendee cannot be regarded 
 as the equitable owner, and no lien would attach. (BandoVph vs. 
 ■Garvey, 10 Abb., 179.) 
 
 89. If the owner conveys the premises in good faith fte/bre the 
 notice of lien is filed, the right to perfect a lien is lost, because 
 he has no interest in the property. 
 
 The law on this point, by the amendment of 1866, is now similar 
 in effect to the law of 1851, §1 ; so held under that law. {Crys- 
 tal vs. Flannelly, 2 E. JD. S., 583 ; Sinclair vs. Fitch, 3 E. D. 8., 
 611 ; Cox vs. Broderick, 4 E. D. 8., 721 ; Jackson vs. 8loan, 2 
 E. D. 8., 616 ; Noyes vs. Burton, 17 How., 449 ; Quimhy vs. 
 8loan, 'iE. D. 8., 594; Livingston vs. Miller, 16 Abb., 871; 
 JSfoyes vs. Burton, 29 Barb., 831 ; Ernst vs. Beed, 49 Barb., 367 ; 
 Gates vs. Haley, 1 Holy, 338 ; 1 Crary's Prac., 619 ; Meehan 
 vs. Williams, 36 How., 73.) 
 
 90. If the transfer is bona fide, although loith, notice that hens 
 may be filed for unpaid claims for work, &c., still no Ken siibse- 
 quently filed will attach, even though the grantee assume the pay- 
 ment of such claims. {Sinclair vs. Eitch, 3 E. D. 8., 677 ; Crys- 
 tal vs. Flannelly, 2 E. D. 8., 583 ; Bailey vs. Johnson, 1 Daly, 
 61 ; Quimby vs. Sloan, 2 E. D. 8., 594 ; Jackson vs. Sloan, 2 E. 
 
 i).s.,&m) 
 
 91. Although a bona fide deed or mortgage is not recorded 
 until after notice filed, if delivered before that time, and if it has 
 a legal inception, the right to perfect a lien is lost. {Quimby vs. 
 Shan, 2 E. D. 8., 594 ; Ernst vs. Beed, 49 Barb., 367 ; HatM- 
 way vs. Payne, 34 N. Y., 92.) 
 
 92. If the owner makes a conveyance and the deed is not de- 
 livered, or does not take effect until after the filing of the notice, 
 the lien attaches and has a preference over the conveyance. {Id.) 
 
 93. Where a fraudtdent conveyance is made, a lien may still 
 be acquired, and where the fraudulent grantee is a party to the 
 foreclosure, his claim may be tried and adjudicated upon, and 
 judgment gi\en' against him and the lien enforced. {Quimby vs. 
 Sloan, 2 E. D. 8., 594 ; Meehan vs. Williams, 36 How., 73 ; 
 Bailey vs. Johnson, 1 Daly, 61 ; Schafer vs. Beilly, 50 N. Y., 61.) 
 
 94. It is not necessary that the lienor should contest the val- 
 
LIEN, ON WHAT AND EXTENT. 41 
 
 idity and bona fides of the transfer in the proceedings to fore- 
 close the lien. He may obtain a judgment and sell all the 
 right, title and interest which the contracting owner had in the 
 property when his lien was filed, and then in an action of 
 ejectment contest the legality of the title of the grantee. {Ernst 
 vs. Beed, 49 Barb., 367 ; Median vs. Williams, 36 How., 73 ; 
 Eandolph vs. Garvey, 10 Abb., 179.) 
 
 95. This is the only mode of enforcing liens against fraudu- 
 lent grantees, when they are foreclosed in the Marine or District 
 Courts, as they have no jurisdiction to try a question of fraud- 
 ulent transfer. {Quimby vs. Sloan, 2 E. B. 8., 594.) 
 
 96. If the fraudulent grantee transfers the property to a bona 
 Jtde purchaser before the lien is filed, the lien will be invalid. 
 
 {Noyes vs. Burton, 29 Barb., 631). 
 
 97. A mortgage executed and recorded, and without any 
 consideration being paid therefor by the mortgagee, only has 
 life and validity from the time of its assignment and delivery 
 to an assignee for valve, therefore a notice of lien filed before 
 such assignment, has a preference over it, although the lien 
 was not filed until a/fer the mortgage was recorded. '{Schafer 
 vs. Beilly, 50 N. r.,'61.) 
 
 98. In examining for liens, the period should extend three 
 months after the record of a conveyance or mortgage, if within 
 a year, for until the expiration of three months a person may 
 file and obtain a Hen for work previously done, although the 
 Tecord may show a previous transfer. (Schafer vs. BeiUy, 50 N. 
 
 T., 61 ; Meehan vs. Williams, 36 How., 73 ; Ernst vs. Beed, 49 
 Barb., 367.) 
 
 99. A deed or mortgage may not take effect as against a lien 
 (alihough subsequently filed) untU a long time after it has been 
 given or recorded. A deed or mortgage must have a legal in- 
 ception before it will out off a lien subsequently filed. {Id.) 
 
 100. A lien for work done by authority of a person who holds 
 the legal title, binds the property. {Anderson vs. Hillaye, 47 i\7". 
 Y., 678.) Otherwise, if it is not done by that authority. {Oox 
 vs. Broderick, 4 E. D. 8., 721.) 
 
 101. A bcma fide purchaser, not having actual knowledge of 
 the Hen, is not bound by a lien filed against the grantor of his 
 grantor after the deed giving title to the latter was recorded. 
 
42 LIEN, ON WHAT AND EXTENT. 
 
 {Noyes vs. Burton, 29 Barh., 631. Quimhy ts. Sloan, 2 E. D. 8., 
 594.) 
 
 102. If the owner gives a deed of the property and takes back 
 an agreement, showing the deed to be intended only as amor^- 
 gage, a notice subsequently filed wiU attach the original owner's 
 equitable interest. {McAuIey vs. Mildrum, 1 Daly, 396.) 
 
 103. Where a mortgage given by lessee to lessor to secure ad- 
 vances made by lessor under an agreement, to be applied.to the 
 improvement of the premises, if the notice of lien for such work 
 is filed before the mortgage, the lien has the priority, but if the 
 mortgage is recorded before the notice of lien is filed, the mort- 
 gage has the priority. {Stuyvesant vs. Browning, 1 J. & 8., 
 203.) 
 
 104. When a mortgage is given for advances thereafter to be 
 made, (such a mortgage is valid, although the limit of the 
 amount is not defined in it. Bdbinson vs: WiUiams, 22 JSf. Y., 380.) 
 a notice of lien, when filed, would have a preference over all 
 that was actually advanced after such filing. (^See ante, 53.) 
 
 105. A bona fide agreement to sell the property does not have 
 the effect of an actual conveyance, and therefore a notice of lien 
 subsequently filed against the vendor before the giving of the 
 deed, would attach and have a preference over it, but the 
 amount of purchase-money advanced would have a prece- 
 dence over the lien. The term " conveyance " does not in- 
 clude executory contracts for the purchase of lands.* (3 B. 8., 
 69, § 70.) 
 
 106. If a vendee, holding an executor's contract of sale, which is 
 not within §14, has work done upon the property, the vendor could 
 be made a party to these proceedings upon a lien filed against 
 the vendee, and the vendor's equitable interest ascertained as 
 a prior incumbrancer, and the vendee's interest in the property 
 be directed to be sold, and decree a specific performance of 
 such contract in favor of the purchaser under such judgment 
 sale. (3 B. 8., p. 35, §§ 4, 5, 6; BandolpJi vs. Garvey, 10 Abb., 
 179.) 
 
 * A judgment docketed against the vendor in such case would be a lien on 
 the property, while one docketed against the vendee would not be a lien, as the 
 interest of the vendee cannot be sold on an execution. (Sage vs. Cariwright, 9 X. 
 7., 49 ; see Smith vs. Oage, 41 Barh., 61 ; Z B. S.,p. 35, § 4.) 
 
LIEN, ON WHAT AND EXTENT. 43' 
 
 107. If the contracting vendor should dispose of the property 
 after contract made, and before the work or all of it is com- 
 pleted, and the contractor should proceed with his contract, 
 the property would be liable to the hen subsequently filed 
 for the amount due after the transfer to the grantee. {Sinclair 
 vs. Fitch, 3 E. B. Smith, 677), and he, the grantee, would also 
 be personally liable to the contractor for the amount of his 
 contract. 
 
 108. In such case, unless the original owner was released, he 
 would stUl be personally liable to his contractor for the amount 
 of his contract. Although the grantee assumed the contract, 
 he would not be Hable in these proceedings for the entire con- 
 tract, and a lien would not attach his interest for the entire 
 contract. (Id.) 
 
 109. When the owner of a house and lot conveys them to 
 trustees for the benefit of creditors, no lien can be acquired 
 upon the premises for work done previous thereto, by notice 
 subsequently filed, although filed before the recording of the 
 conveyance. (Quimhy vs. Shan, 2 JS. JD. S., 594; Jackson ys. 
 Sloan, 2 K D. S., 616 ; Oates ys. Haley, 1 Daly, 338.) 
 
 110. In such case the court said " that if it appeared that 
 there was a reservation in the deed, under which the grantors 
 had a remaining equitable interest, which coald be bound by the 
 statute, possibly it might be secured by that mode (that is filing 
 notice of lien), but even that is questionable when the whole 
 legal title is gone." ( Quimby vs. Sloan, 2 E. D. S., 594.) 
 
 111. Where a lien has been filed after an assignment for the 
 benefit of creditors, and a judgment on the lien, and the prop- 
 erty sold on the judgment to a bona fide purchaser without 
 notice, who had paid his money and received his deed before 
 the recording of the assignment, the title of such purchaser is 
 vahd as against the assignment. {Quimby vs. Sloan, 2 E. D. S., 
 694, JSfoyes vs. Surton, 29 Barb., 631.) 
 
 112. Under the more equitable construction of the law of 1863, 
 it is probable that the state courts would hold that a lien could 
 be acquired in any case of an assignment for the benefit of 
 creditors, the assignees not being bona fide holders of the prop- 
 erty, but taking it subject to all equities. 
 
44 LIEN, ON WHAT AND EXTENT. 
 
 113. Where a mortgage is given and recorded prior to the con- 
 trad and the commencement of the work, a lien subsequently- 
 filed under such contract would not give the lienor the right to 
 question the validity or bona fides of such mortgage (§ 1, see 
 Story's Eq. Jurisp., §634, and contra in principle in Mutual Life 
 Ins. Co. vs. Boiven, 47 BarK, 618), but he could have the amount 
 due on it ascertained in these proceedings. 
 
 114. Where a mortgagee in possession has work, &c., done, a 
 lien will reach his interest in the property. (Ombony vs. Jones, 
 19 JV. Y., 234). If the work, &c., was for necessary repairs, the 
 mortgagor's interest wiU be liable. {Quinn vs. Brittain, 1 Hoff., 
 353 ; Story's Uq., Jurisp., §§ 1237, 1238.) But improvements 
 made without consent of the mortgagor wiU not bind his interest. 
 (Id.) 
 
 115. Where an owner, after work commenced, and before 
 notice filed, bona fidely transfers the property and takes bach a 
 mortgage for a part of the consideration money, his interest in 
 the property as mortgagee cannot be reached by filing a lien 
 so as to prevent payments on the mortgage to him, because he 
 lias only a chattel interest which has not ripened into either a 
 legal or equitable title. {King vs. Mech. Ex. Go., 5 JV. Y., 547.) 
 
 116. A married woman as owner may be made liable in the 
 same manner as if she was sole, and her husband may act as 
 impUed agent for the wife, and his contract bind her property 
 in certain cases. (Hauptman vs. Oatlin, 3 E. D. 8., 666, Affd., 
 ■20 ]Sf. Y., 247 r' Spencer vs. Barnett, 35 N. Y., 94 ; Meehan vs. 
 
 Williams, 36 How., 73.) 
 
 117. In regard to owners and all other persons, the rule must 
 be the same as that in relation to trust estates, that where a 
 
 Judgment can be procured in an ordinary action, then the 
 property would be bound by a hen. 
 
 118. Where a party who was guardian of his infant daughter 
 erected a house upon land owned by her, it was held that he 
 could not as such guardian, without authority from a compe- 
 tent court, build a house upon the land of his ward, and charge 
 the expense upon the ward, or make a builder's contract under 
 which a lien upon the property could be sustained for such 
 building. {Copley vs. O'Neill, 57 Barb., 299.) 
 
LIEN, ON WHAT AND EXTENT. 45 
 
 119. A judgment docketed against the owner after work com- 
 menced, but before notice filed, would probably not have a 
 preference OTer the lien subsequently filed for work previously 
 done, and perhaps it would not for work subsequently done, 
 because the claimant has an equitable lien for his entire con- 
 tract after work commenced, and before notice is filed. {Dev- 
 lin vs. Mack, 2 DoHy, 94 ; Cook vs. Kraft, 3 Lans., 512 ; Dwight 
 vs. Newell, 3 N. Y., 185 ; Bodgers vs. Bonner, 45 N. Y., 379.) 
 
 120. If the property has been sold on a judgment a hen 
 subsequently filed would not attach. (Livingston vs. Miller, 1& 
 Abb., 371, and ante. 111.) 
 
 121. In regard to the record of all liens on real estate, it is 
 the rule that when the equities are equal the priority of record 
 will determine the priority of Hens. {Kaylor vs. 0^ Connor, 1 
 E, D. 8., 672. SJiaf&r vs. BeiUy, 50 N. Y, 61.) 
 
 122. If the building is destroyed by fire the lien would still 
 attach to the contracting owner's interest in the land, and this 
 whether the notice was filed before or after the destruction. 
 The lien extends to the owner's interest in the lot — (§ 1. Om- 
 bony vs. Jones, 19 N. Y, 234.) 
 
 123. After the notice is filed the claimant has an insurable 
 interest in the building, but he has not until the lien is per- 
 fected by the filing of the notice. , 
 
 124. It has been held that the death of the owner wiU pre- 
 vent the acquiring of a lien subsequently filed against him, or 
 his representatives. {Crystal vs. FlanneRy, 2 E. D. Smith, 583.) 
 
 125. In the case last cited the court, Ingraham, P. J., says, 
 " that there may be cases where such proceedings may be in- 
 " siibiied^against executors." 
 
 126. It is doubtful if the courts at present would hold that 
 the death of the owner would prevent the acquiring by a sub- 
 sequently filed notice a valid Ken against the property. 
 
 127. If the legal title of the property is vested in executors 
 by devise, they may be deemed as owners, and a lien can be 
 acquired against the property for a contract made with them. 
 {Crystal vs. Flannelly, 2 E D. S., 583 ; Anderson vs. Dillaye, 47 
 N. Y, 678.) 
 
46 LIEN, ON WHAT AND EXTENT. 
 
 128. When work has been done without authority of the 
 owner no lien will attach. {Copley vs. O'Neil, 57 Barb., 299 ; 
 Walker vs. Paine, 2 E. D. 8., 662 ; Berry ts. Weisse, 2 E. D. 8., 
 662. See post evidence — the Contract.) 
 
 139. Public 'property belonging to the city which is eocempt 
 from sale on judgment and execution, no hen can attach. So 
 held as to public school house. Brinkerhoff vs. Bd of Ed., 6 
 Ahb., N. 8., 128, affirmed as PoUlon \s.Mayor, 47 JSf. Y., 666.) 
 
 130. But perhaps in such case jurisdiction might be given 
 so as to obtain general judgment against the city, and thus 
 reach the amount due the contractor. {8ee ante, 37.) 
 
 131. The transfer or assignment by the conifractor of his in- 
 terest in the contract is not valid as against parties entitled to 
 file liens. (§13.) 
 
 This provision was not in the former statutes. 
 
 133. A contractor may make a bona fide, legal or equitable-^ 
 assignment of a payment due or coming due to him on the con-^ 
 tract, and a lien subsequently filed will not reach it. Such,- 
 transfer is not a transfer of the contract, or aij interest in it, . 
 and therefore it does not violate § 13, which forbids a transfer- 
 of the contractor's interest in the contract. (Young 8tone Co. 
 vs. Wardens, 61 Barb., 489 ; see Devlin vs. Mach, 2 Daly, 94.) 
 
 The prohibition in § 13 applies only to the lien law, and not • 
 to other parties. (Id.) 
 
 As to what is sufficient assignment in such case see Id. and 
 Soyt vs. 8tory, 8 Barb., 262.) 
 
 And as to assignment of future earnings, see Cooper vs Doug- 
 Zoss, 44 5ar&., 409. 
 
 133. A general assignment for the ben^t of creditors, by a con- 
 tractor after making a contract providing for payment after 
 the completion of a building, does not operate to change the 
 relation between the sub-contraotOr and the owner. The sub- 
 contractor can perfect a lien a/'ie»- the assignment as well as 
 before it, if such contract was not completed at the tirue of the 
 assignment. {Court of Appeals, MandeviMe vs. Beed, 13 Abb., 
 173.) 
 
 134. If a contractor should fraudulently assign a. payment due 
 or becoming due on his contract, for the purpose of defeating 
 
THE NOTICE OF LIEN. 47 
 
 the effect of this law, such assignee should be made a party 
 in the proceedings, and the question adjudicated upon in the 
 same manner as a fraudulent conveyance by the owner. (See 
 ante, 93 avd 57.) 
 
 135. Where the contractor has assigned his interest hefore 
 contract with sub-contractor, who had knowledge of such as- 
 signment, no lien can be acquired by the sub-contractor that 
 will affect the assignor. {Oates vs. Haley, 1 Baly, 338.) 
 
 136. Where the contractor makes an assignment for the 
 benefit of creditors, the assignee stands in the place of ihe 
 contractor, and acts substantially for his benefit, and if the as- 
 signee perform the contract for him, or becomes entitled to 
 any payments under it, the sub-contractor may acquire a lien 
 to the same extent as if the assignment had not been made. 
 {Oates vs. Haley, 1 Daly, 338.) 
 
 137. It was held by Judge Blatchford, in the matter of Day 
 (3 Bank lieg., 81, and see cases there cited), " that any lien, to be 
 " recognized by the BankruptCourt as a valid lien on property 
 " which passes from the bankrupt to the assignee in bank- 
 " ruptcy by virtue of the proceedings in bankruptcy, must be a 
 " lien at the time of the commencement of the proceedings in 
 " bankruptcy." That is, the lien must be perfected by the fil- 
 ing of the notice under the statute. 
 
 138. The death of the contractor does not prevent the 
 validity of a hen subsequently filed. {Tel/er vs. Kier stead, 9 
 Ahh., 418.) 
 
 139. As to how far the extent of the lien is governed by the 
 contract see post " Evidence." 
 
 OHAPTEE V. 
 
 THE NOTICE OF MEN. 
 
 140. The notice should show such of the facts as form the 
 basis of the claimant's hen. It should contain the name and 
 residence of the claimant (§ 6), but need not show how he 
 claims, whether as contractor or sub-contractor {Imtz vs. Ey, 
 3 E. D. S., 621), but it is better to do so according to the fact, 
 (Id.) 
 
48 THE NOTICE OF LIEN. 
 
 141. The notice need not state that the contract under which 
 the work was done was made with the owner, {Id.) 
 
 142. Nor who made the contract. {Hauptman ts. Gatlin, 3 
 JE. D. S., 666 ; Afd. 20 N. Y>, 247). 
 
 143. If the claimants are a firm, or jointly interested, each of 
 their indiridual names and residences should be stated in 
 the notice. 
 
 144. It should also state that the work, materials, &c. (it is 
 not necessary to state the particular kind), were furnished or 
 performed upon the premises in pursuance of or in conformity 
 with t^e terms of a contract or employment by the owner or 
 supposed owner, or by or in accordance with the directions of 
 the owner or supposed owner. 
 
 145. Where an agent has acted for the owner, the notice 
 should still state the same to be with the owner, or it may state 
 the same to be the act of A B, the owner, by C D, his agent. 
 {Hauptman vs. Gatlin, 3 K D. S., 666. ^Affd., 20 N. Y., 247)* 
 
 146. The name of the supposed owner of the building must 
 be stated, but no error or variance in the owner's name shall 
 impair the validity of the hen. (§6, §2). 
 
 147. If the owners are a corporation, it should be named in 
 the notice as owner, but if they are an uninfcoporated association, 
 
 * The following was the notice which was held sufficient in that case : 
 To the Clerk of the city and County of New York : 
 
 Sir : Please to take notice that I, Arthur B. Hauptman, have a claim agaiiist 
 John M. Catlin and Catharine Ann, his wife, amounting to the sum of $923, and 
 that this claim is made for and on account of work, labor and materials, done and 
 furnished towards the erection, completion and finishing of a certain four-story 
 and basement brown-stone front house, and that such work, labor and materials 
 were done and furnished in pursuance of a contract or agreement with the said 
 John M. Catlin, which building is owned by Catherine Ann Catlin, and situated 
 in the Eighteenth Ward of the city of New York (then fully described), and that 
 I have and claim a lien on said building and the appurtenances, and upon the lots 
 of land upon which the said building stands, pursuant to the provisions of an act 
 of the Legislature of the State of New York, entitled " An Act for the better 
 security of mechanics and others erecting buildings and providing material there- 
 for in the City of New York, " passed July 11th, 1851. 
 
 Dated New York, this first day of May, 1852. 
 (Signed) 
 
 Akthbb B. Hauptman. 
 
THE NOTICE OF LIEN. 49 
 
 the notice should describe them either by their associate or 
 joint name, or otherwise, so that they can be identified. 
 (Beah vs. Cong, B. J., 1 E. D. Smith, 654.) 
 
 148. If the owners are joint tenants, or tenants in common, 
 then each should be individually and severally described. 
 
 149. The notice must contain " a brief description of the 
 premises, by street number, or diagram, or boundary, or by a 
 reference to maps open to the pubhc, so as to furnish informa- 
 tion to persons examining titles." (§ 6.) 
 
 150. Under the law of 1851, it was held where a notice was 
 addressed to the clerk of the city and county of New York, 
 and the building was described in the notice as situated in 
 Eighty-fifth street, between Fourth and Fifth avenues, but 
 without stating that it was in New York city, it was held a 
 sufficient compliance to sustain a judgment. (Cunningham vs. 
 Jones, 3 K D. 8., 650.) 
 
 151. The lien can only be on the building and premises 
 referred to in the notice. (McAidey vs. Mildrum, 1 Daly, 396.) 
 
 152. Where a notice does not describe the premises upon 
 which the work is done, no hen is acquired. (Donnelly vs. Libby^ 
 1 Sweeney, 259.) 
 
 153. It must also state the amount claimed, from whom, ahd 
 to whom due, or if not yet due, when it will become due. (§ 6.) 
 If the amount of the claim is omitted, no lien is obtained. 
 (§ 6 ; Prot. U. vs. Nixon, 1 E. D. Smith, 671. 
 
 154. No amendment can be made to a notice after it has been 
 filed. (Beals vs. Cong, B. J., 1 E. D. Smith, 654 ; Conklin v«. 
 Wood, 3 E. D. 8., 662 ; HaUahan vs. Herbert, 2 Daly, 253.) 
 
 155. The amount must be stated (§ 6,) so that the hen can be 
 discharged by a deposit, as specified in § 10. 
 
 156. Where the notice of lien stated the amount to be due to 
 Jfuldoon, the claimant, and the evidence showed that the claim 
 was due to Muldoon, Kenney and Doonan, the notice was held 
 defective, and that no hen was acquired. (Hubbell vs. Schreyer, 
 14 Abb., N. S., 284.) 
 
 157. A party cannot recover judgment for a larger amoimt 
 than is specified in his notice, with interest thereon, and costs 
 
50 THE NOTICE OF LIEN. 
 
 of foreclosure. {Prot. U. vs. Mxon, 1 B. B. Smith, 671 ; Dunning 
 vs. Clarh, 2 E. D. S., 535, and note ; JEagleson ys. Clark, 2 K D. 8., 
 644 ; AUhause vs. Warren, 2 K D. 8., 657 ; ( Walker vs.'Pame, 
 2 do., 662,) althougli he may have judgment for a kss amount. 
 (Rollin vs. Cross, 45 N. Y., 766.) 
 
 158. The party who employed the claimant, and who is 
 legally responsible to him ia an action at law, is the party who 
 should be named a,s from whom, the amount is due, 
 
 159. A very important provision in § 2 is : " that no vari- 
 " ance as to the persons named as contractor, owner or debtor, 
 " in the lien notice, or bill of particulars, or statement of claim, 
 " or in any pleading, shaU impair or affect the' rights of the 
 " claimants as herein defined, and every party shall have relief 
 " according to the rights of the parties as they shall appear in 
 " evidence."* 
 
 160. In regard to the amendment of the notice. Judge Wood- 
 ruff said : " We cannot by amendment give the claimant a hen 
 " when the act has not been complied with." {Beats vs. Cong, 
 B. J., 1 U. D. 8., 658.) ' ^ 
 
 161. If any error has been made in the notice filed &t the 
 
 * In the case of Hubbel vs. Schreyer, 14 Abb., N. S., 284, the court evidently 
 overlooked this provision. The learned chief justice in his opinion (in relation to 
 Muldoon's notice of lien, which contained a claim against Holt as debtor, and an- 
 other claim against Schreyer, the owner, for other work, and the referee gave judg- 
 ment for the aggregate), says in effect, that a claim stated in a notice of lien to be 
 ag-ainst the contractor, must in the foreclosure of the lieu be shown to be a- claim 
 of that description, and that it will not suffice to show that it is a claim founded 
 upon a contract made with the owner, (fee. As the notic3 is shown to have been de- 
 fective, inasmuch as a material and essential statement in it turns out to be untrue, 
 <fcc., and therefore the court excluded the amount claimed in the notice against Holt, » 
 contractor and debtor, but rendered judgment against Schreyer, the owner, for 
 the amount claimed against him (Schreyer) in the notice. 
 
 I have made an examination of that case, and I do not think that the decision 
 of the court rested upon that point alone, and as it has since been taken to the 
 Court of Appeals, a decision in this case by that court, whether it reverses or 
 affirms the decision qf the court below, will not be upon that point alone, unless the 
 question olfact which the referee found, (that the claimant Muldoon performed the 
 work individually and not as a member of any firm,) which, if the court sustains 
 the referee's said finding, the judgment of the General Term must be reversed, be- 
 cause the variance in the notice and the proof as to the alleged debtor is allowed 
 
THE NOTICE OF LIEN. 51 
 
 time limited by the statute has not expired, another notice may 
 be filed without regard to the erroneous notice. (Hcdlaghan vs. 
 Herbert, 11 Abb., N. S., 326 ; Sindair vs. Fitch, 3 K D. S., 677.) 
 
 162. Several notices may be filed (covering the same claims) 
 under one contract. {HvbheU vs. Schreyer, 14 Abb., N. S., 284.) 
 This may be necessary where the contract is payable by install- 
 ments, or the delivery of materials extends over a period of 
 more than three months. {Spencer vs. Barnett, 35 N. Y., 94 ; 
 Hubbell vs. Schreyer, 14 Abb., N. 8., 284 ; Webb vs. Van Zandt, 
 16 Abb., 190.) 
 
 162^. A notice l)y a sub-contractor in which his claim is 
 based against the contractor as debtor, does not estop the sub- 
 contractor from filing another notice for the same claim against 
 the owner as debtor, and vice versa. {Smith vs. Ferris, 1 Daly, 
 18 ; Gridley vs. Bowland, 1 F. D. S., 670.) 
 
 163. It is not necessary, though proper, that the notice should 
 show the time of the performance of the labor or of the furnish- 
 ing of the material. This is a matter of defense. {Lutz vs. Ey, 
 3 E. D. S., 621 ; Tinker vs. Geraghty, 1 F. D. S., 687.) 
 
 164. "Where the notice stated that the materials were fur- 
 nished in pursuance of a written contract, it was held that extra 
 materials which became necessary in consequence of defects in 
 the specification of the written contract were covered by the 
 notice. {McAuley vs. Mildrum, 1 Daly, 396.) 
 
 165. There is nothing in the statute that prevents claims 
 against different contractors or distinct claims against the owner 
 and' contractor from being joined in the same notice, as the no- 
 tice should now state the amount, from whom claimed, and to 
 whom dae. (§ 6; Subbell vs. Schreyer, U Abb., N. S., 284.) 
 
 166. Th'e/orm of notice set forth in Lutz vs. Fy, (3 F. D. S., 
 (521,) is sufficient if properly verified, as required by the pres- 
 ent law. Perhaps it should more plainly appear from whom 
 the amount claimed is due. 
 
 The Verification. 
 
 167. The notice must be verified by the oath or affirmation 
 of the claimant. (§ 6.) 
 
 Previous to the Act of 1855 no verification was required. In 
 
52 THE NOTICE OP LIEN. 
 
 the latter year a law was ^passed requiring the notice before 
 filing to be verified in the same manner that a pleading was re- 
 quired to be Tsrified under the code. {Ckap. 404, § 7.) 
 
 168. That allowed an agent or attorney, or one of a firm of 
 partners or persons jointly interested, or an officer of a corpo- 
 ration, &c., to verify, and that, too, upon information and be- 
 lief. ((7ode, § 157.) 
 
 The law of 1863 is explicit that the verification must be by 
 the oath or affirmation of the claimant. (§ 6.) 
 
 169. Whether this is a restriction of the previous law, and re- 
 quires a positive verification by the claimant or claimants, per- 
 sonally, or whether the same rule of verification applies as 
 heretofore, has not yet been questioned. The custom is to 
 verify as required by the law of 1855. 
 
 170. The form of the verification should be the same as was 
 formerly required to a bUl in chancery, and the same as is now 
 used to a petition. (1 Barb/ Chan., 44.) 
 
 A notice filed with a defective verification cannot be enforced' 
 {HcdlaJian vs. Herbert, 2 Daly, 253.) It cannot be amended. 
 {Id., ante, 154; ConMin vs. Wood, 3 U. D. S., 662.) * 
 
 171. The form of verification prescribed by the code (§ 157) 
 is only applicable to pleadings under it, and they are neither 
 part of the rules nor of the practice. (AUen vs. Smilie, 1 Abb.,. 
 357.) Therefore the former Chancery Eule (18) as to verifica- 
 tion of petitions in equity is still in force (Code, § 469 ; Supreme 
 Court Bule, 97), not having been superseded or altered. 
 
 172. When the claimant is unable to write, and he subscribes 
 by his mark, the fact of the notice and affidavit having been 
 read over to him and his understanding it should be stated in 
 
 * The verifioation held bad in that case was as follows : 
 " City and County of New York, ss. : 
 
 ■• Albert L. Conklin, being duly sworn, aays that the foregoing statement of the- 
 " balance due from' said Wood to this deponent, as set forth in the foregoing lien, 
 " is true according to deponent's knowledge. 
 
 " Albert L. Conklin. 
 " Affirmed before me, this 29th ) 
 " day of September, 1856. ) 
 
 "Thomas A. Riohmond, 
 
 " Commissioner of Deeds." 
 
THE NOTICE OF LIEN. ^ 53 
 
 "the verification or the jurat. (Haynes vs. Poivell, 3 Dowl. Prac. 
 Cases, 599 ; 1 Barb. Cli. Prac., 155 ; 2 do., 416 ; 1 Ahl. Forms, 6.) 
 
 173. If the claimant is a, foreigner not understanding our lan- 
 giuxge, the verification or the jurat must show that the contents 
 of the notice have been interpreted to him. (1 Abb. Forms, 6.) 
 
 174. Advantage of a defective verification may be taken at 
 any time. (Gonklin vs. Wood, 3 K D. S., 662. HaUahan vs. 
 Herbert, 2 Daly, 253.) 
 
 175. The law does not in terms require the notice to be sub- 
 scribed by the claimant, but it undoubtedly contemplates that 
 it should be, as all petitions that are required to be verified are 
 subscribed by the party making the verification. {Hathaway 
 vs. Scott, 11 Paige, 173.) The subscription to the verification 
 "would probably be deemed a sixbscription to the notice, and 
 vice versa, 
 
 176. In courts of chancery, bills, answers, petitions and affi- 
 davits must be subscribed by the party who verifies them. If 
 the verification is in the form of an affidavit, the subscription 
 must be at the end of the affidavit. {Laimbeer vs. AUen, 2 
 Sand., 648.) For without such signature it would be difficult, 
 if not impossible, to sustain a prosecution for perjury. (Hatha- 
 
 ■ way vs. Scott, 11 Paige, 173.) 
 
 For sufficiency of affidavit as to form and manner of execu- 
 tion, see cases cited in 1 Abb., Forms, j). 4 : * 
 
 177. A substantial compliance with the statute as to the form 
 of the notice is all that is necessary. {Doughty vs. Devlin, 1 
 F. D. S., 625; Seals vs. Cong, B. J., 1 E. D. S., 654; Hub- 
 hell vs. Schreyer, 14 Abb., N. S., 284.) 
 
 178. AH thefproceedings to create a lien are intended to be 
 as simple and connected with as little detail as possible, with a 
 due regard for the rights and interests of the parties who may 
 be affected thereby. {Paine vs. Bonney, 4 F. D. S., 734.) 
 
 179. The notice, when complete, must be filed in the office of 
 the clerk of the city and county of New York. (§ 6.) 
 
 * Under the Act^of 1862 (§ 3) relating to the counties of Kings and Queens, it 
 is not necessary that the notice should be verified. 
 
54 THE NOTICE OP LIEN. 
 
 186. The county chrh is required to enter in a lien docket 
 (1) the name and residence of the claimant, (2) the person 
 against whom claimed, (3) the amount claimed, (4) the date 
 and hour of filing, (5) the street and particular place where lo- 
 cated, in such manner as to be convenient in searching for the 
 liens by streets and blocks. (§ 6.) For filing and docketing 
 the notice he is entitled to receive ten cents. 
 
 181. It is made the express duty of the county clerk to 
 forthwith docket the notice, and if he should neglect or refuse to 
 
 docket the lien or do any other act the statute requires of him, 
 he could be compelled by mandamus to do so. {Paine vs. Bon- 
 ney, 4 E. D. S., 734.) An action would also lie against him for 
 any damage accruing for the neglect of duty — the same as for 
 the register neglecting or refusing to record a deed or mort- 
 gage when properly executed. 
 
 182. The statute provides that a party upon Jiling the notice 
 shall "have a lien." This term probably means the whole 
 proceeding oi Jiling and docketing, and, as against innocent third 
 parties, the lien would not be valid if not docketed. 
 
 183. After the notice is filed and docketed, it is constructive 
 notice of the contents thereof under the statute. (Carman vs. 
 Mclncrow, 13 N. Y., 70 ; Kayler vs. O'Connor, 1 B. D. 8., 672.) 
 
 184. After the notice has been filed and docketed, a payment 
 voluntarily made will not impair or affect the hen of any per- 
 son except the one to the person so paid (§ 3), and that only to 
 the amount of such payment. {Schneider vs. Holbein, 41 Sow., 
 232.) 
 
 185. Upon a notice being filed that proceedings have been 
 commenced, and affidavit of service of the notice commencing 
 the proceedings, the clerk is required to enter that fact in his 
 docket, for which he is entitled to receive five cents. (§ 6.) 
 
 186. The clerk may be required to make searches for such no- 
 tices of liens, on being furnished with a proper description of 
 any property, and without reference to the individuals against 
 whom the lien is filed, his fees being five cents per year for the 
 time embraced in the search. (§ 6.) 
 
CONTINtJANCE AKD DISCHARGE OP LIEN. 55 
 
 CHAPTER VI, 
 
 CONTINUANCE AND DISOHABGE OF LIEN. 
 
 187. When the proper notice has been filed, and properly 
 docketed by the clerk, the lien is then perfected, and thus 
 becomes a new security given by statute. 
 
 188. The next questions that arise are : 1. How may the 
 lien be discharged ? 2. How long does it continue ? 3. How, 
 and when can it be enforced ? 
 
 189. " Liens in aU oases cease after the lapse of one year from 
 " the time of filing, unless by order of court, the lien is continued, 
 " and a n£w docWmade, stating such fact without a discharge 
 " of the lien." (§ 11.) 
 
 190. The Court of Appeals (in Freeman vs. Cram,, 3 Com., 
 805) held that under the general law of 1844 (jOh. 305), con- 
 taining a similar clause about the expiration of the Hen, that 
 the lien expired at the expiration of the year from the time of 
 filing, even though a suit may be pending for its foreclosure. 
 Hence subsequent laws contain provisions relating to its 
 continuance for a longer time. 
 
 191. A lien may be continued eaj-parfe by an order of a court 
 (of record), in case no proceeding has been had on such lien. 
 If made after proceedings commenced, it should be made by 
 the court in which the same is pending, if in a court of record. 
 {Stmie vs. Smith, 3 Daly, 213.) 
 
 192. If after action, it may still be made on ex-parte applica- 
 tion. ( Welch vs. the Mayor, 19 Abb., 182 ; Porschke vs. Keden- 
 burg, 6 Abb., N. 8., 172.) 
 
 193. The application should be upon an affidavit or petition of 
 the claimant, or other party, satisfactory to the court, showing 
 that the hen has not expired by lapse of time, and if proceed- 
 ings are pending that may afi'ect said lien, it should state the 
 court in which it is pending, and a copy of the notice of lien 
 should be attached to the affidavit showing when the same was 
 filed. A certified copy of the notice is generally used for this 
 purpose. An order is then made and entered directing the 
 county clerk to continue said lien by making a new docket 
 
56 CONTINUANCE AND DISCHAEGE OF LIEN. 
 
 stating such fact. There is nothing in the statute that states 
 how long a lien is valid after continuance. But section 11 says 
 liens shall, in all cases, cease after one year. 
 
 194. The usual ex-parte order is that the continuance shall 
 be for one year. And many of them are thus renewed every 
 year for several years. In cases where proceedings are 
 pending, orders are made continuing the hen until the deter- 
 mination of the proceedings. 
 
 195. Such orders would probably be vahd against the parties 
 in such case for a period longer than one year, but would not 
 be as against bona fide holders without notice, only for one 
 year from the time of the new docket. 
 
 196. The order cannot be granted, nunc pro twm, to continue 
 a lien after the lapse of one year from the filiug,- even if an 
 action is pending on it. (Porschke vs. KedenMrg, 6 Abh., N. 8., 
 172 ; Sarton vs. Herman, 8 Abb., N. 8., 399.) 
 
 197. An order continuing a hen on the anniversary of the 
 day it was filed is good. ( Welch vs. The Mayor, 19 Abb., 132.) 
 
 198. If the continuance is improperly granted ex-parte, it may 
 be rectified on motion, {Id.) 
 
 199. A lien may be discharged in six different ways. (§ 10). 
 
 200. (1.) By the certificate of the claimant, or his successor 
 in interest, stating the hen is discharged. Such certificate should 
 contain a sufficient reference to the notice of lien, stating 
 time of filing, description of the property (use the same 
 language as iu the notice), the claimant's name and the amount 
 specified in the notice, and must be acknowledged or proved in 
 the same manner as the satisfaction of a mortgage, and be filed 
 with th« county clerk, whose duty it then is to enter the satis- 
 faction in the hen docket. 
 
 201. If the hen is in favor of more than one person, any one 
 of them can execute the satisfaction piece in behalf of all, as 
 if a mortgage or judgment. {Eagle and the People vs. Keyset, 
 17 Abb., 214.) 
 
 202. If the lien is to be satisfied by an assignee, the assign- 
 ment thereof must be in writing, and acknowledged or proved 
 in thte same manner as an assignment of judgment, and the 
 
CONTINUANCE AND DISCHABGE OF LIEN. 57 
 
 assignment must be filed with the certificate of satisfaction. 
 (3 ii!. ^., 640 ; § 24) 
 
 203. (2.) It may be discharged as a lien on 'property by deposit- 
 ing the amount thereof and interest to the credit of the lien 
 with the county clerk before proceedings to foreclose. If after pro- 
 ceedings have been commenced for the enforcement of the liens, 
 then such additional amount as security for the costs thereof 
 as a judge of the court where such action shall have been com- 
 menced, shall deem proper. (§ 10, subd. 2.) The money so 
 deposited is held subject to the lien in place of the land and 
 buildings. (§ 10, subd. 2, Dunning ts. Glark, 2 E. D. 8., 535) 
 This deposit may be by any person affected by the lien. 
 
 The effect of such deposit upon subsequent proceedings, 
 and the manner of making it after action commenced, and of 
 reaching it after judgment, wUl be hereafter stated. 
 
 ■204. (3.) Liens, in all cases, cease after the lapse of one year 
 from the time of filing, unless by order of court the hen is con- 
 tiaued, and a new docket made stating such fact, without a 
 discharge of the lien. (§ 11 ; Barton vs. Herman, 8 Ahb., N. 8., 
 399 ; 8tone vs. Smith, 3 Daly, 213 ; 8chattler vs. Gardner, 41 
 Hoio. 243 ; Matheios vs. Daly, 7 Abb., N. 8., 379 ; Porschke vs. 
 Kedenburg, 6 Ahb, N. 8., 172.) 
 
 205. Where an order continuing a lien after action com- 
 menced, was mislaid and losj;, it was held that the hen was lost, 
 because no new docket was made within the year, and could 
 not be made afterwards. (Barton vs. Herman, 8 Abb, N. 8., 
 399.) 
 
 206. A lien may be restored and continued after appeal in 
 certain cases. (McGucMn\s. Coulter, 1 Jon£S and 8., 328). 
 
 207. Although no action can be commenced to foreclose the 
 lien after one year, unless the same has been continued as re- 
 quired by the statute (§ 11 ; Barton vs. Herman, 8 Abb., iV. 8., 
 399), and the same ceases to be a lien upon the land and build- 
 ings, still the hen cannot be discharged of record unless by 
 an order to discharge the same made by any judge of a court 
 of record upon due proof of a proceeding taken for the purpose, 
 (§ 10, subd. 13.) 
 
 208. This is usually done ex-parte by an affidavit of the party 
 
58 CONTINUANCE AND DISCHAEGE OF LIEN. 
 
 named as owner in the notice, showing that more than one year 
 has elapsed since the filing of the notice, and that no action 
 has been had on such lien, and that the same has not been 
 continued, and also a certificate of the county clerk that said 
 lien has not been continued, and no notice of any prooeediag 
 on such lien has been filed with him. (§ 10, subd. 3 -..Stone vs. 
 Smiih,3I>cdyM^.) 
 
 209. In case the amount has been deposited by the con- 
 tractor or sub-contractor named in the notice, the affidavit of 
 the party so depositing the money must be obtained, similar 
 in effect to the one above mentioned. 
 
 210. In some instances it may be impossible to obtain suf- 
 ficient affidavit upon which to get the lien discharged. Due 
 proof must then be made to the satisfaction of the judge, of the 
 facts before mentioned as' required to obtain an eoo-parte order. 
 (§ 10, subd. 3.) 
 
 211. A party depositing money, or his representatives, should 
 obtain the order or judgment discharging the hen thereon, and 
 such order or judgment should direct the county clerk to pay 
 over the amount so deposited, less his fees, to the depositor or 
 his representatives. {Dunning vs. ClarJc, 2 B. D. 8., 535, see 
 
 form, post.) 
 
 212. Where proceedings have been commenced to foreclose, 
 and the lien is not continued within the yej|,r, it ceases to be a 
 lien, without any discharge by order of the court. {Stone vs. 
 Smith, 3 Daly, 213 ; Mathews vs. Baly, 7 Abb., N. Y., 379 ; 
 Barton vs. Herman, 8 Abb., N. S., 399 ; Schattler vs. Gardiner, 41 
 Hoiv., 243.) 
 
 213. A lien cannot be discharged on motion on the merits, 
 while an action is pending to foreclose it. {FetiricJi vs. Totten, 
 2 Abb., N. S., 264 ; McOuckin vs. CovUer, 10 Alb., N. S., 128.) 
 
 214. "While an action is still pending to foreclose a lien, the 
 court cannot by an order on motion continue or discharge the 
 lien after the expiration of one year. {Stone vs. Smith, 3 Daly, 
 213.) 
 
 215. (4.) By a judgment or docket of a judgment exempting 
 such property after ten days on proof of notice of such jitdg- 
 ment, and that ten days have elapsed and no appeal has been 
 
CONTINUANCE AND DISCHAEGE OP HEN. 59 
 
 taken therefrom (§ 10.) The court generally requires notice of 
 application under this subdivision. Under such a judgment 
 the lien may be discharged of record, notwitTistanding an 
 appeal, unless the proceedings have been stayed, as required 
 by section 8 (Van Cleve vs. Abbott, 3 Abb., N. S., 144). This 
 should be on notice to the parties interested, and an affidavit 
 showing the facts entitling ther party to the drder (Id.), and 
 should be made in the court where the judgment was recovered. 
 
 216. A judgment against the claimant, even though it be but 
 a judgment of nonsuit, will entitle the owner to have the hen 
 discharged. (SuUivan vs. Brewster, 1 K D. S., 681.) 
 
 217. If the judgment should be afterwards reversed, the lien 
 would be restored, provided the property had not passed into 
 the hands of bona fide purchasers without notice of the appeal, 
 as in cases of the Hen of other judgments. (McGuckin vs. Coul- 
 ter, 1 Jones & Spencer, 328.) 
 
 218. The same rule prevails as to any error in the filing or 
 docket of the notice, or continuance of it. {Barton vs. Her- 
 man, Abb., N. 8., 399). If a Men is discharged erroneously on 
 motion, such discharge may be vacated on motion {Buthr vs. 
 Magie, 2 K D. 8., 654.) ' 
 
 219. (5.) By an entry by order of the court that the judgment 
 has been secured on appeal. (§ 10, subd. 5, § 8.) 
 
 220. (6.) The Uen will be discharged by the satisfaction of 
 the judgment recovered in an action brought to foreclose the 
 lien. (§ 10, subd. 6). The return of the execution wholly sat- 
 isfied is sufficient to authorize the clerk to enter the same as 
 satisfied in the docket, in the same manner as is done in other 
 cases. (3 B. 8., 641, § 26, Laws 1860, Ch. 13, § 6). A satisfac- 
 tion of judgment executed as in other cases, would also author- 
 ize the clerk to discharge the judgment. 
 
 221. A party desiring the lien to be satisfied of record, must 
 offer the instrument to be executed to the lienor, and offer to 
 pay the expenses of its execution. That is the law in regard 
 to a judgment. (Pettingill vs. Mather, 16 Abb., 399 ; Briggs vs. 
 Thompson, 20 John, 294 ; 3 B. 8., 641, § 25.) 
 
PART III. 
 
 FOEECLOSUEE OF JAE^S. 
 
 CHAPTEE I. 
 
 JUBISDICTION OF COUBTS. 
 
 222. Section four provides that • " where the aggregate of 
 liens shall be less than five hundred dollars, the said proceed- 
 ings may be had before any court in the said city ; and where 
 they exceed that sum, when the proceedings are commenced, the 
 action shall be conducted in a court of record having equity 
 
 Jurisdiction, and none of the courts in the said city shall be de- 
 prived of jurisdiction by reason of the residence of any parties 
 «lsewher«."* 
 
 223. Under the act of 1851 no court of record had jurisdic- 
 tion except the Court of Common Pleas, and the Marine and 
 District Courts in certain cases. (§ 4.) 
 
 224. The statute of 1863 is plain as to courts of record, but 
 as to the Marine and District Courts, many questions can 
 arise. The only limitation in the jurisdiction of these courts 
 seems to be in the amount of the aggregate of liens. Yet it 
 seems unreasonable (1) that the notice for the commencement 
 
 * Under the act of 1862, relating to the counties of Kings and Queens, only 
 a court of record in said counties has jurisdiction to foreclose liens. (§ 2). 
 
JUEISDICTION OF COUBTS. 6L 
 
 of the proceedings in these Courts could be served ia any 
 part of the State, and (2) when a party is out of the State, that 
 he could be served by publication, (3) when one lien anaounta 
 to more than $250, the District Court would still have jurisdic- 
 tion, provided the aggregate was not over $500, (4) when the 
 title to real property is involved, that question could be there 
 triedy (5) and a fraudulent conveyance could be'set aside as in 
 a court of record, (6) and that a judgment directing the sale of 
 the owner's interest could be executed b^ a marshal of said 
 courts, (7) and, therefore, distribute the surplus as in cases of 
 foreclosure of mortgages ? 
 
 225. If the proceedings were intended to be the same in; 
 every particular specified in the act, how long a time would the 
 notice of publication have to be made, in what papers and un- 
 der what authority, and how would the advertisement of sale' 
 of real property have to be made ? 
 
 (The question of enforcing judgment will be hereafter dis- 
 cussed under judgment and execution.) 
 
 226. Some of these questions were directly answered under 
 the law of 1851, ia {Quimby vs. Sloan, 2 U. B. 8., 594), in re- 
 gard to the Marine Court, — " That court has no jurisdiction to 
 " enforce equitable liens' It has no equitable jurisdiction except 
 " such as this very statute confers upon it. Actions to recover 
 " or enforce claims to real property, or a right or title or interest 
 " therein, legal or equitable, must be brought in other courts. 
 " The statute in question has given the Marine Court jurisdic- 
 " tion in specific cases under that statute, and we have held 
 " and are still of opiuion that this clothed that court with all 
 "the jurisdiction necessary to carry the provisions of this 
 " statute into full effect, and in a foreclosure of the lien given 
 " by the statute, to order the premises to be applied to the 
 " satisfaction of the lien."* 
 
 227. Chapter 629 of the Laws of 1872 extends the jurisdic- 
 
 * After a judgment haa been recovered in the Marine or District Courts, and a 
 sale thereon on execution, of all the right, title and interest in the property of the 
 party against whom the judgment was recovered, an action of ejectment may be 
 maintained against the gcantee, and thus contest the bona fides and validity of any 
 transfer made to defraud the lienor {JSrnst vt. Seed, 49 Barb., 367 ; Randolph 
 vs. Ganey, 10 Abb., 179). 
 
62 JUKISDICTION OF COURTS. 
 
 tion of the Marine Court in proeeBdings to foreclose mechanics' 
 liens, where the amount of money, damages and recovery 
 claimed, exclusive of interest, costs and allowances, do not ex- 
 ceed $1,000 (§ 3, sub. 10) ; but whether this applies to the ag- 
 gregate amount of all the liens, or to any amount, provided no 
 one of them exceeds $1,000, has not been settled by a judicial 
 decision, but it must be taken as extending § 4 of the lien 
 law, in which it is provided that, " where the aggregate of liens 
 " shall be less than $500, the said proceedings may be had be- 
 " fore any court in the said city, and when they exceed that 
 " sum, when the proceedings are commenced, the action shall be 
 " conducted in a court of record having equity jurisdiction" &c. 
 
 228. Although the 'Marine Court has no jurisdiction when the 
 aggregate of hens exceeds $1,000, it has jurisdiction in these 
 proceedings, to whatever sum the accounts between the parties 
 may amount.- It is the same with the District Courts, the ag- 
 gregate of liens is the only limitation as to the jurisdiction of 
 the matters in dispute. {Foley vs. Gou>gh, 4 K D. S., 724.) 
 
 229. The only reasonable construction to be put upon the 
 questions as to the Marine and District Courts then is, that the 
 notice for the commencement of the proceeding is to be re- 
 garded as a summons, {Lowher vs. CMlds, 2 U. D. S., 577 ; 
 Quimby vs. Sloan, 2 U. D. S., 595 ; Malthy vs. Green, 1 Keyes, 
 648; Beynolds vs. Hamil, 1 OodeB., N.8., 230). Tli& Feqph ex 
 rel. Bendon vs. Go. Judge of B. Go., 13 How., 398,) issued out of 
 those courts, but signed by the claimant and served in the 
 same manner as a summons, but at least ten days before the 
 return thereof (§ 5), and that no recovery can be had by any 
 party for any amount or upon any question beyond the juris- 
 diction of these courts in other actions on simple contract. 
 
 (The manner of proceeding and the enforcement of the jiidg- 
 ments of these courts wUl be hereafter considered.) 
 
 230. In regard to the removal of these proceedings from the 
 District Court to the Court of Common Pleas for trial, section 
 3 of the District Court Act of 1857 does not apply, because these 
 are special proceedings, and express jurisdiction therein is con- 
 ferred upon the District Courts, and the act of 1857 expressly 
 provides that any action commenced pursuant to this section 
 (§ 3) may be removed, &c. 
 
TIME AND MANNER OF COMMENCING FOEECLOSUEE. 63 
 
 As to jurisdiction in appeals, see appeal, post. 
 
 231. So many questions can arise in the proceedings in the 
 Marine and District Courts as to the manner of service and the 
 enforcing of judgments, it is well to take into consideration that 
 courts of record have concurrent jurisdiction (§4) in these 
 cases, without regard to the amount, although the amount 
 claimed is less than $50, without the claimant being liable for 
 costs if his recovery is under $50. (see costs, posi.) 
 
 232. Chancellor Walworth, in the case of Brown vs. Brown, 
 (1 Barb. Chan. B., 217) in the Court of Chancery, said : " Where 
 no remedy exists elsewhere to enforce a right, this court will fur- 
 nish such a remedy whenever it is necessary to prevent a total 
 failure of justice." The equity case of {Scarsfield vs. Vaugner, 
 15 Ahh., 65), in the Supreme Court, was for a claim under $50. 
 
 233. As to jurisdiction of the Supreme Court in equity cases, 
 without regard to the amount in dispute see Laws 1862, p. 859, 
 § 39 / Laws of 1863, p. 664, § 2 / Boorman vs. Johnson,-26 How., 
 27/ Scarsfiddvs. Vaugner, 15 Abb., 65 ; Marsh vs. Benson, 34 
 N. Y., 358. 
 
 234. A judgment of a court of record for any amount, how- 
 ever small, is a lien upon real estate and the same maybe sold 
 upon execution in such judgment (3 B. 8., p. 637, § 4) ; but a 
 judgment of a Justice's Court for an amount under $25 can only 
 be enforced against personal property. (3 B. 8., p. 446, § 120, 
 Code, § 68, see " Judgment " and "Execution," post.) 
 
 CHAPTER II. 
 
 TIME AND MANNER OP COMMENCING FOBECLOSUEE. 
 
 235. As the owner is bound to take notice of the lien from 
 the time of filing (§ 3, and ante, 183), the proceeding may be 
 commenced to foreclose without making any previous demand 
 on him or on any other party to the proceeding. 
 
 236. Where there are liens filed, the owner cannot commence 
 an equity action in the ordinary way, asking that the liens be 
 canceled. {Spratt vs, Nicholson, 3 Daly, 182.) He can only 
 
64 TIME AND MANNEE OP COMMENCING FORECLOSURE. 
 
 proceed under this statute. {Id., Fettrich vs. Totten, 2 Ahh., N., 
 S., 264 ; Carroll vs. CaughUn, 7 Abh., N. 8., 72.) * 
 
 237. The proceedings to enforce or foreclose a lien may, 
 after the expiration of ten days after the filing thereof, at any 
 time during the continuance of it, as a lien {MusMitt \s. Silver- 
 man, 50 N. Y., 360 ; Carroll vs. CaughUn, 7 Abb., N. S., 72), be 
 instituted by any person or persons so filing it, or by any owner 
 or ot]ier person interested in the matter. (§ 4.) 
 
 238. Any contractor may, therefore, commence where liens 
 are filed against his claims. {See post, 262.) 
 
 239. Proceedings must be commenced before the lien ceases. 
 {Maltby vs. Oreen, 1 Keyes, 548 ; Barton vs. Hermcm, 8 Ahh., N. 
 8., 399.) 
 
 240. In any case, however, the lien cannot be foreclosed by^ 
 the claimant until the debt is due him. (AUkause vs. Warren, 
 2 K D. Smith, 657 ; Teaz vs. Chrystie, 2 do., 621.) 
 
 241. But canthe owner or other person foreclose before that 
 time ? In lliUer vs. Moore (1 E. D. Smith, 739) the court inti- 
 mated that by the owner commencing the proceedings he 
 waived the term of the credit, and by his own act was estopped 
 from setting up that as a defense. In the same case, at Gene- 
 ral Term, the same view was sustained. {Id., 74:7.) 
 
 242. The process provided by the act (§ 4 and 5) for com- 
 mencing the proceeding is much more intricate than the ordi- 
 nary summons, though it answers but the same purpose and is 
 a substitute for it. {Ante, 229 ; Maltby vs. Green, 1 Keyes, 548 ; 
 Eeynolds vs. Hamil, 1 Code B., N. S., 230 ; Brown vs. Wood, 2 
 hiltan, 579 ; Sullivan vs. Decker, 1 E. D. S., 699 ; Lowber vs. 
 Childs, 2 E. D. S., 577 ; Jackson vs. Sloan, do., 617 ; People, ex 
 rel. Bendon, vs. Co. Judge of B. Co., 13 How., 398 ; and Schaet- 
 tler vs. Gardiner, 41 How., 243. Do. 47 K Y., 404. t) 
 
 * It is a well recognized principle that wlien a statute creates a right, and also 
 prescribes a remedy and mode of enforcement, that mode is exclusive. {Shaw vs. 
 Mddrum, 14 Ahb.,N. 8., 165; Dudley vs. Mayhem, 3 N. Y., 9.) 
 
 \ A question arose under the law in Kens. Co., whether proceedings to fore- 
 close a lien under the statute should be regarded as a special proceeding, and there- 
 fore a review of a decision therein should be by ceriioTari, or by an appeal from 
 the judgment, as in an ordinary action, and under the code. The General Term 
 of the Supreme Court held that the proceedings to review a judgment under these 
 statutes should be regarded as in an ordinary action. ( The People ex rel. Bendon, 
 vs. Co. Judge of Rensselaer Co., 13 How., 398.) 
 
TIME AND MANNER OF COMMENCING FOEECLOSURE. 65 
 
 243. The statute only requires that the notice shall contain 
 (1) the names of the parties, (2) stating the hens and the times 
 of filuig, (3) requiring them to appear in court at a day and 
 hour named. (§§ 4 and 5.) (See Lowber vs. Childs, 2 E. D. S., 
 577.) 
 
 244. The notice in use contains : (1) An entitling of the case, 
 giving the name of the court and the names of the parties. 
 The person commencing the proceeding is named as plaintiff, 
 and all the other parties as defendants. (2) Stating hoAV the 
 plaintiff is interested, either as owner, contractor, debtor, Uen- 
 or, incumbrancer or assignee of lienor. (3) A reference to the 
 liens, stating the times and place of filing. If the liens have 
 been continued by order, the notice should show when. (4) 
 Their respective amounts. Stating the amounts would seem to 
 be necessary in order to show that the court had jurisdiction, 
 particularly the amount, if in the Marine or District Courts. 
 {§ 4.) In McSorly vs. Hogan (1 Gode B., N. S., 285), it was held 
 that the notice " should apprise the owner of the fact of the 
 " lien, stating the amount of it, and when it was docketed." In 
 Tinker vs. Geraghty (1 E. D. Smith, 687), it was held that the 
 notice " should contain a sufficient reference to the alleged 
 " lien," but need not show when the materials were furnished. 
 (5) A brief description of the premises. In the case of Tinker 
 vs. Geraghty, it was questioned if it be at all necessary to de- 
 scribe the building otherwise than by a reference to the crea- 
 tion of the lien. (6) Stating the name of the contractor (debtor) 
 of the claimants. The omission of the contractor's name (the 
 party from whom the amount is claimed) may be a fatal defect 
 in the notice to foreclose, but such variance is not fatal to the 
 lien. (§2; see McBride vs. Crawford; 1 E. D. S., 658.) (7) A 
 requirement to appear in a specified court (if a court of record, 
 at a Special Term at Chambers) and at a specified day and hour. 
 A notice to appear before the clerk of the court is not good. 
 {Dressel vs. French, 7 How., 350.) (8) The object of such ap- 
 pearance, to wit, " to submit to an accounting and enforcement 
 " of the amounts due or claimed to be due on said liens, pursu- 
 " ant to the act in such case made and provided." (9) This 
 notice, in whatever court it is returnable, should be subscribed 
 by the party giving it, to wit, A B (lienor or other 
 
 • 5 
 
66 TIME AND MANNER OF COMMENCING EORECLOSUBE. 
 
 party) by C D ; his attorney, 111 JBroadway, N. Y. 
 
 (10) Should be addressed to the parties named as defendants. 
 
 245. Said notice may be served at any time after the notice 
 of lien has been filed ten days (§ 4), provided the lien has not 
 ceased by lapse of time {Carroll vs. VaugJilin, 7 Abb., N. 6'., 72), 
 and must be served upon all persons who have filed liens, and 
 upon the owner and incumbrancers when they can be found. 
 (§ 5.) If the lienors cannot be served personally, they may be 
 served by leaving the notice at the place designated by them 
 in their notice of lien. (§ 5.) 
 
 246. In case a defendant is a resident of this State and can- 
 not be found, or, if found, avoids or evades the service so that 
 the same cannot be made personally, the notice could be served 
 under Laws of 1853, ch. 511. 
 
 247. When any of the parties defendant do not reside within 
 this State or have removed therefrom, the service may be by 
 publication as to them. (§ 4.) 
 
 248. No proceedings are prescribed as to the mode of such 
 service, or how long the publication must be. The only rule, 
 then, that can be reasonably adopted would seem to be the 
 same as is prescribed by the Code for the service of a summons 
 by publication. Service by publication would be deemed to be 
 complete on the day of the last publication of the notice, as in 
 case of a summons {Code, § 137), and the time of the appear- 
 ance in court must be at least ten days after that. 
 
 249. This rule, it would seem, was not intended to apply to 
 the service of the notice when the proceeding is commenced in 
 the Marine or District Courts ; and in these courts the service 
 of notice should perhaps be personal, except as to the persons 
 who have filed liens and designated places where they may be 
 served. And in cases where the owner or incumbrancers are 
 necessary parties, the said courts could acquire jurisdiction 
 over them only by personal service. 
 
 250. Whether this service could be made out of the city of 
 New York, or out of the ordinary jurisdiction of these courts, 
 would seem doubtful, if not improbable. Yet § 4 provides that 
 " none of the courts in the said city shall be deprived of juris- 
 " diction by reason of the residence of any parties elsewhere." 
 
TIME AND MANNER OP COMMENCING EOEECLOSUKE. 67 
 
 251. In case of an erroneous notice, the court should follow 
 the same rules as to amendments as in ordinary summons. 
 
 252. In Beats vs. Gong, B. J. (1 E. D. Smith, 654), the Court 
 said that if the defect was " a merely formal error in the notice 
 "by which the proceedings to foreclose was instituted, that 
 " defect might be deemed waived by a general appearance ;" 
 and in McBride vs. Grawford (1 Id., 658) the Court held that 
 entering upon the subject matter of his defence the defend- 
 ant had waived any defect in the form of notice. 
 
 253. If the notice is dismissed for irregularity, another 
 notice may be given. {McSortey vs. Eogan, 1 Code, E. N. S., 
 285.) 
 
 254. The person that may make the service is not desig- 
 nated. It may be by the sheriff, or any person of suitable age. 
 The better plan is to follow precisely the rule required in the 
 service of summons, and the proof thereof by affidavit, as is 
 specified by rule 23 of the Supreme Court. 
 
 255. Where a proceeding has been commenced by one lienor 
 to enforce the liens, another lienor who is a defendant therein, 
 cannot commence another distinct proceeding to foreclose his 
 lien. The latter proceedings will be dismissed on motion. 
 {Graff \s. Rosenberg, 6 Abh., N. 8., 428.) 
 
 256. Upon a notice to the clerk that proceedings have been 
 commenced, he is required to enter that fact in his docket. (§6.) 
 
 The form of the notice that proceedings are commenced, to 
 be given to the clerk, is a copy of the notice by which the pro- 
 ceedings were commenced, and affidavit of the service of the 
 same on the defendants against whom it is to operate, and 
 that the proceeding is still pending. 
 
 If a defendant wishes to give the clerk notice, he must serve 
 on the clerk a copy of said notice, with an affidavit that the 
 same has been served on him, and that the proceeding is still 
 pending. (See Paine vs. Bonney, 4 E. D. 8., 734.) 
 
 257. A question may arise, where there are mortgages on the 
 property, whether the mortgagee, if he wishes to foreclose his 
 mortgage, should proceed by action in the ordinary way, mak- 
 ing the lienors parties defendants, or should proceed by the 
 
68 TIME AND MANNEK OF COMMENCING FOBECLOSUEE., 
 
 notice required by §4, under the act of 1863. The statute says, 
 "any person interested may commence such proceeding." (§4.) 
 
 258. A mortgagee can undoubtedly commence the proceed- 
 ing, but he is not restricted to that form, but may proceed to 
 action as formerly, in which the rights of lienors and owner 
 and others may be determined. A prior mortgage was fore- 
 closed by action in the case of Livingston vs. MiUer (16 Abb., 
 371,) and the rights of the lienors to the. surplus fund were de- 
 termined. (Id. See Noyes vs. Burton, 17 How., 449. 8chafer 
 vs. BeUly, 50 N. Y., 61. Livingston vs. Mildrum, 19 N. T., 440. 
 Stuyvesant vs. Browning, 1 Jones & 8., 203.) 
 
 259. If a mortgage is foreclosed without making a lienor a 
 party, he may afterwards take proceedings and foreclose his 
 lien. [HaUahan vs. Herbert, 11 Abbott, N. 8., 326. 8ee post, 
 290.) 
 
 260. An ordinary action in equity or at law may, under cer- 
 tain circumstances, be prosecuted to decide questions that 
 may arise under this act. (See Westervelt vs. Levy, 2 Duer., 
 354. Paine vs. Bonney, 4 K D. 8., 734. Bdmant vs. 8mith, 1 
 Duer, 675. Bandolph vs. Garvey, 10 Abb., 179. Ernst vs. Beed, 
 49 Barb., 368, and ante, 258. Young 8tone D. Co.,ys. Wardens, 
 &c., 61 Barb., 489.) 
 
 271. When the lien is perfected by complying with the 
 statute, the lien is still valid after a petition in bankruptcy, 
 and the State Court may still proceed to a certain extent. {In 
 re. Clifton, 3 Nat. BTc. Beg., 162. Gray, J., Mass. Sbe § 21 
 Bankrupt Act.) 
 
 262. If the owner is afterwards in bankruptcy, the lien may 
 be proved the same as any other lien under § 20 of the 
 Bankrupt Act. 
 
 263. Where liens against real estate by a statute law have 
 been perfected before voluntary petition filed in bankruptcy, 
 such liens are within the saving clauses of §§ 14, & 20 of the 
 Bankrupt Act. (1 Nat. Bk. Beg., 169, 165, 154^157. 2 Id., 33.) 
 
PARTIES TO THE PROCEEDINaS. 69 
 
 CHAPTEE III. 
 
 PARTIES TO THE PROCEEDINGS. 
 
 264. The proceedings to enforce or foreclose a lien may, 
 after the expiration of ten days after the filing thereof, during 
 its continuance as a lien, be instituted by any person or per- 
 sons so filing it, or by any owner or other person interested in 
 the matter (§ 4, and ante, 237).* 
 
 265. Those who commence should be named as plaintifis who 
 are jointly interested either as copartners, joint tenants or 
 tenants in common, either as lienors, assignees of liens, owners, 
 contractors, or incumbrancers. 
 
 266. Although, as we have seen, an assignee of a claim cannot 
 file the notice, after a notice has been filed an assignee could, 
 
 under this provision, take proceedings to foreclose it, the same 
 as an assignee of any other chose in action. {Hallahan vs. 
 Herbert, 11 Abi., N. S., 326.) See Code, § 111, § 112 and notes. 
 Subdivision 1 of § 10 contemplates a subsequent assignment 
 after notice filed. {Roberts vs. Fowler, 3 E. D. S., 632.) 
 
 267. In such proceedings each and every person or persons 
 who have filed liens shall be parties to and have notice of such 
 proceedings (§ 4.) See 'post, 287. 
 
 268. When the proceeding is instituted by a lienor, all per- 
 sons who have filed notices of liens on the property, as well as 
 the owner, mortgagee, judgment credito r, subsequent grantee 
 and other subsequent incumbrancers of the property, should 
 be made parties defendant (§ 5).t See post, 287. 
 
 269. If a lien has expired by lapse of time, but not dis- 
 charged by order of the Court or otherwise, the lienor should 
 be made a party, in order to have mistakes, if any, corrected, 
 if equitable. 
 
 * Previous to the Act of 1863 a contractor could not, under the statute, sum- 
 mon or compel a sub-contraciur to appear and account. ( Carpenter vs. Jaques, 2 
 K D. &, 571 ; Butler vs. Magie, do. 654.) 
 
 f Under the law of 1851 and '53, it was not necessary to make subsequent 
 lienors parties. {Kaylor vs. O'Connor, 1 E.D.S., 672. Westervelt vs. Lesy, 2 Duer, 
 354;) nor to make any incumbrancers parties, the proceeding might be between the 
 owner and the lienor only, even if he was a sub-contractor. (Kaylor vs. ff Connor, 1 
 -E. D. S., 672. Foster vs. Skidmore, do., 719.) The law of 1862 relating to the 
 counties of Kings and Queens is the same as the law of 1851-55 on that point. 
 
70 PARTIES TO THE PBOCEEDINGS. 
 
 270. The contractiTig oiuner must be made a party, even if lie 
 lias conveyed the property after the lien was filed. {Althause 
 vs. Warren, 2 K D. S., 657), because, if his property was liable 
 by his acts, he is still liable, 'and this is so even if he is not 
 named in the notice of lien (§ 2.) 
 
 271. A prior mortgagee, whose mortgage is not yet due, 
 should not be made a party. (2 Barh. Ck. Frac., 174. Case 
 vs. rrice, 9 Abb., 111.) 
 
 272. If the prior incumbrances are due, the plaintiff may 
 make them parties for the purpose of having the amount of 
 the incumbrances liquidated and paid out of the proceeds of 
 the sale, or he may have the property sold subject to such 
 prior incumbrances, the same as in mortgage cases. {Holcomb 
 vs. Holcomb ; 2 Barb., 20 ; Matheios vs. AiMn, 1, N. Y., 595 ; 
 Kaylor vs. O'Connor, 1, E. D. S., 672 ; Sullivan vs. Decker, do., 
 699; Chamberlain vs. O'Connm; 1 E. D. S., 665. Bule 72.) 
 
 273. Any party interested may apply to the Court to have 
 prior incumbrancers made parties. {Code, §122; Kaylor vs. 
 O'Connor, 1 E. D. 8., 672 ; Chamberlain vs. O'Connor, do., 665; 
 Sullivan vs. Decker, do.,' 699 ; post, 27811) 
 
 274. Where a fraudulent grantee is a party to the foreclosure, 
 his claim may be tried and adjudicated upon, and judgment 
 given against him. {Quimby vs. Sloan, 2 E. D. S., 594 ; Bailey 
 vs. Johnson, 1 Daly, 61 ; Meehan vs. Williams,'d6, How., 73.) 
 
 On the same principle, a fraudulent assignee of the amount 
 due under the contract may be made a party, and his rights 
 adjudicated upon. 
 
 275. In these proceediags the equity rule applies .that any 
 person may be made a defendant who has or claims an interest 
 in the controversy adverse to the plaintiff, or who is a neces- 
 sary party to a complete determination or settlement of th© 
 questions involved. (Code, § 122, Loivber vs. Childs, 2, E. D. 
 S., 577; Kaylor vs. O'Oonnor, 1 E. D. S., 672.) 
 
 276. The contractor is not in terms required to be made a 
 party when the plaintiff is a sub-contractor or an employee, or 
 vendor of the contractor {SiiUivan vs. Decker, 1 E. D. S., 699) ; 
 but any claimant may, by making both his contractor and the 
 owner parties, obtain a personal judgment against the con- 
 
PARTIES TO THE PROCEEDINGS. 71 
 
 tractor, though failing as against the owner. (§ 9, Grogan vs. 
 The Mayor, 2 E. D. 8., 693 ; Sullivan vs. Brewster, do., 689 ; 
 Grogan vs. McMahon 4, do. 754 ; Schaettler vs. Gardiner, 41 
 IZbiy., 243, do. 47 N. Y., 404 ; 5arto?i vs. Hermann, 8 J&&., iV. S., 
 399.) 
 
 277. A party cannot demur to a complaint because a con- 
 tractor is not made a party. {Foster vs. Skidmore, 1 E. D. 8., 
 719.) 
 
 278. It is the duty of the Court, when a complete determi- 
 nation cannot be had without the presence of other parties, to 
 cause them to be brought in. {Davis vs. The Mayor, 2 Duer 
 663 ; Turndl, vs. SaM, 3 Abb.; 205 ; Waring vs. Waring, do., 
 246 ; Code, § 122 ; 8uUivan vs. Dec/cer, 1 E. D. 8., 699 ; Lowber 
 vs. GhiMs, 2 cZo., 577.) 
 
 279. It is advisable to have the contractor before the Court 
 if possible, in most instances, in order to do equity and justice 
 to the claims of the respective parties. {Lowber vs. Ghilds, 2 
 E. D. 8mith, 577 ; 8ullivan vs. Decker, 1 do., 699 ; Kaylor vs. 
 0' Connor, 1 do., 672 ; Foster vs. Skidmore, 1 do., 719. Chamber- 
 lain vs. 0' Connor, do. 665.) , • . 
 
 280. When in the proceeding it appears that a claimant was 
 engaged by a sub-contractor, in such case it may be necessary 
 and proper to have both the contractor and sub-contractor 
 parties, although no claim is made by either of them. 
 
 281. The owner can also have the contractor brought in as a 
 party. {Sullivan vs. Decker, 1 E. D. 8., 699 ; Foster vs. Skid- 
 more, do., 719 ; Lowber vs. Ghilds, 2 do., 511 ; Kaylor vs. 
 ff Gonnor„l E. D. 8., &n.) 
 
 282. Where the owner has paid his contractor, and that is 
 the only question at issue, it may not be necessary that the 
 contractor should be brought in when the proceeding is by or 
 against a person engaged by the contractor or other party, 
 {McBride vs. Crawford, 1 E. D. 8., 658) ; but the contractor may 
 be allowed to come in on his own motion. 
 
 283. When the proceeding is commenced by the owner he 
 need only include those who have filed liens. If the lienors 
 wish any other persons to be made parties, they can apply for 
 an order to bring them in. {Ante, 287.) 
 
72 PARTIES TO THE PBOCEEDINGS. 
 
 284. Where the money has been deposited, and the lien on 
 the property discharged under sub. 2 of § 10, the only neces- 
 sary parties in the proceedings are those who are directly in- 
 terested in that particular fund, as in cases of surplus funds on 
 foreclosure of mortgage. (Hubbdl vs. Schreyer, 14 Abb., N. S., 
 284.) Thus wheu the deposit is made by an employee of a sub- 
 contractor who has deposited the money before proceedings 
 commenced, the sub-contractor is the only necessary party 
 defendant to the proceedings by the claimant. If the owner 
 and contractor are made parties after such deposit by the 
 sub-contractor, an order will be made on application, striking 
 out their names and without costs. {Schaetfler vs. Gardiner, 
 41 Sow., 243.) 
 
 285. In case there are several sub-contractors, and liens are 
 filed by some of the employees of one or more, and money is 
 deposited by some or all of the sub-contractors, still a claimant 
 may proceed against his contractor (the sub-contractor), who 
 has made a deposit without making the owner or any of the 
 other claimants parties, unless their claim is upon that parti- 
 cular fund. (Id.) 
 
 286. After proceedings have been commenced, and the con- 
 tractor deposited the amount and costs, under § 10, sub. 2, the 
 proceedings against the owner should be dismissed unless he is 
 claimed to be personally liable. (Sehaettler vs. Gardiner, 41 
 Hoio., 243.) 
 
 287. The statute requirement that all lien holders shall be 
 made parties (§ 4 & § 5) is permissive merely, and at most can 
 only apply to be necessary to aU of those filed under the same 
 contract, and those filed subsequent to those that are to be 
 foreclosed. Prior lienors, under different contracts, may not 
 have any interest in the proceedings, because if they are not 
 parties the amount of their claims must be credited to the 
 owner and the property sold subject to them. (Kaylor vs. 
 O'Connor, 1 E. D. 8., 672 ; Chamberlain vs. O'Connor, do., 665.) 
 
 288. The wife of the owner is not a necessary party, as she 
 cannot be barred of dower by the proceeding unless she is a 
 party to the contract. 
 
 289. The wife of a subsequent grantee, after notice filed. 
 
PAETIES TO THE PROCEEDINGS. 73 
 
 should be made a party defendant, in order to bar ber right of 
 dower, as in mortgage cases. (1 Orary's Prac., 280.) 
 
 290. The general rules that govern the naming of parties 
 who have future and contingent interests and claims in thfe 
 equity of redemption, or as owners, is the same as in mortgage 
 cases. {See Story's Eq. PI, §§ 182 to 203.) * 
 
 As to who may be regarded as owner see Ante, chap. 4. 
 
 291. Making an improper person a party as owner or con- 
 tractor, or debtor, does not affect or impair the validity of the 
 lien (§ 2- §6.) But the parties seeking to charge any of these 
 may be liable for costs to them, as in other actions. {Jackson 
 vs. Sloan, 2 E. D. S., 616 ; Knapp vs. Brown, 45 N. Y., 207.) 
 
 292. In proceedings by or against minors, trustees, and 
 persons under any disaMlity, the same rule and proceedings 
 apply as in an ordinary action under the Code. 
 
 293. If there be a defect of parties, an application to add 
 them may be made in the appearance of the parties pursuant 
 to notice, or at any stage of the proceedings {Sullivan vs. Declcer, 
 
 1 E. D. S., 699) where an order is set forth in full. {Foster vs. 
 Skidmore, 1 E. D. S., 719; LowUr vs. Ghilds, 2 E. D. S., 577 ; 
 State of New York vs. the Mayor, 3 Duer, 121 ; Code, § 122, and 
 notes.) 
 
 294:. It must be before judgment. {OassiveU vs. Neville, 12 HoioJ 
 445 ; Hubbard vs. Evans, 22 Barb., 597.) fl 
 
 295. Proceedings to bring in parties or to be made a party, 
 may be founded upon petition or upon affidavit. {Sullivan vs. 
 Bec^cer, 1 E. D. S., 699 ; Foster vs. Skidmore, 1 E. D. S., 719 ; 
 
 2 Abb., forms 220, note.) 
 
 296. When liens are filed after service of notice, and before 
 final judgment, the lienors shall be required to appear sum- 
 marily at such time as the court or a judge thereof shall order 
 
 * Since the repeal of the law of 1840 (oh. 342, § 9,) by the law of 1844 (ch. 
 346 8 5,) it is necessary to make aU subsequent incumbraneers parties on foreclosure 
 of mortgage or they are not bound by the decree, and may bring an action for an 
 accounting and leave to redeem, and the purchaser be regarded as a mortgagee in 
 possession, and must therefore account for the rents and profits. (Brainard va. 
 Cooper, 10 N. 7., 356; Wahh vs. Rutger's Fire Ins. Co., IZ Abh., 33,) and the 
 amount of liis claim by the mortgage litigated therein (ante, 2Y2.) 
 
74 PAKTIES TO THE PEOCEEDINGS. 
 
 (§ 5,) and shall be notified to appear and join in the said pro- 
 ceedings by a notice to be served at least five days before the 
 entry of judgment. (§ 4.) 
 
 297. Persons who become subsequent incumbrancers other 
 than lienors under this statute, after proceedings commenced 
 are not necessary parties. (Suydam vs. Holden, 11 Abb., N. S., 
 329.) 
 
 398. In regard to the manner of bringing in parties, "Wood- 
 ruff says ; " Upon this subject there can be no difficulty in fol- 
 " lowing in substance the former equity practice. An order 
 " being made to add the contractors as parties, they can be sum- 
 " moned to answer the plaintiff's complaint with the other 
 " defendant'^already in court, and on being served with the order, 
 " summons and complaint, they would be clearly bound to do so, 
 " or they could never after complain of any judgment which 
 " might be rendered between the claimant and the owner." {Sul- 
 livan vs. Beclcer, 1 E. D. 8., 699 ; Foster vs. jSMdmm-e, 1 E. D. 8., 
 719.) 
 
 399.. It is the duty of the plaintiff's attorney to make exami- 
 nation of the record, and if any liens have been filed since the 
 proceeding, he must obtain a summons from the court, and 
 serve the same and the notice and complaint, although it may 
 be obtained and served by any party to the proceeding. 
 
 400; The summons may be obtained ex-parte, on affidavit 
 showing the state of the case, and the fact that the lien has 
 been filed since the proceeding was commenced. 
 
 401. The summons and notice requiring the lienor to appear 
 may be as short as the court may direct. (§ 5.) But a lienor 
 has at least five days after the service of the notice in which 
 to prove his claims before the entry of judgment. (§ 4.) 
 
 402. The Marine Court and District Courts have the' same 
 power to require the contractor to be brought in as a party as 
 a court of record. {Loivber vs. Ghilds, 2 E. D. 8., 577.) 
 
 403. The penalty of making improper parties, and seeking 
 to charge their interest, is to make, the plaintiff liable for costs 
 as in other actions. {Jackson vs. 8loan 2 E. D. S., 616.) 
 
 404. Bivt it does not impair the validity of the lien or the 
 proceedings upon it (§ 2) as to the proper parties. 
 
PLEADINGS AND CLAIMS. 75 
 
 ■ CHAPTEE IV. 
 
 PLEADINGS AND CLAIMS. 
 
 405. The statute (§ 5) is very ambiguous as to the time and 
 manner of joining in the issues to be proved and tried. 
 Formerly the pleadings were the same in form as in ordinary 
 actions under the Code. (Doughty vs. Devlin, 1 K D. 8., 625 ; 
 Brien vs. Clay, 1 U. D. 8., 649 ; Jaques vs. Morris, 2 E. D. 8., 
 639 ; Duffy vs. McManus, 3 E. D. 8., 657 ; Bailey vs. Johnson, 
 1 Daly, 61.) 
 
 406. It is to be observed that no fortn of pleading is re- 
 quired by the statute, yet § 7 mentions that in cases where the 
 parties appear and plead, &c., thus contemplating pleadings, 
 and § 5 provides that the court shall proceed without regard 
 to matters of form, which shall be amendable at all times while 
 the proceedings progress. In an early case under the former 
 law {Empire Dressing Co. vs. FicJcering, Nott's Lien Law, p. 44) 
 the court said that inasmuch as the pleadings in lien cases are 
 required by the court and not by statute, the court wUl look 
 upon them with greater leniency than upon ordinary plead- 
 ings and wiU exercise with respect to amendments a more 
 liberal discretion. Section five of the act is only carrying out 
 that suggestion. 
 
 407. The issues mentioned in § 5 are not confined to issues 
 of fact, that mentions " statement of claims," and " objections to 
 such claims," &c. Demurrers are objections and make issues, 
 (Doughty vs. Devlin, 1 K D. /§., 625.) 
 
 408. And now the " statement " referred to may take the 
 form of an ordinary complaint or answer, and the " objections" 
 may be an answer, a counter-claim, a reply, a demurrer and 
 motions. • 
 
 Judge Woodruff said : " The issues joined may be upon the 
 " claims made, or upon the set-off, or upon both. They may be 
 " issues of law or issues of fact. Nothing in the act confines 
 " the issues to facts only, and if not, then the pleadings may 
 " be so framed as to present any issiies which the parties may 
 "desire to raise respecting the matters in controversy. To my 
 " mind it is plain that the Legislature intended, after pointing out 
 
76 PLEADINGS AND CLAIMS. 
 
 " the mode in whicli a lien might be secured, and an appearance 
 " in court compelled, to provide that, on such appearance, the 
 " proceedings should in all respects assume the form of an or- 
 " dinary civil action, and in all things after the appearance, be 
 " governed by the same rules as other civil actions brought for 
 " the enforcement of similar rights." {Doughty vs. Devlin, 1 E. D. 
 S., 625.) 
 
 409. The practice now is to proceed in the manner and form 
 as under the previous statutes. {SuLlivan vs. Decker, 1 E. D. 
 S., 699 ; Reynolds vs. Hamil, 1 Code R. N. S., 230 ; Dressel vs. 
 French, 7 How., 350 ; Schaettler vs. Gardiner, 41 How., 243 ; 
 ScJmettler vs. Gardiner, 47 N. T., 404.) At the time and place 
 specified in the notice, the party serving the same appears, and 
 after aU objections to the form of the notice, and the manner of 
 service are disposed of, an order is entered requiring the party 
 who commences the proceeding as plaintiff, to file and serve a 
 complaint on the parties who have appeared, as in an ordinary 
 action, within ten or twenty days, and that the defendants or 
 any party affected thereby, in like manner may serve a copy of 
 their answer (objections), or demurrer thereto within twenty 
 days after the service of the copy complaint, and that such 
 other pleadings may be served between the parties as maj/ be 
 necessary in the action according to the usual course in other 
 actions, and each party must also, if demanded, serve within 
 ten days upon the attorneys demanding it,, a statement of the 
 claim and bill of particulars represented by him, and that 
 thereafter the action proceed as in an ordinary action. (Id.) 
 This order may be entered by consent, the same as any other 
 order. A copy of it must be served upon the attorneys for 
 the respective parties who have appeared. 
 
 410. When the proceeding is commenced by the owner on 
 the return of the^iotice, the order for issue directs that each of 
 the claimants file a statement of his claim, and a bUl of par- 
 ticulars and serve a copy thereof on the owner's attorney within 
 ten days, and on any other party who may be affected thereby, 
 
 ,and that he may serve his answer or objections thereto 
 within five days thereafter, and that in default of any of said 
 claimants serving their claims as aforesaid, that an order be en- 
 tered discharging the lien of the defaulting party, and that if 
 
PLEADINGS AND CLAIMS. 77 
 
 issue is joined, that tlie trial thereof proceed as in ordinary ac- 
 tions. The proceedings on the notice is then usually adjourned 
 to some day beyond the time required for the claimants to file 
 and serve their claims, and as to all such that are not served 
 and filed by that time an order is entered discharging such 
 lien. {Carroll vs. OougMin, 7 Abb., N. S., 72.) 
 
 411. In regard to the owner's right, to commence the pro- 
 ceedings, the court said : " He may serve notice on the lienors 
 " to appear, and if they fail to appear and file a statement of 
 " their claims within the time prescribed, that the court before 
 " which the lienors are cited to appear may, on proof of service 
 " of the notice and the failure of the lienors as stated, direct a 
 " judgment exempting the property from their liens in the lan- 
 "guage of section ten, heretofore cited." {Carroll vs. Coughlin, 
 7 Abb., N. S., 72), such judgment may also be rendered whether 
 the party served appear or not. {Id.) 
 
 412. If the order for issues does not in terms permit a de- 
 murrer to the complaint, or a reply to the answer, still the pro- 
 vision in the statute and in the order that the same proceed as 
 is an ordinary action, would probably be construed to allow it, 
 or an application could be made to the court for leave to make 
 such objections as the party may deem proper. 
 
 413. If, on the return of the notice, all parties are not served, 
 it may stand over by leave of the court until all are served, or 
 
 ~ the order may be entered as to those served and the others be 
 brought in afterwards, as in other cases where some of the de- 
 fendants have not been served. {Loibber .vs. Childs, 2 E. D. S., 
 577.) 
 
 The Complaint. 
 
 414. The pleadings will depend mainly on the facts as to 
 substance, and the form need not difi'er from those required by 
 the Code in other actions. 
 
 No complaint can.be better or more reasonable and fair than 
 one that contains " a plain and concise statement of the facts 
 constituting a cause of - action without unnecessary repeti- 
 tion." ((7oc?e, § 142.) 
 
 415. The facts to be stated means, of course, only those 
 
78 PLEADINGS AKD CLAIMS. 
 
 ■wMch the plaintiff must prove to entitle liim to recover 
 (Doughty vs. Devlin, 1 H. D. 8., 625) ; vi^hat those are must be 
 measured by tlie sufficiency of evidence to prove a fact on the 
 trial, and not the evidence itself ; and these facts should be 
 stated according to their legal effect, although they may be 
 stated as they actually exist. {See notes to § 142 VoorMes' Code ; 
 see post, Evidence.) 
 
 416. The general rule of pleading, that in stating facts of a 
 case under a statute, care must be taken to show enough to 
 bring the case already within the statute, is particularly ap- 
 plicable to these cases. {Doughty vs. Devlin, 1 E. D. S., 625 ; 
 Abbott vs. N. Y. Centred B. B., 12 Abb., N. 8., 466.) 
 
 417. As these proceedings are generally commenced by a 
 lienor, a complaint by him should show : 
 
 (1). The name of the court and the parties, as in any ordi- 
 nary action, and reference to the proceedings and order to 
 plead. {Brien vs. Clay, 1 E. D. 8., 649.) 
 
 (2). The supposed owner and a full description of the prem- 
 ises. {Bailey vs. Johnson, 1 Daly, 61 ; Duffy vs. McManus, 3 
 E. D. 8., 657.) 
 
 (3). If by a contractor, the contract or delivery of materials 
 or performance of the work, and the nature of them, out of 
 which the claim arises (perhaps the latter need only be stated 
 in the bill of particulars) ; and if by a sub- contractor, or person 
 engaged by him, this must be alleged. 
 
 (4.) Value of the materials or labor, and that they were fur- 
 nished pursuant to a contract, or by, or in accordance with the 
 direction of the ownes or his agent, and that, a payment is due 
 as in other actions. 
 
 (5). Time of performance, showing clearly that it was within 
 the period allowed for fiUng the lien. {Doughty vs. Devlin, 1 
 E. D. 8., 625.) 
 
 (6). The time of filing, the notice of lien, and the substance 
 of it, and that it was verified {Hallahan vs. Herbert, 2 Daly, 
 253), showing that the statute had been complied with in every 
 particular {Doughty vs. Devlin, 1 E. D. 8., 625 ; Bailey vs. John- 
 son, 1 Daly, 61 ; Brien vs. Clay, 1 E. D. 8., 649). It is well to at- 
 tach to the complaint a copy of the notice filed.)* 
 
 * This is required by § 2 of the act of 1862, relatiag to the counties of Kings 
 and Queens. 
 
PLEADINGS AND CLAIMS. 79 
 
 If the lien has been continued, the time of such continuance 
 should be stated. 
 
 (7). Brief statement of how the other defendants are inter- 
 ested, whether as lienors, incumbrancers, grantees or other- 
 wise. 
 
 (8). A demand for a judgment against those alleged to be 
 liable by personal contract, and for an accounting between the 
 owner and contractor, and a personal judgment against the 
 owner for any sum found due from him to the contractor at the 
 time the notice was filed, or that has since become due, or so 
 much thereof as will be sufficient to satisfy plaintiff's claim and 
 costs of this proceeding, and for a sale of the owner's interest 
 in the^premises at the time the notice was filed to satisfy said 
 judgment against the owner, and for such further and other or 
 different relief in the premises as the court shall be competent 
 to grant. 
 
 418. The complaint is required to be more explicit than any 
 other pleading or statement of claim, because it is to set the 
 entire proceedings in motion as to all the parties interested. 
 
 419. Where the complaint was predicated solely on the 
 notice of lien, and contained averments of the contents of the 
 notice and the object and intent thereof, without averments 
 of the facts alleged in the notice, separately and independently, 
 on demurrer thereto it was held insufficient, the court said a 
 complaint should aver that notice was filed ; that the defendant 
 is the owner ; that the work was done in pursuance of a con- 
 tract, and in conformity therevnth. {Dyffy vs. McManus, 3 E. 
 J).S.,(i57.y 
 
 420. In Bailey vs. Johison, (1 Daly, 61,) the court said : " The 
 " numerous decisions which this court has made in respect to 
 " this law show, that to establish a lien under it by a sub-con- 
 " tractor, there must appear : 
 
 " 1. That labor or materials have been furnished in the erec- 
 " tion of the building in conformity with the contract made by 
 " the original contractor with the owner. 
 
 " 2. That within six months (now three months) a notice in 
 " writing, under the sixth section of the act,^ claiming a lien for 
 " the work or materials thus furnished, has been filed with the 
 " county clerk. 
 
80 PLEADINGS AND CLAIMS. 
 
 " 3. That at the time of filing the notice of lien, or subse- 
 " quently, a payment was due, or has since become due, from 
 " the owner to the contractor, upon the original contract. 
 
 " 4. That the contracting owner had some interest in the 
 " property at the time the notice claiming the Hen was filed." 
 (Citing, Foley vs. Alger, 4 K B. S., 719 ; Cox vs. BrodericJc, 4:E. 
 D. S., 721 ; Dennistoun vs. McAllister, 4 E. D. 8., 729 ; Fergu- 
 son vs. Burlce, 4 E. D. 8., 760 ; Robert^ vs. Fowler, 3 E. D. 8., 
 632 ; Gunninghami vs. Jones, 3 E. D. 8., 650 ; Conklin vs. Wood, 
 3 E. D. 8., 662 ; Jacksm vs. 8loan, 2 E. D. 8., 616 ; Carman 
 vs. Mclncroiv, 2 E. B. 8., 684 ; Foster vs. Fmllon, 2 E. B. 8., 
 556 ; Boughty vs. Bevlin, 1 E. B. 8., 625 ; 8ullivan vs. Brewster, 
 1 E. B. 8., 689.) 
 
 421. A general allegation that three months had not elapsed 
 since the performance of the work, or materials furnished when 
 the notice was filed, or facts showing that to be the case, is 
 necessary. {Tinker vs. Geraghty, 1 E. B. 8., 687.) 
 
 422. If the work has been abandoned by the contractor, the 
 complaint by a sub-contractor must allege this, and also the 
 value of the work and inaterials placed upon the owner's land, 
 or that a payment is due the contractor from the owner. 
 
 423. In Bailey vs. Johnson, (1 Baly, 61,) it is held that it must 
 affirmatively appear in the complaint by a sub-contractor that 
 a payment is dwe the contractor from the owner. {See May- 
 Tvard vs. Talcott, 11 Barb., 569.) If this is so, it need not allege 
 the amount that is so due, or to become due', as that is more 
 in the knowledge of the owner and contractor than of the com- 
 plainant. 
 
 424. Where the property is owned by several persons who 
 own distinct parcels thereof, it is not necessary for the complaint 
 to show the distinct parcels owned by each. ( Vermude vs. Beale, 
 15 How., 333.) That is a matter to be ascertained by the proof 
 on the trial. 
 
 425. If the money has been deposited and held in place of 
 the property, under § 10, sub. 2, before action commenced, the 
 complaint should contain an additional clause showing that 
 fact, and, instead of demanding a sale of the premises, ask 
 judgment that the county elerk be directed to pay said money 
 
PLEADINGS AND CLAIMS. 81 
 
 over to the party entitled thereto {Dunning vs. Clarh, 2 E. D. 
 Smith, 535), and for personal judgment for any deficiency 
 thereof. 
 
 426. If incumbrancers or subsequent grantees are claimed 
 to be fraudulent, it must be particularly alleged. {BaUey vs. 
 Johnson, 1 Daly, 61 ; Meelian vs. Williams, 36 How., 73.) 
 
 427. If prior incumbrances are fraudulent or have been paid, 
 it must be particularly alleged, so that they can meet the alle- 
 gations. 
 
 428. Where the owner commenced an equity action in the 
 usual manner, asking, among other things, that the liens be dis- 
 charged from his property, the court held, on demurrer, that 
 the complaint did not state facts sufficient to constitute a 
 cause of action, and that the action could only be taken under 
 this statute. {Spratt vs. Nicholson, 3 Daly, 182.) 
 
 429. This decision does not, as many infer, hold that the 
 owner can in no case frame a complaint by which he can main- 
 taiu an equity action against the lienors. Under the previous 
 laws, equity actions could be maintained in certain cases. 
 {Paine vs. Bonney, 4 E. D. 8., 734 ; Westervelt vs. Levy, 2 Duer, 
 354 ; ante, 260.) v 
 
 430. If the complaint is deficient in facts it may be demurred 
 to. {SallaJian vs. Serhert, 2 Daly, 253 ; Duffy vs. McManus, 3 
 E. D. 8., 657 ; Heroy vs. Hendricks, 4 E. D. 8., 768 ; Bailey vs. 
 Johnson, 1 Daly, 61 ; Doughty vs. Devlin, 1 E. D. 8., 625 ; Jack- 
 son vs. Shan, 2 E. D. 8., 616.) 
 
 431. It may also be set aside on motion for irregularity {Fos- 
 ter vs. PoiUon, 2 E. D. Smith, 556), or to be made more definite 
 and certain. {Broderick vs. Poillon, 2 E. D. 8., 554.) 
 
 Probably a motion would give all the relief that a party could 
 obtain on demurrer for any cause, and a saving of time and 
 would be more equitable to all parties in many cases. 
 
 432. Thus, if the complaint shows that the court has no 
 jurisdiction of the subject of the action, or that the plaintiff has 
 no legal capacity to maintain a claim, or that there is another 
 action pending between the parties for the same cause, and 
 that the complaint does not state facts sufficient to constitute a 
 cause of action; a motion could be made by one or more of the 
 
 6 
 
82 PLEADINGS AND CLAIMS. 
 
 parties who were affected thereby, and have the matter dis- 
 missed as to that party, and proceed as to the others, or com- 
 pel the party to amend by making it more definite and certain. 
 
 433. If several causes of action are improperly united, a 
 motion to strike out the objectionable allegations would be 
 equitable. 
 
 434. No causes of action excepting those arising out of the 
 same contract or relating to the property, can be joined in the 
 same complaint, either against the owner or contractor. {8in- 
 dair vs. Fitch, d E. D. Smith, 677.) 
 
 f* 435. No other relief can be granted in these proceedings 
 than those expressly allowed by the statute. Where an owner 
 has sold or disposed of his property, contingent upon the erec- 
 tion of buildings thereon, and after the vendee has performed 
 his part of the contract, and the vendee then refuses to convey, 
 the vendee can obtain a lien under section 14, and it may be 
 enforced against the property, but he cannot in one proceeding 
 ask a specified performance of the contract, or that the pro- 
 perty be sold to satisfy the liens. He may elect which remedy 
 he will pursue. {See ante, 86, 87.) 
 
 436. If there is a defect of parties, plaintiff or defendant, the 
 plaintiff may be compelled by order to bring them in, or stay 
 all proceedings on his part. 
 
 437. When it does not appear how the labor or materials 
 were furnished, the court may require the complaint to be 
 made more definite and certain. (BrodericJc vs. Poillon, 2 E. D. 
 Smith, 554.) 
 
 438. Whether the verification of a pleading in these proceed- 
 ings requires all subsequent pleadings and claims to be verified 
 according to section 157 of the Code, has never been ques- 
 tioned. When the order for issues required pleadings as in 
 ordinary actions, the same rules govern in one as in the other ; 
 therefore if a complaint is verified, the answer to it should be 
 verified ; but this would not require all those who only present 
 their claims iu a mere formal manner, as in claims for surplus 
 moneys, to have their claims formally verified as required to 
 pleadings under the Code, for they are to " have relief accord- 
 
PLEADINGS AND CLAIMS. 83 
 
 " ing to the rights of the parties as they shall appear ia evi- 
 " dence (§ 2), without regard to matters of form." (§ 5). 
 
 439. But if a party presenting his claim wishes to compel the 
 answer to it to be verified, he inust verify his claim in the same 
 form as any pleading. It is in the nature of a counter-claim or 
 cross action, and although a complaint is not verified, if a coun- 
 ter-claim is verified, the reply must also be verified. {Code, 
 § 156 ; Levi vs. Jacquays, 4 How., 156.) 
 
 440. When a lienor is named as a defendant, or brought 
 into court on the owner's notice, the statement of his claim, 
 particularly if any special relief is asked, must state facts that 
 show he has compHed with the statute in order to obtain a lien, 
 and also make a demand for any judgment or special relief he 
 claims to be entitled to in the proceeding. It is, in fact, a 
 complaint, or answer, or reply, relatiag solely to his claim 
 against any party whose interests are in conflict with his. 
 
 441. Where no special relief is claimed, a mere notice of his 
 lien, stating the time of filing, and the amount he claims," and 
 from whom due, and his bill of particulars, would be deemed 
 sufficient to allow evidence to be given to show a vahd lien. 
 (§§ 5 and 2). 
 
 442. Where the owner admits that a certain amount is due 
 xmder the contract, and the money has been paid to the clerk, 
 under section 10, before proceedings comiherixjed^and it is held 
 in place of the property after the claimants have been 
 brought into court under this statute (§ 5), may be in the same 
 manner, without formal pleadings, as in application for surplus 
 moneys under rule 77 of the court, (§ 7.) {Hiibhed vs. Schreyer, 
 14 Abb., N. S., 284 ; 2 Abb. fmms, 677). 
 
 443. In the District Courts, the copy of notice of foreclosure 
 is informally treated as the complaint {Lowber vs. Childs, 2 U. 
 D. 8., 577 ; JDixon vs. La Farge, 1 E. D. Smith, 722), and the 
 answer on the return day of the notice may be verbal, ^here 
 is no provision of law for the service of a complaint or answer 
 in these courts in these cases. 
 
 444. The practice is to proceed on the return day on appear- 
 ance of the respective parties, or otherwise the same as in other 
 
84 PLEADINGS AST) CLAIMS. 
 
 actions in these courts, where no written complaint has been 
 served. {Id., Bandon vs. Co. Judge R. Co., 13 How., 398.) 
 
 445. The trial and the form of the judgment is the same as 
 in a court of record in like cases. {Lennox vs. Trustees, &c., 2 
 E. D. Smith, 673). 
 
 446. The " objeetiona " to the claim of any party in the pro- 
 ceeding may be made by any party who is to be affected by 
 such claim by an answer thereto, as in ordinary actions. (§ 5.) 
 The answer must contain a statement of the objections of the 
 party interested, and may be a general or specific denial of the 
 material allegations of the claims to which it relates, and may 
 contain a statement of any new matter constituting a defense 
 or counter-claim (Code § 149). All matters that are a legal de- 
 fense are in fact and law " objections " to the claim of another 
 person. {Ante, 408.) 
 
 447. A set-off was always allowed in equity, independent of 
 any statutory provision. {See Story's Eq. Jurisp., § 1432 to 
 1445.) 
 
 448. As these proceedings are of an equitable character, a 
 set-off is peculiarly proper. {Owens vs. Ackerson, 1 E. D. S., 
 691.) This reasonably includes recoupment, and set-off, and 
 counter-claim, that is, the extent of set-off to the amount of the 
 claim and judgment for an excess. 
 
 449. Under the previous law, which only provided for an off- 
 set, it was held that where a sub-contractor made the contrac- 
 tor a defendant, the contractor might set up a counter-claim 
 against him arising out of other matters, and recover judg- 
 ment for an excess. {Grogan vs. McMahon, 4 E. D. Smith, 754; 
 Owens vs. Ackerson, 1 E. D. S., 691 ; Miner vs. Eoyt, 4 Hill, 193 ; 
 aff'd Miner vs. Hoyt, 7 EiU, 525.) 
 
 450. And a contractor: could avail himself of the same defenses 
 as against the sub-contractor that would be available to him if 
 he were sued in the same matter in an ordinary action. {Id.) 
 
 451t If there are any hens upon the property, and lienors 
 are not made parties to the proceeding, it is a good defense for 
 the owner or contractor, in bar of the proceeding, for they are 
 entitled to have them taken into account in determining the ex- 
 tent of their liability. {Cranks vs. Wliittacker, 1 E. D. S., 647 ; 
 
PLEADINGS AND CLAIMS. 85 
 
 Kaylor vs. 0' Connor, 1 E. D. 8., 672 ; Lehrett vs. Koffnian, 1 
 KD. S., 664; Chamberlain vs. O'CoMwor, 1 ^. D. S., 665; 
 SuUivan vs. Z>ecifcer, 1 ^. D. aS., 699.) 
 
 452. A prior lien may be a good defense by the owner or 
 contractor to a particular lien, if the prior lien would exhaust 
 the amount_,due from the owner to the contractor. (Id.) 
 
 453. Absence of ownership in the defendant at the time of 
 the filing of the notice of lien, is a good defense, entitling him 
 to a judgment for costs. (Jackson vs. Sloan, 2 U. D. S., 616 ; 
 Grogan vs. The Mayor, 2 E. D. 8., 693 ; Orogan vs. McMahon, 
 4 E. D. 8., 754.) 
 
 454. Under the previous law, the defense which the owner 
 had against the proceedings commenced by his contractor were 
 the same as in an.ordiaary action for the recovery of the value 
 of the work performed or the materials furnished, and there- 
 fore he could avail himself of off-sets arising out of other mat- 
 ters than those connected with the contract. (Owens vs. Acker- 
 son, 1 E. D. 8., 739 ; Grogan vs. McMahon, 4 K D. 8., 754), and 
 could also recover judgment for the excess, if any. (Id.) 
 
 455. It was also held that damages for the default or other 
 acts of the contractor arising out of the contract could be set 
 up by the owner by way of recoupment against the claim of a 
 sub-contractor or other person. (MilMr vs. Moore, 1 E. D. 8., 
 739 ; Gourdier vs. Thorp, 1 E. D. 8., 697 ; Gillen vs. Hubbard, 2 
 Hilt., 303.) Where the contract contains a penalty for stipulated 
 damages for not completing in time, those damages should be 
 allowed to the owner as a counter-claim, even as against a sub- 
 contractor, lienor. (O'Donnell vs. Rosenberg, 14 Abb., 27. 8., 59 ; 
 Gillen vs. Hubbard, 2 Hilt., 303.) 
 
 456. Damages arising out of the same contract, even though 
 the lien of a sub-contractor is filed before they accrued, must 
 be allowed the owner as against the sub-contractor, because his 
 employment is subject to the terms of the contract with the 
 
 ■ owner. (Id.) (Doughty vs. Devlin, 1 E, D. 8., 625 ; Gourdier vs. 
 Thorp, 1 E. D. 8., 697 ; MiUer vs. Moore, 1 E. D. 8., 739.) 
 
 457. But whether the owner can set off demands he has 
 against the contractor not arising out of the contract, when the 
 action is between the owner and a sub-contractor or employee 
 
86 PLEADINGS AND CLAIMS. 
 
 or vendor of the contractor is still unsettled, although it has 
 been discussed by the courts. {Miner ys. Soyt, 4 Hill, 193 ; 
 Affmd. Hoyt vs. Miner, 7 Hill, 525 ; Miller vs. Moore, 1 E. D. 
 Smith, 739 ; Owens vs. AcJcerson, 1 K D. Smith, 691 ; Devlin vs. 
 Mack, 2 Daly, 94 ; NotVs Lien Law, 128.) 
 
 458. A proceeding was commenced by Devlin, a sub-con- 
 tractor, against Mack, the owner. It appeared on the trial 
 that Mack, the owner, employed Hammond to build a sewer. 
 The job amounted to $312.30. At the time it became due a 
 suit was pending, brought by Mack against Hammond and an- 
 other person for trespass in taking away certain flagging from 
 the premises on which the sewer was built. Mack paid Ham- 
 mond all on his contract excepting $100, which she was to re- 
 tain as security for any judgment she might recover in that suit 
 for trespass which was then pending and still undetermined 
 when this action was commenced. This agreement between 
 Mack and. Hammond took place on July 5th, 1864, on which 
 day the work was completed. The claimant Devlin's lien was 
 filed on October 3d following. It was held at General Term 
 that the set-off could not be allowed — that the claimant was en- 
 titled to judgment. {Devlin vs. Mack, 2 Daly, 94.) 
 
 459. Whenever a counter-claim or set-off arising out of other 
 matters can be allowed as between owner and contractor tp af- 
 fect a sub-contractor, it must have accrued before the filiag of 
 the notice by the sub-contractor, and thereupon may be con- 
 sidered the same as a payment under the contract. (§ 3j 
 Miller vs. Moore, 1 E. D. 8., 739.) ■ "' ' 
 
 460. The owner cannot set-off his individual claim against 
 a sub-contractor or other person engaged by the contractor for 
 matters other than those arising out of the contract, because 
 there is no contract between him and the sub-contractor. 
 
 461. No party other than the owner or a contractor of a 
 claimant can claim recoupment or set-off. If the owner and 
 the contractor are satisfied, no one else can complain. A sub- 
 stantial compliance with the contract is all that is necessary. 
 {Cunningham vs. Jones, 3 E. D. Smith, 650.) 
 
 462. The most equitable disposition of this question is to al- 
 low an off-set in all cases between the original parties of em- 
 
PLEADINGS AND CLAIMS. 87 
 
 ployer and employee, although it may arise out of other trans- 
 actions with each other, if it does not prejudice the claims of 
 others ; but, as between owner and sub-contractor or other per- 
 sons engaged by the contractor, no offset should be allowed 
 unless it arise directly out of the same claim or contract for 
 which the hen was filed, or, in other words, it must be for dam- 
 ages by way of recoupment for acts of the contractor arising 
 out of his contract with the owner. 
 
 463. No offset should be allowed only between those with 
 whom there is a personal contract or those claiming under 
 them, and then such offset should be only such as is allowed 
 under § 150 of the Code, and must have accrtied previous to 
 the filing of the notice. 
 
 464. The sub-contractor or other person engaged by the 
 contractor can easily protect himself against a claim or offset 
 arising out of other matters between the-owner and contractor 
 by filing his notice as soon as he comlnences his work. (See 
 DevUn vs. Mack, 2 Daly, 94 ; ante, 458.) 
 
 465. A counter-claim embraces both set-off and recoupment. 
 (Pattison vs. Richards, 22 Barb., 146; Boston MUls vs. EuU, 6 
 Abb., N. S., 319 ; Clinton vs. Eddy, 1 Lansing, 61.) 
 
 466. It may be for either liquidated or uhhquidated dam- 
 ages. (Schubart vs. Harteau, 34 Barb., 4^4:7 ; IAgnx>t vs. Redding, 
 4 E. D. Smith, 285.) See what is said as to unliquidated de- 
 mands. (Cummings vs. Morris, 8 Bosiv., 560.) 
 
 467. A person not claimed to be personally liable cannot set 
 up a counter-claim arising out of other matters. {Agate vs. 
 King, 17 Abb., 159.) The right of the plaintiff to claim, and 
 the defendant to counter-claim, must be reciprocal. {Mayor of 
 N. Y. vs. Parlxr, &c., 12 Abb., 300.) There can be no counter- 
 claim where the plaintiff makes no claim. {Bellinger vs. 
 Craigue, 31 Barb., 197.) 
 
 468. The complications, evils and delays consequent upon 
 allowing counter-claims by a party against one who makes no 
 claim against him make it apparent that it should not be al- 
 lowed in these proceedings. 
 
 469. A set-off or counter-claim may be demurred to or replied 
 to the same as in any other action. ( Oiuens vs. Ackerson, 1 E. 
 D. 8., 691.) 
 
88 PLEADINGS AND CLAIMS. 
 
 470. Sham and irrelevant answers and defenses may be 
 strifcken out {Code, § 152.), and if a demurrer, answer or reply 
 be frivolous, the party prejudiced thereby may apply for judg- 
 ment thereon {Code, § 247) as in other actions. {HaJlahan vs- 
 Herhert, 2 Daly, 253.) 
 
 Bill of Farticidars. 
 
 471. The bill of particulars in these proceedings is the same 
 in substance as in ordinary actions. A party may be required 
 to give any other party a bill of particulars of an alleged claim 
 which may interfere with the rights of the party demanding it. 
 It must be prepared and served in the same manner as in other 
 actions (Code, § 158), and must include all the items of the al- 
 leged claim, as no recovery can be had for any work, &c., not 
 included in it. (iwfe vs. By, 3 K D. 8., 621 ; 1 PhU. Ev., Uh 
 ed., p. 801 ; Bowman vs. Earh, 3 Duer, 691.) 
 
 472. A bill of particulars " is regarded as an amplification of 
 " the pleading to whiSh it relates, and is to be construed as 
 " forming a part of it." (Boioman vs. Earh, 3 Duer, 691 ; Mel- 
 vin vs. Wood, 47 N. Y., 428 ; do., 3 Eeyes, 536.) 
 
 473. The several items should be stated with dates and 
 amounts. {Kellogg vs. Faine, 8 Sow., 329 ; Seaman vs. Low, 4 
 Bosw., 338.) 
 
 474. If the owner has any demands which he desu'es to off- 
 set against the claimant, he should serve a bill of particulars, if 
 the same is demanded. ( Gourdier vs. Thorp, 1 E. D. Smith, 
 697.) 
 
 475. In an action by a contractor against the owner, it was 
 held that the plaintiff was not entitled to a bill of particulars 
 where the answer was that the work was not done in accord- 
 ance with the contract, or tha,t the contract had not been per- 
 formed. {Id.) 
 
 476. Nor is it necessary when the owner seeks to recoup 
 damages for imperfection in the work. {Id.) It can only be 
 required when a set-off is claimed. {Id.) 
 
 4m. A plaintiff is not bound to furnish particulars of pay- 
 ments by defendant which the plaintiff credits him in the com- 
 plaint, { Williams vs. Shaw, 4 Ahh., 209 ; Giks vs. Betz, 15 Ahh., 
 285 ; Watt vs. Watt, 3 Bob., 685.) 
 
PLEADINGS AND CLAIMS. 89 
 
 478. Where the claimant is a sub-contractor or other person 
 engaged by the contractor, the court can direct the service of a 
 bill of particulars of any claim the owner may make against 
 the contractor (Fvllerton vs. Gaylord, 7 Bob., 566 ; Code, § 158), 
 or relief may be had on motion to make the matter more defi- 
 nite and certain. (Broderick vs. Foillcm, 2 U. B. S., 554.) 
 
 479. If the claim which the biU. of particulars represents is 
 verified, the bill of particulars must be verified in the same 
 manner as a pleading. (Code, § 158.) 
 
 480. If the bill of particulars or account delivered after a de- 
 mand or order is not satisfactory, a motion should be made 
 promptly for a further account. {McKinney vs. McKinney, 12 
 How., 22 ; Brown vs. Wood, 2 Hilton, 579.) The motion may 
 be made after order of reference, and after the trial has com- 
 menced before the referee. {Gadiodl vs. Goodenougk, 28 How., 
 479 ; Id.. 3 Bob., 633.) 
 
 481. If a defective bill of particulars is served, the proceed- 
 ings wiU not be dismissed for that reason. {Brown vs. Wood, 2 
 Hilt, 579.) 
 
 482. A party refusing to furnish a copy of his account can 
 be precluded from giving evidence thereof. (Code, § 158; 
 Goings vs. Patten, 17 Abb., 889.) An order precluding such 
 evidence should be obtained from the court prior to the trial. 
 (Kellogg vs. Paine, 8 How., 329.) 
 
 488. The case of Liiiz vs. By (3 Abb., 473 ; Z E. D. Smith, 
 621) seems to hold that items not included in the account can- 
 not be recovered for if objected to on the trial. {Code, % 158.) 
 
 484. This mode of arriving at the issues and claims of the re- 
 spective parties necessarily arose under the law of 1851 {Ante, 
 p. 12.) Under that law the issues were only between the owner 
 and the lienor, tmless he intended to contest the claims of 
 others prior to his claim, and then they were to be madeparties, 
 and the complaint must contain sufficient allegations to show 
 a cause for making them parties. {Kaylor vs. 0' Connor, 1 
 E. D. 8., 672 ; Nott's Uen Law, 35.) 
 
 485. Under the amendment of 1855 {Ante, p. 1), the sub- 
 
90 PLEADINGS AND CLAIMS. 
 
 contractor miglit make the contractor a party, and tlien he 
 could obtain personal judgment against him. 
 
 486. The property was to be sold subject to prior incum- 
 brancers if they were not parties, and if there was a surplus 
 other subsequent lien holders must be notified, and the court 
 must distribute such surplus among the parties entitled thereto, 
 and might order a reference to take proofs in relation to their 
 rights and priorities (§ 3.) 
 
 487. The owner could not commence proceedings, but could 
 terminate any lien on thirty days notice, unless the lienor com- 
 menced to foreclose, (§ 11, s«&. 4.) 
 
 488. The New York Common Pleas, under the Act of 1851 
 and '55, had exclusive original jurisdiction in those cases and 
 in appeals from those tried in the Marine and District Courts. 
 From that time until the present there have been numerous 
 cases reported, and of these only five were originally brought 
 in the Superior Court, and none in the Supreme Court, both of 
 which, under the law of 1863, have original jurisdiction, but 
 since that time they probably have not had a dozen cases in 
 aU — the Common Pleas completely monopolizing that class of 
 cases, because of the familiarity in that court, and of their 
 referees and clerks, with the embarrassing questions to those 
 not familiar with the practice, that constantly arise in them. 
 
 489. That practice established by the Common Pleas is almost • 
 as old as the Code itseK, and although not in terms retained 
 by the law of 1863, it plainly contemplates a continuance of it 
 (§ 5 and § 7). This introduces us again to the once familiar 
 practice of the former cross-Mis in equity, although stiU proper 
 under the Code, (§ 274, § 122), are now seldom used as to htiga- 
 tion between co-defendants, the rules of the court had im- 
 pliedly postponed nearly all such questions in mortgage fore- 
 closure cases, where they would most frequently arise, until it 
 is ascertained that there will be a sm-plus, and then they 
 may be disposed of in a summary manner under those rules 
 (72, 73, 77) without resorting to formal pleadings. 
 
 490. Under the acts of 1851-55, when subsequent lienors 
 were not made parties on the foreclosure of a prior lien, the 
 Superior Court, at General Term, said that a cross action would 
 
PLEADINGS AND CLAIMS. 91 
 
 be proper in lien cases where there were parties that disputed 
 the various claims of each other. ( Westervelt ts. Levy, 2 
 Duer, 354.) 
 
 491. Hoffman, justice, said that the Code had done no 
 more than adopt the former Chancery practice in relation to 
 cross actions, and then cites authorities as to the practice in 
 such case. ( Wells ts. Smith, 7 Abb., 261.) 
 
 492. " I am aware that the Code contains a provision 
 " enabling the court to determine the ultimate rights of the 
 " parties on each side as between themselves (§ 274) ; but the 
 " court is not necessarily required to make such deter- 
 " mination, and I conceive that in order to do so in a common 
 " law action, aUegations in the nature of pleadings should first be 
 " allowed to be put in between the parties who become adverse 
 " litigants." {Denio, J., in Decker vs. Judson, 16 N. Y., 439.) 
 
 493. A cross bill for relief is used in equity to settle con- 
 flicting claims between co-defendants which it is found neces- 
 sary to adjust before a complete, decree can be made upon the 
 subject matter of the original suit, and the rights of the parties 
 therein. (Story's Eq. PI, § 392 ; Mitford PL, 81, 2 Barb. Oh. 
 Prac, 127 ;) it may be legal or equitable. (2 Barb. Oh. Prac., 
 129.) This happens where persons in opposite interest are co- 
 defendants, so that the court cannot determine their opposite 
 interests upon the bill already filed, and yet the determination 
 of their interests is necessary to a complete decree upon the 
 subject matter of the suit. {Id., 2 Barb. Oh. Prac., 127.) 
 
 It is always necessary, where the defendant is entitled to 
 some positive relief beyond what the scope of complainant's 
 suit will afford him. {Pattison vs. Hull, 9 Cowen, 747 ; 2 Barb., 
 Oh. Prac, 129.) 
 
 494. It must be confined to the matters stated in the original 
 biU', and should not introduce new and distinct matter not em- 
 braced therein, and if it does so, no decree can be founded 
 upon these matters, for as to them it is an original bill. {Story's 
 Eq. PI, § 401 ; 2 Barb. Oh., 130^133.) 
 
 495. It should state the parties, prayer and object of the 
 original complaint and the proceedings therein, and the rights 
 of the party who is complainant, which are necessary to be 
 
92 PLEADINGS AMD CLAIMS. 
 
 made the subjects of tlie cross-litigation, or the grounds on 
 which the defendant resists the claim of the plaintiff in the 
 original complaint, and the equities he sets up between him 
 and his co-defendants, and should distinctly set up the relief 
 which the defendant claims. (2 Barb. Ch. Prac, 131-132 ; Mitf. 
 PI, 81-82 ; Stm-y's Eq. PL, § 401.) 
 
 496. The matters of defense upon which a cross-bill is founded 
 must be stated in the answer to the original suit as well as in 
 the cross-bill. (2 Bard. Ch. Prac., 129.) 
 
 497. And the court itseK will, sometimes, at the hearing, in 
 its discretion direct a cross-bill to be filed, when it is necessary 
 to bring before the court the rights of the parties and the mat- 
 ters necessary to a just determination. (Field vs. Scliaffdin, 7 
 John, Ch. B., 252; Stwy's Eq. PI, § 396; Mitf. PI, § 2 ; 2 Barh. 
 Ch. Frac, 130 ; Code, §§ 122-274.) 
 
 498. If a creditor, who tas come in under a decree in favor 
 -of creditors against a debtor, should require relief for the pur- 
 pose of assisting the investigation of demands affecting the 
 •estate, before the master, which relief cannot be obtained under 
 the original bill, or by a re-hearing, he may, even without the 
 direction of the court, file a cross-bill for the purpose. {Story's 
 Eq. PL, § 397 : 2 Barb. Ch. Prac., 130.) 
 
 499. Other parties may be joined in a cross-bill, but it must 
 show that they are necessary parties to the question in contro- 
 versy in the original bill. (Smith vs. Soivard, 20 Sow., 151.) 
 
 500. A cross-bill being generally considered as a defense to 
 the original bill or as a proceeding necessary to a complete de- 
 termination of a matter already in litigation, it is treated as a 
 ■dependency upon the original suit. (Story's Eq. PL, §§ 399- 
 400.) 
 
 501. A plea to the person does not lie to a cross-bill unless 
 for non-joinder of any other party, nor it does not lie to the 
 jurisdiction of the court, because the filing of the bill has 
 affirmed the sufficiency both of the person and the jurisdic- 
 tion. (2 Barb. Ch. Prac, 133.) 
 
 503. A cross-bill which is filed by the special direction of 
 the court for the purpose of obtaining its decree touching some 
 matter not in issue by the former bill, or not in issue between 
 
PUEADINGS AND CLAIMS. 93 
 
 the proper parties, does not seem liable to any peculiar cause 
 of demurrer. Being by order of tlie court there is little prob- 
 ability that it should be liable in substance to any demurrer. 
 {Mitf. PI, 203 ; Bath. Ch. Prac., 133.) 
 
 504. It cannot be affected by a dismission of the original 
 bill. (2 Barb. Gh. Prac., 127.) 
 
 505. It lies although the original suit has abated. (Brown -vs. 
 Story, 2 Paige, 594 ;~ 2 Barb. Ch. Prac., 129.) 
 
 506. Under the existing practice, if such issues are not formed 
 by the order of the court, it can be done by original process 
 as formerly. (2 Barb. Ch. Prac., 130.) 
 
 507. A stay of proceedings was granted against the original 
 suit on notice, ( White vs. JSuloid, 2 Paige, 164) untU issue was 
 joined in the eross-suit, and then an ex-parte order was obtained 
 that they be heard together. (2. Barb. Ch. Prac., 134.) 
 
 508. "Where the pleadings are put in by order of the court, as 
 is the practice in hen cases, no original process is required, the 
 order for the issues must be served and should be referred to 
 in the complaint. 
 
 509. The cross-complaint is to be served on each of the 
 parties (against whom any rehef is sought) named as defend- 
 ants in it. The defendants must put in their answers to the 
 cross-complaint the same as to an original complaint, and the 
 effect of not answering wiU be the same as that of not serving a 
 reply to a counter-claim under the Code. (2 Van Santvoord's 
 Hq. Prac., 227.) 
 
 510. The marshaling of securities or of assets may be ob- 
 tained by answer where the plaintiff in an original suit is in- 
 terested, but when only one or more of the co-defendants are 
 interested it must be by cross-complaint, by original process, 
 or allegations in the nature of pleadings, by order of the 
 court on motion. {Decker vs. Judson, 16 N. Y., 439 / Farmers' 
 L. (& Trust Co. vs. Seymour, 9 Paige, 538.) 
 
94 MODES OF TEIAL. 
 
 CHAPTEE V. 
 
 MODES OP TEIAL. 
 
 511. If the parties notified neglect to appear and object, or 
 insist on any claim, or suffer a default, the parties, if lienors, 
 commencing the proceedings must show a prima facie case, as 
 if on appearance (§ 7.) 
 
 512. If the proceeding is commenced by the owner on the 
 returnfof the notice, and on proof of due service on the parties 
 if they do not appear, an order may be entered exempting the 
 property from the liens without any other proof. {Carroll vs. 
 CoughUn, 7 Abb., N. S., 72.) 
 
 513. If a defendant serves notice of appearance before the 
 time to answer expires, but takes no further steps, he is 
 still entitled to eight days notice of time and place of proof of 
 claims. {Code, § 246 ; KeUy vs. Searing, 4 Abb., 354.) 
 
 614. Notices of trial, and of motion, and of argument are 
 the same, as to length of time, &c., as in ordinary actions. 
 
 515. The court may, in all cases, determine the rights of all 
 the parties, and the amounts due to each, and by whom to be 
 paid, and may order any question to be tried by a. jury, or r^er 
 the wlvole matter to a referee to examine and pass upon the 
 rights of the respective parties and report the same (§ 7). On 
 such trial " every party shall be at Hberty to take proofs for 
 " and against any claim or lien, and such judgment or decree 
 " shall be made thereon as to the rights and equities of the 
 " several parties among themselves and against any owner as 
 " may be just." (§ 7.) 
 
 516. The mode of trial, whether by the court or jury, or 
 referee, as to any or aU of the questions involved, and the 
 authority and power given by § 7, is the same as in other 
 actions under the Code. (§§ 254, 271, 272.) 
 
 517. The usual disposition of these cases, after issue joined 
 whether by formal pleadings or by the service of claims, or 
 where testimony is to be taken, is to refer the entire matter to 
 a referee to determine aJIX the rights of the parties, and the 
 amounts due to each, and by whom to be paid. Such referee 
 
MODES OP TBIAL. 95 
 
 has all the power of a court on the trial of an issue, (§ 7, 
 Gode, § 272.) 
 
 518. When intricate questions of law may arise, the court 
 frequently refer one or more of the questions of fact to a 
 referee to report thereon. In such case the report has the 
 effect of a special verdict. {Code, § 272.) 
 
 519. If any party to the proceedings desire a trial by jury 
 of the whole issue or any specific question of fact involved 
 tiberein, he must apply to the Court (under Eule 40), the same 
 as in other equity actions. 
 
 520. " The court shall proceed without regard to matters of 
 "farm, which shall be amendable at aU times, and without 
 " costs judgment shall be rendered according to the equity and 
 " justice of the claims of the respective parties." (§ 5.) 
 
 521. When the referee is to report upon one or more of the 
 questions of fact (and not on the wlwle issues) he has no power 
 to allow amendments, only the court has the power in such 
 case. Section 272 of the Code, as to amendments, to be al- 
 lowed by the referee, only applies when the trial by him is of 
 all the issues. (1 Van Santvoord's Eq. Erac, 523.) 
 
 522. The last sentence in § 5 has not extended that power of 
 the referee. Therefore where the referee is to report upon 
 one or more questions of fact, unless it be of all the issues, he 
 has no power to allow an amendment ; an appHcation to amend 
 must be made to the court. A distinction must be kept in 
 view between matters of form and matters of substance, under 
 §§ 5, 2. 
 
 523. Under the law of 1851, the court allowed amendments 
 to the ^me extent as in ordinary actions. {Doughty vs. Devlin, 
 1 E. D. Smith, 625 ; Beals vs. Gang, B. J., do., 654 ; Foster 
 vs. Skidmore, do., 719 ; McSorley vs. Hogan, 1 Gode Rep., N: S., 
 285.) 
 
 524. As to the power of the Marine and District Courts to 
 refer under § 7, that question relates to jurisdiction, and may 
 be found in the chapter that discusses, that subject. {Ante.) 
 
 525. In § 7 of the act, reference is made to mode of pro- 
 cedure in ascertaining the rights of claimants to the surplus 
 money arising out of the sale of premises under a decree in the 
 
96 MODES OF TEIAL. 
 
 foreclosure of a mortgage (ride 77). There is no more difficulty 
 in applying the latter mode of procedure in lien cases than ia 
 mortgage cases — of course the more contestants there are in 
 either case, the more complicated wUl it be. This is not 
 owing to the mode of procedure, because if justice and a 
 fair opportunity is given to the contestants, many of the 
 same complicated questions must arise under any mode of 
 ascertaining the rights of the respective parties. 
 
 526. Under this act at present the procedure may be pre- 
 cisely as it was in mortgage cases prior to the Chancery Eules 
 of 1830, only instead of a cross bill for relief by original pro- 
 cess between the parties who were incumbrancers, to ascertain 
 their rights among themselves, the issues between co-defend- 
 ants in lien cases are now ordered by the court to be formed 
 by the service of pleadings under § 5. 
 
 627. Formerly in mortgage cases the rights of the incum- 
 brancers with respect to each other were required to be ascer- 
 tained and reported upon by a master in Chancery previous to 
 the decree of sale. (Benwick ys. Macomb, Soph Ch., 316 ; Touxr 
 vs. Wliite, 10 Paige, 395). This was by means of original cross- 
 bills for relief, filed by^the contesting incumbrancers. The 
 effect of this was to delay the mortgagee iu the foreclosure of 
 his mortgage, because the practice was then estabhshed in aU 
 cross-actions to grant a stay of proceedings against the origiaal 
 suit until issue was joined in the cross-suit ( White vs. Buloid, 2 
 Paige, 164), and then an ex-parte order was obtained that they 
 be heard together, (2 Barb. Ch. Prac., 130). 
 
 528. In 1840 an act was passed for reducing the expenses 
 in foreclosure cases {chap. 342), and § 9 provided that it should 
 not be necessary that any person having a judgment or decree, 
 or claim, under either of them, subsequent to such mortgage be 
 made a ])arty to such suit of foreclosure, but they could still 
 under the Chancery Eule (136), as amended pursuant to that 
 act, reach the surplus arising on such sale. This former part 
 of the act of 1840 was repealed in 1844, {cMp. 346, § 6), and 
 the practice under rules 134 and 136, as amended ia 1840, the 
 same as now regulated by Supreme Court Eules (72, 73-77), 
 has since prevailed, excepting as to the nature of the liens on 
 the surplus. 
 
MODES OE TRIAL. 97 
 
 529. To change the practice in foreclosure of mortgage 
 cases on that point, the rules (134 and 136) as amended in 
 1840, provided in effect that if there was no right or interest 
 set forth by answer adverse to that of the mortgages, the de- 
 fendants could not litigate among themselves to the prejudice 
 of the plaintiff in the foreclosure suit, they could wait until it 
 was ascertained that there would be a surplus. ( Union Ins. 
 Co. vs. Bensdlaer, 4 Paige, 85 ; Farmer's Loan, &c., Go. vs. 8e]i- 
 mour, 9 Paige, 538 ; Tower vs. White, 10 Paige, 395.) 
 
 530. These rules "also provided how the litigation as to the 
 claims for the surplus could be determined in a summary 
 manner {Bvle 1.36). This was merely postponing certain 
 questions until another time for adjudication, with as little 
 delay to the parties as possible, and without depriving them 
 of any of their legal rights and remedies.* 
 
 Original cross bills for relief could still be filed {King vs. 
 McVicJcar, 3 Sand. Cli., 182) by the defendants in a foreclosure 
 suit the same as before, but where they had no interests adverse 
 to the claim of the plaintiff they would not be permitted to 
 delay his proceedings by htigating their claims between them- 
 selves {Farmers' Loan & Trust Company vs. Seymour, 9 
 Paige, 538). But if it appeared in the cross suit that a stay of 
 proceedings was necessary to protect the rights therein 
 claimed, a stay would still be ordered in the foreclosure suit. (Id.) 
 
 531. The rule (136) as amended in 1840, only allowed claims 
 for liens hj judgment or decree upon the surplus money in fore- 
 closure cases. The Supreme Court Bule (48), previous to 1858, 
 contained the same provisions ; but since that time it has been, 
 as now, silent as to the kind or nature of liens that may be 
 established in such cases (77). It seems to have been other- 
 wise when the case of King vs. West (10 How., 333,) was de- 
 cided ; see also the dissenting opinion in Mutual Life Insurance 
 Company vs. Bowen, 47 5ar6.,*618.t) 
 
 * The courts in this State have no authority to make rules that will change or 
 abolish the remedies secured by law, they can only regulate the administration of 
 them. (See Laws 1827, ch. 250, § 2, 2 iJ. 8., 2d ed., p. 104, §§ Sl-SY / Laws 1840, 
 chap. §42, § 7, Code, §§ 469-470; Laws 1870, ch. 408, § 13). 
 
 f The authentic editions of the rules of the Supreme Court, as they have beea 
 ■ amended from time to time, may be found in the yarious editions of Voorhies' 
 Code, by Townshend. 
 7 
 
98 MODES OF TRIAL. 
 
 532. In sucli cases, where the plaintiff is not interested in 
 prioriteSj the claims of the defendants are now usually had 
 after the sale, and it is ascertained that there is a surplus. 
 {Rule 11 ; Livingston vs. Mildrum, 19 N. r.,440; KirbyYS. Fitz- 
 gerald, 31 N. Y., 417 ; Schafer vs. Eeilly, 50 N. Y., 61 ; Mutual 
 Insurance Company vs. Bowen, 47 Barb., 618 ; N. Y. Life In- 
 surance Company vs. VanderKlt, 12 Abb., 458.) 
 
 533. The question of the Marshaling of Securities, if the 
 plaintiff is interested therein, and the amount due to prior in- 
 cumbrancers in mortgage cases are now, as formerly, to be 
 ascertained in the action by pleadings and proofs between the 
 parties, either by answer or by order of the court, or cross 
 action by original process be/ore the decree of a sale, and must 
 be provided for therein. (Tower vs. White, 10 Paige, 395 ; 
 Eotcomb vs. Hokomb, 2 Barb., 20, ruh 72 ; N. Y. Life dt T. Co. 
 vs. Cutler, 3 Sand. Ch., Ill ; King vs. Mc Vickar, 3 Sand. Ch., 
 192 ; Beehman vs. Gibbs, 8 Paige, 611.) 
 
 634. In a suit to foreclose a mortgage, a junior mortgagee 
 who is a party to the suit, m.&j have a decree directing a 
 sale of so much of the mortgaged premises as will be sufficient 
 to satisfy the amount due on such junior mortgage and all in- 
 termediate liens and incumbrances, in addition to the amount 
 of the complainant's mortgage and costs. But before such 
 junior mortgage can be paid, the report of sale must be filed, , 
 and the surplus moneys brought into court, so that others who 
 have not been made parties to the suit, may have an opportu- 
 nity to apply for such surplus under the rule. (Beehman vs. 
 Gihhs, 8 Paige, 511.) 
 
 535. The ascertaining the rights of the subsequent incum- 
 brancers and respective claimants to the surplus are very pro- 
 perly regarded as in the original action (Chamberlain vs. 
 Dempsey, 36 N. Y., 144), and costs are allowed between the 
 contesting parties on that principle and an order made upon 
 the referee's report as to the distribution of such moneys, may 
 be appealed from to the General Term as an interlocutory order 
 made at Special Term. (Kirby vs. Fitzpatrick, 18 N. Y., 484, 
 and 31 N. Y, 517 ; ScJiafer vs. ReiUy, 50 N. Y., 61 ; 3Iutual 
 Ills. Co. vs. Bowen, 47 Barb., 618), and is also heard in the Court 
 of Appeals, as an appeal from an interlocutory order at Special 
 
MODES OF TRIAL. 99 
 
 Term {Id.) For a judgment is not regarded as final until all the 
 riglits of the parties in the action are determined {Code, § 254 ; 
 Mutual Life Ins. Go. vs. Bowen, 47 Barh., 618 ; Smith vs. Lewis, 
 1 Daly, 4:52.) 
 
 536. The order of reference obtained on motion by a party, 
 or a person who has served notice of claim in such case may 
 be broad enough to ascertain and determine the rights of any 
 of the claimants to the surplus. (Livingston vs. Mildrum, 19 
 N. Y., 440 ; Mutual Ins. Co. vs. Bowen, 47 Barb., 618 ; ante, 
 531.) 
 
 537. Issues may be formed to try any question between the 
 contestants by order of the Court, on application of any party 
 interested. (Id., Decker vs. Judson, 16 N. Y., 439.) 
 
 A cross action by original process can also be maintained in 
 regard to the surplus, the same as it could previous to 1840, in 
 the original suit. {Kirby vs. Fitzpatrick, 18 N. Y., 484 ; Far- 
 mers' L. (is T. Go. vs. Seymour, 9 Paige, 537.) 
 
 538. The usual order of reference is " to ascertain and re- 
 " port the amount due the said (naming the claimants), or to 
 " any other person which is a lien upon such surplus moneys, 
 ■" and to ascertain the priorities of the several liens thereon," 
 ■&C. (2 Ahb. Forms, p. 6^9.) 
 
 539. As difficult and important questions may arise under 
 «uch an order, as if it was " to hear, try and determine the 
 " rights, &c., of the claimants," &c. {See Lawtmi vs. Sager, 11 
 Barb., 350 ; Noyes vs. Burton, 17 Sow., 449 ; Mutual Ins. Go. 
 Ts. Bomn, 47 Barb., 618 ; Schafer vs. BeiRy, 50 N. Y, 61.) 
 
 540. In a proceeding for the distribution of surplus moneys, 
 arising from the sale of mortgaged premises, the reference as to 
 liens upon the surplus moneys is not a mere collateral refer- 
 ence, but is a direct issue, to be determined before the Court 
 can finally and completely administer the whole of the fund 
 {Mutual Life Ins. Co. vs. Bowen, 47 Barb., 618). In such case, 
 on the foreclosure of the first mortgage, the holders of a fourth 
 mortgage may set up before the referee, issuing in a third 
 mortgage, and it may be adjudged that such mortgage is void 
 and not a lien on the surplus. {Id., but see Chamberlain vs. 
 Dempsey, 36 N. Y, 144, and Carow vs. Kelly, 59 Barb., 239.) 
 
100 MODES OF TBIAL. 
 
 541. Parties wlio are made defendants as subsequent incum- 
 brancers, and whose interests are correctly set forth in the 
 complaint, merely serve notice of appearance, and after the. 
 sale and notice of surplus seldom file or serve a written notice, 
 of their claim, but on the hearing before the referee, in regard 
 to the surplus, they produce a statement and prove their claims, 
 and are at liberty, and as is frequently done before the referee, 
 " he takes proofs for or against any claim or lien and reports 
 " upon the same in a summary manner.", 
 
 542. The notice of hearing in such cases before the referee, 
 or after a decree of sale, is summary, being by a referee's sum- 
 mons, the length of time for its return being in the discretion 
 of the referee. {Kelly vs. Searing, 4 Abb., 351.) 
 
 543. The referee's report in foreclosure cases under the usual 
 form is regarded as an interlocutory proceeding, and the 
 evidence is reported to the Court, as contemplated in Rule 77, 
 and the proceeding {Kirby vs. Fitzgerald, 31 N. Y., 417) is 
 under Eule 39. The referee is not to " hear, try and deter- 
 mine," &o., in which latter case the exceptions are not to be 
 heard in the first instance at Special Term. 
 
 544. The Court has the power under § 271, sub. 3, and § 254 
 of the Code, to order a reference of any and all the questions 
 that can arise in regard to surplus moneys in foreclosure cases 
 (Mutual Ins. Co. vs. Bowen, 47 Barb., 618 ; Kirby vs. Fitz- 
 patrich, 18 N. Y., 484), and have the referee's report thereon 
 stand as the decision of the Court {Code, § 272), in which case 
 no notice of filing or confirmation of the report would be ne- 
 cessary, as required by Eule 39, and the exceptions could only 
 be heard in the first instance at the General Term. 
 
 545. The rule (77) does not prohibit such a course of dis- 
 posing of these questions in those cases, but is in connection 
 with Eule 39, merely directory as to the practice which may 
 be pursued iu foreclosure cases. 
 
 546. The judgment and subsequent proceedings in lien cases 
 under the act of 1855 §§ 1, 2, 3, were the same in form and 
 substance as those now required by Eules 73 and 77 on fore- 
 closure of mortgages.* 
 
 *The law of 1862 (oh. 478,) relating to liens in the counties of Kings and ' 
 Queens, is precisely like the law of 185 B on these points. 
 
J937 
 
 EVIDENCE. 
 
 ii/BR^*; 
 
 547. The effect of the act of 1863, under the practice now 
 prevailing, is merely to transfer all questions that can arise be- 
 tween the parties in these proceedings back before judgment 
 di sale, which again in effect restores the former practice as to 
 the mode of ascertaining the rights of the parties that existed 
 in foreclosure of mortgage cases prior to the Chancery Kules 
 of 1830. 
 
 548. This practice of confirming a referee's report on surplus 
 in mortgage cases arose under the former Chancery practice, 
 when a Master could only report the facts to the Court. He 
 could not, like a referee under the Code, decide all the issues 
 or questions of law, based upon the facts found by him, and his 
 report did not in any case stand as the decision of a judge, so 
 that judgment could be entered thereon without confirmation. 
 Application to the Court for confirmation was in all cases ne- 
 cessary.* This practice was in part necessary under the Code 
 (§ 272) previous to the amendment of 1851, which required the 
 referee to state the facts found by him, and his conclusions of 
 law thereon, separately. It can now easily be determined 
 where the referee errs, whether it is on questions of fact or of 
 law. 
 
 549. When the money has been deposited, under sub. 2 of 
 § 10, before proceedings, the mode of ascertaining to whom it 
 belongs may be precisely the same, by an order entered on the 
 return of the notice, as in application for surplus moneys in 
 mortgage cases (Hubbdl vs. Schreyer, 14 Abb., N. S., 284). It 
 would make no difference who deposited the money, the claims 
 to it could be ascertained in the same manner, and an order 
 made distributing it among the persons and in the manner 
 the Court or referee might direct. 
 
 CHAPTER VI. 
 
 I THE EVIDENCE. 
 
 550. It is also provided -that " all persons having liens, in 
 
 " order to enforce the same, shall -prove their demands in the 
 
 " same manner as in ordinary actions at law, except that no 
 
 " variance as to the persons named as contractor, oiimer, or 
 
 * See'/K)si, 720 and note. 
 
102 EVIDENCE. 
 
 " debtor in the lien, notice, or bill of particulars, or statement 
 " of claim, or in any pleading, shall impair or affect the rights- 
 " of the claimants, as hereinafter defined, and every party 
 " shall have relief according to the rights of the parties as they 
 " shall appear in evidence" (§ 2.) It is also provided that 
 " the issues thus made shall be' tried as in ordinary actions"^ 
 (§§2,5.) 
 
 551. Parties to the proceedings can therefore be examined 
 as witnesses in the same manner and to the same extent as in 
 ordinary actions under the Code. 
 
 552. In regard to the burden of proof, where issues of fact 
 are joined, the Code (§ 168) provides that every allegation of 
 the complaint (or statement of claim), not controverted by the- 
 answer, and every material allegation of new matter in the 
 answer constituting a counter-claim, not controverted by the 
 reply shall, for the purposes of the action, be taken as true. 
 This is only a statutory declaration of the long established 
 rule of evidence that " He who asserts a thing must prove 
 " it" (1 Greenkaf Ev., § 74). It further prescribes that " the 
 " allegations of new matter in the answer (not relating to a 
 " counter-claim), or of new matter in a reply, is to be deemed 
 " controverted by the adverse party as upon a direct denial or 
 " avoidance, as the case may require." {Code, § 168.) 
 
 253. As to the evidence necessary to sustain a lien or bring it 
 to a judgmient, it would seem to be substantially the same on 
 the part of the claimants that appear, whether the owner or 
 contractor, or other parties, appear or not. (§ 7.) 
 
 554. Parties alleging a claim must prove it (unless it is ad- 
 mitted by the answer or demurrer to it.) A prima fade case 
 must be made out. {Doughty vs. Devlin, 1 U. D. S., 625.) 
 
 (1). Proof of service on all the parties that do not appear is 
 necessary, the same as in other cases. ^ o , 
 
 (2). The filing of the Hen being a jurisdictional fact, and the 
 existence of the lien the foundation of the whole proceedmgs 
 {CronJcright vs. Thomson, 1 E. D. 8., 661), proof of the 
 filing of the notice of Uen, and the time thereof may be made 
 by a copy of it, duly certified by the county clerk. 
 
 (3). The time when thejwork was performed or the materials- 
 
^ EVIDENCE. 103 
 
 were furnisliecl {Tinker vs. Geraghty, 1 E. D. S., 787). There 
 is some question as to whether it must appear that the 
 notice of claim was filed within the time required by § 6, 
 unless required by some party interested, as that is a matter of 
 defense. {Lutz vs. Ey, 3 E. D. 8., 621.) 
 
 In the case of Tinker vs. Geraghty (1 E. D. S., 687), Judge 
 Woodruff said it must appear on the trial that the notice of 
 claim -WHS filed withiu the time required by the statute. 
 
 (4). The existence of a contract expressed or implied between 
 the owner and contractor, authorizing the jferformance of the 
 work and the delivery of the materials, or that the work was 
 done or materials furnished in pursuance of an employment 
 by the owner, or by or in accordance with his directions, or 
 the directions of his agent (§ 1, Dixon vs. La Farge, 1 E. D. S., 
 722 ; WalJcer vs. Paine, 2 do., 662), and this too, whether the 
 claim is by a contractor or sub- contractor, or other claimant. {Id.) 
 
 The claimant must also show that the labor was performed, . 
 or the materials furnished in conformity vMh the terms of such ■ 
 contract or employment, or direction. {Doughty vs. Devlin, 1 
 E. D. 8., 625 ,' Dixon vs. La Farge, do., 722 ; Gay vs. Browne, 
 do., 725 ; Pendleburg vs. Meade, do., 728 ; Walker vs. Paine, 2 
 do. 662 ; Bailey vs. Johnson, 1 Daly, 61.) 
 
 (5). That the defendant is the owner of or has an interest in 
 the building or land upon which the lien is claimed '(Bailey vs. 
 Johnson, 1 Daly, 61). If there is an averment of ownership, 
 which is not denied, nor a recovery not objected to, for want of 
 such proof a judgment will not be reversed, though no evidence 
 of ownership was given on the trial. {Dixon vs. La Farge, 1 
 E. D. 8., 722.) 
 
 (6). Under 81 of the law of 1851, it was held that the claimant 
 must show, before he was entitled to recover against the owner, 
 that a payment had become due, according to the terms of the 
 contract with, or employment by, the owner, whether the 
 claimant was a contractor or sub-contractor, or other person 
 dealing with the contractor. {Doughty vs. Devlin, 1 E. D. 8., 
 625 ; Hauptman vs. Halsey, do., 668 , Sullivan vs. Brewster, 
 do., 689 ; 8paulding vs. King, do., 717 ; Pendlehurg vs. Meade, 
 
104 EVIDENCE. 
 
 f 
 
 do., 728 ; Miller, vs. Moore, do., 739 ; Cox vs. JBrodericJc, 4 do., 
 721 ; Bailey vs. Johnson, 1 Z^aZy, 61.) 
 
 Under the present law it is held the same. (Schneider vs. 
 Hobein, 41 How., 232.) 
 
 555. It has been held {Bailey vs. Johnson, 1 DcHy, 61) that a 
 complaint under the old law by a sub-contractor, although 
 
 ' alleging performance of the contract, must allege that a pay- 
 ment is due from the owner to the contractor. This, in effect, 
 holds that such allegation must be affirmatively proved by the 
 sub-contractor before a recovery can be had against the owner, 
 because it is not necessary to allege anything that it is not 
 necessary to affirmatively prove in order to recover. {Doughty 
 vs. Devlin, 1 K D. 8., 625.) 
 
 556. Previous to the law of 1863, a sub-contractor could not 
 recover against the owner when the contractor had abandoned 
 the job, and had not become entitled to a payment because of 
 such abandonment {Cunningham vs. Jones, 3 E. D. S., 650 ; 
 
 White vs. Eeioitt, 1 E. D. Smith, 395 ; Neville vs. Frost, 2 E. D. 
 Smith, 62 ; Paige vs. Ott, 5 Denio, 406). Section 6, of the act 
 of 1863, has altered that rule as to sub-contractors, and if the 
 work has been abandoned by the contractor, a Hen may be 
 obtained by him (see ante.) The sub-contractor cannot now 
 recover against the owner when the contractor cannot, only in 
 cases where tJw contract Ivas been abandoned by the contractor. (See 
 pos«" The Contract.") 
 
 557. The sub-contractor is entitled to an accounting under 
 his lien at any time he sees proper to ask it. {Dottghty vs. 
 DevU7i, 1 E. D. 8., 625). 
 
 558. If the claimant, a sub-contractor, shows that the work 
 was done, or materials furnished, in pursuance of an employ- 
 ment by the owner, or by or in accordance with his directions 
 or the directions Of his agents {Dixon vs. La Farge, 1 E. D. 
 Smith, 722), and that the debt is due him from his contractor 
 therefor, and that the contract is completed or abandoned, he 
 has made a prima facie case, and can maintain the action. 
 
 559. When a building or other work is completed, the pre- ' 
 sumption of law is that payment has become due, unless there 
 appears to be an agreement to the contrary. {Tipton vs. Feitner, 
 
EVIDENCE. 105 
 
 20 N. Y., 423 ; Pollock\s. Elik, 1 E. D. S., 541 ; Cunningham ys. 
 Jones, 3 E. D. 8., 650 ; Sullivan vs. Brewster, 1 E. D. 8., 689). 
 
 560. It is sufficient in the first instance for the claimant, a 
 sub-contractor, to prove performance by the contractor, and it 
 then devolves upon the owner to prove payment to the con- 
 tractor. {Btdd vs. Davis, 1 HiU, 277.*) * 
 
 561. If there is nothing due from the owner to the contractor 
 by the terms of the contract, or he has paid the contractor, in 
 a proceeding by a sub-contractor, the owner must set it up as 
 a defence. It is sufficient if the claimant shows a prima fade 
 case, {Budd vs. Davis, 1 Hill, 277.) 
 
 In Doughty vs. Devlin (1 E. D. 8., 625), the court says : " The 
 " plaintiff is not bound to negative a possible defence. It is 
 " enough if he shows a prima fadie right to recover. The statute 
 " gives him the lien and the right to institute proceedings to test 
 " its extent and enforce it at any time after his work is done. If 
 " payment to the original contractor is a good defence to the 
 " owner, he must set up such payment in his answer." {Gronks 
 vs. WJiittacleer, 1 E. D. 8., 647). 
 
 562. But in order to obtain a personal judgment against the 
 owner, he must proceed further if he is a sub-contractor, and 
 show that there is a payment due or to become due to the con- 
 tractor, or that the work has been abandoned, and that the 
 owner is liable for a definite amount under the statute {Bailey 
 vs. Johnson, 3 Daly, 61). The present law is held to be the 
 same on that point as the previous law. {Schneider vs. Hobein, 
 41 How., 232). 
 
 563. Where a sub-contractor is prevented from performing 
 the whole of his contract with the contractor, by reason of the 
 failure of the latter, and an assignment by him of the contract 
 for the benefit of his creditors, the sub-contractor may acquire 
 and enforce a lien for the value of his labor and materials per- 
 formed and furnished up to the time he was prevented. {Hen- 
 derson vs. Sturgis, 1 Daly, 836.) 
 
 * This case (1 Hill 277) was a reversal on that point. That was under the 
 statute of 1830, when the sub-contractor could only recover the amount due the 
 contractor, after the same had been ascertained and adjusted, as provided by the 
 statute, then the sub-contractor could sue for it as in an action for money had and 
 received. 
 
106 EVIDENCE. 
 
 564. Hindrance by one party to a contract, whereby the 
 other party is prevented from completing his part of the con- 
 tract by the time stipulated, affords a legal excuse for non-per- 
 formance within such period. {Steicart vs. Ketdtas, 36 N. Y., 
 388.) 
 
 565. If the money has been deposited under § 10, sub 2, 
 and is still in the clerk's hands, it must be shown on the trial 
 by a certificate of the county clerk, and judgment rendered 
 accordingly. {Dunning vs. Clark, 2 E. D. 8., 635.) 
 
 566. If a notice of lien has been continued by an order of 
 the court, it must appear by the certificate of the county clerk 
 that the entry of the continuance has been made. The obtain- 
 ing of the order is not sufficient. {Barton vs. Herman, 8 Abb., 
 K 8., 399.) 
 
 567. It will be sufficient in some instances to show that an 
 order of continuance has been filed with the clerk, for then it 
 is presumed that he did his duty by making a new docket. 
 {McGucUn vs. GovUer, 10 Abb., N. 8., 128.) 
 
 568. It must be affirmatively shown that the lien is still con- 
 tinuing under the statute. {Mushlitt vs. 8ilverman, 50 N. Y., 
 360 ; O'Donndl vs. Rosenberg, 14 Abb., N. 8., 59 ; Freeman vs. 
 Arment, 5 Leg. Obs., 381.) 
 
 569. A hen will attach before anything has become due from 
 the owner to the contractor. It is sufficient if money may be- 
 come due afterwards which the owner may be compelled to 
 apply to the satisfaction of the lien. (§ 6. DotigJtiy vs. Devlin, 
 IE. D. 8., 625; 8ulUvan vs. Brewster, 1 E. D. 8., 689; 
 Fendleburg vs. 3Iead, 1 E. D. 8., 728 ; Miller vs. 3foore, 1 E. D. 
 8., 739.) 
 
 570. It is not necessary that the claim of the sub-contractor 
 from the contractor should be actually due in order to acquire 
 alien. (§ 6. Miller vs. Moore, 1 E. D..8., 739, ante.) 
 
 571. Where a claimant took the note of the contractor, and 
 subsequently before the note became due filed his notice, it 
 was held that his taking the note did not deprive him of his 
 right to acquire a lien, but the lien could not be enforced be- 
 fore the note became due. {Althause vs. Warren, 2 E. D. 8., 
 657; Teas vs. Christie, 2 E. D. 8., 621-635; Miller \s. Moore, 
 1 E. D. 8., 739.) 
 
EVIDENCE. 107 
 
 572. And where the olainiant had indorsed ■ and transferred 
 the note to a third party who had obtained judgment thereon 
 which remained unsatisfied and in full force, it was held that 
 the claimant in a proceeding to foreclose the lien could not re- 
 cover without showing that he had become re-invested with 
 the title to the debt, and that the mere production of the note 
 at the trial, and offering to give it up to be canceled was not 
 sufficient. {Teaz vs. Ghrystie, 2 E. D. S., 621; do., 2 E. 
 B. S., 635 ; Smith vs. Ooe, 2 HUt., 364.) 
 
 573. Taking a note or any security, or the recovery of ajvdg- 
 ment for the debt, does not of itself prevent the lien from attach- 
 ing by the subsequent filing of the notice. (AUJiaitse vs. War- 
 ren, 2 E. D. S., 657; Teaz vs. Ghrystie, 1 E. D. 8., 621.) 
 
 574. If after notice filed, it does not of itseK invalidate the 
 lien. {Milkr vs. Moore, 1 E. D. 8., 739.) 
 
 575. In any case however, the lien cannot be foreclosed by 
 the claimant's notice until his debt is due. (Althause vs. War- 
 ren, 2 E. D. 8., 657 ; Teaz vs. Christie, 2 E. D. 8., 621 ; Milhr 
 ys. Moore, IE D. 8., 739.) 
 
 576. If other lienors or the owner foreclose before the debt 
 is due, it must be proved and provided for in the judgment di- 
 recting the sale of the property. 
 
 Tlie Contract. 
 
 577. The contract is to govern in respect to the time when 
 the moneys are to paid by the owner. He cannot be compelled 
 to pay money to the claimant before it becomes payable ac- 
 cording to the owner's agreement with the contractor. (Sulli- 
 van vs. Becker, 1 E. B. 8., 699 ; Ferguson vs. Burke, 4 E. B. 8., 
 760.) 
 
 578. All persons engaged by the contractor must, so far as 
 they rely upon the owner or his house for security, be deemed 
 to do so in subordination to the owner's contract. (Boughtyvs. 
 Bevlin, 1 E. B. 8., 625 ; Bandolph vs. Garvey, 10 Abb., 179.) 
 
 In the former case the court, Woodruff, J., said : 
 " It is no violent or unfair presumption that when an owner 
 " has contracted with another to build a house, all sub-contrac- 
 " tors and others furnishing materials to the contractor do so. 
 
108 EVIDENCE. 
 
 " with reference to such contract, 'in subordination to its pro- 
 " visions, and to the rights of the respective parties thereto, so 
 " far as they act in any rehance upon the owner or his house 
 ^' as a security under this law. 
 
 " Now, is it therefore any hardship to hold them constructively 
 ^' notified of its provisions, or bound to take notice at their 
 " peril. They know Miat they are not dealing with the owner ; 
 " they know, or ought to know, upon what contingencies the 
 " owner will be bound to pay, and if they labor or furnish ma- 
 ^' terials in any sense upon the credit of the owner or his house, 
 ^'they should do so upon the credit which the terms of the 
 " contract offer for their reliance." {Doughty vs. Devlin, 1 E. 
 D. >S'.,f625.*) 
 
 679. An owner cannot be required to pay a greater amount 
 than the contract price or value of the work and materials 
 furnished (when no specific contract is made) upon his land 
 by his contractor. (§§1-6. Sullivan vs. Decker, 1 E. D. S., 669 ; 
 Ferguson vs. Burke, 4 E. D. S., 760 ; Doughty vs. Devlin, 1 E. 
 D. S., 625 ; Carman vs. Mclncrow, 13 N. Y., 70 ; Banddph vs. 
 Garvey, 10 Abb., 179.) 
 
 580. The effect of the statute is simply to take from the 
 owner 'money actually owing by him upon his contract and ap-N 
 ply it in payment of the labor and materials which sub-con- 
 tractors or material-men have contributed towards the com- 
 pletion and performance of the same contract. (SuEivan vs. 
 Decker, 1 E. D. S., 699 ; Doughty vs. Devlin, 1 E. D. S., 625; 
 Ferguson vs. Burke, 4 E. D. 8., 760 ; Donaldson vs. Wood, 22 
 Wend., 395 ; Loonie vs. Hogan, 9 H. Y., 435.) ■ 
 
 581. Contracts under which liens may be acquired may be 
 verbal or in writing, and may be implied as well as expressed. 
 {Knapp vs. Broum, 11 Abb., N. S., 118 ; Spenxxr vs. Barnett, 35 
 KiY., 94; Hawptman vs. Catlin, 3 E. D. 8., 666, affd. 20 N. Y., 
 247 ; Meelian vs. Williams, 36 How., 73. See post, 620.) 
 
 582. As the evidence is to be the same in these cases as in 
 ordinary action (§ 2) the rule that the best evidence must be 
 produced which the circumstances permit must be regarded. 
 
 *[A contractor who departs from his contract cannot recover at common law- 
 (Mlis vs. Samlen, 3 Taimt., 52.) 
 
EVIDENCE. ' 109* 
 
 583. If there is a written c(mtract,\i is .the best evidence and 
 must be produced. Written evidence is always superior to 
 oral. (1 Phil. Ev., 575 ; 1 Greenhaf Ev., §§ 87 to 90 and 463 ; 
 Chaffee vs. Cox, 1 Hilton, 78.) 
 
 584. Although a contract is not signed, if there is evidence 
 that it contains the terms of the contract, it may be regarded 
 in preference to verbal testimony. (See Gage vs. Jaqueth, 1 
 Lans., 207.) 
 
 585. Written rules of a company, cannot be proven by parol, 
 they should be produced. {Chaffee vs. Cox, 1 Hilton, 78.) 
 
 586. Plans, diagrams, maps, and written specifications are 
 the best evidence when they exist as to what was understood 
 between the parties, and hence they may be given in evidence 
 when there is proof that they are connected with the trans- 
 action, (^ee Smith vs. Coe, 2 Hilt., 365 ; Gage vs.. Jaqueth, 1 
 Lans, 207.) 
 
 587. As to the manner of proving bill of particulars. (Se& 
 France vs. McElhone, 1 Lansing, 7 ; Stroud vs. Tilton, 3 KeySy 
 139.) 
 
 588. A contract with an owner for specific work stipulating- 
 no time of payment, nor any sum excepting that the labor was 
 to be done by day's work, is an entire contract, and in such cas& 
 requires the whole;work to be done before the contractor can 
 call for his payment. {Cunningham vs. Jones, 3 H. D. S., 650 ;. 
 White vs. Hewitt, 1 E. D. 8., 395 ; NeviUe vs. Frost, 2 E. D. S., 
 62 ; Faige vs. Olt, 5 Denio, 406.) 
 
 . 589. The amount to be recovered from the owner must be 
 due the contractor from the owner. {Smith vs. Ferris, 1 Daly, 
 18; Thompson vs. Tafes, 28 How.,^ 142 ; Sullivanxs. Decker, 1 E. 
 D. S., 689 ; Miller vs. Bloore, 1 E. D. 8., 739 ; Ferguson vs. 
 Burke, 4 E. D. 8., 760. See ante, 569.) 
 
 590. When the lienor is the employee of a sub-contractor, 
 the amount which such lienor can recover from the owner can- 
 not exceed the amount due from the contractor to such lienor. 
 {Sullivan vs. Decker, 1 E. D. S., 699.) 
 
 591. If payments are made by the owner in good faith ac- 
 cording to the terms of his contract before the notice of Ken is 
 filed, they must be allowed to him in making up the aggregate 
 
110 , EVIDENCE. 
 
 •wiiicli he is liable to pay. (Doughty vs. Devlin, 1 K D. 8., 
 625;' Miller vs. Moore, 1 U. D. S., 739; McBride vs. Crawford, 
 1 E. D. S., 658; Allen vs. Carman, 1 ^. i?. ;S., 692 ; CarroU vs. 
 Coughlin, 3 i^oZy, 179; pos«, 592 and 593.) 
 
 592. Consequently, if the owner has paid up the contractor 
 according to the terms of the contract, he cannot be made 
 liable to any claimant on notice subsequently filed. (Carman 
 vs. Mclncrow, 13 N. Y., 70 ; Pike vs. Irwin, 1 Sand., 14 ; Ean- 
 dolph vs. Garvey, 10 Abb., 179 ; Kennedy vs. Paine, 1 E. D. S., 
 €51 ; Thompson vs. Yates, 28 fibw;., 142 ; SpaiMing vs. ZiTijr, 1 
 ^. D. 8.. Ill ; amfe, 591, post, 593.) 
 
 I 593. The owner or his property is not liable unless it ap- 
 
 1 pears that a payment is due the contractor from him. (Doughty 
 
 I vs. Devlin, 1 E. D. 8., 625 ; EauptWtan vs. Saikey, 1 E. D; 8., 
 
 668 ; 8paulding vs. King, 1 E. D. 8„ 717 ; Pendkhurg vs. Meade, 
 
 1 ^. D. 8., 728; MHer- vs.'Jfoore, 1 E. D. 8., 739; Foster vs. 
 
 Skidmore, 1 ^. Z>. /S'., 719 ; 8itUivan vs. Brewster, 1 ^. Z). ;S., 
 
 689 ; Cronks vs. Whittacker, 1 E. D. 8., 647 ; 8vllivan vs. Decker, 
 
 1 ^. Z>. 5^., 699 ; Kennedy vs. Paine, 1 ^. i). /S'., 661 ; Ferguson 
 
 vs. ^wrAe, 4 £'. D. 8., 760 ; Donaldson vs. JTood, 22 ^enci., 395 ; 
 
 Loonie vs. Hogan, 9 i\r. F., 435 ; McBride vs. Crawford, 1 ^. i?. 
 
 5^., 658 ; ^Ken vs. Carman, 1 ^. Z*. 5^., 692 ; Bailey vs. Johnson, 
 
 1 iJaZt/, 61 ; Carman vs. Mclncrow, 13 iV. JT., 70 ; Crystal vs. 
 
 FUmeUy, 2 ^. Z>. 5*., 583 ; /StwcZaiV vs. i^Vfc/i, 8 E. D. 8., 677; 
 
 ^anfe, 591, 592.) 
 
 594. If the owner pays in good faith before due under the 
 I terms of the contract, they will be allowed him. (Schneider vs. 
 lEohein, 41 How., 232 ; Carroll vs. Coughlin, 7 Abb., N. 8., 72.) 
 ! 595. If payments are made with intent thereby to defraud 
 the sub-contractor or other party, to defeat the beneficial de- 
 sign of the statute, they will not be allowed. (Lynch vsr Cush- 
 man, 8 E. D. 8., 660; Smith vs. Coe, 2 Hilt., 864; Quimby vs. 
 Sloan, 2 E. D. 8., 594.) 
 
 596. A lienor is not concluded by a receipt in fuU from the 
 contractor to the owner, nor by the contractor's statement, on 
 examination in supplementary proceedings before the date of 
 the lien, that the owner was not indebted to him. (Smith vs. 
 Coe, 2 Eilt, S64.) 
 
EVIDENCE. Ill 
 
 597. In contracts for the purchase of property, real or per- 
 sonal (or for work to be performed), where there is no stipula- 
 tion for credit or delay on either side, the performance and im- 
 mediate payment of the price are each conditions of the other. 
 {Tipton Ys. Feitner, 20 N. Y., 423 ; Pollock vs. Ehle, 2 E. D. S., 
 541 ; Cunningham vs. Jones, 3 E. D. S., 650.) 
 
 598. When the owner agreed with a contracl^pr to erect a 
 building by days' work without any other stipulation in respect 
 to the price or terms of payment, it was held that the contract 
 was entire, and that the contractor was not entitled to any pay- 
 ment from the owner until the work was complete ; that a vol- 
 untary payment on account did not alter the effect of such a 
 contract. {Cunningham vs. Jones, 3 E. D. S., 650.) 
 
 599. A substantial compHance with the terms of the contract 
 is a condition precedent to a recovery. {Smith vs. Coe. 2 Hilt., 
 364; affd.<2S)N. Z, 666.) ' , i 
 
 600. Payment voluntarily made after notice filed does not 
 impair the validity of the lien of any person except the one of 
 the person so paid (§ 3), and then only to the extent of such 
 payment. The filing of the notice is constructive notice to all 
 persons of the claim of the lienor. {Ante.) 
 
 601. If the contractor makes a hona fide legal or equitable as- \ 
 signment of a payment due or coming duejto him on the con- 
 tract, a notice of lien subsequently filed will not reach it, and 
 no judgment can be obtained against the owner for that 
 amount. Such transfer does not violate § 13. ' {Young Stone 
 (Jo. vs. Wardens, d;c., Ql Barb., 489; see' Devlin vs. Mach,-2 
 Daly, 94 ; see ante.) 
 
 602. Where the contractor has abandoned his contract, and the 
 owner has completed it, the amount for which the owner would 
 be liable to the sub-contractor would be the amount remaining 
 unpaid on the contract, after deducting the amount expended 
 in completing the work according to contract. ( Gillen vs. Hub- 
 bard, 2 Hilt, 303 / Smith vs. Ferris, 1 Daly, 18.) 
 
 603. The owner may show what it cost to complete the work 
 after it was abandoned by the contractor, as a measure of his 
 damages. {Smith-YS. Ferris, 1 Daly, 18; Gillen vs. Hubbard, 2 
 Hilt., 303.; 
 
112 EVIDENCE. 
 
 604. A party aggrieved by a breach of contract must exert 
 himself to reduce the damages caused thereby. {PoVc vs. Daly, 
 14 Abh., N. 8., 156 ; Dillon vs. Andrews, 43 N. Y., 237.) 
 
 605. A building contract containing the usual clauses, fixing 
 the days for completing various parts of the work, and stipu- 
 lating to the effect that any neglect to comply with the condi- 
 tions of the contract, and finish the work as provided, shall be 
 sufficient cause for the owner to claim damages, at the rate of 
 ten dollars for each and every day's detention so caused, the 
 owner is entitled to retain at that rate for delay occurring with- 
 out his contributory neghgence or consent, and a sub-contractor 
 is bound by such agreement. (O'DonneU vs. Bosenherg, 14 
 Ahb., N. S., 59.) 
 
 606. Where a building contract specifies a sum to be deducted 
 for any particular omission or failure in its performance by the 
 contractor, the owner cannot in a proceeding by a sub-con- 
 tractor, claim any greater rate or deduction by reason of the 
 omission. (GiUenys. JHubhard, 2 IIiU., 303; 0' DonneU \s. Bosen- 
 herg, 14 Abh, N. S., 59.) 
 
 607. Where the contractor has abandoned his contract, any 
 damages by the elements or by delay consequent thereon, will 
 be a question of fact, as to whose fault it was, and who should 
 bear it, the owner or the contractor. 
 
 608. If it was the contractor's fault it must be allowed 
 against the sub-contractor, when he makes a claim. ( Gourdier 
 vs. Tliorp, 1 E. D. Smith, 697 ; MUkr vs. Moore, 1 E. D. 8., 739 ■ 
 O'DonneU vs. Bosenherg, 14 Abb., N. 8., 59.) 
 
 (I 609. Where a party contracts to do work, and that the whole 
 shall be completed to the satisfaction of an architect ; in an 
 action to recover the stipulated price, the contractor must aver 
 and prove that the work was done to the entire satisfaction of 
 such architect, or fraud or collusion in the withholding thereof. 
 {Barton vs. Herman, 11 Abb., N. 8., 378.) 
 
 610. Where the building of a house is to be paid for in 
 several installments on the production of the architect's cer- 
 tificate, as required by the contract, payment on some of 
 them without such certificate, does not operate as a waiver of 
 the architect's final certificate upon the completion of the work. 
 {Id.) 
 
EVIDENCE. 113 
 
 611. Where a building contract made the architect's certifi- 
 cate of fulfillment a condition precedent to payment, it was 
 held in an action upon the contract, that if the architect had 
 unreasonably and in bad faith refused the certificate, the builder 
 might recover upon giving other proof of performance. ( Thomas 
 vs. Fhury, 26 N. Y., 26.) 
 
 612. A stipulation in a written contract for building, &c., to 
 the effect that in case any question arises under such contract 
 in relation to the work, both as to the value of that added or 
 deducted, the same shall be adjusted by an arbitrator, whether 
 it name him or not, is not binding. {Hurst vs. Litchfield, 39 N. 
 Y., 377 ; see Smith vs. Brady, 17 N. Y., 173.) 
 
 613. When the contract provides for an arbitrator, the offer 
 to arbitrate must be in writing. {Monteith vs. Evans, 3 Sand., 
 65.) 
 
 614. Where a sealed covenant for the erection of a building 
 provides for such alterations and additions as the owner may 
 direct, the making of an alteration or addition is not such a 
 consideration for a parol agreement by the owner modifying 
 the sealed instrument as will make such parol agreement bind- 
 ing on the owner. ( Tinker vs. Geraghty, 1 E. D. S., 687.) As 
 to how such agreement may be altered by parol, see Id. 
 
 615. Where extra work is performed by a contractor or 
 laborer, which is not in any way provided for or authorized in 
 the contract or terms of employment, no hen can be acquired 
 against the owner. {Grogan vs. The Mayor, 2 E. D. S., 693 ; 
 Foley vs. Alger, 4 E. D. S, 719 ; Smith vs. Coe, 2 Hilt., 364.) 
 
 616. In case the contractor departs from his contract so far 
 that the owner would not be liable to him, still a personal judg- 
 ment could be obtained in the proceeding against the contractor. 
 (§ 9, Grogan vs. The Mayor, 2 E. D. S., 693.) 
 
 617. The contractor is personally liable to the henor for the y. 
 whole amount of his indebtedness, and the owner to the ex- 
 tent of the amount due by him to his contractor. (§ 9.) 
 
 618. In case of a collusive contract between the owner and 
 contractor for a mere nominal sum for the purpose of prevent- 
 ing the attaching of liens by sub-contractors, laborers, &c., the 
 owner or his property would be liable for the full and fair value 
 
114 EVIDENCE. 
 
 of such labor and materials the same as if no specific contract 
 had been made, if the work was done by and in accordance 
 with the directions of the owner or his agent. (§ 1.) 
 
 ' 619. Under all previous laws, if the contractor abandoned his 
 contract no lien could be acquired against the owner or his 
 property by persons engaged by the contractor (2 Crary's 
 Prac, 622). Now, when the work has been abandoned, by the 
 contractor, those engaged by the contractor can obtain a lien 
 to the extent of the full and fair value of the work and mate- 
 rials furnished (§§ 1 and 6), the same as if the work had been 
 completed under the contract. , 
 
 620. A mere imphed contract on the part of the owner, which 
 may be inferred from suffering improvements to be made upon 
 his premises, to pay what the same may be worth, with no stipu- 
 lation or agreement as to the price or character of the im- 
 provements, was not sufficient to enable a laborer or material- 
 man employed by the builder to acquire a lien under the 
 statute of 1851 ( Walker vs. Paine, 2 E. D. 8., 662 ; Perry vs. 
 
 Weisse, 2 E. D. 8., 662). As to who may be regarded as owner 
 in executory contracts to purchase, contingent upon the ereo- 
 iion of buildings. (See ante, 80 to 84.) * 
 
 621. Where a party who was guardian of his infant daughter • 
 erected a house upon land owned by her, it was held that he 
 •could not as such guardian, without authority from a com- 
 petent court, build a house upon the land of his ward, and 
 charge the expense upon the ward, or make a building con- 
 tract under which a lien upon the property could be sustained 
 ior such building. {Copley vs. O'Neil, 57 Pari}., 299 ; Hassard 
 vs. Powe, 11 Par}}., 22 ; Putnam vs. Pitchie, 6 Paige, 390.) i 
 
 622. The lien is restricted to the funds due or to grow due 
 upon the contract. Where unliquidated damages had accrued 
 to the contractor by reason of the violation of the contract (to 
 furnish materials) on the part of the owner, no lien can be ac- 
 quired thereon by a sub-contractor or other person engaged by 
 the contractor, {Gunningham vs. Jones, 3 E. B. 8., 650 ; Linn, 
 vs. O'Hara, 2 E. P. 8., 560 ; Dennistoun vs. McAllister, 4 E. P. 
 8., 729; Nolan vs. Gardner, 4 E. D. 8., 727 ; Hoyt vs. Minor, 
 7 Hill, 525.) 
 
EVIDENCE. 115 
 
 623. If the amount of the damages to the contractor were 
 stipulated in the contract, there is no reason why a Hen would 
 not attach it, for it would be money accruing under the con- 
 tract. 
 
 624. Where an owner fraudulently or by false representa- 
 tions procures work to be done, by reason whereof he becomes 
 liable to his contractor in damages for the fraud thus practiced, 
 the laborers and sub-contractors of the individual defrauded 
 cannot have a lien on the damages which the contractor might 
 recover from the owner for the fraud. {lAnv, vs. O'Hara, 2 E. 
 D. 8., 560.) 
 
 625. The coreiracfor could acquire a lien against the owners^ 
 on an implied contract in such case {Id.) and he could also inc* 
 the cases mentioned {ante, 621.) 
 
 626. A contractor may make a valid agreement with the 
 owner that he will not file hens under this statute, but he can 
 make no direct agreement to that effect that will be binding 
 upon his sub-contractors, without they being a party thereto. 
 {PoUlon vs. The Mayor, opinion of S. P. Nash, Beferee, not re- 
 ported, but in Court of Appeal Cases, January Term, 1872, vol. 
 215.) 
 
 627. Contracts sometimes contain the following clause : 
 " That the parties of the second and third parts will not at any 
 " time suffer or permit any lien, attachment, or other ineum- 
 " branoe under any law of this State or otherwise, by any person 
 " or persons whomsoever, to be put or remain on the building or 
 " premises into or upon which any work is done or materials are 
 " furnished imder this contract, for such work or materials, or by 
 " reason of any other claim or demand against the said party of 
 " the second part, and any such lien, attachment, or other incum- 
 " branoe until it is removed, shall preclude any and all claims or 
 " demand for any payment whatever under or by virtue of this 
 " contract." (Poillon vs. The Mayor, Id.) It was contended in 
 that case that as no money could become due to the contractors 
 under it after liens were filed by the sub-contractors, that the 
 -sub-contractors who filed liens subsequent to the first one 
 could not recover against the owner. It was finally decided on 
 -other questions. 
 
116 EVIDENCE. 
 
 628. An indirect contract may be made under recent deci- 
 sions, by which no lien can be effectual against the property, 
 to wit, by the owner uniting his contract with a lease to his 
 contractor (see, to that effect, Knapp vs. Brown, 45 N. Y.^ 
 207 ; Stuyvesant vs. Brovming, 1 Jones & S., 203 ; Ghapin vs. 
 Stvart, ante, p. 33). An executory contract io purchase contingent 
 upon the erection of buildings is now ineffectual for that pur- 
 pose, because § 14 declares the legal owner to be " the owner," 
 and his vendee, the contractor, to be "the contractor." But 
 this provision does not apply to executory contracts to lease 
 contingent upon the erection of buildings {Knapp vs. Brown, 
 45 N. Y., 207, and cases last cited). The term of the lease may 
 be long or short — a nominal rental for a thousand years or twa 
 weeks — the owner (lessor) to have the buildings before the- 
 term commences or after it ends — is all the same " in equity." 
 A lien can only reach the contractor's (lessee's) interests 
 {Id.) * ^ 
 
 * This proves the absurdity of the principle, or the laclt of it, upon which these- 
 decisions are professed to be based. 
 
 The court did not profess to disregard the law — that the o-wner is tlie party /or^\ 
 wkom the building is erected. That ia the principle upon -which all previous case* 
 were decided where there were executory contracts to convey and to advance mo- 
 ney contingent upon the erection of buildings on the property (ante, 80, 81). 
 In such case, a lien could be obtained against the vendee's intere.st, because th& • 
 building is erected for the vendee, the vendor having no future interest in it any 
 farther than its value as security upon which he is to have a mortgage. Such ad- 
 vances were not regarded as money due or to grow due under a builder's contract,, 
 and therefore it could not be reached by a lien under tjae statute. Section 14 re- 
 cognizes those decisions, and is intended for the purpose of allowing a sab-amtrai:- 
 tor to immediately reach money which the vendor is to advance to the vendee- 
 under such agreements. 
 
 As the law now is, under § 14 the owner (vendor) cannot be compelled to ad- 
 vance or pay any more to a mb-contractor than the value of the materials, <fec., put 
 upon his land by the vendee, his contractor (§ 1). And if the work is abandoned 
 by the vendee or contractor, the sub-contractor can now (it was held he could not 
 before this act — Randolph vs. Qarvey, 10 Abb., 179) recover against the vendor to. 
 that extent only. (§§ 1, 6, 14.) 
 
 Previous to the law of 1844 {Ch. 220), there could be no lien on the building or 
 land in any case under the statute. The lien only reached the moneys in the hands 
 of the owner which were due or growing due his sub-contractor. (Loonie vs. ffo- 
 gan, 9 iT. Y., 435, and McDermott vs. Palmer, 11 Barb., p. 9; both arose under the 
 law of 1830.) 
 
 In the oases mentioned in the text (and ante, 68 and 69), the court declared as a 
 fact that the tenant waj the owner, although the agreements expressly required 
 
EVIDENCE. 117 
 
 629. In such cases a lienor will not be allowed to show the 
 extent or value of the erections or repairs to the lessor, or the 
 real value of the rental, or to show that the erection or altera- 
 tion was made in consideration of the letting of the premises ; 
 or to show that in consequence of such erection anything was 
 due or to become due to the lessee from the owner. The con- 
 tract is conclusive evidence of the relation of the parties (see 
 Knapp vs. Broivn, Court of Appeals Cases at Law Institute Li- 
 brary, vol. 171). And if the owner, who is entitled to the rever- 
 sion, is made a party defendant in such case, he is entitled to 
 judgment for costs. (Id.) 
 
 See Story's Eq. PI., § 193, as to parties in similar cases, 
 to wit, foreclosure of mortgage. 
 
 630. The same questions may arise in these cases as in other 
 actions as to what is a variance and what & failure of proof un- 
 der §§ 169, 170, 171 of the Code, or, in other words, what is a 
 matter of form and what a matter of substance. This relates . 
 as well to the lien, notice and bill of particulars as to the plead- 
 ings. A substantial comphance with the statute is all that is 
 necessary. (Beals vs. Gong, B. J., 1 E. D. 8., 654 ; Huhhell vs. 
 Schreyer, 14 Abb., iV. >S^., 284.) 
 
 631. A variance is not deemed material unless it has actu- 
 ally misled the adverse party to his prejudice. (Code, § 169.) 
 
 SIS a condition precedent to the right to occupy the premises, that the huUdings 
 should be erected by the lessee for the lessor, and the same was erected for the 
 lessor, who then became the owner of the buildings to the same extent as hfe was 
 ■of the land upon which it stood. The lessee was afterwards only to have the use 
 of them both for a short period, subject to the usual conditions in a lease. 
 
 The court assumed and declared as a fac ' (contrary to the actual fact), that the 
 building was not erected for the lessor, while the agreement expressly required 
 that it should be so erected for the lessor, and that he should become the owner 
 before the lessee had the right to their use. 
 
 A court of last resort has the physical power to declare the non-existence of any 
 actual, undisputed fact, and then decide accordingly, and the aggrieved party has 
 no remedy. 
 
 The requirements of justice and right show that in similar cases there should be 
 a distinction between executory contracts to lease contingent upon repairs, Ac, 
 and executed leases and repairs that are only permitted to be made by the lessee 
 {See Muldoon vs. Pitt, i Daly, 105.) 
 
118 EVIDENCE. 
 
 The following have been held as immaterial variances under 
 the Code : 
 
 632. Statement of dehvery by plaintiff — proof of delivery by 
 plaintiff's agent. {Richards vs. Westcott, 2 Bosw., 590.) 
 
 633. Statement that note made by Orrin North — proof that 
 it was made by two persons trading as Orrin North. {Blc. of 
 a vs. TFoods, 28 N. Y., 545.) 
 
 634. Statement promise to pay a specified compensation — 
 proof promise to pay what reasonably worth. {Scott vs. Lilien- 
 thal, 9 Bos., 224 ; Patterson vs. Patterson, 1 Abf)., N. 8., 262.) 
 
 635. Statement of sole liability — proof of joint undertaking. 
 {Garter vs. Hope, 10 Barb., 180.) 
 
 636. Statement of an absolute promise — proof of a condi- 
 tional promise. {.Hart vs. Hudson, 6 Dver, 294.) 
 
 637. Statenient of bill payable to order of A — proof of a bill 
 payable to the order of B. {Glaflin vs. Griffin, 8 Bos., 689.) 
 
 638. Statement of delivery at 59 Broadway — proof of deliv- , 
 ery in Canal street. {Neustadt vs. Adams, 5 Btier, 43.) 
 
 639. Statement that property belonged to plaintiff — proof 
 that he held it as factor. {Gorman vs. Gasey, 1 Abh., 285.) 
 
 Statement that defendant was in possession of the prem- 
 ises in right of his wife — proof that he was in possession in 
 his own right. {Rose vs. BeU, 38 Barb., 25.) 
 
 640. Statement that defendant is owner of all — proof that he 
 is owner of part only. ( Van Rensselaer vs. Jones, 2 Barb., 643 ;. 
 Schoop vs. Glarlce, 1 Keyes, 181.) 
 
 641. A variance between the proofs and bill of particulars is 
 not material unless it mislead. {Code, § 169 ; Seaman vs. iow,' 
 4 Bosw., 338.) A referee may permit a new bill of particulars 
 to be substituted in place of one attached to the complaint- 
 {Melvin vs. Wood, 3 Keyes, 533.) 
 
 642. Where a contractor charged in his bill of particulars 
 four dollars per day for work, and on the trial it appeared that 
 he had the work done^or $3.50 — that the fifty cents per day 
 were his profits — it was held that he could recover that sum 
 for his services, and that it was no departure from his bill of 
 particulars. {Anderson vs. Dillaye, 47 iV. Y., 678.) 
 
EVIDENCE. 119 
 
 643. Where a contract has been by mutual consent so sub- 
 stantially and materially departed from that it is impossible 
 from the evidence to ascertain the extent of the alterations in 
 the contract which was originally intended to control, the case 
 should be regarded as one erected under a general employ- 
 ment, and the owner to pay what the work and materials are 
 reasonably worth. {Smith vs. Coe, 2 Hilt., 364; affd. 29 N. Y., 
 666.) 
 
 644. In regard to variances, it is provided: " That no variance 
 " as to the persons named as contractor, owner or debtor, in 
 " the lien, notice or bill of particulars, or statement of claim, or 
 " in any .pleading, shall impair or affect the rights of the 
 " claimants as hereinafter defined, and every party .shall have 
 " relief according to the rights of the parties as they shall ap- 
 " pear in evidence " (§ 2*). 
 
 645. If it appears by the evidence on the trial that a person 
 named as owner, contractor or debtor in the lien or notice or 
 bill of particulars, or any pleading, is not personally liable 
 under § 9, judgment may be given in his favor, but the rights 
 of the lienor will not be prejudiced thereby as against the 
 property or any proper person {§ 2, post, 657). When the 
 proper person can be ascertained he may be brought in as a 
 party. (See ante.) 
 
 646. If, on the trial, it appears that a defendant is not owner, 
 as alleged, he may still be personally liable as contractor. (§§2 
 and 9.) 
 
 647. Where a claimant alleged in his notice of lien and in 
 his complaint a joint contract with the owner and a contractor, 
 and no joint contract was proved but an individual one by the 
 owner, the court held that the owner could not avail himself of 
 it ; that the lien and judgment was valid against him. (Huh- 
 hett vs. Schreyer, 14 Abb., JSf. S., 284 ; Hauptman vs. Catlin, 3 
 E. D. S., 666, and ante.) 
 
 648. Where a notice of lien was filed in the individual name 
 of one of a firm, and he individually commenced proceedings 
 
 * Under tlie Law of 1851, where u lienor's notice was for work done for the 
 contractor as debtor, he could not recover under it for work done for the owner 
 (Hauptman vs. Salsey, 1 E. D. S„ 668). But he could recover against the owner 
 on another notice filed against him as debtor. (Smitit vs. Ferris, 1 Dalt/, 18). See 
 ante, 159, note. 
 
120 ■ EVIDENCE. 
 
 to foreclose, and it appeared by the evideuce tKat tlie materials 
 for whicli tlie claim was made were furnished by a firm . of 
 which he was a member, and that his copar'tners had not, until 
 after the filing of the notice and- commencement of the pro- 
 ceedings, relinquished their claim, it was held that the claimant 
 could not recover. {HyhheU vs. Schreyer, 14 Abb., N. S., 284) 
 
 649. The notice .should be according to the facisf but maybe 
 according to the legal effect. (Ante.) 
 
 If it is untrue in any material statement, excepting those 
 mentioned in § 2, it is of no effect. (HubbeU vs. Schreyer, 14 
 Abb., N. S., 284:.) 
 
 As to what are material statements therein, see-ante, " Form 
 of Notice." 
 
 650. Where it appears that the work was done on some other 
 building than that on the lot which is described in the notice 
 of lien, there is a failure of proof, and judgment must be for 
 the defendant. {Oronkrite vs. Tlwmson, 1 E. D. S., 661 ; Ran- 
 dolph vs. Leary, 3 E. D. 8., 637 ; Donnelly vs. lAbby, 1 Sweeny, 
 259.) 
 
 651. As to what is a material variance under the Code, and 
 the remedy as to how and when the objection should be made 
 that the case proved varies from that stated in the complaint, 
 see Voorhies' Code, §§ 171, 169, aiid notes. 
 
 252. Amendments may be made, the same as in other cases, 
 under the Code. 
 
 The notice of lien cannot be amended. (Beats vs. Cong. B. J., 
 1 E. D. S., 654 ; ConUin vs. Wood, 8 E. D. S., 662 ; HaUahan 
 vs. Herbert, 2 Daly, 253.) Nor can the verification to the notice 
 of lien. (Id.) A referee may permit an amendment of bill df 
 particulars and may permit a new bill of particulars. {Melviu 
 vs. Wood, 3 Keyes, 533.) 
 
 653. If the allegations in the pleadings or claims of any of 
 the parties are illegal or improper, an objection to the evidence 
 offered under them should be made, the same as in an ordinary 
 action, and if it is admitted as evidence, an exception taken if 
 they are to be subsequently reviewed on appeal. 
 
 654. A lien of this kind is to be regarded in the proceedings 
 for its enforcement the same as a lien by judgment, being 
 
EVIDENCE. 121 
 
 created wholly by statute. [Meyers vs. Seebald, 11 Abb., N. 8., 
 326; O'Bonnell -vs. Hcsenherg, 14: Abb., N.S., 59; Brinkerhoff ys. 
 Board of Education, 6 Abb., N. 8., 418.) 
 
 655. A receiver will not therefore be appointed in these pro- 
 ceedings (Meyers vs. Seebald, 11 Abb., N. 8., 326). It was 
 formerly held otherwise. ( Webb vs. Van Zandt, 16 Abb., N. 8., 
 3U ; Porschke vs. Kedenberg, 6 Abb., N. 8., 172.) 
 
 656. An injunction will be granted in certain cases. (jQuinn 
 vs. The Mayor, 2 E. D. 8., 558 ; Paine vs. Bonney, 4 E. D. 8., 
 734.) 
 
 657. The filing of a notice of lien alleging the performance 
 of work in pursuance of an agreement with a contractor, and 
 iu conformity with a contract between the latter and an owner, 
 will not absolutely estop the claimant from prosecuting an 
 ordinary personal action or a proceeding against the owner, and 
 averring therein a direct employment of the plaintiff by the 
 owner. (Cremin vs. Byrnes, 4:E. D. 8., 756 ; 8mith vs. Ferris, 
 1 JDohj, 18.) 
 
 658. The pendency of these proceedings would be a good 
 defense in "an action under the Code between the same parties 
 ■after proceedings are commenced to foreclose the' lien, 
 whenever a personal judgment therein may be rendered for 
 such claim {Ogden vs. Bodle, 2 Duer, 611) ; and an adjudication 
 in these proceedings upon the merits is a bar to any other 
 action. {8chaeitler vs. Gardiner, 41 Hoiv., 243.) 
 
 659. If the contractor sues the owner in an ordinary action 
 on the contract,. if there are any liens filed against the property 
 by those employed under the contractor, it wiU be not a good 
 defense to the action to the extent of such liens so filed 
 ( Gridley vs. Rowland, 1 E. D. 8., 670 ; Mosey vs. Larkin, 2 do., 
 540 ; Pollock vs. Ehle, do., 541 ; Westervelt vs. Levy, 2 Dv£r 
 454. See ante, 20, post, 779). The owner must take proceed- 
 ings . under this statute, or he may, before action, take an as- 
 signment of the claims, and set them up as a counter-claim 
 against the contractor. 
 
 660. By these proceedings the claimant waives all the inci- 
 dents of an action under the Code, to wit : Arrest and Bail, 
 Claim 4ind Delivery of personal property. Attachment against 
 
122 JUDGMENT. 
 
 property, and all other provisional remedies {except an injunc- 
 tion, post, 651), allowed before judgment. » 
 
 661. When these proceedings and an action in which a 
 personal judgment may be rendered are both pending at the 
 same time, a claimant may elect which he will pursue. ( Webb 
 TS. Van Zandt, 16 Abb., 314.) 
 
 CHAPTEE YII. 
 
 THE JUDGMENT. 
 
 662. It is provided that, " the court shall proceed without 
 " regard to matters of form, and judgment shall be rendered 
 " according to the equity and justice of the claims of 'the res- 
 " pective parties" (§ 5). And, " in cases where they appear 
 " and plead, the court miy determine the rights of all parties. 
 " and the amounts due to each, and by whom to be paid (§ 7).' 
 * * " And such judgment or decree shall be made thereon 
 " as to the rights and equities of the several parties among 
 " themselves, and as against any owner as may be just (§ 7). 
 " And every party shall have relief according to the rights of 
 " the parties as they shall appear in evidence." (§2.) 
 
 663. When the proceeding is commenced by the owner on 
 the return of the notice, and proof of due service on the par- 
 ties, none of them appearing, an order may be entered, as at 
 Special Term, exempting the property from the liens, without 
 any other proceeding. (Carroll vs. Coughlin, 7 Abb., iV. S., 72.) 
 
 664. On the trial of all the issues, the court or referee must 
 find the facts and conclusions of law sepa^tely, the same as in 
 other cases (Code, § 267, 272, Rule 39.) It must appear by 
 the findings, that the act has been complied with in every par- 
 ticular required by the statute, in order to make a valid lien, 
 and such facts must be set forth in the affirmative or in the nega- 
 tive, as the case may be, so they can be fairly reviewed on appeah 
 They should be as full and as specific as they are required to be 
 alleged in the complaint (ante). And should be full as to 
 each party as between themselves, particularly if they have or 
 claim different interests. (Code, § 274). 
 
JUDGMENT. 123 
 
 665. Where successive liens are filed by the different persons 
 allowed by § 1, the report and judgment should provide that 
 the amount due the laborer, cartman, material man and sub- 
 contractor should be first paid before that of the contractor 
 for his services or materials. (§ 3.) 
 
 666. Where several buildings are done under one contract? 
 the report and judgment should particularly provide that each 
 should have a priority on the particular building where his 
 labor is performed or his material used. (§ 3.) 
 
 667. In case of persons standing in equal degrees as co-laborers, 
 or various persons furnishing materials, the report and judg- 
 ment should specify that these should be paid by priority, 
 according to the date of filing their notice of lien. (§ 3, 
 Eaylor. vs. O'Connor, 1 E. D. 8., 672; Sahasfer vs. ReiUy, 50 
 N. Y., 61.) 
 
 668. Where several hen notices are filed for the same de- 
 mand, as in case of a contractor including claims for work- 
 men and materials, to whom and for which he is indebted, and 
 a lien by the workmen and material-men, the findings and 
 judgment must provide for the proper payments, so that under 
 the liens filed double payments shall not be required. (§ 3.) 
 
 669. The preference given to the laborer, cartman, material- 
 man, and sub-contractor, over the contractor, applies only to 
 those who are engaged by that special contractor, and not over 
 any other contractor who is engaged by the oioner. This is the 
 intent of § 3. 
 
 670. Where hens exist against several parcels of land which 
 have passed to several owners, the findings may apportion the 
 burden among the different grantees, according to the equity 
 of the case and consistent with a due enforcement of the liens. 
 (§3. Kaylor vs. O'Connor, 1 E. D. 8., 672; Livingston vs. 
 MiUer, 16 Ahh., ill ; McAuley vs. MUdrum, 1 Daly, 396 ; Paine 
 vs. Bonney, 4 E. D. 8., 734.) 
 
 671. The right to the Marshaling of Securities and of Assets 
 remains as in other equitable actions, excepting as they are 
 regulated, directed, and provided for in § 3. In these proceed- 
 ings they are particularly applicable and valuable to a lienor, 
 for in many cases where the securities are properly marshalled 
 
124 JUDGMENT. 
 
 £i lienor may be enabled to recover the entire amount of his 
 ■claim, while, otherwise, it would prove worthless.* (See ante, 
 51, 53, 119, 121.) 
 
 672. "Where there is a lien on several houses, and any of 
 ihem have afterwards been conveyed to different persons, the 
 lien should be enforced by a judgment directing the sale first 
 ■of those last conveyed, and thus have the lien satisfied out of the 
 property in a reversed order of the transfers. (Story's Equity 
 Jurisp., § 1233 b.; Tower vs. White, 10 Paiqe, 395 ; Bathbone vs. 
 Glarh, 9 Paige, 648 ; Crafts vs. Aspinwall, 2 N. Y., 289 ; Welch 
 TS. James, 22 How., 474 ; Paine vs. Bonney, 4 E. D. S., 734 ; 
 
 Wood VS. Spalding, 45 Barb., 602.) 
 
 673. If the contracting owner holds any of them, the one he 
 iolds must be first sold, and if the proceeds are not sufficient 
 to satisfy the lien, then the others may be resorted to in the 
 ■order above stated. {Id.) 
 
 674. When there are several distinct lots or parcels to be 
 sold, unless the judgment directs how the same is to be sold, 
 the sheriff can seU them altogether, or in such lots or parcels 
 as he thinks will bring the best price. {Rule 75, see Cunning- 
 ham vs. Cassidy, 17 N. Y., 276.) 
 
 " The general principles upon which the Marshaling of Securities is founded is 
 that where there are several creditors, having a common debtor, who has several 
 funds, all of which can be reached by one creditor, and only a part of the funds by 
 the other creditors, the latter have a right in equity to compel the one creditor to 
 resort to the other fund in the first instance for satisfaction, if that course is neces- 
 sary for the satisfaction of the claims of all parties, whenever it will not touch 
 upon the rights or operate to the prejudice of the party entitled to the double 
 fund. Thus, if A has a mortgage upon two different estates for the same debt, 
 and B has a mortgage upon only one of the estates for another debt, B has a right to 
 tlirow A in the first instance for satisfaction upon the security which he, B, cannot 
 touch, at least, where it will not prejudice the rights or improperly control hisreme. 
 dies (Story's JSg. Jurisp., § 633, 634; WiUar(^s Eg. Jurisp., p. 338, and authorities 
 ihere cited; Aldrich vs. Cooper, in 2 White & Tudor' s heading Cases in Equity, p. 66, 
 tfcc). This principle applies to mortgages, judgments, or any other security which 
 creates a lien in favor of the creditor. {Id.) 
 
 Marshaling is not confined, however, to liens on property, it extends to personal 
 securities. When a person has a lieu on property as well as other personal se- 
 curity,J;he may be compelled to resort to the personal security before he is allowed 
 to proceed against the property. {Harris vs. Fly, 7 -Paige, 422 ; Hunt vs. Towmend, 
 A Sand. Ck, 610; SlonJsEq. Jurisp., § 633.) 
 
JUDGMENT. 12i> 
 
 Personal Judgment. 
 
 675. The findings should also show who are personally hable- 
 and to whom, and the extent of such personal liability and the- 
 amount, if any, due (or when it is to become due) from the 
 owner to the contractor and the amount due from the contrac- 
 tor or debtor to the lienor. 
 
 676. The contractor (debtor) is personally liable to the- 
 lienor for the whole amount of his indebtedness,^ and the- 
 owner is personally liable to the lienor to the extent of the- 
 amount due by him to his contractor (§ 9).* 
 
 677. The term " personally liable " and " personal judg- 
 ment," as used in the act (§9), means general Hability of 
 property, and general judgment against property, to be en- 
 forced against property only (§ 9), and does not mean a judg- 
 ment against the person, as that term is usually understood. 
 
 678. Contractor means any and every person expressly or 
 impliedly employed by the owner, and sub-contractor means- 
 any and every person expressly or impliedly employed by any 
 contractor or person other than the owner ; the sub-contractor 
 stands in the relation of contractor to any and every persoa 
 employed by him ; therefore, if the contractor has paid up the- 
 
 * Under the Lien Laws relating to "Sew York city, prior to the Act of 1851, the- 
 owner was ^ersona% liable to the lienor for the amount of the judgment recoTered 
 by the lienor, provided the same did not exceed the amount due from the owner 
 to the contractor. {Laws, 1830, Gh. 330, §4; Laws, 1844, Ck 220, § 10.) 
 
 The Act of 1851 (§ 1) was not so definite on that point as the former laws, and 
 the court almost immediately impliedly held that the owner was not personally 
 liable to the lienor by -rirtue of the act, unless he was liable by direct contract ; 
 therefore, it was afterwards held that a sub-contractor could not obtain a personal 
 judgment against an owner. (Crystal ts. Flannelly, % M. D. 9., 5&Z; Quimby vs, 
 Sloan, 2 do., 694 ; Walker vs. Paine, 2 E. D. S., 662 ; Sinclair vs. Fitch, 3 M B. S.,. 
 61'J ; Oox TS. Broderick, 4 E. D. S., "721; Dennistoun TS. McAllister, 4 E. D. S.,. 
 729 ; Grogan vs. McMahon, 4 do., 764.) 
 
 The court seemed to think that the Law of 1855 had affirmed their former- 
 holding on that question [Oox vs. Broderick, 4 E.D.S., 721). But even under 
 the Law of 1855 such a holding might well be questioned, partictdarly when we 
 consider what the former laws had been on that subject. 
 
 The discussion of this question Is only important in considering the effect which 
 those decisions may have in construing similar statutes in this State. The Act 
 of 1862, relating to the counties of Kings and Queens, is precisely like the Act of 
 1851-55 -in thatSespect. 
 
126 JUDGMENT. 
 
 sub-contractor, no recovery can be had against the owner by 
 any person to whom the sub-contractor is indebted, notwith- 
 standing the owner may still owe a contractor, nor can a 
 personal judgment be rendered against a contractor when he 
 owes the sub-contractor nothing ( Grogan vs. McMahon, 4 E. D. 
 S., 754), and in any event^ he cannot be made liable, neither 
 can the owner be made liable only to the amount due from the 
 contraetor to Ms sub-contractor. 
 
 679. A,person engaged by a sub-contractor may recover a 
 personal judgment against such sub-contractor for the 
 amount actually due him from such sub-contractor, and a per- 
 sonal judgment against a contractor for the amount thereof if 
 the same is due the sub -contractor from a contractor, and a 
 judgment against the owner for the same amount, providing it 
 does not exceed the amount due from such owner to his con- 
 tractor — the person that engaged the sub-contractor. The 
 same rule prevails through any number of series of contrac- 
 tors, sub-contractors, employees of sub-contractors, and persons 
 under them. 
 
 680. " Where the creditor of the contractor seeks to enforce 
 " a lien, the amount di^e from the contractor to such creditor is 
 '' not necessarily the measure of the Hen to be enforced, for so 
 " much may not be. due from the owner. Nor is the amount 
 " due /rom the otvner to the contractor such measure, for so 
 " much may not be due to the claimant. Conflicting ques- 
 " tions at once arise afl'ecting the owners, the contractors and 
 " the claimant directly, and which ex-necessitate must control 
 " the judgment which the court shall give." ( Woodruff, J., in 
 Sullivan vs. Decker, 1 K D. S., 699.) 
 
 681. A lienor cannot in these proceedings recover a personal 
 judginent against his contractor for a larger amount than his lien 
 names, because it is a special mode of applying a special rem- 
 edy. No judgment can be recovered larger than the amount 
 claimed in the lien, with interest thereon and costs of foreclo- 
 sure. (Prot. U. vs. Nixon, 1 E. D. S., 671 ; Dunning vs. Olark^ 
 2 E. D. 8., 535, and note ; Eagleson vs. Glark, 2 E. D. S., 644 ; 
 Althause vs. Warren"^ E. D. 8., 657 ; W lliamson vs. Hendricks, 
 10 Ahh., 98.) ' « 
 
JUDGMENT. 127 
 
 682. Where, however, the court has obtained jurisdiction of 
 the contract by the filing of a proper 'notice, a personal judgment 
 may be rendered for an amount equal to the amount claimed in 
 the notice, although the Hen is only valid a^ such for a smaller 
 amount. {Spencer vs. Barnett, 35 N. F., 94 ; Hulbell vs. Schreyer, 
 14 Abh., N. 8., 284.) 
 
 683. If no lien, has ever been acquired or created, or if the 
 notice is defective, a personal judgment cannot be rendered 
 against the owner in favor of his contractor ( Quimhy vs. Shan, 
 2 E. D. S., 594 ; Seals vs. Cong, B. J., 1 E. D. 8., 654 ; GronJcrite 
 vs. Thomson, 1 E. D. 8., 661 ; Oonklin vs. Wood, 3 E. D. 8., 662 ; 
 Dennistoun vs. McAllister, 4 E. D. 8., 729 ; Ecdlahan vs. Herbert, 
 2 Bdy, 253; Donnelly vs. Libby, 1 8weeny, 259; HubbeU vs. 
 8chreyer, 14 Abb., JV. 8, 284 ; Barton vs. Herman, 3 Daly, 320). 
 Nor in favor of the sub-contractor against the contractor. {Id.) 
 
 684. A personal judgment cannot be obtained by a sub-con- 
 tractor against an owner or contractor unless it is proved or 
 conceded that a lien was obtained upon the premises for the 
 work or materials for the amount or value of which a personal 
 judgment is asked against the contractor. {Donnelly vs. Libby, 
 1 8weeny, 259 ; Barton vs. Herman, 3 Daly, 320 ; HubbeU vs. 
 8chreyer, 14 Abb., N. 8., 284 ; Dennistoun vs. McAllister, 4 E. D. 
 8., 729 ; Cox vs. Broderick, do., 721.) 
 
 685. A personal judgment may be rendered against an equit- 
 able owner when he is made a party defendant with the legal 
 owner. {Hallahan vs. Herbert, 11 Abb., K 8., 326.) 
 
 685. In order to obtain a personal judgment against the con- 
 tractor only, the claimant must go further than show that 
 which would entitle him to a judgment in an ordinary action ; 
 he must show that such demand arises upon the performance 
 of work pursuant to an agreement between the claimant and 
 the contractor, and in conformity with a contract between the 
 owner and the contractor. {Dennistoun vs. McAllister, 4 E. D. 
 8, 729.) 
 
 686. Where a personal judgment is rendered against a con- 
 tractor in favor of a sub-contractor, the findings must stiU.show 
 the same as would be necessary if it were against the owner. 
 (Dennistoun vs. McAllister, 4 E. D. 8mith, 729.) 
 
128 JUDGMENT. 
 
 687. The findings must recite all the facts necessary to show 
 that a lien was acquired, and show that the only reason why 
 the judgment should be in favor of the owner is because there 
 was nothing due or to become due from the owner to the con- 
 tractor (whatever that cause may be) when the notice was filed. 
 
 688. Judgment maybe given m favor of the owner against a, 
 svh-contr actor, and the sub-contractor may in such case recover 
 a personal judgment against the contractor for the amount of 
 his indebtedness to the sub-contractor. ( Grogan vs. The Mayor,. 
 2 R D. 8., 693 ; Grogan ys. McMahon, 4 E. D. 8., 754.) 
 
 689. If the owner has hona fidely conveyed the property be- 
 fore the notice of lien was filed, no personal judgment can be 
 obtained against the contractor, because no lien was acquired. 
 {Quimby vs. 8loan, 2 K D. 8., 594, and ante, 683, 684.) 
 
 690. If more than one year has elapsed since the filing of the 
 notice of lien, it must affirmatively appear by the findings, if a 
 sale of the property is directed, that such lien has been contin- 
 ued by order of the court. (O'Donnell vs. Rosenberg, 14 Abb.,W. 
 8., 59 ; Barton vs. Hermwn, 3 Daly, 320 ; 8chaettkr vs. Gardiner, 
 41 How., 243 ; Mushlitt vs. 8ilverman, 50 N. T., 360.) 
 
 691. If the findings do not show this, a judgment entered on 
 them may be set aside on motion (Barton vs. Herman, 3 Daly, 
 320 ; Grant vs. VandercooTc, 57 Barb., 165.) Or a new trial will 
 be granted on appeal. {O'Donnell vs. Rosenberg, 14 Abb., N.S., 
 59 ; 8chaettler vs. Gardiner, 47 N. Y., 404.) 
 
 692. The judgment must be 'perfected within the year or the 
 lien must be continued. [Id. ; Freeman vs. Arrrtent, 5 Leg. Ob., 
 381.) 
 
 693. Where proceedings are pending to foreclose the lien, 
 and the lien has expired by limitation, the claimant taay still 
 proceed and have a personal judgment in the proceedings 
 against those liable by contract, the same as if the lien had not 
 expired. {Barton vs. Herman, 8 Abb., N. 8., 399 ; 8chaettler vs. 
 Gardiner, 41 How., 243 ; Schaetthr vs. Gardiner, 47 N. Y., 
 404.) * 
 
 * Under the general lien law, the Supreme Court have held that after a lien 
 haa expired by limitation no personal judgment can he obtained against any per- 
 son, even though he is liable by contract. {Grant vs. Vandercook, 67 Barh., 165 j 
 
JUDGMEKT. 129 
 
 694. Whether, after a lien has expired while the proceedings 
 are pending, a personal judgment may stiU be rendered against 
 a person who is not directly liable by contract, to wit, a personal 
 judgment in favor of a sub-contractor against the owner for the 
 amount due from him to the contractor at the time the notice 
 was filed, is still an unsettled question. In Schaeftler vs. Oar- 
 diner, 4:VIIow., 243, a deposit was made by the contractor, and 
 hence this question could not properly arise, but the court said 
 the action should be dismissed as to the owner after the lien 
 had expired. In O'Donnell vs. Bosenberg (14 Abb., N. 8., 59), a 
 claimant who had only proved his claim before the referee, and 
 had not continued his lien, and the time expired before the 
 referee's report was made, it was held that the proceedings 
 ceased as to him. But in Barton vs. Herman (3 Daly, 320, and 
 8 Abb., N. 8., 399), in a well considered opinion, it was held that 
 the lien only ceased as against the specific property, and that 
 as to all other remedies in the proceedings they remained the 
 same. 
 
 695. The whole course of decisions on these statutes from 
 the first show that the courts are incKned to strictly construe 
 them, and hence it is probable they will hold that a sub-con- 
 tractor or other person to whom the owner is not personally 
 liable by contract cannot obtain a personal judgment against 
 the owner after the lien has expired. If such claimant wishes 
 to hold the owner personally liable, he must have his lien con- 
 tinued within the time and manner provided by the statute. 
 (Mushlitt vs. 8ilverman, 50 i\r. • T., 860 ; Huxford vs. Bogardus, 
 40 How., 94.) 
 
 696. Therefore, where no claim is made against the owner as 
 being liable by personal contract, if the hen expires, the pro- 
 ceeding as to him abates and should be dismissed {8chaetthr 
 \s: Gardiner, 41 Hoio., 243) with costs. {Huxford vs. Bogardus, 
 40 How., 94.) 
 
 Huxford V3. Bogardxbs, 40 Sow., 94.) The decisions cited in the text are founded 
 upon principle, and will ultimately prevail. The principle upon which they are 
 based is recognized in the Court of Appeals, where it is held that although the 
 lien is not valid as such, only to a limited amount, a personal judgment may be 
 rendered for a larger amount due on the contract. (Spencer vs. Barnelt, 36 -ST. T., 
 94.) 
 
 9 
 
130 JUDGMENT. 
 
 697. The judgment, although only personal, must show whe- 
 ther the lien has been continued or not, if it has been more 
 than one year since the hen was filed. {O'DonneU vs. Bosenierg, 
 14 Abb., 59*.) 
 
 698. After a lien ceases by limitation before any proceed- 
 ings, it cannot be made the means of obtaining a personal 
 judgment in these proceedings. (Schaettler vs. Gardiner, 41 
 How., 243 ; Barton vs. Herman, 8 Abb., N. 8., 399 ; Grant vs. 
 Vanderwols, 57 Barb., 299 ; Huxford vs. Bogardus, 40 How., 94.) 
 
 ■ 699. After the lien runs out by limitation before any pro- 
 ceedings, the only mode of enforcing the claim is by ordinary 
 action against the debtor. {Barlon vs. Hermann, 8 Abb., N. 8., 
 399.) 
 
 700. If a set-off is established at the trial, exceeding the 
 plaintiff's demand so established, judgment for the defend- 
 ant, even if a contractor, must be given for the excess. Or if 
 it appear that the defendants are entitled to any other affirma- 
 tive* relief , as belioeen themselves, judgment must be given accord- 
 ingly. ■(§ 7 ; Code, §§ 263, 274 ; Grogan vs. McMalion, 4 E. D. 8., 
 754 ; Grogan vs. Raphael, 6 Abb., 306.) 
 
 701. The findings should not only show the amounts due 
 from the owner to the contractor, and if it is not due, when it will 
 become due, but they must go further and show the amount 
 as a lien, and should particularly describe the premises upon 
 which it is found there is a lien, and specify when each of them 
 accrued by the filing of the notice, and how the proceeds of 
 the sale of the property shall be distributed. (§ 9.) 
 
 702. A copy of the notices filed should be attached to the 
 findings, so that any question that may arise as to their con- 
 struction or sufficiency as to form or legal effect can be dis- 
 posed of whenever it comes before the court. 
 
 703. The judgment will relate back, and take effect, as an in- 
 cumbrance, as a lien at the time the notice of lien was filed. 
 (Althattse vs. Warren, 2 E. D. 8., 657 ; Randolph vs. Leary, 3 E. 
 p. 8., 637 ; Smith vs. Corey, 3 E. D. 8., 642 ; Paine vs. Bonney, 
 4 E. D. 8., 734 ; 8chafer vs. Reilly, 50 N. Y., 61; Meehan vs. 
 
 Williams, 36 Hoiu., 73.) 
 
JUDGMENT. 131 
 
 704. "Where it appears in evidence that the interest of the 
 contracting owner was lens at the time of the work than it was 
 at the time the notice was actually filed, the judgment should 
 provide for the sale of his interest at t/ie time of the ivorlc, and 
 should specify such time instead of the time of the filing of the 
 notice. 
 
 705. This latter rule does not apply to the subsequently 
 acquired rights of one who is an equitable owner at the time the 
 contract for the work was made, or who was such at the time 
 and by whose authority the work, &c., was done. {Cox vs. 
 Broderich, 4 E. D. S., 721 ; BoUin vs. Gross, 45 N. Y., 766.) 
 
 706. When the tenant is held to be the owner and his inter- 
 est in the property has expired after notice filed, but before 
 judgment, it should still be in form as against his interest in 
 the property at the time the notice was filed. 
 
 707. In case money has been deposited and the lien dis- 
 charged as against the property under § 10, subd. 2, a special 
 judgment against the property would be erroneous. {Dunning 
 vs. Olark, 2 E. D. S., 635.) Therefore the findings should state 
 the fact of such deposit and discharge as aforesaid, and show 
 that the money is still in the hands of the county clerk, and 
 direct how the same is to be distributed among the claimants. 
 (§9.) 
 
 708. When the summons and complaint and notice has been 
 served on a subsequent lienor, pursuant to §§ 4 and 5, and he 
 does not appear in the matter, the findings should show service 
 of the papers and that he did not appear but made default, 
 aad that he is thereby barred from all lien and interest in the 
 matter in controversy in rem. in said proceeding. 
 
 709. When all the "issues are referred the referee's report 
 sbould dispose of the question of costs between the parties. 
 (BarJcer vs. White, 3 Keyes, 617.) 
 
 710. When, on a reference to try and determine all the rights 
 of the parties, on the coming in of such report, it is regarded 
 the same as in any other case where all the issues are referred. 
 No notice of filing, no application for confimation, is necessary. 
 {Schatttler vs. Gardiner, 41 Hoiv., 243 ; Hubbel vs. Schreyer, 14 
 Abb., N. S., 284 ; Code, § 272.) 
 
132 JUDGMENT. 
 
 71 1. Exceptions to the referee's report, in such cases, are not 
 heard at Special Term, in the first instance, under rule 39, but 
 are heard at General Term. (Id.) 
 
 712. When the referee is to report on one or more of the 
 questions of fact (and not on the whole issues), the report must 
 contain his findings of fact and should contain his opinion of 
 the law of the matter. {Scott vs. Williams,'14: Abb., 70.)* 
 
 713. When the. report is upon the facts only it is a special 
 report, and has the effect of a special verdict {Code, § 272), 
 leaving the judgment to the court. {Code, § 260; see Grogan 
 vs. The Mayor, 2 U. D. 8., 693. See Westervelt vs. Levy, 2 
 Duer, 354.) 
 
 714. It must be filed with the testimony of the witnesses, 
 signed by them, and a written notice of the filing thereof given 
 to the parties interested {Bule 39). Service of a copy of such 
 report is not required. (2 Van Santvoord's Eq. Frac, 91.) 
 
 715. Unless exceptions are filed and served within eight days 
 after the service of notice of filing, the report becomes absolute 
 as of course, and stands in all things confirmed. {Bule 39.) 
 
 716. The exceptions to such report need only be to the find- 
 ings of fact, as the court_ is not bound to follow the referee's 
 opinion or conclusions of law, and may give an opposite judg- 
 ment from that which the referee recommends. 
 
 717. But the (osceptions are usually to both findings of fact 
 and conclusions of law, the same as on a trial of all the~issues. 
 
 718. If exceptions are filed and served within the proper 
 
 * Section 272 of the Code, and the third paragraph of Rule 39, only requires the 
 report to contain the findings of fact and conclusions of law where the trial is upon . 
 aU the issues. 
 
 When a specific question is referred to a . referee, he has only the power that a 
 master in chancery had under the former practice {Graves vs. Blanchard, 4 How,^ 
 303). When the whole issue is referred to him, he takes the place of a judge at 
 Special Term. {Id. ; Code, §§ 2'72, 348.) " 
 
 It may be regarded as necessary that the referee's report, tliough special^ should 
 state his conclusions of law (or his opinion of the law) on the facts found by him, 
 because now, if no exceptions are filed to his report when it is special, an order 
 can be entered as of course confirming the report in all things. {Rule 39 and post 
 7lS and 720, note.) And judgment can then be entered thereon in accordance 
 therewith at the same time, without any other notice. This cannot be properly 
 done if there are to be conclusions of law found upon the facts as reported. 
 
JUDGMENT. 133 
 
 time, they may be brought to a hearing at any Special Term 
 thereafter, on notice, under Eule 46, to the parties filing them. 
 (,Bule 39.) 
 
 (719. The exceptions are noticed for argument and are heard 
 at a Special Term at the Chambers of the court in which the 
 action is pending. (Id.) 
 
 720. Such motion is an enumerated one, arising on special 
 verdict (Rule 47), and a copy of the report must be served on 
 the opposite party at least eight days before the time of argu- 
 ment. (Rvle 49.) This time may be shorter under Eule 46.* 
 
 721. On such hearing the court cannot hear other testimony 
 on the same point which has been referred,! but may send it 
 back to the referee for a further report, and the order need not 
 specify the points upon which a further report is desired. 
 (Union Bank vs. Mott, 13 Abb., 247.) 
 
 722. When, after exceptions, a decision is given by the judge 
 on the referee's report on a question of fact, he must state his 
 conclusions of law upon the facts, or if they are stated in the 
 report, a mere confirmation is sufficient, and if he has taken 
 other testimony, his decision must contain the further or other 
 findings of fact. (Code, § 267 ; Spencer vs. Barnett, 35 N. Y., 94.) 
 
 723. When any specific question of fact is tried by a jury 
 other than on the whole issue, the proceedings before the court, 
 
 * Previous to the Rules of 1858 (32 and 33) it was necessary. In all cases where 
 the reference was not upon all the issues, to apply to the court at Special Term, on 
 motion, on notice, for a confirmation of the referee's report and judgment thereon 
 i^Oriffin vs. Slate, 5 How., 205; Belmont vs. Smith, 1 Duer, 675; Bante vs. Brady, 
 1 How., 216). The rules, as amended in 1858 (32 and 33), for the first time, pro. 
 vided for the filing of the report and notice thereof, and exceptions, <fec., the same 
 in substance and effect as the present rules. 
 
 f In one case {Gregory vs. Campbell, 16 How., 417) it was held that the court, in 
 certain instances, could receive other evidence, in its discretion, upon the same 
 question upon which the referee had reported the evidence, but that was not upon 
 .any direct question which had been referred. 
 
 When there is a special verdict the court cannot pass on any fact, not stated or 
 ■derivable from the facts appearing by such verdict ( Williams vs. Jackson, 5 Johns., 
 602), except such as are admitted by the pleadings. {Basto vs. Himrod, 8 JV. K, 483.) 
 
 The requisites of a special verdict are the same now as they were before the 
 Code. ( Williams vs. Willis, 1 Abb., 90.) It must find all the facts that are directed 
 to be found or a new trial will be ordered. (Misemann vs. Swan, 6 Bosw., 669 ; see 
 Spencer vs. Barnett, 35 N. Y., 94.) 
 
134 JUDGMENT. 
 
 in order to obtain a final judgment, is the same as upon a re- 
 port of the same facts. {Code, §§ 272, 260; Rules, 47, 40, 46 ; 
 Grogan vs. The Mayor, 2 E. D. 8., 693 ; Dort vs. McAdams, 27 
 Barb., 187.) 
 
 As to how the same may be reviewed on appeal or new 
 trial, see Bule 40, &c., and Code, §§ 264, 265.) 
 
 724. The statement of facts must support the conclusions. 
 of law, or the judgment will be reversed. Ko fact can be im- 
 plied from the conclusions of law. {Tomlinson vs. Mayor, 23^ 
 How., 452.) 
 
 725. As to sufiSciency of finding of fact to support conclusions, 
 of law in these cases, see Smith vs. Coe, 29 N. Y., 666. 
 
 726. If the finding of fact is desired to be more full, it must 
 be obtained on application to the judge or referee who tried 
 the cause. The remedy is not by appeal. ' {/Smith vs. Coe, 29^ 
 iV. Y., 666.) 
 
 727. If the judge fail to specify the relief granted or the 
 determination of the action, it is an irregularity which may be 
 taken advantage of even on appeal. (Chamberlain vs. Dempsey 
 14 Abb., 241.) 
 
 728. When similar errors are made by a referee, it may be 
 sent back for a further report, the same as in similar equity 
 cases under the Code. 
 
 729. If a party who has the report neglects or refuses to, 
 enter judgment, after being required in writing to do so by 
 any interested party, an order may be obtained directing him 
 to file the report and enter judgment thereon. (Bichmond 
 vs. Hamilton, 9 Abb., 71 ; LentHhon vs. City of New Yorlc, 3 
 Sand., 721.) 
 
 Form of Judgment. 
 
 730. The' form of the judgment should be the same as a. 
 decree in other equity cases. {Doughty vs. Devlin, 1 E. D. 8.^ 
 625 ; Randolph vs. Leary, 3 E. D. 8., 637 ; Althause vs. Warren,. 
 2 E. D. 8., 657 ; Teaz vs. Christie, 2 E. D. 8. 635 ; HubbeU vs. 
 Schreyer, 14 Abb., N. S., 284.) 
 
 731. A judgment must be entered, based upon the finding* 
 of fact and of law, when tiie trial is by the court or referee 
 
JUDGMENT. 135 
 
 {Code, §267, §272). In all equity actions, particularly if special 
 relief is granted to any party, the judgment should recite the 
 findings of fact in a general way, and of law, and be entitled at 
 Special Term and entered in the form of an order, by direc- 
 tion of a judge of the court. {Hancock vs. Hancock, 22 N. Y., 
 568. See form post.) 
 
 732. A judgment containing directions not contained in the 
 findings, is unauthorized, and will be reversed. {Chamberlain 
 vs. Dempsey, 15 Abb., 1 ; Id., 14 Abb., 241 ; see Loeschigk vs. 
 Addison, 4 Abb. N. S., 210.) 
 
 733. The form of the judgment in Althause vs. Warren, (2 
 E. D. S., 657,) was before the amendment of the Code v§267), 
 requiring the court, in a trial, to give a decision in writing, 
 containing a statement of the facts found and the conclusions 
 of law separately. 
 
 As the Code (§267 §272) now is, the form of a judgment, where 
 the trial is by a court or by a referee, is the same, and must 
 be entered on the findings. It is not necessary, however, to 
 recite the findings of fact at large. {Bunten vs. Orient Ins. Co., 
 8 Po>f., 448), but they should be referred to. {Id., 1 Van Sant- 
 voord's Eq. Frac, 585.) 
 
 734. It was usual under the former law to insert in the judg- 
 ment diTections to the sheriff as to the sale and disposition of 
 the proceeds, &c. {Althause vs. Warren, 2 E. D. S. 657 ; E'tgle- 
 son vs. Clark, Id., 644 ; Bandolph vs. Leary, 3 Id., 637 ; Smith 
 vs. Cory, Id., 642), in the same manner in detail as in fore- 
 closures of mortgages. {Id. Rule 73, 2 Abh. Forms, 565.) 
 
 735. The decree in the case of Meehan vs. Williams, which 
 the court approved of as to form (36 How., 73 ; see Judgment 
 roll, filed Aug. 24<A, 1868, in Com. Fleas), was precisely like a 
 decree in foreclosure of a mortgage, and the same in form as 
 in Althause vs. Warren.* 
 
 * The following ia the judgment or decree as finally settled and entered in ac- 
 cordance with the decision of the judge in the case oi Althause ^ra. Warren (2 E. D. 
 S., 657). 
 
 At a Special Term of the Court of Common Pleas for the city and county of New 
 York, at the City Hall of the city of New York, the 28th day of June, 1856. 
 Present — lion. Charles P. Daly, judge: 
 
 Title of the cause — 
 
 This action having been commenced to recover from the defendant the sum of 
 
136 JUDGMENT. 
 
 736. When prior indumbrancers are not made parties, it is 
 not necessary that the judgment should provide that the prop- 
 erty be sold subject to their interest, as only the right, title 
 and interest which the owner had at the time of the filing of 
 the notice can be sold. (§ 1 as amended in 1866 ; Randolph vs. 
 Lmry, 3 E. D. 8., 637 ; Smith vs. Corey, 8 E. D. S., 642 ] 
 AUhause vs. Warren, 2 E. D. 8., 657; and the judgment may so 
 direct. {Id.) 
 
 IZl. The decree in foreclosure cases generally contains a 
 clause, that on the sale all equity of redemption of the owner 
 be cut off. This is not necessary in decrees in rem., as the 
 right of redemption under the Bevised Statutes does not apply 
 to proceedings in rem. {Randolph vs. Leary, 3 E. D. 8., 637 ; 
 8mith vs. Corey, 3 E. B. 8., 642 ; Meyers vs. 8eebald, 11 Aib., 
 N. 8., 326.) This cannot be necessary in lien cases, as all the 
 right, title and interest of the owner is sold. {Id.) 
 
 three thousand four hundred and forty-one dollars and eighteen cents, with inter- 
 est thereon from the 27th day of August, 1855, for work and labor done and mate- 
 rials furnished by the plaintiffs to the defendant towards the erection of two build- 
 ings on two lots of ground situate in the Third ward of the city of New York, on 
 the westerly side of Greenwich street, and known as numbers 252 and 264, in said 
 street, and hereafter more particularly described, of which lots the said defend- 
 ant was the lessee,' and to foreclose the lien which the plaintiffs had acquired for 
 said sum on the said lots and the said buildings thereon erected, pursuant to the 
 statute in such case made and provided, such lien being filed by the above-named 
 plaintiffs in the office of the clerk of the city and county of New York, on the 5th 
 day of December, 1855, against the above-named defendant, as lessee as aforesaid, 
 such proceedings were thereupon had that the defendant was brought before this 
 court, and duly appeared in this action, and the plaintiffs served their complaint, 
 and the defendant answered thereto ; whereupon, issue being joined between the 
 parties, the said issues came on to be tried by consent of the respective parties at 
 a Special Term of this court, held before the Honorable Charles P. Daly, one of the 
 judges of this court, at the City Hall of the city of New York, on the 10th day of 
 June, 1856, whereupon the said court, after hearing the testimony of the respective 
 parties and their respective counsel, then and there decided the whole of the issues 
 for the plaintiffs, and ordered judgment for the plaintiffs.. 
 
 Now, upim motion of Benedict <fc Boardman, attorneys for the plaintiffs, it is 
 adjudged and decreed that the defendant, Edward Warren, is indebted to the 
 plaintiffs, Samuel B. Althause & Nicholas Ludlum, in the sum of |;3,-632.40, to- 
 gether with the sum of $148.81, costs and disbursements, duly adjusted by the 
 clerk of this court, amounting, altogether, to the sum of $3,781.21. 
 
 And it is further ordered, adjudged and decreed that the said plaintiffs have a 
 good, valid and sulpsisting lien on the said lots and buildings for the said amount 
 
JUDGMENT. 137 
 
 738. So much detail as was formerly inserted in decrees of 
 this nature seems to be unnecessary now in a decree which 
 may he used by the sheriff as an execution to enforce the judg- 
 ment, as was intimated by the court in Randolph vs. Leary (3 
 K D. 8., 637), and in Meyers vs. Seebald (11 Abb., N. 8., 326) 
 The sheriff is bound by law to execute all processes of courts 
 of record when required (Code, § 419 ; 3 B. 8., 739, § 98 ; 
 Smith vs. Corey, 3 K D. 8., 642) ; and Eules 74 and 75 of the 
 court direct how the sheriff shall proceed when lands are 
 directed to be sold under an order or judgment of any court.* 
 
 739. A judgment in rem., should contain some directions for 
 enforcing the lien (Chapman ys. Lemon, llHoio., 235; Dicker- 
 
 with interest thereon, and to secure the payment thereof to the extent of the 
 right, title and interest wliich the said defendant, Edward Warren, had, on the 
 Bth day of December, 1865, in the two buildings and lots of land and appur- 
 tenances thereto belonging, situated, <fec. 
 
 (Here follows a description of the premises by metes and bounds.) 
 
 And that the said judgment be duly entered on the lien-docket of this court, 
 pursuant to the statute in such case made and provided. 
 
 And it is further ordered, adjudged and decreed that the interest which the said 
 Edward Warren had on the said 5th day of December, 1 855, be sold by the sheriflf 
 of the city and county of Ifew York, to the extent of the riglit which the said de- 
 fendant had at that time in the said premises and buildings, subject to any prior 
 lien existing thereon ; that the proceeds of such sale shall be applied by said sheriff 
 to the payment to the plaintiffs of their costs, and of the amount found due as 
 aforesaid, and that the residue of such proceeds of said sale be paid to the clerk of 
 the city and county of New York, to abide the further order of this court. 
 
 It is further ordered and adjudged that the said sheriff make a report of such 
 sale, and file it with the clerk of this court, with all convenient speed, and that if 
 the proceeds of such sale be insuificient to pay the amount so reported due to the 
 plaintiffs, with interest and costs, as aforesaid, the said sheriff shnll specify the 
 amount of such deficiency in his report of the sale, and that the plaintiffs have ex- 
 ecution therefor. 
 
 (Signed) Chas. P. Dalt, 
 
 J. C. P. 
 
 * This detail arose in mortgage cases as follows : 
 
 Previous to the Law of 1847 {Ch. 280), a decree in foreclosure cases could only 
 be executed by a Master in Chancery. The Chancellor had prescribed under the 
 Law of 1840 the form (No. 14) of such decree. When the Law of 184'7 allowed 
 the sheriff to sell in the same manner as a master, the same form as to him was 
 continued. And when the master's office was abolished and a referee was em- 
 powered to sell, the same form was very properly used as to him, because he was 
 not an officer of the court authorized to execute process under the statute, and his 
 directions must be special. The Code (§ 285) supersedes that practice so far as re- 
 lates to the execution of a judgment by the sheriff.;' 
 
138 JUDGMENT. 
 
 man vs. Ahrahams, 21 Barh., 551) ; but a mere direction that 
 the same be sold according to law will be sufficient. 
 
 " The statute allows the court to enforce the performance of 
 " its decrees by execution, and to entitle a party in whose favor 
 " a decree has been made to an execution thereon, it is not 
 " necessary that the decree itself shall contain a provision to 
 " that effect. The execution to enforce the performance of a 
 " decree is a matter of right under the statute ; and the party 
 " in whose favor the decree is made is entitled, as of course, 
 " to an execution thereon, unless there is something in the de- 
 " cree itself prohibiting the issuing of an execution ior a 
 " limited period, or until the further order of the court " {Otis 
 " vs. Forman, 1 Barh. Chan., p. 30.) 
 
 740. The statute of 1855, unlike that of any other statute 
 before or since that relating to liens in New York city, pre- 
 scribed the form for judgment. The present statute does not 
 prescribe the form of the judgment or of the execution (Meehan 
 vs. Williams, 36 ffoto., 73), but merely says that " Judgments 
 " may be enforced by an execution, in which the property on 
 " which the lien is adjudged may be sold and the proceeds dis- 
 " tributed as ordered by the judgment," &c. (§ 9.)* 
 
 741. From the practice in similiar actions and the general 
 tenor of this act, the judgment therefore must be in one or 
 more of four special forms, to wit : 
 
 (1.) When m favor of lienors, it should specify the property 
 upon which the liens are respectively adjudged to be valid, 
 
 * The Act of 1852 (Ch. 384), relating to Westchester and other counties in this 
 State, did not prescribe the form of judgment in lien cases. Under that act the 
 Court of Appeals particularly approved of the /orm of the judgment in the case 
 of Blauvelt vs. Woddworth (31 N. Y., 285), it was entered as at Special Term, and 
 after specifying the amount of the judgment, &c., contained the following directory 
 clause : 
 
 " And it is further adjudged, that the said Daniel Blauvelt have execution, there, 
 " for, and that the sheriff of the county of Westchester be and he is hereby directed 
 ''to sell all the right, title and interest which the said W. W. Woodworth had in 
 " and to the said land and premises and in and to the said building and appurten- 
 " ances, on the 4th day of June, 1853, upon which day it is hereby adjudged that 
 " tiie siiid Daniel Blauvelt became entitled to and acquired a lien upon the said 
 "lands and premises and upon the said buildings and appurtenances, under and by 
 " virtue of an act entitled," <&c. {See Blauvelt vs. Woodworth, in Court of Appeali 
 Cases, Vol. 79, at N. Y. Law Institute JUbrarij.) 
 
JUDGMENT. 1S9 
 
 the amount of each, the time of filing the notice, and if the 
 amount is not due, when it will become due, and direct that 
 the property be sold according to law (if the debt is not due, 
 should specify that the property be sold when the debt does 
 become due), and should direct how and when the proceeds 
 of such sale shall be distributed, and specify the amount and 
 to whom each is personally liable, and the amount of costs 
 as to each of the parties as against the other, and that in case 
 of a deficiency on such sale to satisfy the judgment or any part 
 of it, that execution issue therefor. • 
 
 2. "Where money has been deposited, and the lien against 
 the property discharged under §10, a special judgment 
 against the property would be erroneous {Dunning vs. Clark 
 2 E. D. S., 535). The judgment should direct the county clerk 
 to pay the money to the parties in whose favor the judgment 
 is (Id), and may provide that in case of a deficiency to 
 satisfy the judgment, that execution issue therefor, and may be 
 similar to cases of foreclosure on bond and mortgage. 
 
 (3.) If the judgment is in favor of tJie oivner, that the prop- 
 erty be exempt from such liens, or that they be discharged^ 
 particularly specifying each of them, and may direct the clerk 
 of the county to discharge the same of record. (Ante, 215, 
 410, 411 ; Sullivan vs. Brewster, 1 E. D. S., 689.) 
 
 (4.) If the proceedings are dismissed other tJian upon the 
 merits, the judgment may be in the form usual in equity'cases ; 
 if dismissed upon the merits, it should be according to the fact 
 as the case may be. {Teaz vs. Ghrystie, 2 E. D. 8., 635.) 
 
 As to preference of personal judgments for deficiency, see 
 post, 864. 
 
 Entry of Judgment. 
 
 742. Judgments in these proceedings are entered in the same 
 manner as in other equity actions. {Doughty vs. Devlin, 1 E. D. 
 S., 625 ; Broivn vs. Wood, 2 Hilt, 579.) 
 
 743. A judgment, except in the cases specified in the Code 
 (§ 278), cannot be entered without the order of the court, even 
 by consent (Beach vs. Shaw, 4 Barb., 288 ; Bk. of Rochester vs. 
 Emerson, 10 Paige, 359 ; Flynn vs. Mid. JR. B., 6 Eoio., 308). 
 Judgments at law and in equity cannot be assimilated. {Lynch 
 vs. Borne Gas L. Co.,i2 Barb., 591.) 
 
140 JUDGMENT. 
 
 744. A referee cannot sign a judgment on his report in aJi 
 •equity action; it must be signed by a judge of tlie court and 
 entered in form as if pronounced by the court. {Uancock vs. 
 Hancock, 22 N. Y., 568 ; Coope vs. Boivles, 18 Abb., 442 ; Cham- 
 berlain vs. Dempsey, 36 N. Y., 144.) 
 
 745. When a referee who tried a cause settled the form of 
 the judgment and directed its entry, and it vras thereupon 
 entered without any direction from a judge of the court, it was 
 set aside on motion. It is not a ground of reversal on appeal. 
 ti^Coope vs. Bowles, 18 Abb., 4A2.) 
 
 746. In an action tried by a court without a jury, the only 
 guide for the entry of the judgment by the clerk, pursuant to 
 § 267, is the formal decision filed by the judge before whom it 
 was tried, containing his findings of fact ; and if the clerk, in 
 •entering such judgment, deviates from the decision, the judg- 
 ment will be set aside. (LoeschigJc vs. Addison, 4 Abb., N. S., 
 210.) 
 
 747. When the findings are by one judge, the form of the 
 judgment may be settled and directed to be entered by another 
 judge of the same court (Chamberlain vs. Dempsey, 36 iV. Y., 
 
 144) ; but it is discretionary, and some reason for it must be 
 stated that is satisfactory to the court, if there is any objection 
 to it. 
 
 748. It may be entered immediately upon the report without 
 notice when it is upon aU the issues (Code, § 272, §267 ; Lynde 
 vs. Cowenkoven, 4 How., 327 ; Renouil vs. Harris, 2 Sand., 641 ; 
 Clark vs. Andreivs, 1 Code, Rep., 4 ; Doke vs. Peek, do.,. 54 ; 
 Kelly vs. Searing, 4 Abb., 354 ; Townsend vs. Low, 4 ed., Ch, 
 •249 ; Rose vs. Woodruff, 4 Johns, Ch. 547) ; but it is usual to 
 serve a copy of the report or findings of the court and the 
 proposed judgment and , a notice of the settlement, at least 
 one day prior thereto, as on the settlement of the forms of 
 orders in litigated motions. 
 
 749. Where the defendant has appeared, the plaintiff cannot 
 •settle ex-parte the form of the judgment if it grant special relief. 
 ( Wood vs. Lambert, '6 Sand., 724.) 
 
 750. If judgment is settled ex-parte, it may be modified on 
 re-settlement on application of the party desiring it. (Bowman 
 vs. Earle, 3 Duer, 691 ; Cashman vs. Shepard, 4 Barb., 113.) 
 
JUDGMENT. 141 
 
 751. The form of the judgment may be settled and signed 
 before the costs are adjusted, and a blank left fqr the insertion 
 of them therein. {Cotes ts. Smith, 29 How., 326.) 
 
 752. When a motion is made to confirm a referee's report 
 which is upon all the issues, the/o?'wi of the judgment can only 
 be settled on such hearing, and it must conform to the facts 
 found and the conclusions of law as stated in the report, or it 
 will be irregular. (See ante, 731, 732.) 
 
 753. The form of the judgments in these cases should be the 
 same in the Marine and District Courts as in courts of record, 
 only the findings are in the decree. and not separately given. 
 
 754i Any clauses in such a judgment of the Mariae or Dis- 
 trict Courts directing the sheriff how to proceed on the sale 
 would be of no force, and if the court has jurisdiction to direct 
 the marshal, and he is directed instead of the sheriff in all the 
 details usually contained in a judgment of foreclosure, this 
 might prevent the party from filing a transcript and enforcing 
 the judgment by the sheriff as a judgment of the Court of Com- 
 mon Pleas under § 68 of the Code. 
 
 755. A judgment that directs in effect that the premises be 
 sold ,by execution in the manner prescribed by law, and that 
 
 out of the proceeds of such sale the sum of dollars be 
 
 paid to , &o., and that if the proceeds of such sale be in- 
 sufficient to pay the amount as directed by the judgment a» 
 aforesaid, that execution may issue against the real and per- 
 sonal property of (specify those personally liable), for such 
 deficiency, is all that is necessary. (Ante, 739, 740.) 
 
 756. A certified copy of such a decree (or a certified copy of 
 a transcript of it filed in the county clerk's office) with a direc- 
 tion upon it signed by the attorney issuing it, requiring the 
 sheriff (or other officer empowered by law to enforce judgments) 
 to enforce it according to law {Code, § 289), is all that is neces- 
 sary ; or the attorney might go further and give all the direc- 
 tions to the sheriff how to proceed as specified in the rules of 
 the court (73, 74, 75) in cases where sales of real estate are 
 made on executions. (See post, " Executions.") 
 
 757. The transcript to be furnished to the clerk is not to be 
 docketed ' as in an ordinary personal action ; it must be entered 
 
142 JUDGMENT. 
 
 in the " lien docket," in the last column. It is not for the pur- 
 pose of incumbering all the property of the defendant, but for 
 the purpose of showing that the hen has been merged or dis- 
 charged. This is apparent by reading § 10. {Lenox vs. Trw- 
 tee.1, &o. 2 K D. S., 673 ; Sullivan vs. Brewster, I K D. 8., 689.) 
 
 758. The judgment or transcript must also be entered in the 
 judgment book, and must specify clearly the relief granted or 
 other determination of the action. {Code, § 280.) 
 
 759. When judgment against specific property is obtained in 
 any other court than the Supreme Court, a certified copy of 
 the decree should be filed in the office of the county clerk be- 
 fore the lien expires by limitation, because if the property 
 
 should be transferred after the year expired, and intermediate 
 the docketing of the judgment, the lien on the property would 
 be lost. (3 E. S., p. 638, § 11.) 
 
 76U. The county clerk is required to search for liens within a 
 year, and for judgments and decrees against the property, and if 
 the lien had expired and no judgment or decree was found, a 
 bona fide purchaser would be protected. 
 
 761. A delay in entering the judgment in the judgment book 
 does hot afiect its validity. (Butler vs. Lee, 3 Keyes, 76 ; Lynch 
 
 ^vs. Rome G. L. Co., 42 Barh., 59 i.) 
 
 762. The final decree of a court of equity talces effect when it 
 is declared by the court, and the record when made up is only 
 evidence of the decree. {Id.) 
 
 763. The only object of docketing a decree in the county 
 clerk's office is to make it a constructive notice of a lien upon 
 real estate. (3 R. S., 639, §§ 14, 16 ; Wheeler vs. Hermans, 3 
 Sandf. Ch., 597.) 
 
 764. The only lis pendens in these proceedings is that pre- 
 scribed by § 6, ind, as that expires with the lien, it is of no 
 avail in such case. (Porschke vs. Kedenburg, 6 Abb., N. S., 172 ; 
 Eaylor vs. 0' Connor, 1 E. D. 8., 672.) 
 
 765. The lis pende.is under the code (§ 132) is only author- 
 ized in actions and proceedings brought under it, and would be 
 of no effect in these proceedings. 
 
 766. A judgment in these proceedings continues the same 
 
JUDGMENT. 143 
 
 time as any other judgment in an ordinary action. (MaWby ts. 
 Greene, 1 Keyes, 548.) 
 
 See pvst, " Execution," as to manner of enforcing judgments. 
 
 767. Judgments or referee's report may be set aside on mo- 
 tion. {Barton vs. Hermann, 8 Abb., N. 8., 399.) 
 
 768. Where the lien expired between the time of the 
 close of the testimony and the referee's report, a judgment 
 entered thereon was set aside on motion (Barton vs. Hermann, 
 8 Abb., K S., 399 ; Grant vs. Fanderwols, 57 Barb., 165). A 
 sale under such a judgment was held invalid. (Hall vs. Lamb, 
 3 Lansing, 34.) * 
 
 769. If a judgment is erroneous in form, the same would be 
 allowed to be amended on motion. (Dunning vs. Clark, 2 H. 
 n. S., 535 ; Walker vs. Faine, 2 E. D. 8., 662.)' 
 
 770. An erroneous personal judgment entered upon a refe- 
 ree's report in tliese cases may be corrected on motion by the 
 entry of a new judgment on the same report. (Walker vs. 
 Faine, 2 E. D. S., 662.) 
 
 Effect of Judgment. 
 
 771. The effect of a judgment against the owner in favor of a 
 sub-contractor or other person to whom the owner is not liable 
 by personal contract is to be regarded as a legal assignment 
 from the debtor of the sum due from the owner to the person 
 recovering such judgment (Collins vs. EUis, 21 Wend., 397 ; 
 Budd vs. Davis, 1 Hill, 277 ; Mil'er vs. Moore, 1 E. D. 8., 739 ; 
 Cannon vs. Van Wagner, 2 E. D. 8., 590). And payment of 
 such judgment by the owner is deemed a payment by him to his 
 contractor. (Cusack vs. Jenkinson, 1 E. D. 8., 716; Sullivan 
 vs. Decker, 1 E. D. 8., 699 ; Cannon vs. Van Wagner, 2 E. D. 8., 
 590 ; 3IiUer vs. il/oore, 1 E. D. 8., 739.) t 
 
 772. Such judgment is not final and conclusive upon the con- 
 tractors and persons interested in the controversy unless they 
 
 * Under tlie law of 1844, it was held thai the judgment must be obtained and 
 execution issued thereon within the year. (Freeman vs Arment, 5 Leg. Ob.. 881.) 
 
 f The act of 1855 was only a statutory declaration of the law, to wit, that "the 
 " payment by the owner of any valid lien, or of any judgment recovered in pursu- 
 ■" ance of the said act, shall enure to him as a payment lo the amount thereof to 
 " the contractor." (§ 4.) The decisions cited in the text were before the act of 
 1855. 
 
144: JUDGMENT. 
 
 £ne made parties. It is well established that a person cannot 
 be bound by a proceeding which in effect divests him of a legal 
 right and transfers it to another, unless he be a party. (2 
 Dana, 466 ; Sullivan vs. Declcer, 1 E. D. S., 699.) 
 
 773. A proceeding of that nature, although authorized by 
 statute, would be unconstitutional and void. {Sullivan vs. 
 Decker, 1 E. D. S., 699.) 
 
 774. " In order to bind the contractors and deprive them of 
 " their admitted title to whatever money is due from the owner, 
 " they must have legal notice of the proceeding — notice in such 
 " sense as calls upon them by authority of law to defend the 
 " claim and opens to them the means of doing so." ( Woodruff, 
 J., in Sullivan vs. Decker, 1 E. D. S., 699.) 
 
 775. When the claimant is a sub-contractor, if the owner 
 wishes to protect himself, he must have the contractor made a 
 party. (Jd.) 
 
 776. A judgment against a party is a judgment against his 
 'privies, that is, those claiming under him (1 Greerdeaf Ev., 
 §§ 523, 189), and hence would be as conclusive against the con- 
 tractor as the sub-contractor, and the questions having been 
 once contested, all parties would be barred from any further 
 litigating the matter. (1 Gre&nleaf Ev., § 522 ; 2 PhU. Ev., p, 
 60, note 278.) 
 
 777. In order to prevent a sub-contractor from being oppres- 
 sive to his contractor (if he is so inclined), the judgment might 
 
 , provide that it should be first enforced against the owner to 
 the extent due from him to the contractor, or an endorsement 
 to that effect should be made upon the execution. In any 
 event, the sheriff should proceed in that manner in the enforce- 
 ment of an execution. 
 
 778. If the. lien proceeding is dismissed or decided against 
 the claimant for other cause than on the merits of the indebt- 
 edness to the claimant, it is no bar to a personal action against 
 the contractor {Barton vs. Hermann, 8 Daly, 320 ; Sullivan vs. 
 Brewster, 1 E. D. S., 689). But it is a bar if it is decided as 
 to the merits of the indebtedness to the- claimant. {Schaeitler 
 vs. Gardiner, 41 Hoiv., 243; SuUivan vs. Breioster, 1 E. D. S,, 
 689.) 
 
JUDGMENT. 145 
 
 779. The recovery of a judgment in an ordinary action for 
 the debt does not of itself prevent the effect of the prior or 
 subsequent filing and enforcement of the lien. {Teaz vs. Chris- 
 tie, 2 E. D. S., 635; Westervelt vs. Levy, 2 Duer, 354; Maxey 
 vs. Larhin, 2 E. D. S., 540 ; Gridley vs. Rowland, 1 E. D. S., 
 670 ; Cremin vs. Byrnes, 4 K D. 8., 756 ; Oronkrite vs. Thomson, 
 1 E. D. 8., 661 ; Bandolph vs. Leary, 3 E. D. 8., 637 ; Pollock vs. 
 Ehle, 2 ^. D. /S., 541 ; Ante. 661.) 
 
 780. A judgment of nonsuit in these proceedings or a judg- 
 ment of dismissal on the trial is a bar to a second proceeding 
 to enforce the same lien. {8ullivan vs. Brewster, 1 E. D. 8., 
 681.) 
 
 781. A failure to recover against the owner is no bar to a 
 personal action against the contractor. (Gusack vs. Tomlinson, 
 1 E. D. 8., 716 ; Sullivan vs. Brewster, 1 E. D. 8., 681 ; OridUy 
 vs. Rowland, 1 E. D. 8., 670 ; 8mith vs. Ferris, 1 Daly, 18.) 
 
 782. When, on appeal, a judgment is reversed or affirmed, 
 ■with or without costs, it may be entered as a common law judg- 
 ment without being signed by the presiding justice, or without 
 any notice of settlement being given. 
 
 783. When the judgment gives any special relief, it must be 
 settled by one of the judges who heard it, on notice, and en- 
 tered by the direction of the court, the same as an order of the 
 General Term. {Clapper vs. House, 6 Paige, 149; Eaglescm vs. 
 Clark, 2 E. D. 8., 644.) 
 
 784. If the owner should recover judgment and the lien be 
 discharged, and such judgment should be afterwards reversed 
 on appeal and he had disposed of the property in the rnean- 
 time, he would still be personally liable to a sub-contractor for 
 the amount due the contractor at the time the notice was filed, 
 because the lienor is entitled to have his rights restored as far 
 as possible. (McGuckin vs. Coulter, 1 Jones dt 8., 324.) 
 
 10 
 
146 COSTS. 
 
 CHAPTER VIII. 
 
 COSTS. 
 
 785. The law of 1863 does not provide, in terms, for costs, as 
 did the former law. The only mention of costs is in §§ 5 and 
 10, showing they were contemplated, and they are given the 
 same as in ordinary equity actions, and extra allowances are 
 now given under § 309 of the Code. 
 
 786. Whether these proceedings are regarded as " special 
 proceedings," according to the definition given by §§ 2 and 3 
 of the Code, or whether they are " civil actions,"^ costs would 
 be the same. (Laws of 1854, ch. 270, § 3.) 
 
 787. In cases not provided for by the Act of 1854, there is 
 no doubt that the Code regulates the subject of costs where 
 the proceeding partakes of the character of an action and is 
 not excepted from the operation of the second part of the Code, 
 § 471. (1 Crary's Ptac., 18.) 
 
 788. In whatever court the proceeding is prosecuted, when 
 costs are allowed, they must be taxed at the rate allowed for 
 similar services in civil actions in that particular court. 
 
 789. If the foreclosure is regarded as an action, and the 
 costs regulated by the Code, a question arises whether the 
 claimant or plaintiff is not absolutely entitled to costs upon a 
 recovery for any amount, yit is an action which a court of 
 justice of the peace has no jurisdiction of under the Code ; and, 
 in such cases, the plaintiff is entitled to costs without regard to 
 the amount recovered (§ 304, subd. 3), except in certain cases. 
 (Id., subd. 4.) ^ 
 
 790. In special proceedings and in equity actions costs may 
 be allowed to a party, in the discretion of the court, without 
 regard to the amount in controversy. {Code, §§ 304, 306 ; Laws 
 1854, ch. 270; note to § 17, Code.) 
 
 791. In the case of Dunning vs. Clarh (2 E. D. Smith, 535), 
 the court held that, under § 10 of the Lien Law of 1851, the 
 lienor was entitled to costs in all cases in which he recovered a 
 judgment against the owner, without regard to the amount of 
 the controversy or amount of the judgment recovered. (See 
 Nott's Lien Law, p. 56.) 
 
COSTS. 147 
 
 792. In Scarsfield vs. Vaugner (1.5 Abh., 65 ; 38 Barb., 444), in 
 an equity action, the court, at General Term, said : " The 
 *' question of costs may be affected where the amount in con. 
 " troversy is under $50," as it was in that case. 
 
 793. Equity should follow the law as to giving costs, the same 
 as in other cases, to wit, where the amount recovered is more 
 than $50, costs should generally be allowed to the party so re- 
 covering. If the recovery is under that amount, then costs 
 shonld not be allowed, but disbursements should be allowed 
 to the successful party. 
 
 794. Under §§ 2, 5 and 7, of the Act of 1863, the court has 
 ample power to regulate the costs in such manner as shall be 
 equitable and just, that is, according to the discretion of the 
 court, with the maxim in view that " whoever hath power to 
 " act at discretion is bound by the rule of reason and law." (2 
 Inst, 16, 298.) 
 
 795. No costs can be given, after notice of lien is filed, unti 
 the commencement of proceedings to foreclose by service of 
 the notice. (Reynolds vs. Hamil, 1 Coda It., N. S., 230.) 
 
 7'-'6. After these proceedings have commenced, they are 
 amendable as to form at all times, loithout costs. (§ 5.) 
 
 7y7. When a party can obtain relief by motion as well as by 
 demurrer, only niotion costs will be allowed on demurrer. 
 (Sprati vs. Nicholson, 3 Daly, 1 •)6.) 
 
 79S. The discharge of the lien on the property, by the de- 
 posit of the amount of the lien, under § 10, subd. 2, does not 
 reUeve the pa;rty so depositing it of costs of the proceeding. • 
 
 In Dunning vs. Clark (2 E. D. Smith, 535j, the court 
 said : " The payment of the money to the county clerk by the 
 " owner has no other effect than to release the land from the 
 " plaintiffs lien and to substitute in its place the money so paid. 
 " The right to the possession of it still remains to be disposed 
 " of, and to recover it "the plaintiff must still prosecute their 
 *' claim before the court. If they fail in establishing their claim 
 " the defendant would be entitled to a return of the money from 
 *' the clerk. It must, therefore, be evident that the payment of 
 " the amount claimed to the clerk in nowise settles the rights of 
 " the parties, or relieves the defendant from his hability for costs 
 "of the proceeding." 
 
148 COSTS. 
 
 799. If the owner is made a party, and the contractor de- 
 posits the money, under §10, the owner's name may be stricken 
 out without costs and the action proceed. {Schaetiler ts. Gar- 
 diner, 41 How., 243.) 
 
 800. When the sub -contractor makes the deposit, and the 
 only claimants are persons engaged by him, the contractor'a 
 name should be stricken out, without costs in such cases. 
 
 801. These proceedings may be the same as in cases of 
 claims to surplus money in mortgage cases.* (§ 7 ; HubbeJl vs. 
 Schreyer, 14 Abb., 284 ; see ajite, " Modes of Trial.") 
 
 802. Extra allowances, under the Code cannot be given to 
 the contestants in such cases, but the court can and will allow 
 a suitable compensation in addition to costs. {N. Y. Life Ins. 
 Co. vs. VanderbUt, 12 Abb., 458.) 
 
 803. The costs are not recoverable until service of the notice 
 to foreclose the hen. {Reynolds vs. Hamil, 1 Code R., N. S., 
 230.) 
 
 804. It was held that § 308 of the Code did not apply as to 
 extra allowances for costs in these proceedings under the former 
 law, when no defense was put in. {Randolph vs. Foster, 2 M D. S., 
 648.) 
 
 805. A percentage under § 308 of the Code, as on the fore- 
 closure of a mortgage is not proper. {Randolph vs. Foster, 2 E. 
 D. S., 648.) 
 
 806. In proceedings against an owner by a sub-contractor, 
 after service of the notice to foreclose the lien, the owner de- 
 posited the amount of the lien with the county clerk and failed 
 to appear on the day designated in the notice, and allowed ■ 
 judgment to be entered by default for the amount of the claim 
 and costs, it was held proper. {Dunning vs. Clarli, 2 K JD. S., 
 635 ; Eagleson vs. Clark, 2 F. D. S., 644.) 
 
 807. Where the owner suffers default and the contractor 
 
 litigates, only the contractor can be made liable for the costs 
 
 of that litigation. {Fagleson vs. Clark, 2 E. D. 8., 644.) 
 
 — ^ — >f 
 
 * Under the Act of 1862, relating to the counties of Kings and Queens, subse- 
 quent lienors may proceed as to surplus moneys, the same as in mortgage cases. 
 
 Costs are allowed to claimants and contestants on claims for surplus money in 
 mortgage cases. {Zawion vs. Sager, 11 £arb., 350; Brevier vs. Sclwonmaker, 29 
 jr<M0.,422; N. Y. lAfelna. Co. vs. Vanderhilt, 12 ^46., 468.) 
 
COSTS. 149 
 
 808. Tlie owner will be compelled to pay costs personally if 
 they are made or incurred in consequence of improper litiga- 
 tion produced by himself. {Doughty vs. Devlin, 1 E. D. S., 625 ; 
 Dunning vs. Clark, 2 E. D. 8., 535 ; Eagleson vs. ^larJe, 2 E. D. S., 
 644.) 
 
 809. When judgment is rendered against an owner for costs 
 they are chargeable against the property, and should be de- 
 creed to constitute a specific lien thereon. {Eagleson vs. Clark, 
 2 E. D. 8., 644 ; Althause vs. Warren, 2 E. D. 8., 657 ; Dunning 
 vs. Clark, 2 E. D. 8., 535 ; ante, 681.) 
 
 810. Where a notice of claim vfas filed by a sub-contractor 
 and the owner retained the amount claimed, and on proceed- 
 ings to foreclose the lien interposed no -obstacle to its collec- 
 tion and sufi'ered a default to be taken against him, but the 
 contractor, having caused himself to be made a party, where- 
 upon a protracted litigation ensued between the claimant and 
 the contractor, it was held that the owner should not be 
 charged with the costs of the litigation between the claimant 
 and the contractor, to determine in effect the right as between 
 them to the money held by the owner. {Eagleson vs. Clark, 2 
 E. D. 8., 644.) 
 
 811. And the owner's omission to pay the money into court, 
 or to the county clerk, in discharge of the Hen, will not operate 
 in such case to charge him with the costs of the litigation. {Id.) 
 
 812. Costs of motions, in these proceedings, are in the discre- 
 tioji of the court, the same as in actions. 
 
 813. Where the plaintiff does not make the contractor a 
 party defendant, and the owner moves to bring in the con- 
 tractor, the court will not ordinarily charge the plaintiff with 
 •costs of motion. {Foster vs. 8kidmore, 1 E. D. 8mith, 719.) 
 
 814. Where the defendant made an offer for judgment unde r 
 § 385 of the Code, and the claimant afterwards recovered 
 judgment for a less amount than the offer, costs were given 
 against the plaintiff. {Knapp vs. Brown, 11 Abb., N. 8., 118.) 
 
 815. When proceedings are commenced against an owner, 
 and he has an amount in his hands which he is willing to pay 
 to any party entitled thereto, but it is less than the claims of 
 of the sub-contractors, he should apply to the court for leave to 
 
150 COSTS. 
 
 pay it into court without costs, and his name be stricken from 
 the complaint. If the court will not allow him to do this with- 
 out costs, he can serve an offer to allow judgment for the 
 ■amount he holcTs and costs, and still hold the money, and if 
 the claimants recover less than his offer, they must pay costs. 
 
 816. In Knapp vs. Brown, 11 Abb., N. S., 118, the plaintiff's 
 complaint was dismissed by the referee as to Jackson, an 
 alleged owner, without costs. 
 
 817. Judgment for defendant on demurrer, on the ground of 
 absence of ownership, entitles the defendant (owner) to a judg- 
 ment for costs. (Jackson vs. Shane 2 E. D. 8., 616.) 
 
 818. On a dismissal of the notice of foreclosure for irregu- 
 larity, costs were given to the defendants. {Reynolds ts. HamUr 
 1 Code R., m. S., 230.) 
 
 819. The court or a referee always allow disbursements, and 
 frequently allow a specified sum, to wit, $30, as costs as trial 
 fee to each of the various lienors who have only proved their 
 claim without any contest. When this is done by a referee' 
 the court will not disturb it. 
 
 8'20. When no mention is made of costs in the findings, the 
 prevailing party is, nevertheless, entitled to his disbursements- 
 (Newton vs. Sweet's Ex., 2 Code Sep., 61 ; do., 4 Sow., 134 ; 
 Taylor vs. Gardner, 4 How., 67.) 
 
 821. When no personal claim is made against a party served, 
 if he unreasonably defends, he must pay costs. (Code, § 131 ; 
 Lawton vs. Soger, 11 Barb., 850.) 
 
 822. When all the issues are referred the referee should dis- 
 pose of the question of costs of the proceeding, and as be-- 
 tween the parties as to each other. (Barker vs. White, 3 Keyesr 
 617.) 
 
 8i3. When the referee is only to report on one or more of the 
 questions of fact, he should state his opinion as to the costs,, 
 because if the report is not excepted to under Rule 39, it i» to 
 stand confirmed as to all things. 
 
 824. If the referee's report, in the latter case, does not dis- 
 pose of the question of costs, an application to the court, aii 
 notice, should be made. An ex parte order, without notice, con- 
 firming the report#«iY/i costs, would be irregular. 
 
EXECUTION. 151 
 
 825. The amount of costs on appeal from judgment is the 
 same when allowed as in other actions. {Knapp vs. Brown, 45 
 N. Y., 207.) 
 
 826. On appeals from the Marine and District Courts, § 371 
 of the Code applies as to costs, as such appeals are regarded 
 as an appeal from an ordinary action in these courts. ( The 
 People and Bendon vs. Co. Judge, Rensselaer Co., 13 How., 398.) 
 
 827. On affirmance of a judgment which directed the prop- 
 erty to be sold to satisfy the liens upon it, the court wiU order 
 that the costs of the appeal be a specific lien upon the prop- 
 erty, and that the same be paid out of the proceeds of the sale 
 thereof (See ante, 157). In this case the judgment of affirm- 
 ance should be settled on notice, and entered by the direction of 
 one of the judges of the General Term, where it was decided. 
 {Ante, 783.) 
 
 CHAPTER IX. 
 
 EXECUTION. 
 
 828. It is provided by the statute that judgments shall be 
 enforced by execution, in. which the property on which the Hen 
 is adjudged may be sold, and the proceeds distributed as 
 ordered by such judgment ; and personal liabilities may be 
 enforced by execution against the property of any party against 
 whom a personal judgment shall have been rendered. (§ 9.) 
 
 The form of the execution is not otherwise prescribed by 
 this statute. (Barton vs. Hermann, 8 Abb., N. 8., 399.) 
 
 829. The law of 1844 provided "that the execution shall 
 " direct the officer to sell the right, title and interest which 
 " the owner had in the premises at the time of filing the notice 
 " prescribed by the first section of this act." {Chap. 220, § 10.) 
 
 830. The act of 1851 did not prescribe any form for execu- 
 tion, and those of us who then practiced under these acts will 
 remember that the form of execution then used was the same, 
 without question, as under the act of 1844. 
 
152 EXECUTION. 
 
 831. The act of 1855 prescribed the form ol judgment, and 
 in effect the form of execution, and the court said that " It 
 " may well be doubted whether, under the act of 1855, there 
 " is now any necessity to issue an execution merely for the sale 
 " of the defendant's interest, if no costs or other moneys are 
 " to be collected. The act speaks of sales of the defendant's 
 " interest, under the judgment which specially directs the sale 
 " and the change which is made by that statute, or rather the 
 " legislative interpretation given by that to the former statute 
 " might warrant a proceeding in this case, the same as in the 
 " case of foreclosure of mortgage." (Bandolph vs. Leary, 3 E. 
 D. S., 637; Uaglesm vs. Ourk, 2 E. D. S., 64A; Lennox vs. 
 Trustees of Bap. CL, 2 E. D. S., 673. Ante.) 
 
 832. The form of the judgment was special, and therefore 
 the form of the execution must be special. An execution must 
 in all cases follow the judgment and be warranted by it. 
 (Corwin vs. Freeland, 6 How., 241.) 
 
 833. As the judgment under the act of 1855 contained 
 directions for the enforcement of the liens against specific pro- 
 perty, the same as in mortgage cases, a certified copy of the 
 judgment (if of a court of record) was in such cases delivered 
 to the sheriff the same as in foreclosure cases, and he proceeds 
 to advertise and sell the property and distribute the proceeds 
 as directed by the decree, and in accordance with the Supreme 
 Court rules relating to foreclosure cases. 
 
 834. The Code (§ 285) provides how judgments shall be en- 
 forced : " Where it requires the performance of any other act 
 " (than the payment of money or the delivery of real or per- 
 " sonal property), a certified copy of the judgment may be 
 " served upon the party against whom it is given, o'r the person 
 " or officer who is required thereby, or hy law to obey the same, 
 " and his obedience thereto enforced." 
 
 835. " It is the duty of the sheriff to obey the judgments and 
 decrees of the court." {Smith vs. Corey, 3 E. D. 8., 642 ; 3 E. 8., 
 739, § 98.) 
 
 836. If the judgment is of a court of record against specified 
 property, a transcript of it need not be filed in the office of the 
 county clerk before the delivery of a certified copy to the 
 
EXECUTION. 153 
 
 sherijBf- for execution. {Norton vs. Tallmage, 3 Ed., Ch. 310 ; 
 Corey vs. Cornelius, 1 Barb., Cha. Rep., 571 ; Wheeler vs. Her- 
 mann, 3 Sand., Ch. 597.) 
 
 . 837. No proceedings can be taken on any judgment until the 
 record thereof is filed. (3 R. S., p. 638, § iO.) 
 
 838. It may be said that in lien cases the execution of the 
 judgment of a court of record may safely be followed as to 
 form and substance in every particular, as in cases of fore- 
 closure of mortgages, when the sale of the property is directed > 
 and also on deficiency. (AUhause vs. Warren, 2 JE. D. S., 657 ; 
 Randolph vs. Leary, 3 E. D. 8., 637 ; Buy dam vs. Holden, 11 
 JhK, N. 8., 329 ; Meehan vs. Williams, 36 How., 73.)* 
 
 839. A referee cannot sell as in mortgage cases. None but 
 those expressly authorized by statute can enforce an execution. 
 (3 R. 8., p. 729, § 98 ; 3 i?. 8., p. 648, § 38.) 
 
 840. Where the defendant is personally liable for a deficiency 
 by the decree on a sale of this nature, and there is a deficiency, 
 no applicaiion to the court is necessary, and an execution may 
 issue for such deficiency, as of course. {Bickwell vs. Byrnes, 
 23 How., 486 ; 2 Ahb. Forms, 5(58.) 
 
 841. The execution that issues for such deficiency should 
 refer to the decree and the proceedings under it, and conclude 
 in the form of other executions against the property of the 
 judgment debtor, as in foreclosure of mortgage cases, and if 
 the deficiency is against the owner and contractor, one execu- 
 tion should include both. 
 
 842. Ill order to prevent the sub-contractor from being 
 oppressive to his contractor, if he is so inclined, the judgment 
 should provide that it should be first enforced against the 
 owner to the extent due from him to the contractor, or an 
 endorsement to that effect should be made upon the execution. 
 In any event the sheriff should proceed in that manner in the 
 enforcement of such an execution. 
 
 * The form of the judgment in the case of Meelian vs. Williams (36 Sbiv., 13 ; 
 judgment roll filed in Com. Pleas, August 24, 1868), which was approved by the 
 court, was the same in form as AUhause vs. Warren. {Ante, 735 note.) 
 
 In the former case the court said : " The decree directs that the premises be 
 "sold under execution, fcnd provides for the manner in which the proceeds shall be 
 ■"distributed, which is in strict conformity with the provisions of the act of 1863." 
 
154 EXECUTION. 
 
 843. In case the judgment is for any cause ip favor 'of the 
 owner and against the contractor, or only a personal judgment, 
 a certificate of the judgment should be given the same as cer- 
 tificates of judgment on decrees in the Surrogate's Court, and 
 filed in the county clerk's office, and execution as in ordinary 
 cases may at once issue thereon. {Lennox vs. The Trustees, etc., 
 2 U. D. S., 673.) 
 
 844. An execution against property, generally, may be issue(i 
 first, and then if it is not collected the specific property may be 
 sold under the decree.* (Suydam vs. HoLden, 11 Abb., N. S., 
 329 note.) 
 
 845. " The property may be sold under the judgment or 
 " under execution " {Suydam vs. Hblden, 11 Abb., N. S., 
 329 note). What has been said so far in this chapter relates to 
 sales under the judgment (decree) as distinguished from an ex- 
 ecution issued upon it. 
 
 846. The form of the execution as such may be the same as 
 was prescribed by the Act of 1844 {ante), which was only a 
 statutory declaration of the law in similar cases where liens 
 
 • This could not be done against the owner under the law of 1855, where he 
 waa not personally liable. {Lennox vs. Trustees, etc., 2 M D. S., 673.) 
 
 In the case of Spencer vs. Barnett (35 N. 7., 94), the decree provided that an 
 execution should first issue against general property. The decree was aa follows : 
 " It is further ordered, adjudged and decreed that upon the return of an execution 
 against the defendant, Sarah Barnett, upon the aforfsaid personal judgment un- 
 satisfied in whole or in part, that the interest which the said Sarah Barnett had 
 on the said 9th day of May, 1857 (the time the lien was served and filed), in th& 
 above described premises, be sold by the sheriff of the county of Kings, in the 
 same manner and upon the like notice as is required by the rules and practice of 
 this court in mortgage cases, and that the proceeds of such sale be applied by th» 
 said sheriff to the payment of tlie amount of said personal judgment remaining un- 
 paid, with interest thereon, and that the residue of such proceeds of said sale be 
 paid to the treasurer of the county of Kings within five days after the receipt of 
 the same, to abide the further order of this court, and that the said sheriflF malte 
 a report of such sale, and file it with the clerk of this court with all convenient 
 
 '■ And it is further ordered, adjudged and decreed that the defendants, Sarah 
 Barnett and Symnes Gardner, and all persons claiming under them or either of 
 them, subsequent to the commencement of this action, be barred and foreclosed of 
 all rii;ht, claims, lien and equity of redemption in the said premises." {Spericer vs. 
 Barnett, in Oourl of Appeals Oases, Vol. 96, al N'. T. Law Inst. Lib.) 
 
EXECUTION. 155 
 
 upon property are to be enforced by execution under a judg- 
 ment. {See ante.}* 
 
 847. The form of an execution to authorize the sale of real 
 estate is prescribed by the general statutes (3 B. S., p. 648, § 38 ; 
 Code, § 289.) It may be necessary, perhaps, in an execution in 
 a special judgment declaring a lien and directing a sale and a 
 distribution of the proceeds, that the execution should direct a 
 collection out of the personal property of the owner of the prem- 
 ises before his interest in the real property is sold under the 
 execution. (See ante, 844 note.) 
 
 848. All who have appeared are not entitled to notice of sale 
 as in foreclosure cases where the sale is befoi'e judgment. 
 
 849. The law of 1863, like other previous laws relating to 
 Mechanics' Liens, does not prescribe the manner of the en- 
 forcement of the judgments of inferior courts — the Marine 
 and District Courts — particularly if the same directs the sale of 
 specific property and where the amount of any judgment of 
 such court is under $25. 
 
 850. Although as has been held under the former act that 
 the judgment in these courts, as in a court of record, must b© 
 special and may be against the property {Cronkrite vs. Tfiom- 
 son, 1 E. D. 8.,mi ; Lennox vs. Trustees, &c., 2 E. D. S.,, 673) ; 
 and the property may be the only source out of which the ex- 
 ecution can be satisfied, yet that would not mean that the exe- 
 cution could be enforced by these courts in relation to the sale 
 of the property as if they were courts of record. 
 
 851. The Eevised Statutes (3 vol. p. 446, § 120) do not allow 
 an execution issued by a justice to extend to real estate. When 
 the sale of real property is desired in order to enforce a jus-' 
 tice's judgment against real property, it is necessary to docket 
 a transcript and issue an execution from the County Court. 
 By § 69 of the Code, when a transcript of a judgment for $25 
 or over of one of these courts is docketed in the office of the 
 clerk of the city and county of New York, the same shall have 
 
 * Where property has been attached before judgment, the execution issued in 
 such case after judgment is a special one, directed to the sheriff, reciting the issu- 
 ing of the attachment and the taking of the property thereon, and requiring a sale 
 of that specific property by him, after which it directs him to sell the defendant's) 
 property generally as in other executions, (see McKay yb. Harrower, 21 jBarJ., 463.) 
 
156 EXECUTION. 
 
 the same effect as a lien and be enforced in the same manner 
 as, and be deemed a judgment of the Court of Common Pleas. 
 
 852. The judgment of a court of record for any amount, how- 
 ever small, may be enforced against real estate by an execution. 
 (3 B. S., p. 637, § 4.) But a judgment of the Marine or a Dis- 
 trict Court for a sum under $25 cannot be enforced against real 
 estate. The provisions of the Kevised Statutes (uo?. 3, p. 446) 
 ■do not authorize a constable to sell real estate, but contem- 
 plates its being sold on execution only by a sheriff (3 B. S., 
 €48.) 
 
 853. The repealing clause (§ 12) is not suflScient to nullify 
 other statutes excepting those specially referred to in the act 
 as relating to Mechanics' Liens, and the repeal of statutes will 
 not be inferred by implication. (Potter's Divarris on Statutes, 
 113-154; Wallace vs. Bassett, 41 Bark, 92; The Mayor ys. 
 Walker, 4 E. D. 8., 258 ; Van Benssdaer vs. Snyder, 9 Barb., 
 
 302.} 
 
 854. The statute has given the Marine and District Courts 
 jurisdiction within certain limits to order the premises to be 
 applied to the satisfaction of the lien. ( Quimby vs. Shan, 2 E. 
 JD. S., 594.) When that judgment is rendered the jurisdiction 
 ■of these courts and their officers cease, so far as enforcing the 
 same by a sale of the real property of the judgment debtor, 
 whether it be the specific real property, or general real prop- 
 erty. 
 
 855. In regard to this same act the question arises whether 
 by its terms a lien could be acquired upon property belonging 
 to the city, to wit, a public school-house, which is by law ex- 
 empt from sale on execution, and the court held that such pro- 
 perty could not be sold in these proceedings because this 
 statute would not be construed as repealing the exemption law, 
 unless by specific language to that effect. {BrinJcerhqf vs. Bd. 
 of Ed., 6 Abb., K- S., 418 ; affirmed as PoiUon vs. Tlie Mayor, 
 47 N. Y., 666.) 
 
 856. Section 9 merely says that judgments may be enforced 
 by an execution, &c. It must, therefore be inferred that, wheil 
 a judgment is obtained in one of these courts for $25 or over, 
 directing a sale of the interest of the owner in real property 
 
EXECUTION. 157 
 
 that a transcript of such special judgment must be filed and 
 the execution issued to the sheriff as in cases of like judgments 
 in courts- of records. It was so held under the Law of 1855. 
 {Lennox \s. Trustees, &c., 2 E. B. 8., 673.) 
 
 857. Executions on personal judgments can be issued to a 
 marshal the same as in other judgments of said courts, or a 
 transcript can be filed and personal execution issued to the 
 sheriff. {Id.) 
 
 858. The judgment of the Marine or District Courts amount- 
 ing in the aggregate to more than $25 can be enforced by filing 
 a transcript (certified copy) thereof in the office of the County 
 Clerk, and then issue a special execution to the sheriff direct- 
 ing him to proceed as if the same had been obtained in the 
 Court of Common Pleas. {Ante, 846, Code, §68 ; Lennox vs. The 
 Trustees, dtc, 2 K D. S. 673 ; see Carpenter \s. Simmons, 28, 
 Sow., 12.) 
 
 As to the form of the decree in the Marine and District 
 Courts see ante, 753. 
 
 859. Unless these courts have full power to direct a marshal 
 to sell the property and enforce the decree the same as the 
 sheriff can in courts of record, there is no mode of enforcing 
 such judgment for a sum under twenty-five dollars only by per- 
 sonal execution against those who are personally liable. 
 
 860. An execution may be set aside on motion for irregular- 
 ity. {Lennox vs. The Trustees, &c., 2 E. D. 8., 673.) 
 
 861. When there are several distinct lots or parcels of land 
 to be sold, unless the judgment directs how the same is to be 
 sold, the sheriff can sell them all together, or in such lots or 
 parcels as he thinks will bring the best price. (Eule 75, see 
 Cunningham vs. Cassidy, 17 JV. Y., 276.) 
 
 • 862. If, however, the owner of any portion of such property 
 shall require such portion to be sold separately, the sheriff 
 must do so. {Neilson vs. Neilson, 5 Barb., 565.) 
 
 863. These judgments cannot be enforced by attachment 
 under the Code, because they are money judgments. (§ 285, 3 
 B. S., 849, § 1, sub. 3 / Lansing vs. Lansing, 4 Lans., 377.) 
 
 864. Personal judgments for deficiency against the general 
 ^property of the debtor take precedence according to the time 
 
158 EXECOTION. 
 
 of the filing of the notice of lien, or when the judgment for 
 deficiency is docketed, the same as other general judgments 
 (Jnle, 121, 667). 
 
 Tbe Marshaling under § 3 only relates to liens against the 
 specific property, not to personal judgments as a preference 
 against the general property of the judgment debtor .{Arde 665 
 to 669). 
 
 865. Any party beneficially interested under the decree may 
 enforce it {post, 873). When the judgment is only personal 
 each party may issue an execution for his part only. 
 
 866. After the return by a sheriff of an execution against 
 general property, supplemental proceedings may be taken under 
 the Code as in other actions. 
 
 A receiver may be appointed after judgment, under § 244 of 
 the Code, to carry the judgment into efi'ect, to dispose of the 
 property according to the judgment (Chapman vs. Lemon, 11 
 How., 2 i5 ; Dickerman vs. Abrahams^ '21 Barb., 551), or, to pre- 
 serve it during the pendency of an appeal {McMahon vs. AUen, 
 14 Abb., 220). W^hen an execution has been returned unsatis- 
 fied, in whole or in part, and the judgment debtor refuses to 
 apply his property in satisfaction of the judgment, a receiver 
 may then be appointed as in other actions. {Code, :s44, subd, B.) 
 
 867. The sheriff's fees on these executions are the same as 
 on executions in cases of foreclosure of mortgage. 
 
 868. The time for the enforcement by execution of judgments 
 in the proceedings are regulated by §§ 283 and 284 of the Code 
 as in other actions. 
 
 869. The sale of the premises under a judgment decreeing a 
 specific lien is an absolute sale as in case of the foreclosure of a 
 mortgage, of all the interest of the owner, and there is no re- 
 demption. {Randolph \3. Leary, 3 E. D. S., 637; SmitJi vs. 
 Corey, 8 E. D. S., 6l2 ; Meyers vs. SeehaU, 11 Abb., N. S., 
 326, note.) 
 
 870. Eight of redemption under the Eevised Statutes does 
 not apply to proceedings in rem. {Id.) , 
 
 8il. In case the wife of the owner survives the husband, if 
 she has not been made a party she can redeem the premises 
 the same as in foreclosure cases where a wife has not executed 
 
APPEAL. 159 
 
 the mortgage or has not been made a party. (2 Carey 8. 
 Prac, 264.) 
 
 872. A purchaser under these proceedings may be put in 
 possession by the equitable powers of the court, or reUeved on 
 motion from completing his purchase, as in other cases of judi- 
 cial sales. (Suydam vs. Solden, 11 Abb., N. 8., 329, note.) 
 
 873. The court has power to require the holder of a judg- 
 ment of foreclosure to proceed and sell the premises the same 
 as in mortgage cases. {McLean vs. Tompkins, 18 Abb., 24.) 
 
 874. Where the money is deposited in the county clerk's office 
 pursuant to § 10, before judgment, and the judgment directs, 
 as it must do (Dunning vs. Clark, 2 U. D. 8., 535), the county 
 clerk to pay the money over to the party in whose favor the 
 judgment is, a certified copy of the decree should be delivered 
 to the county clerk, and he will pay the money to the party 
 entitled thereto under the decree. The amount thereof is en- 
 dorsed on the defiree and if there is any deficiency, an execu- 
 tion may at once issue as in other cases of deficiency. In 
 case the money deposited is directed by the decree to be re- 
 turned to the party depositing it, he must proceed under § 10 
 sub. 4 (see ante, " Discharge and Continuance of Lien"). 
 
 CHAPTEE X. 
 
 APPEAL. 
 
 875. Any party aggrieved by any decision may, within ten 
 days after notice of the judgment or decree, appeal from such 
 judgment or any part thereof. If the judgment is in a District 
 Court, or in the Marine Court, to the General Term of the Court 
 of Common Pleas, and if in any other court, to the General 
 Term of such court. (§ 7 ; HubbeU vs. 8chreyer, 14 Abbott, N. 8., 
 284.) 
 
 876. On appeal from a judgment, these cases are regarded as 
 an appeal from a judgment in an ordinary action. {Ante, 
 post, 880.) 
 
 877. In order to limit the time to appeal, written notice" 
 
160 APPEAL. 
 
 of the entry of the judgment must be given as in other cases. 
 (See notes to Vborhies' Code, § 332.) 
 
 878. When the referee's report is served, previous to judg- 
 ment, the notice of entry of judgment need only refer to it, 
 otherwise it must be served with the written notice of entry of 
 judgment. (Id., Code, § 268 ; Starring vs. Jones, 13 How., 423.) 
 
 879. In order to obtain a review by appeal of certain ques- 
 tions, a motion for a new trial in certain cases must first be 
 made at Special Term. It is in the same manner as in other 
 cases. (Code, §§ 264 and 265, Bute 40, (&c.; Miller vs. Moore^ 
 1 K D. S., 739.) 
 
 880. The manner and form of appeal is the same as from a 
 final judgment in an ordinary action in the particular court in 
 which the proceeding is brought. {Schaettler vs. Gardiner, 41 
 Eoio., 243.) 
 
 881. If in a court of record, the findings of fact and law must 
 be excepted to, a case served, and amendments may be proposed 
 thereto, and the case printed and served the same as in other 
 actions under the rules in the Supreme Court. 
 
 882. Whether regarded as an ordinary action, or as a special 
 proceeding regulated by laws of 1854, ch. 270, § 2, sections 
 327, 329 and 330 of the Code are followed as to what may be 
 reviewed, and the power of the court on appeal. 
 
 883. Such appeal only stays so much of the proceedings as 
 a judge of either the court below or a judge of the appellate 
 court shall order to be so stayed until the hearing of such 
 appeal, and on such terms as to security or otherwise as such 
 court or judge may order. (§ 8. Code, §§348, 338,) 
 
 884. On any party being liable for or claiming an amount 
 exceeding five hundred dollars to be affected thereby, such 
 party may appeal to the Court of Appeals, but such appeal 
 shall in no case stay proceedings, without such security as is 
 now required on appeal to such court, nor unless the court in 
 which judgment is rendered shall so order.- (§ 8. Code, § 338.) 
 
 885. Under a judgment which exempts property from a lien, 
 the lien may be discharged of record, notwithstanding an 
 appeal from the judgment, unless the proceedings have been 
 stayed. ( Van Cleve vs. Abbatt, 3 Abb., N. S., 144.) 
 
APPEAL. 161 
 
 886. The surety, &c., for stay on appeal from a judgment, 
 directing the sale of the property, should be the same as in 
 foreclosure cases. {Code, § 338 ; see Van Cleve vs. Abhatt, 3 Abb., 
 N.8.,IU.) 
 
 887. The marking of a judgment in rem. in favor of a lienor 
 as " secured on appeal," does not release the primary lien of 
 the debt upon a judgment for its enforcement with any such 
 effect as to discharge the lien or security upon the property. 
 The granting of an order to that effect could at most operate 
 only as a stay of the personal judgment. {Hallaghanvs. Herbert, 
 11 Abb., N. S., 326 ; Ralhbone vs. Morris, 9 Abb., 213.) 
 
 888. Judgment on demurrers are appealable {HallagJian vs. 
 Herbert, 2 Daly, 253). As to what orders may be reviewed on 
 appeal from judgment, see Code, § 329. 
 
 889. Certain orders affecting a substantial right are appeal- 
 able as orders. {Hallaghan vs. Herbert, 11 Abb., N. S., 326 ; 
 Id., 4 Daly, 253 ; Sohaeltler vs. Gardiner, 41 Hoiu., 243 ; Id., 47 
 N. Y., 404 ; Stone vs. Smith, 3 Daly, 213 ;' Sullivan vs. Decker, 1 
 E. D. S., 699 ; 31cGuckin vs. Coulter, 10 Abb., N. S., 128.) • 
 
 890. An order discharging or continuing a lien or refusing so 
 to do, is appealable. (Stone vs. Smith, 3 Daly, 213 ; McGuckin 
 vs. Coulter, 10 Abb., N. S., 128 ; Porschke vs. Kedenberg, 6 Abb., 
 N. S., 172.) 
 
 891. An order substituting an assignee as a party is appeal- 
 able as an order. {Hallaghan vs. Herbert, 11 Abb., N. S., 326.) 
 
 892. An order that refuses to make the contractor a party 
 is appealable as an order. {Sullivan vs. Decker, 1 E. D. S., 
 699.) 
 
 893. Any order which would be appealable to the Court of 
 Appeals in any ordinary action, is appealable to that court in 
 these proceedings. 
 
 894. An order refusing to set aside a judgment because it 
 was rendered after the lien had expired, is not appealable to 
 the Court of Appeals. {Sohaettter vs. Gardiner, 4:1 N. Y., 404.) 
 
 895. Although section 7 provides that appeals may be heard 
 and decided, as in case of appeals from an order at Special 
 Term, the practice is to place appeals from judgments on the 
 calendar, and to hear them in the same manner as a final judg- 
 
 11 
 
162 APPEAL. 
 
 ment in an ordinary equity action, and these proceedings are 
 now so regarded in every respect from the time of the joining 
 of issue until their final determination. {Schaettler vs. Gardiner, 
 41 How., 243 ; Hubbell vs. Schreyer, 14 Abb., N. S., 284.) 
 
 896. The limitation of ten days as the time to appeal only 
 applies to appeals to the General Term. (§7). yection 332 of 
 the Code, as in other special proceedings or actions, applies as 
 to the time for appeal to Court of Appeals. {Laws 1854, Ch. 
 270,§2 Code, 332.) 
 
 897. Under section 7 of the act of 1863, it is probable that 
 no appeal would lie from a judgment of the Special Term of the 
 Marine Court to the General Term thereof, it must be to the 
 General Term of the Common Pleas direct. But the Marine 
 Court Act of 1872 extends the jurisdiction of 'that court 
 to mechanics' Hen cases where the amount does not exceed 
 $1,000 (§3, sub. 10), and in section 9 of that act it is provided 
 that an appeal may, in all cases, &c., be taken to the General 
 Term of said court. 
 
 898. It is reasonable to suppose that section 7 of the law of 
 1863 now applies to appeals from the General Term of the 
 Marine Court to the Common Pleas. 
 
 899. On a reversal on appeal restitution may be ordered to 
 the same extent as in other actions. (Code, § 330 ; McGuckinvs. 
 Covller, 1 Jones & S., 324.) 
 
PART IV. 
 
 STATUTES RELATING TO KINGS AND QUEENS 
 COUNTIES. 
 
 Laws 1862, Oh. 478. 
 
 AN ACT for the better security of Jlechanics, Laborers, and 
 others who perform labor or furnish Maienols for Buildings 
 and other improvements on land in the Counties of Kings and 
 Queens. 
 
 Passed April 24, 1862. 
 
 Section 1. Any person who sliall hereafter perform any labor 
 or furnish any materials in building, altering or repairing any 
 house, building or other improvement upon lands or appur- 
 tenances to such house or other buUding,* by virtue of any 
 contract with the owner thereof or his agent, or with any con- 
 tractor or bub-contractor, or any person 'permitted by the owner 
 of such lands to build, repair, alter or improve as aforesaid, 
 within the counties of Kings or Queens, shall, upon filing the 
 notice prescribed in the third section of this act, have a lien 
 for the v^ue of such labor and materials upon such house, 
 
 * See Laws of 18'70, cli. 529 and Laws 1872, ch. 669, ante. p. 11, extending all lien 
 laws so that they apply to railroads in certain cases, and to wharves, piers, bulk- 
 heads and bridges, and other structures connected therewith. 
 
164 STATUTES. 
 
 building and appurtenances, and upon the lot of land upon 
 which the same stand, to the extent of the right, title and in- 
 terest at that time existing, of such owner, in the manner and 
 to the extent hereinafter provided; but such owner shall 
 not be obliged to pay for or on account of such house, other 
 buildings or appurtenances, in consideration of all the liens 
 authorized by this act to be created, any greater sum or amount 
 than the price stipulated and agreed to be paid therefor in 
 and by such contract, except in the case hereafter provided. 
 
 But if any such owner, contractor, or siib -contractor, or agent 
 for either of them, shall pay any person any money on any 
 contract for building or repairing any building, by collusion, for 
 the purpose of avoiding the provisions of this act, or in advance 
 of the terms of any contract, and the amount still due the con- 
 tractor or his assigns after such payment has been made, shall 
 be insufficient to satisfy the demands made in conformity tO' 
 the provisions of this g,ct, the owner shall be liable to the 
 amount that would have been due and owing to said contractor 
 or his assignee at the time of the filing of the notice made in 
 the third section of this act, in the same manner as if no such 
 payment had been made. 
 
 In cases in which the owner has made an agreement to sell 
 and convey the premises to- the contractor or other person, 
 such owner shall be deemed to be the owner within the mean- 
 ing and intent of this act, until a deed shall have been actually 
 delivered, so as to pass the fee simple of said premises. 
 
 § 2. Any claimant, under or by virtue of any such lien or 
 any such notice, may, after such labor has been performed or 
 materials furnished, and after the filing of the notice mentioned 
 in the third section of this act, enforce or bring to a close such 
 lien, by a civil action in a court of record in the city or county 
 in which such lands or any portion of them may be situated ; 
 subject, however, to the following provisions and restrictions,^ 
 namely : 
 
 First. The manner and form of instituting and prosecuting 
 any such action to judgment, including the personal service of 
 process therein, shall be the same as in other civil actions in 
 the court in which the same may be brought, except as herein 
 otherwise provided. 
 
STATUTES. 165 
 
 Second. The summons shall be in the form and manner and 
 «,s required by the second subdivision of section one hundred 
 and twenty-nine of the civil Code of Procedure. 
 
 Third. The claimant under said lien, who shall be the plain- 
 tiff in the action, shall annex to his complaint, or set forth 
 therein, a copy of the notice mentioned in the third section of 
 this act, and demand an accounting and settlement in such 
 <50urt of the amount due or claimed to be due for the labor per- 
 formed or materials furnished as aforesaid, and such complaint 
 shall contain such other matter and allegations as may be ma- 
 terial and proper to establish the claim and cause of action of 
 the claimant and plaintiff. 
 
 FourtJtt The pleadings shall be in manner, form and sub- 
 glance the "same as required by law in civil actions and in ac- 
 cordance with the rules and practice of the court in which the 
 action may be brought, and such action shall be brought to an 
 issue and to trial, put upon the calendar, tried, judgment had 
 and entered, and appeal be taken therefrom and costs taxed 
 and recovered pursuant to such law, rules and practice in such 
 civil actions in which the siimmons is, as mentioned in sub- 
 division two of this section, and such action shall be governed 
 and the judgment thereon enforced in the same manner as 
 upon issues joined and judgments rendered jn all other such 
 civil actions aforesaid. 
 
 § 3. Within three months* after the performance of such 
 labor, or the furnishing of such materials, the contractor, sub- 
 contractor, laborer, person furnishing materials, or other 
 claimant, shall serve a notice in writing upon the county clerk 
 of the county or counties aforesaid, in which the land and 
 premises or any portion thereof may be situated, specifying 
 the amount of the claim and the person against whom the 
 claim is made, the name of the owner of the building and 
 the situation of the building by its street and number, if the 
 number be known. The said county clerk shall enter the par- 
 ticulars of such •notice in a book to be kept in his office, to be 
 called the "lien docket," which shall be suitably ruled in 
 
 * See Laws of 1870, ch. 529. and Laws of 1872, ch. 669, ante, p. 11, in regard 
 to the time for filing liens in certain cases. 
 
166 STATUTES. 
 
 columns, headed " claimants," " against whom claimed,"^ 
 ''owners," "building," "amount claimed," " date of notice," 
 " hour and minute," and " what proceedings have been had.' 
 The names of owners and persons against whom the claim is 
 made shall be inserted in alphabetical order. A fee of ten cents 
 shall be paid to the county clerk on filing such lien. 
 
 A copy of said notice shall be served on said owner by de- 
 livering the same [to him] personally, or if he be out of this 
 State, by delivering the same to his agent personally ; and after 
 such service such owner shall not be protected in any payments 
 made by him to such contractor or other claimant in this 
 section specified. 
 
 § 4. In case the defendant or defendants shall not answer 
 the plaintifi's complaint within the time, and as required by 
 law, the plaintiff may apply to the court on proof of the ser- 
 vice of the summons and complaint, and that no answer has 
 been served, as required by the summons, for a writ of inquiry,, 
 and the same may be issued to the sheriff of the county in 
 which the action may be brought to assess the amount of such 
 claim, or the amount of such claim may be assessed by the 
 court, and upon the return of the writ of inquiry or the assess- 
 ment by the court, ju 'gment shall be entered upon the same 
 and execution shall issue for the enforcement of said claim so^ 
 adjudicated and established in the same manner as in analo- 
 gous cases upon other judgments in such court. 
 
 § 5. A transcript of every judgment rendered, headed " lien 
 " docket," shall be furnished by the clsrk of the court to th& 
 successful party, who may file the same with the county clerk, 
 whose duty it shall be to enter the name of the court and iJhe 
 amount of the judgment, or when the judgment is against the. 
 claimant, alter the expiration of thirty days, if no appeal has 
 been taken, the word " discharged," under the last head in 
 his docket. 
 
 § 6. Costs shall be allowed upon the same principles and by 
 the sanje rules in the action as they are now allowed by statute 
 in civil actions aforesaid, and shall form a part of the judg- 
 ment, except in cases where the amount of the recovery is less- 
 than fifty dollars, no more costs than damages shall be allowed, 
 to the party recovering such judgment. 
 
STATUTES. 167 
 
 § 7. The lien may be discharged as follows : 
 
 First, By filibg a certificate of the claimant or his successors 
 in interest, acknowledged or proved in the same manner as' 
 the satisfaction of a mortgage, stating that the lien is dis- 
 charged. 
 
 Second. By the deposit with the clerk, if before suit, of a sum 
 of money equal to the amount claimed, or, after suit, equal to 
 such amount and the amount of costs incurred, which money 
 shall thereupon be held subject to the lien. 
 
 Third. By an entry of the clerk made in the book of liens, 
 after one year has elapsed since the filing of the claim, stating 
 that no notice has been given to him of legal steps to enforce 
 the lien. 
 
 Fourth. By an affidavit of service of a notice from the owner 
 to the claimant, requiring him to commence an action for the 
 enforcement of his lien, on or before a certain hour, on a day spe- 
 cified in said notice, and the lapse of thirty days thereafter 
 without any affidavit from the claimant being filed of the 
 issuing or service of the summons and complaint in an action 
 for an enforcement of such lien. 
 
 Fifth. By the satisfaction of the lien, or a final judgment in 
 an action for the enforcement thereof. 
 
 § 8. Every lien created under this act shall continue until 
 the expiration of one year from the creation thereof and until 
 judgment rendered in any proceedings for the enforcement 
 thereof. 
 
 § 9. Whenever judgment shall be rendered in favor of the 
 claimant in any proceeding commenced under this act, such 
 judgment shall direct the sale of the interest of the owner in 
 the land and premises upon which the lien exists, to the extent 
 of the right of such owner at the time of the filing of the 
 notice of lien in pursuance of this act, and that the proceeds 
 of such sale shall be applied to the payment of the costs of 
 the action and proceeding, and of the amount found to be due 
 to such claimant or plaintiff, and that the residue of such pro- 
 ceeds be paid to the clerk of the court in which such action or 
 ■ proceeding may have been instituted, to abide the further order 
 of the court. 
 
/ 
 
 168 STATUTES. 
 
 § 10. The owner may apply to the court for an order direct- 
 ing the clerk to pay him the surplus proceeds of such sale so 
 paid to the said clerk, upon producing the certificate of the 
 county clerk of the county or counties in which any portion of 
 said land and premises may be situated that there are no liens 
 docketed in his office against or affecting the said premises 
 which have been filed under this act, and which remain un^ 
 satisfied. 
 
 § 11. If it shall appear that there are other liens on file with 
 the clerk of either of said counties affecting the said premises, 
 notice of such application shall be given to the claimants re- 
 spectively filing the notices creating such liens, and thereupon 
 the said court shall distribute such surplus proceeds among the 
 parties entitled thereto, according to their respective rights and 
 priorities, and may order a reference to take proofs in relation 
 to such rights and priorities. 
 
 § 12. In all sales under judgments to be rendered in these 
 proceedings, the interest of the owner shall be sold subject to 
 all prior liens existing thereon, unless the claimants under such 
 liens shall be made parties to the proceedings, in which case 
 the courts shall settle the rights of the respective claimants, 
 and the payment of the owner of any valid lien, or of any 
 judgment recovered in pursuance of this act, shall enure to him 
 as a payment to the amount thereof to the contractori or sub- 
 contractor, as the case shall be. 
 
 § 13. When the action or proceedings are commenced by a 
 person having a claim against a contractor, with the owner, or 
 against a sub-contractor with the contractor or other sub-con- 
 tractor, such contractor or sub-contractor may be made a de- 
 fendant with such owner, and judgment may be rendered 
 against the contractor or sub-contractor for the amount which 
 shall be found owing by him, in addition to the judgment here- 
 inbefore provided for against such owner, and the court may 
 award costs against such of the parties as shall be just. 
 
 § 14. Chapter three hundred and thirty-five of the Laws of 
 eighteen hundred and fifty-three, entitled, " An Act for the 
 " better security of Mechanics and others Erecting Buildings 
 " Performing Work or Furnishing Materials in the County of 
 
OBSERVATIONS. 169 
 
 *' Kings," passed June eiglith, eighteen hundred and fifty- 
 three, and chapter two hundred and four of the Laws of 
 eighteen hundred and fifty-eight, passed April fourteenth, 
 eighteen hundred and fifty-eight, so far as the same applies to 
 the county of Kings and Queens, aforesaid, are hereby re- 
 pealed. 
 
 § 15. This act shall take effect immediately.* 
 
 OBSERVATIONS ON THE LAWS RELATINO 
 
 TO THE COUNTIES OF KINGS 
 
 AND QUEENS. 
 
 Introduction. 
 
 900. As all the special statutes on this subject in this State 
 are founded upon similar statutes, and the same principles of 
 law are common to all, it wjU only be necessary to observe the 
 ■differences ^in the language used in some of the statutes, as com- 
 pared with those discussed in the preceding pages, in order to 
 apply to uny special statute the general principles of law there 
 laid down. (See Preface and Introduction, ante.) 
 
 The preceding Act of 1862 is almost the same in every 
 particular as the Acts of 1851 and 1855 relating to New York 
 oity. The differences are in sections one, two and four of the 
 said Act of 1862. 
 
 Who may acquire a Lien — for lohat, and the time of perfecting it. 
 
 901. All of these questions under §§ 1 and 2 are the same as 
 have already been discussed, with only two exceptions. 
 
 * All previous laws of this nature that were applicable to the counties of Kings 
 and Queens, or some part thereof, were as follows:' Laws of 1844, ch. 30S, ap- 
 plied to city of Brooklyn and village of Williamsburgh ; Laws of 1845, ch. 235.; 
 Laws of 1853, ch. 335, applied to the county of Kings; Laws of 1858, ch. 204, 
 «xtending Laws of 1854. ch. 402, so that the latter applied to Kings and Qneens 
 counties. It was held, however, not to apply to the city of Brooklyn. (Rafter vs. 
 SvUlvan, 13 Abb., 262.) 
 
170 OBSERVATIONS RELATING TO 
 
 902. First : A party who is permitted by the owner to do 
 work or furnish materials can acquire a lien against such own- 
 er's interest (§ 1). This is something more than an implied 
 contract, and is more effectual to cover all cases than the law 
 for New York city, particularly as the latter law has been con- 
 strued by the courts. Under this act a sub-contractor could 
 recover in a case like Walker vs. Paine (2 JE. D. 8., 662), and 
 Randolph vs. Garvey (10 Abb., 179), and should also reach the 
 lessor's interest where he permits the lessee to make repairs or 
 improvements that are a benefit to the lessor, as well as in 
 cases where there is an executory contract to lease, or advance 
 money, or sell the property, contingent upon the alteration or 
 erection of buildings thereon. (See ante.) 
 
 As to an implied contract, &c., see Story's Eq. Jurisp., 
 § ,1,237 ; Hauptmann vs. Catlin, 3 E. D. 8., 666 ; 8pencer vs. 
 Barnett, 35 N. T., 94 ; Bollin vs. Cross, 45 N. Y., 766 ; Meelian 
 vs. Williams, 36 Hoiv., 73. 
 
 903. Second : The time of perfecting the lien is at any time 
 within three months after the performance of the labor or fur- 
 nishing of the material, &c. (§ 3). Under the Law of 1851, 
 containing a similar provision, it was held that the lien could 
 not be perfected until after the completion of the contract for 
 the labor or furnishing of the materials for which a lien was 
 sought. (Jaqnes vs. Morris, 2 E. B. 8., 639.) 
 
 904. This restriction is only upon the party who seeks a 
 lien — it does not mean that a sub-contractor cannot file a lien 
 for his work until after the contractor has completed his con- 
 tract. 
 
 The Notice of Lien and Perfecting it. 
 
 905. The/o?'m of the notice of lien is the same as has already 
 been discussed, with one exception — it need not be Verified 
 (§ 3). 
 
 906. The oivner is the same as is stated ante, with one excep- 
 tion. In cases in which the owner has made an agreement to 
 sell and convey the premises to the contractor or other person, 
 such owner is deemed to be the owner until a deed is actually 
 delivered so as to pass the title of the property (§ 1). 
 
 907. The notice must be served on the owner, as well as filed 
 
KINGS AND QUEENS COUNTIES. 171 
 
 in the county clerk's office in the county where the property is 
 situated (§3). 
 
 908. The service must be personal by delivering a copy of 
 such notice to said owner, or, if he is out of the State, by deliv- 
 ering the same to his agent personally (§ 3). 
 
 909. The notice may be filed before or after service on the 
 owner, but the lien is not perfected until both are done (Rafter 
 vs. Sullivan, 13 Abb., 262), even if the lien is sought by a con- 
 tractor only. 
 
 910. If the owner makes bona fide payments to the contractor, 
 or his assignee, after notice is filed, but before the service, the- 
 owner will be protected in such payments (§ 3) as against a- 
 sub-contractor or person engaged by the contractor. 
 
 911. Under a simila^j provision of the Law of 1880 the Court 
 of Appeals held that service on one joint owner' was sufficient 
 to acquire a lien. {Mandevllle vs. Reed, 13 Abb., 173.) 
 
 912. The name of the owner must be correctly stated (Beah 
 vs. Ccmg, B. J., 1 E. D. S., 654), or it will be invalid, becauseit 
 must be served on the person named as owner in the notice, 
 and if no service is made it is invalid. 
 
 913. The interest of an equitable owner may be bound by 
 the hen when he is named as owner (Rollin vs. Cross, 45 N.. 
 T., 766). 
 
 914. Naming too many persons as owners will not invalidate 
 the lien if it contains the proper person (Hubhell vs. Schreyer, 
 14 Abb., N. S., 284 / Hauptman vs. Catlin, 3 E. D. S., 666). 
 
 915. The naming of a firm without stating the individual 
 namfis of all of its members would probably be held good in 
 cases where all the surnames appear, as it has been held that 
 the service on one of a firm is sufficient under a similar stat- 
 ute. (Ante, 911.) 
 
 916. If the notice contained the names of some of the own- 
 ers and not all of them, it would bind the proportionate interest 
 of those named for their proportionate share of the debt. 
 
 917. The name of the contractor need not be stated at all 
 when the notice is by a sub-contractor (Lidz vs. Ey, 3 E. D. S., 
 621. See Sauptmanva. Halsey, 1 E. D. S., 668). 
 
172 OBSERVATIONS EELATING TO 
 
 It is better to state it iaecording to the fact. (Ante, 140.)* 
 
 918. There is no provision in this act prohibiting or declar- 
 ing the effect of an assignment of the contract or a payment 
 xinder it by the contractor. Under the decisions (cited ante, 133 
 to 139), such a prohibition in the statute is of httle value or 
 importance. 
 
 Lien, on What and Extent. 
 
 919. The effect of the lien as to the owner of the property, 
 :and the extent of it, is the same as is stated ante, with perhaps 
 one exception, it was held under a similar statute that the 
 owner could not be made personally liable to a sub-contractor 
 or other lienor unless he was liable by dij^ed contract (Ante, 35, 
 676, note and post, 952.) 
 
 • Continuance and Discharge of Lien. 
 
 920. The lien continues until the expiration of one year from 
 the creation thereof, and if an action is commenced to enforce 
 it, the continuance is until judgment is rendered in the action. 
 (§8.) 
 
 921. As to the time when the year begins to run, that must 
 be governed by the time of filing the notice (§ 7, sub. 3). The 
 service of the notice on the owner is only for the purpose of 
 preventing the effect of any payment he may afterwards make 
 ■to the contractors, and not for the purpose of perfecting a lien 
 agaiQst the premises. It Inay well be doubted whether it is 
 necessary to serve the owner within the three months. 
 
 922. It is fully provided as to how the lien may be discharged 
 (§ 7). It is the same in effect as the former law of 1851 (§ 11), 
 relating to New York city, except in regard to depositing the 
 Amount. After action brought siich deposit must include the 
 amount of costs incurred up to the time of such deposit. The 
 mode of arriving at the amount of such costs is not specified, 
 but such discharge would be on notice of motion founded upon 
 :affidavits showing the state of the case, on notice to all the 
 parties in the action, and an order obtained from the court 
 
 * A variance ia the proof and any fact required to be stated in the notice is 
 fatal to the lien. (Ante, 649). 
 
KINGS AND QUEENS COUNTIES. 175 
 
 fixing sucli amount, and directing tlie county clerk to accept 
 such deposit, and discharge the lien as against the property. 
 
 923. Under § 7, subd. 3, the county clerk may, on his own 
 motion, after one year from the time of filing the lien, make 
 an entry that no notice has been given to him of legal steps to 
 enforce the lien {MasJilitt vs. Silverman, 50 N. Y., 360 ; Paine 
 vs. Bonney, 4 E. D. 8., 734). 
 
 9 
 
 924. Under a similar statute (1851, § 11, subd. 3, relating to- 
 New York), the clerk required an affidavit that no action had 
 been commenced to enforce the lien. 
 
 See that subdivision fully discussed in Paine v. Bonney, 4r 
 E.D.8.,1U. ' ' 
 
 925. Unless notice is given to the clerk that an action has 
 been commenced within the year, an entry by the clerk that the 
 lien is discharged because no action has been commenced is- 
 valid, and the lien will be.discharged thereby {Paine vs. Bonney, 
 4:E. D. S., 734) For form of notice, see ante, 256. 
 
 926. The form of the notice of the action pending, or the 
 time of the entry thereof, is not prescribed. It was held in 
 Paine, vs. Bonney (4 E. D. 8., 734), that the entry could be made 
 after the year had expired. This may well be questioned when 
 the rights of an innocent purchaser may intervene. As be- 
 tween the parties to the action, notice could be effectually 
 made after one year, as it is a kind of Us pendens. 
 
 927. In construing this act, the court said : 
 
 " Where the act declares, as it does, that the lien may be 
 " discharged in any of the several methods, the happening of any 
 " of the events, or the performance of any of the acts mentioned, 
 "operate ^er se, as a discharge, without the necessity of further 
 " acts by an/ person." {Blushlitt vs. Silverman, 50 N. Y., 360.) 
 
 928. The entry by the clerk, as required by subd. 3 of § 7,. 
 that an action has been commenced, is the only efl'ectual lis 
 pendens. It should be given to the clerk within a year from 
 the time of filing the notice of lien. (See ante, 926.) 
 
 929. The owner can require a claimant to commence an ac- 
 tion within a specified time, however short, and on the claim- 
 
174 OBSEKVATIONS EELATING TO 
 
 ant's default thereof, and the lapse of thirty days after service 
 of the notice, the lien will be discharged. (§ 7, subd. 4.)* 
 
 930. It is not necessary to commence the action within the 
 time required by the owner. The claimant has thirty days after 
 the service of the notice ; then, if an action is not commenced, 
 the lien may be discharged by the clerk, unless an affidavit 
 from the claimant is filed with the county clerk of the issuing 
 or service of the summons and complaidt in an action for the 
 enforcement of such lien.f {Muslilitt vs. Silverman, 50 N. Y., 
 360.) 
 
 * Owner's Notice requiring Lienor to commence Foreclosure of Lien, under § 1, 
 
 subd. 4. 
 SiES, — Tou are hereby notified and required to commence an action on or be- 
 fore the 5th day of September, 1873, at 10 o'clock, ji. m., for the enforcement of a 
 mechanics' lien, filed the day of 187 , in the oflRce 
 
 of tlie clerk of the county of , at , for the sum 
 
 of I , the same being claimed to be due for work performed (or materials 
 
 furnished) in the erection of a certain building known as (give description contained 
 in the notice of lien), one John Jackson being therein named as contractor, and the 
 undersigned as owner, and that if you fail to commence such action within thirty 
 days after the service of this notice upon you, the said lien will be discharged. 
 
 Dated, Sept. Ist, 1873. 
 
 Richard Row, 
 
 Owner. 
 By A. B., 
 
 his Atty. 
 To John Dor, and Jakes Smith, 
 
 Claimants. 
 
 f Affidavits to Discharge Lien where no action has been commenced, as required by the 
 Owner, under § 7, subd. 4. 
 
 State of New York, ) 
 County of j 
 
 T. B., being duly sworn, says, that on the day of 
 
 1873, at , in the county of , he personally 
 
 eerved the notice, a copy of which is hereunto annexed, upon A. . . . B the 
 
 claimant therein mentioned, by delivering the same to, and heaving the same with 
 
 the said A. B Deponent further says that at the time of such service 
 
 he knew the person so served to be the person mentioned and described in said 
 notice as claimant therein, and the pei'son to whom said notice was addressed. 
 Sworn to, &,a. 
 
 T B 
 
KINGS AKD QUEENS COUNTIES. 175 
 
 931. The sufficiency of the issuinc/ in such case must be the 
 same as would be necessary under the Code (§ 99i, to prevent 
 the Statute of Limitations from running against a debt, or 
 service by pubHcation commenced under*§ 135. 
 
 932. The issuing or service must be of the summons and 
 complaint within the time required. The issuing or service of 
 a summons will not be sufficient, because it does not appear 
 thereby in any manner what the action is for. The summons 
 may be served withou': the complaint, but the complaint must 
 be served within the thirty days, and an affidavit must be filed 
 of that fact, or the lien will be discharged as a matter of law, 
 without any entry being made thereof by the clerk. {MusUitt 
 vs. Silverman, 50 N. Y., 360.) 
 
 933. An action commenced after the expiration of the thirty 
 days after the service of the owner's notice, cannot be main- 
 tained on the lien where such fact is set up in the answer. 
 {Id.) 
 
 934. Under the fourth subdivision of § 7, none but the owner 
 can require a lienor to commence an action for the enforcement 
 of a lien. A contractor cannot require a sub -con tractor to com- 
 mence proceedings to enforce the hen of the latter. {Ante, 264, 
 note.) 
 
 935. But the court intimated that the contractor could re- 
 quire the owner to serve the notice on a sub-contractor, and on 
 the owner's refusal to do so, the contractor might proceed 
 
 State of New York, ) 
 Couuty of ) " 
 
 T. . . . B . . ., being duly sworn, says that he is the person who is named as 
 ownt-r in the notice and affidavit of service thereof by T. . . . B. . . ., hereunto an- 
 nexed; tliat more than thirty days have elapsed since the service of the notice 
 
 mentioned in said affidavit of T. . . . B and that no action or proceeding has 
 
 been commenced against him to enforce the lien mentioned in said notice, and that 
 thirty days have elapsed since the said service of said notice, and that an affidavit 
 from the said clidmant or his attorney has not been filed in the office of the clerk 
 of the county of of the issuing or service of the summons and 
 
 complaint in an action for ihe enforcement of said lien, as appears by the certifi, 
 cale of tlie said county clerk. 
 
 Sworn, &c. 
 
 T.... J 
 
 Owner. 
 
176 OBSEBVATIONS EELATING TO 
 
 against the owner, as if no lien had been created. (Butler ys. 
 Magie, 2 E. D. 8., 654.) 
 
 936. The contractor could at any time commence an ordin- 
 ary action against the owner for the amount due him, and the 
 owner could not set up as a defense thereto, that liens were 
 filed against his property for work done under the contractor's- 
 authority. {Ante, 659.) 
 
 937. When & judgment is against a claimant, the lien cannot 
 be discharged until after the expiration of thirty days, and 
 then, if no appeal has been taken from such judgment, the 
 clerk may discharge the lien on his docket. (§ 5. See post 
 appeal.) 
 
 Time and Manner of Enforcing Liens, and Jurisdiction of Courts, 
 
 938. At any time after the perfecting of the lien, before the 
 expiration of the year, unless sooner required by the owner 
 (§ 7, sub. 4), the claimant may enforce or bring to a close 
 such lien by a civil action in a court of record, in the city :or 
 county in which such lands, or any portion of them, may be 
 situated (§2, sub. 1). 
 
 939. The manner of commencing the action is by summons, 
 as in other actions, and the pleading, the issues and the evi- 
 dence and trial, is the same as in other actions (§2, sub. 3 
 and 4).* ' 
 
 940. This act does not extend the jurisdiction of county 
 courts as to the residence of the defendants or the amount 
 claimed in these actions, under this statute, to wit, one thou- 
 sand dollars. The limit of the jurisdiction of county courts, 
 as to the amount of the relief demanded in civil actions, other 
 than those specified by statute, is the same in these actions as 
 in other actions not specified by statute. {Code, § 30, Laws 
 1870, ch. 4(57 ; Amd. Const, of 1869, § 15.) 
 
 941. County Courts have the same jurisdiction in certain 
 proceedings as the Court of Common Pleas had under the 
 Constitution of 1821. {Code, §§29, 30, sub. 11; Const. 1846, 
 
 * In the City Court of Brootlyn, in actions to foreclose Mechanics' Liens, under 
 this statute, issues of fact must be framed (under Rule 40 of Supreme Court), and 
 they are determined by a jury. In other courts in Kings county they are gene- 
 rally referrecL 
 
KINGS AND QUEENS COUNTIES. ITt 
 
 art. 6, § 15 ; Munroe vs. Munroe, 27 How., 208 ; Laius 1847, ch. 
 280, § 36.) 
 
 ■ 942. The law of 1845 (ch. 235), so far ..as the same may be 
 applicable to the counties of Kings and Queens, has never been 
 repealed, and is as follows : 
 
 " § 1. The docket of liens and of judgments filed and dock- 
 " eted with tlie county clerk of any county, under chapters 
 " two hundred and twenty and three hundred and five of .the 
 " Laws of 1844, shall be subject to the control and jurisdiction 
 " of the Court of Common Pleas, in such county, in the same 
 " manner as judgments recovered in said court. 
 
 " § 2. This act shall take effect immediately." 
 
 Parties to the Action — Modes, of Trial. 
 
 943. It is not necessary that any prior or subsequent lienors, 
 or the contractor or sub-contractor should be made parties de- 
 fendant with the owtier ; it was so held under the law of 1851. 
 {Ante, 268, note.) 
 
 944. By making pnbr lienors or incumbrancers parties, their 
 rights could be ascertained (§ 12), and by making a contractor 
 or a sub-contractor a party, a personal judgment may be ob- 
 tained against them. (§13. Id.) 
 
 945. Under the law of 1851, the court said " That in many 
 " instances it may become necessary, in proceedings under the 
 " statute authorizing these liens, to bring before the court all 
 " parties who are interested, in order that a final determin- 
 " atio^ of the matters in controversy may be made, and a dis- 
 " tribution of the fund ordered." {Chamberlain \s. O'Connor, 
 1 U. D. 8., 665.) 
 
 946. The only way that lienors can contest among them- 
 selves is by cross-action, by original process ( Westervelt vs. 
 Lfvy, 2 Buer, 354), or by a bill of interpleader in some in- 
 stances. {Lehretter vs. Koffman, 1 E. D. S., 664 ; Cha-mherlain 
 vs. O'Connor, 1 K U. /S'.,665.) 
 
 947. No express mention is made in the act of the abandon- 
 ment of tibe contract by the contractor vpthout cause, and the 
 effect of |)|t as to the sub-contractor. A contractor cannot in 
 such case recover. 
 
 12 
 
178 OBSERVATIONS EELATING TO 
 
 948. Under the law of 1851-55 it was held that a sub-con- 
 tractor could not obtain a lien in such case. {Denniston vs. Mc- 
 Allister, 1 E. n. S., 729 ; Randolph vs. Garvey, 10 Abb., 179 ; 
 Cunningham vs. Jones, 3 E. D. 8., 650.) 
 
 949. The statute gives a sub-contractor a lien in certain 
 cases and to a certain extent (§ 1). Under it the sub-contractor 
 should recover from the owner when the contract has been 
 abandoned by his contractor, even Avithout cause, to the 
 full and fair value of the work or materials permitted by the 
 owner to be placed upon his land to the same extent as if the 
 contractor had carried out his contract. {Ante the contract.) 
 
 950. Contracts are seldom abandoned without such cause 
 as will prevent a sub-contractor acquiring a lien under this 
 act. 
 
 951. In case the defendant or defendants do not appear, the 
 mode of proceeding is fully provided and prescribed in § 4, 
 and is the same as is prescribed in the Code, § 246, sub. 2. 
 
 952. There is no express provision in the act requiring the 
 court to render a personal judgment against the owner, where 
 lie is not liable to the lienor by direct contract. It was held, 
 under the law of 1851-55 {ante, 676, note), that, without an ex- 
 press provision to that effect no personal judgment could be 
 rendered against the owner in such case. There is not now, and 
 •was not, under the law under which these decisions were rendered; 
 any foundation for any such decision, while there is every rea- 
 son why it should have been decided that the owner was per- 
 sonally liable to the lienor for the amount due from the owner 
 to his (the owner's) contractor. (See ante, 680, 676, note.) 
 
 The same court took so narrow a view of the law as to doubt 
 the propriety of rendering a personal judgment against an owner 
 for any deficiency, even when he was liaMe by direct contract I 
 (Quimby vs. Sloan, 2 E. D. S., 594.) 
 
 953. A personal judgment may be rendered against an equi- 
 table owner where he is a party joined with the legal owner in 
 certain cases. {Hallaghan vs. Herbert, 11 Jbb., N. S., 326 ; 
 HoUin vs. Cross, 45' iV. Y., 766.) 
 
 954. Costs are the same as in other equity actions,|^xeepting 
 that when the amount of the recovery is less than Jifty dollars. 
 
KINGS AND QUEENS COUNTIES. 179- 
 
 no more costs than damages can be allowed to the party re- 
 ceiving such judgment (§ 6), and in other cases the court may 
 award costs against such of the parties as shall be just (§ § 13, 
 2, subd. 4). 
 
 955. The form of the judgment in favor of a claimant is re- 
 quired by the statute (§ 9) to be the same as was required by 
 the Law of 1855, relating to N. Y. city. (See Althause vs* 
 
 Warren, ante, 735 noie, where a proper form of judgment under 
 that law is given ; see also ante, 844 note.) 
 
 956. The execution in such case is merely giving the sheriff a 
 certified copy of such judgment, and directing him to proceed 
 Tinder it. {Ante, 845.) 
 
 , 957. The disposition of the proceeds of the sale under the 
 judgment and after the sale is the same as in cases of foreclosure 
 of a mortgage. (§§ 9, 10, 11, Supreme Court, rules 73, 77.) 
 
 958. The payment by the owner of any valid lien or of any 
 Judgment recovered in pursuance of this act, shall enure to him 
 
 as a payment to the amount thereof to the contractor or sub- 
 contractor, as the case may be. (§ 12.) 
 
 Appeals and their Effect, and the time to take them. ■ 
 
 959. All of these questions are the same in these proceedings 
 as under the Code. (§ 2, Hallaghan vs. Herbert, 11 Abb. N. 8., 
 326.) 
 
 960. When the owner appeals from a judgment, if he re- 
 quires a stay of proceedings, he must give the same security as 
 is required in a judgment of foreclosure of a mortgage. {Code, 
 §§ 338, 348.) 
 
 961. If no notice of appeal is served by the claimant, when 
 the judgment is in favor of the owner, within thirty days after 
 the notice of entry of judgment, on filing a transcript thereof, 
 the clerk must mark the.lien as discharged on his docket. (§ 5, 
 Sullivan vs. Brewster, 1 E. D. S., 681.) 
 
 962. The effect of the service of the notice of appeal by the 
 claimant, within thirty days after the judgment, would prevent 
 the clerk from making the entry of a discharge of the lien, 
 without an order of the court. 
 
180 KEsras and queens counties. 
 
 963. The fentry of the notice of the commencement of the 
 action to enforce the lien under §7, suhd. 3, would still be con- 
 structive notice to all of the pendency of the appeal. (See 
 SaUagJian vs. Herbert, 11 Ahh. N. S., 326.) 
 
PART V. 
 
 FOBMS. 
 
 Notice of Claim. 
 No. 1. 
 
 To Charles E. Loew, Esq., Clerk of the City and County of N. T.: 
 
 Sir — Tate notice that we, William Wood, residing at No. 
 street, in 
 and John Mason, residing at No. 
 
 street, in have a claim against John 
 
 Doe, debtor, amounting to the sum of $5,000, due to us on the 
 1st September, 1873, and that the said claim is made for and 
 on account of work, labor and materials furnished by us to 
 said Doe, and that such work, labor and materials were so fur- 
 nished in pursuance of a contract or employment to build, 
 alter or repair certain premises and the appurtenances, which, 
 upon information and belief, claimants state is owned by 
 Kichard Eow, and is situated in the 19th ward of New York 
 city, on the northerly side of East 00th street, and is known 
 
182 
 
 FORMS. 
 
 .as No. (or No, unknown), 
 said premises : 
 
 The following is a diagram of 
 
 East 00th Street. 
 
 East 00th Street. 
 
 And that we have and claim a lien upon said house or 
 building and the appurtenances, and upon the lot on which 
 the same stands, pursuant to the provisions of an act of the 
 Legislature of the State of New York, entitled " An Act to 
 secure the payment of mechanics, laborers and persons furnish- 
 ing materials towards the erection, altering or repairing of 
 buildings in the city of New York," passed May 5th, 1863, and 
 of thp acts amending the same. 
 
 Dated New York, August 30th, 1873. 
 
 Wood & Mason, Claimants, 
 
 By John Mason.* 
 
 Verification to Notice. 
 
 No. 2. 
 
 State, City and County of New York, ss : 
 
 John Mason, being duly swprn, says : That he is one of the 
 claimants above named, and who subscribed the foregoing 
 notice, and that the contents of said notice is true of his own 
 
 * See loriii of notice, ante, 145, note. 
 
FOEMS. 183 
 
 knowledge, except as to the matters which are therein stated 
 to be upon information and belief, and as to those matters he 
 believes it to be true. 
 
 John Mason. 
 Sworn and subscribed before me, ] 
 this bOfch day of August, 1873, j" 
 
 Verification by Illiterate Person. 
 
 No. 3. 
 
 City and County of New York, ss : 
 
 The claimant C D, not being able to read or write, G H was 
 duly sworn : That he had read to the claimant truly and correctly 
 the foregoing notice, and that he appeared perfectly to under- 
 stand the same, and that the said C D had afSxed his mark 
 thereto in his presence, and the said C D was thereupon sworn 
 that he had heard the said notice, so subscribed by him with 
 his mark, read and knows the contents thereof, &c., as in No. 
 2. (1 Barb., Gh. 155 ; 2 Barb., Ch. 416 ; see also 1 Abb., Forms 
 p.5.f 
 
 Notice to Foreclose Lien. 
 
 No. 4. 
 1 
 
 William Wood and John Mason, 
 Claimants, 
 
 against 
 
 EiCHAED Kow, John Shabp, S. 
 Carpenter, James Murphy, and 
 T. Drew. • 
 
 Take notice that we, the subscribers, on the 30th day of 
 August, 1873, filed in the office of the clerk of the city and 
 
 * See other forms of verification referred to, ante, 172, 173 and 176. 
 
184 
 
 FOEMS. 
 
 , county of New York the notice required by law to perfect a 
 lien for the sum of $5,000, John Sharp, debtor, upon the house 
 or building and the appurtenances thereto, and lot on which 
 the same stands, situate in the 19th ward of said city, on the 
 northerly side of East 00th street, and is known as No. 
 (or No. unknown), owned by Kichard Eow, and described in 
 the following diagram : 
 
 East 00th Street. 
 
 a 
 
 East 00th Street. 
 
 60 
 
 -26— 
 
 
 
 pi 
 a 
 
 O 
 
 The following are liens, and the times of filing the same, 
 aflfecting the same premises : September 5, 1872, John Sharp 
 for 12,500, Bichard Eow, debtor ; September 15, 1873, James 
 Murphy for $75, ^ohn Sharp, debtor ; October 1, 1873, S. Car- 
 penter, for $1,350, Wood and Mason, debtors. T. Drew, mort- 
 gagee for $7,000, recorded September 14th, 1873. 
 
 You are hereby required to appear in the Court of 
 Common Pleas for the city and county of New York, at a 
 Special Term thereof, to be held at the chambers of said court, 
 in the court house in said city, on the 19th day of October. 
 1873, at 11 o'clockin the forenoon of that day, an(^^ubmit to 
 ii^enmrcement of the amounts due u. ifiyimed to 
 
 an accounting 
 
 A- 
 
FOEMS. 185 
 
 be due on said liens, pursuant to tHe act in such case made and 
 provided. 
 
 Dated October 8th, 1873. 
 
 Yours, (fee, 
 William Wood and John Mason, 
 • By John Smith, their attorney, 
 
 111 Broadway. 
 To EiOHAED Eow, owner ; John Sharp, 
 contractor ; S. Caepentee, James 
 MuEPHY, T. Deew, mortgagee. 
 
 Order for Issues. 
 
 No. 5. 
 
 At a special term of the Court of Common Pleas, 
 for the city and county of New York, held in 
 the Court House in said city, on the 19th day of 
 October, 1873. 
 
 Present Hon. H. W. Eobinson, presiding. 
 
 William Wood and John Mason, 
 Claimants, 
 
 r 
 
 agst. 
 
 Eichaed Eow, John Shakp, S. 
 Carpenter, James Murphy, and 
 T. Drew. 
 
 On reading and filing the notice of William Wood and 
 John Mason, dated October 8th, 1873, to the defendant to 
 appear and submit to an accounting enforcement of the amount 
 claimed by the various notices of liens now on file against cer- 
 tain property, all of which is described in said notice : Now 
 on motion bf John Smith, attorney for said Mason & Wood, 
 
186 
 
 FOEMS. 
 
 plaintiffs, the defendants Bichard Kow and John Sharp, 
 a,ppeariDg by J. Stiles, their attorney, and defendants S. Car- 
 penter and James Murphy, appearing by A. Wells, their attor- 
 ney, and the defendant T. Drew, not appearing, and on proof 
 of due service of said notice on said T. Drew, it is hereby 
 
 Ordered, that the issues between said parties abov^named, 
 who have appeared, be joined by the claimants William Wood 
 and John Mason, serving a complaint upon the attorneys who 
 have appeared herein as in an ordinary action, within ten days 
 hereof, and that the defendants in like manner may serve a 
 copy of their claim or answer or demurrer or objection 
 thereto, within twenty days after the service of said complaint, 
 and any party whose interests are to be affected by the claim 
 of any other party, must be served with such claim within five 
 days, and the same may be answered within ten days there- 
 after ; the bill of particulars of the claims of any party to be 
 served as in other actions. After issue joined this action, pro- 
 ceed according to the statute in such gase made and provided. 
 
 Enter. 
 
 H. W. E. 
 
 loner's Notice to Foreclose Lien. 
 No. 6. 
 
 ElCHAED EOW, 
 
 Owner, 
 
 agst. 
 
 William Wood, John Mason, John 
 Sharp, James Murphy, and S- 
 Carpenter. 
 
 Take notice that I am the owner of the house and prem- 
 ises situate in the 19th ward of the city of New York, on the 
 
F0EM8. 
 
 187 
 
 northerly side of East OOtli street, and described in the follow- 
 ing diagram : 
 
 East 00th Street. 
 
 
 East 00th Street. 
 
 60 
 
 25 
 
 a 
 o 
 
 
 
 
 (D 
 
 o 
 
 I» 
 
 The following are the liens and the times of fihng the same 
 affecting said premises: August 30, 1873, William Wood and 
 John Mason for $5,000, John Doe, debtor ; September 3, 1873t 
 John Sharp for $2,500, Eichard Eow, debtor ; September 15, 
 1873, James Murphy for $75, John Sharp, debtor ; October 1, 
 1873, S. Carpenter for $1,350, Wood & Mason, debtors. 
 
 Tou are hereby required to appear in the Court of Common- 
 Pleas for the city and county of New York, at a special term 
 thereof, to be held at the chambers of said court in the Court 
 House in said city, on the 29th day of October, 1873, at 11 
 o'clock in the forenoop of that day, and submit to an account- 
 ing enforcement of the amounts claimed to be due on said liens, 
 and show cause why said premises should not be discharged 
 therefrom, pursuant to the act in such case made and provided- 
 Yours, &c., 
 
 EiCHAED Eow, owner, 
 
 By J. Stiles, his attorney. 
 To &c., lienors. 
 
 * See form for owner's notice, under the statute relating to Kings and Queens 
 counties, ante, 929, note. 
 
188 FORMS. 
 
 Complaint by Sub-contractor. 
 No. 7. 
 
 TITLE OF ACTION. 
 
 The claimants, Wood & Mason, as plaintiff (pursuant to 
 an order of this court, made and ehtered herein on the 19th day 
 ■of October, 1873), for their complaint allege : 
 
 1. That at all the times hereinafter mentioned the defend- 
 ant Richard Row was, and still is, the owner of a certain house 
 and lot known as No. on Bast 00th street. New York city, 
 which is hereinafter more fully described. 
 
 2. That on or about the day of , 
 1873, the defendant John Sharp (under the name of John 
 Doe), employed these plaintiffs to perform the carpenter work, 
 and furnish materials (set forth contract) on and about the 
 ■erection or altering or repairing of the building before men- 
 tioned, and that at various times between the 1st day of May, 
 1873, and the first day of September, 1873, these plaintiffs did 
 so furnish carpenter work and materials on and about the 
 •erection (or alteration or repairing) of said building, and that 
 the same was pursuant to an agreement between the said 
 owner and the said John, Sharp. 
 
 3. That on the 30th day of August, in order to perfect a 
 lien upon said premises, these plaintiffs duly filed in the o£&ce 
 of the clerk of the city and county of New York, a notice of 
 lien upon said premises for the indebtedness aforesaid, which 
 notice was duly verified, and specified the amount of plaintiffs' 
 claim as above stated, and how the same accrued, and also 
 specified the defendant Richard Row as the owner of said 
 premises, and stated that the amount of said claim was due to 
 -these plaintiffs from John Doe, who is the same person named 
 herein as John Sharp, and described said buildings by the 
 street number (or otherwise) and as located in the 19th ward of 
 the city of New York. • 
 
 4. That said sum of $5,000 is now due us, these plaintiffs as 
 aforesaid, from said John Doe, alias John Sharp, and interest 
 thereon from September 1st, 1873 ; that payments are due from 
 
FOEMS. IBS' 
 
 said Eichard Eow to said John Sharp, pursuant to contract 
 between them. (See 1 Daly, 61.) 
 
 5. That the following are other liens and incumbrances^ 
 that appear to be upon said premises, and the times when they 
 were perfected : John Sharp, lien filed September 3, 1873, for 
 $2,500, Eichard Eow, debtor ; James Murphy, lien filed Septem- 
 ber .15th, 1873,- for $75, John Sharp, debtor; S. Carpenter, lien 
 filed October 1st, 1873, for $1,350, Wood & Mason, debtors ; T, 
 Drew, mortgage recorded September 14th, 1873, for $7,000, 
 
 6. The following is a description of said premises. 
 
 (State metes and bounds.) 
 
 Wherefore the plaintiffs demand that an accounting be- 
 had between the respective parties herein, and that the amount 
 due to each, and from whom, be ascertained, and that a decree 
 be granted directing the sale of all the right, title and interest 
 which the said Eichard Eow had in and to the said building,, 
 appurtenances and lot, at the time of the filing of plaintiffs' ' 
 lien or any lien thereon as aforesaid, and that out of the pro- 
 ceeds thereof, these plaintiffs be paid the amount of their said 
 lien, together with the interest thereon and costs of this pro- 
 ceeding, and that these plaiutiffs have judgment against said 
 John Sharp for the amount of said claim and interest and 
 costs as aforesaid, and judgment against said Eichard Eow for 
 any sum due from him to said John Sharp, or so much thereof 
 as will b6 sufficient to satisfy plaintiffs' claim against said 
 Sharp and costs of this action, and for such other or further 
 or different relief in the premises as the court shall be compe- 
 tent to grant. 
 
 Atty. for Plffs. 
 
 Wlien Deposit made Complaint sliould conclude as follows : 
 
 No. 8. 
 
 7. That after the notices of liens aforesaid 
 were filed, to wit, on the 1st day of October, 1873, before the 
 commencement of this proceeding, the said Eichard Eow 
 
190 FORMS. 
 
 duly deposited the sum of dollars, the amount of 
 
 the said liens aforesaid, and interest thereon, to the credit of 
 said liens on said premises, with the clerk of the city and 
 county of New York, and said liens were dujy discharfred by 
 a proper entry on the docket of said liens, stating such fact as 
 aforesaid. 
 
 Wherefore the plaintiffs demand that an 'accounting be 
 had between the said Eichard Kow, the owner, and the said 
 defendants, and that the amount due to the respective parties 
 be ascertained, and that the clerk of the city and county of 
 New York be directed to pay to these plaintiffs the amount in 
 his hands, which was depositeji by said Richard Eow to the 
 credit of the said lien of these plaintiffs, and that these plain- 
 tiffs have judgment against said Richard Row and John Sharp 
 for the sum of $5,000 and interest from 
 
 , together with the costs of 
 this proceeding, and for such further or different relief in the 
 premises as the court shall be competent to grant. 
 
 Plffs' Atty. 
 
 Affidavit for Continuance of Lien. 
 No. 9. 
 
 (If made after action commenced, it should be entitled in 
 the action. 
 
 If made before action commenced, it should be entitled : 
 "In the matter of the application for the continuance of 
 the notice of lien of James Sullivan against the premises known 
 and described as 
 
 in New York city, Richard Row, owner," and should be ad- 
 dressed to the court where the application is made.) 
 
 ^ City and County of New York, ss : 
 
 James Sullivan being duly sworn, says : That he is the 
 claimant above mentioned ; that on the day of 
 
 , 1873, he filed (or caused to be filed) 
 
FOBMS. 191 
 
 in the office of the clerk of the city and county of New York, a 
 notice of lien upon certain property in said city, known and 
 described as , for the 
 
 sum of . A copy of said notice of lien is here- 
 
 unto annexed, marked A. 
 
 Deponent further says : That an action to enforce the liens 
 upon said property has been duly commenced, and is now 
 pending in this court, and is still undetermined, and that said 
 notice of lien, if not continued by an order of this court, will 
 expire on the day of , 1873, 
 
 under the statute. 
 
 James. Sullivan. 
 Sworn to before me, &c., ) 
 
 Order Continuing Lien. 
 
 No. 10. 
 
 At a special term of the Court of Common Pleas 
 for the city and county of New York, held in 
 said city on the day of , 
 
 1873. 
 
 Present — Hon. E. L. Laebemgee, Judge, presiding. 
 
 (Title same as in affidavit.) 
 
 On the annexed affidavit of James SuUivan, and on motion 
 of , counsel for said lienor 
 
 above named, it is hereby 
 
 Ordered, That the notice of lien of James SuUivan hereto- 
 fore filed on the day of , 1873, 
 in the office of the clerk of the city and county of New York, 
 for the sum of dollars, upon certain property in said city, 
 known and described as (same as in notice of lien), and owned 
 by Richard Row, be, and the same is hereby continiied and 
 renewed for the period of one year from the entry of this 
 order, unless sooner discharged by judgment, and the said 
 
192 F0BM8. 
 
 clerk of the city and county of New York is hereby directed 
 to make the proper entry of continuance and renewal of said 
 lien upon the lien docket of said lien in his office. , 
 
 (Copy.) N: Jaetis, Jr., 
 
 Clerk. 
 
 Affidavit to Discharge Lien after One Year, and no Action has 
 been commenced to Enforce Liens. * 
 
 No. 11. 
 
 In the matter of the application for the discharge of record of 
 the notice of lien of against th© 
 
 premises described as (same as in notice of Hen) and 
 Eichard Eow, owner. 
 
 To the Court of Common Pleas for the City and County of New 
 York: 
 
 City and County of New York, ss. : 
 
 Eichard Eow, being duly sworn, says that he is the owner 
 of the premises described as (same as in notice of lien) ; that 
 on the day of , 1,873, one , as- claimant, 
 
 filed, or caused to be filed, in the office of the clerk of the city 
 and county of New York a notice of lien upon said property in 
 said city described as 
 
 for the sum of dollars due him from 
 
 A certified copy of said notice of lien is hereunto annexed, 
 marked "A." 
 
 Deponent further says that no action or proceeding haa 
 been commenced, to the knowledge of this deponent, to enforce 
 said lien against said property, and that more than one year 
 has elapsed since the fihng of said notice, and that the same 
 
 * The form of the affidavit of the owner to discharge lien where no proceed 
 ing has been commenced for the enforcement thereof, as required by the owner 
 pursuant to § 7, subd. 4, under the law relating to Kings and Queens counties, 
 may be found ante, 929, note. 
 
FORMS. 193 
 
 has not been continued or renewed by the order of any court 
 or otherwise, to the knowledge of this deponent, and that said 
 lien has expired by lapse of time. 
 
 ElCHAED Eow. 
 
 Sworn to before me, this | 
 day of , I 
 
 Clause in No. 11. — When Money Deposited. 
 
 No. 12. 
 
 Deponent further says that on the day of , 
 
 1873, in order to discharge said lien as against said property, 
 deponent deposited with the clerk of the city and county of 
 New York the sum of dollars, being the amount 
 
 claimed in said notice and interest thereon, and the sum so de- 
 posited by deponent was credited to said hen, and the same 
 was discharged as against said property, and that said sum so 
 deposited is still in the hands of the clerk of the city and 
 county of New York, as deponent has been informed by said 
 clerk, and as appears by his certificate herewith exhibited. 
 
 Order Discharging Lien. — No Action Commenced. * 
 
 No. 13. 
 
 (Title as in preceding affidavit.) At a special term, &c. 
 
 On the annexed affidavit of , and on the cer- 
 
 tificate of the clerk of the city and county of New York, that 
 
 * The form of the proceedings for the dijoharging lien, where no proceeding 
 ^ae been commenced and no affidavit filed of the issuing or service of the sum- 
 mons and complaint in an action for an enforcement of the lien, as required by the 
 owner pursuant to § 7, subd. 4, under the law relating to Kings and Queens coun- 
 tieB, may be found ante, 929, note. 
 13 
 
194 FOBMS. 
 
 more than one year has eliapsed since the filing of the notice of 
 lien mentioned in said affidavit, and that the said lien has not 
 teen continued or renewed by any order of court or otherwise, 
 and that no notice of any proceeding to enforce said lien has 
 been filed with him : now, on motion of , of coun- 
 
 sel for , it is hereby ordered that the notice of hen 
 
 filed by on the day of , 1873, for the 
 
 sum of dollars on the property known and described 
 
 as (same description as in notice of lien) and owned by Eichard 
 Eow be, and the same is hereby, discharged as a lien, and the 
 clerk of the city and county of New York is hereby directed to 
 make the proper entry of discharge of said lien upon the hen 
 docket of "said lien in his office. 
 
 (Copy) N} Jabyis, Je., 
 
 Clerk. 
 
 Clause in No. 13. — When Money Deposited. 
 
 No. 14. 
 
 . And the clerk of the city and county of New York is hereby 
 directed to pay over to (or his attorney or assignee) 
 
 the sum of money now in his hands deposited on the day 
 of , 1873, by said to the credit of said 
 
 lien of , less his fees. 
 
 Petition to Se Made Party. 
 
 No. 15. 
 
 In the matter of the petition of C D , to be made 
 
 a< party defendant in a proceeding now pending in this 
 
 court in Mechanics' Lien proceedings, in which A « 
 
 B is plaintiff, and F G and others de- 
 fendants. 
 
FOBMS. ' 195 
 
 To the Court of Common Pleas for the City and County of New 
 
 York : 
 
 The petition of your petitioner, C • — D , shows 
 
 to this court : That a proceeding is now pending in this court 
 
 by A B , plaintiff, against F G and 
 
 others, defendants, for the enforcement and accounting of me- 
 chanics' liens filed upon certain property (describe same as in 
 the notice of lien), which proceeding your petitioner is informed 
 and believes (is at issue but) has not proceeded to judgment. 
 
 That Y Z was a sub-contractor and employed 
 
 by your petitioner to do certain work upon said property at 
 
 a certain sum therefor ; that said T Z abandoned 
 
 the work and did not complete the same as he agreed, and 
 claims more than he is entitled to for his work under said 
 contrfCct. 
 
 Wherefore your petitioner prays that he may be made a 
 party in said proceeding and may be allowed to defend against 
 
 the claim of said T Z , and that he may have such 
 
 other relief as may be just. 
 
 (Signature.) 
 Dated , 1873. 
 
 (Verification as stated, ante, 170.) 
 
 Order Making Party Defendant. 
 No. 16. 
 
 s 
 
 At a special term, &c. 
 
 (Title of action.) 
 
 On reading and filing the petition of C D, dated the 
 day of , 1873, and on motion of O P for said D, 
 
 and after hearing Q E in opposition, it is hereby 
 
 Ordered that C D be made a party defendant herein, and the 
 complaint be amended accordingly (and that the plaintiff have 
 leave to amend them in other respects as he may be advised) ; 
 
196 ' FOEMS. 
 
 and that on said C D causing a notice of appearance for him- 
 seH herein to be given to plaiatiff's attorney withia five days 
 from the service of this order; a copy of the complaint as 
 amended be served upon his attorney v?ithin ten days there- 
 after, and the said proceeding thereupon proceed in the same 
 manner as if said C D had been originally made a party herein. 
 
 Affidavit to obtain Summons under § 5. 
 
 No. 17. 
 
 (Title of cause.) 
 State, City and County of New York, ss. : 
 
 T F, being duly sworn, saith, that he is attorney for the plain- 
 tiff in above entitled proceedings ; that the same is now pending 
 for the purpose of the enforcement and accounting of mechan- 
 ics' liens filed against the property known (describe as in notice 
 of lien) in New York city and is owned by the defendant, H J, 
 and that issue has been joined and the same has been referred 
 to Thomas H. Landon, Esq., to hear, try and determine all tho 
 issues therein ; that since the commencement of the said pro- 
 ceedings herein, one T S, on the day of September, 1873,. 
 filed in the oflBce of the clerk of the city and county of New 
 York a notice of lien agaiast the said property for the sum of 
 $500, which he claimed to be due him from G H, and depoaent 
 believes that it is necessary and proper that said T S have no- 
 tice of this proceeding, pursuant to law. 
 
 Sworn to before me, ) 
 
POBMS. 197 
 
 SummoTis under § 5. 
 
 No'. 18. 
 
 (Title of cause.) 
 
 . Tou are hereby summoned to appear before Thomas H. 
 Landon, Esq., referee in above entitled proceeding, on the 
 day of September, 1873, at 2 o'clock p. m., at the clerk's office 
 of the Court of Common Pleas, in the Court House, New York 
 city, and show cause why you should not be bound by any 
 judgment that may be rendered in the above entitled proceed- 
 ings, which are now pending in the matter of the enforcement 
 and accounting of mechanics' lien filed against the property 
 (describe as in .notice of hen), in the same manner as if you had 
 been originally notified thereof, and if you fail to show cause 
 as aforesaid, or to serve notice of your claim against 
 
 , debtor, under a notice of lien filed by you on said 
 property on the day of September, 1873, for the sum of 
 
 five hundred dollars, and then appear to estabhsh the same, 
 you will be bound by the judgment to be rendered therein. 
 
 E. L. Laebemoke, 
 
 Judge N. T. 0. P. 
 Dated Sept. 
 ToTS. 
 
 Notice' under §§ 4 and 5. 
 
 No. 19. 
 
 (Title of cause.) 
 
 To T8: 
 
 You are hereby notified to appear before Thomas H. Lan- 
 don, Esq., referee in above entitled proceeding, on the day 
 
 of September, 1873, at 2 o'clock p. M., at the clerk's office of 
 the Court of Common Pleas in the Court House, New York city, 
 pursuant to the summons and complaint herewith served upon 
 
198 FOEMS. 
 
 you pursuant to § 5 of the Act of 1863, relating to proceedings 
 in the enforcement of mechanics' liens. 
 
 And in default thereof, you* will be bound by the Judgment 
 to be entered in said proceeding. 
 
 T. F., 
 
 Plff's Atty. 
 Dated New York, Sept., 1873. 
 
 Order Bringing in Necessary Fariy. 
 
 No. 20. 
 
 At a special term, &c. 
 (Title of the cause.) 
 
 This cause coming on to be tried, and it appearing to the 
 court that the presence of H F is necessary to a complete de- 
 termination of the controversy, it is hereby 
 
 Ordered that the complaint in this action be amended by 
 the addition of H F as a defendant therein ; that the plaintiff 
 cause the said H F to be duly served with a copy of the said 
 complaint as so amended, and further amended if he be so ad- 
 vised within ten days after. the service of this order; that the 
 said H F have ten days to answer the complaint after such 
 service, and that the trial of this cause be postponed until the 
 action is in readiness to be brought to trial against said H F. 
 
 BiR of Particulars. 
 
 No. 21. 
 
 (Title of cause.) 
 
 Take notice that the following is the bill of particulars 
 of the claim of against , debtor, and 
 
FOBMS. 
 
 199 
 
 the property (describe as in notice of tlie pleading) * owned by 
 , as claimed in above entitled aption : 
 
 (If the pleading or claim which it represents is verified, 
 the bin of particulars should be verified.) 
 
 County Clerk's Certificate. 
 
 No. 22. 
 
 County Coiek's Ofi'ice, ) 
 City and County of New York, | ^^- " 
 
 William Wood and John Mason, 
 Claimants, 
 
 against 
 John Doe. 
 
 I, Charles E. Loew, clerk of the county of New York, do 
 hereby certify that the mechanics' lien for $5,000 dollars filed 
 in my office on the day of , 1873, by William 
 
 Wood and John Mason, claimants, against John Doe, debtor? 
 
 * See good form of Bill of Particulars in Donnelly vs. lAhhy, 1 Sweeny, 259. 
 
 Where work has been done or materials furnished on several different 
 houses under one contract, the bill of particulars should show the particular house 
 where any such work or materials were furnished. It may be necessary to fur- 
 nish a separate bill of particulars as to each house. (See ante, 665, 666.) 
 
200 FOBMS. 
 
 against property situated on tlie south side of East 00 street* 
 commencing about 60 feet easterly from the south-east corner 
 of 5th avenue and East 00 street, known as No. (or No. 
 unlmown), running easterly 25 feet was discharged on the 
 day of , 1873. 
 
 Clause in No. 22. — When Money Deposited. 
 No. 23. 
 
 It should continue as follows : by the deposit of the amount 
 of the claim in the notice of lien, and interest thereon, with the 
 county clerk, and that the amount so deposited is still in the 
 custody of said clerk, credited to said lien. 
 
 Clause. — When Lien has been Continued by Order of the Court. 
 
 No. 24. 
 
 And further, that an order of the Court of 
 dated , 1873, continuing said lien, was filed June 
 
 , 1873. 
 
 (See ante, 567.) 
 
 Clause When Lien has Expired by Limitation. 
 No. 25. 
 
 That more than one year has elapsed since the filing of 
 said notice of lien, and that no order has been filed requiring 
 the same to be continued, and that no entry of the continuance 
 of said lien has been made on the docket thereof. 
 In witness whereof, &o. 
 
 [L. S.] f 
 
FORMS. 201 
 
 Referee's Beport on the Issues of Fact. 
 
 No. 26. 
 
 (Title of Cause.) 
 
 To tlie Court of Common Pleas of the City and County of New 
 York: 
 
 I, Thomas H. Landon, to whom (by an order of said 
 court, entered on the day of September, 1873) the issues 
 
 in the above entitled action was referred, to hear, try and de- 
 termine the same and report to this court, do now respectfully 
 report : 
 
 That I have bepn attended by the lienors (naming them) 
 and their respective counsel, and have also been attended by 
 , the alleged contractor and his counsel, and by 
 , the alleged owner and his counsel, and having 
 heard the several allegations, claims, proof and arguments of 
 said lienors and claimants and alleged owner, and having duly 
 considered the same, I find, as matters of fact : 
 
 First. — That the defendant Eichard Eow, at the several 
 times hereinafter mentioned, was the owner of the premises 
 and house then in course of, or in contemplation of, erection, 
 known as No. street, in the city and county of New 
 
 York, and that he employed the defendant, John Sharp, as con- 
 tractor to do thereon, among other things, the certain work by 
 the lienors and claimants specified, to wit (furnished a large 
 quantity of lumber, stone and lime, and masons' labor and car- 
 penters' labor thereon) ; and that said Sharp, in accordance 
 with the terms of said contract with said owner, employed the 
 defendant , as sub-contractor, to do, among other 
 
 things therein, the certain work (or furnish materials) herein- 
 after mentioned. 
 
 Second. — That the said 'afterwards engaged 
 
 on or before the September, 1873, to do certain car- 
 
 penter work (or furnish lumber or other material) upon and 
 about said house and premises, in accordance with and pursu- 
 ant to the terms of said contract with said the 
 owne^ and the contractor, and 
 the STO-contractor. 
 
202 FOBMS. 
 
 Third.— That on the day of September, 1873, the 
 
 claimant personally commenced said carpenter 
 
 work (or furnished material) Upon said house as aforesaid, and 
 continued the same up to the day of 1873, and 
 
 during said time worked days, which said work was woTth 
 
 and of the value of three dollars and fifty cents per day, 
 amounting in aU to the sum of 
 
 (Where there are successive liens by the contractor, sub- 
 contractor, workman, person or persons furnishing materials, 
 and of a number of liens in favor of different persons, the find- 
 ings of fact must be specific as to the nature and kind of labor 
 and materials furnished, so that they may be marshalled under 
 § 3, or otherwise. See anie, 665, 666, 667.) 
 
 Fourth.— That on the day of 1873, at 11 o'clock, 
 
 50 minutes, A. M.,* a notice of lien was duly filed in the office 
 of the clerk of the city and county of New York, in the name 
 of as claimant, against the said 
 
 as debtor, and against the premises hereinafter described, and 
 said as owner, for the sum of doUars, 
 
 a copy of which said notice, and the endorsement thereon, is 
 hereunto annexed, marked A. 
 
 The following is a description of said premises : 
 
 v.; Clause — When Money Deposited. 
 
 No. 27. 
 
 Fifth. — That before the commencement of these proceed- 
 ings (or after the commencement of these proceedings, pursu- 
 ant to an order of this court, duly entered on the day of 
 1873), the said , on the day of 
 1873, duly deposited with the clerk of the city 
 and county of New Tork the sum of , to the credit 
 of said lien of , and said lien was thereupon duly 
 discharged as a lien upon said premises, by a proper entry 
 made on the docket of said lien, stating such fact of said 
 deposit 
 
 * The hour and minute of the filing of the notice may be very important. It 
 Tvas in Quimby vs. Sloan, 2 E. D. 8., 594. 
 
FOEMS. 203 
 
 Clause — When Lien has been continued by order of the Court. 
 
 No. 28. 
 
 Sixth. — That on the day of , 1873, said hen of 
 
 was duly contintied for one year, by an order of court, and the 
 proper entry made on the docket thereof, on that day, stating 
 such fact, and that the same is now a valid and subsisting lien 
 upon said property (or the sum of money so deposited as afore- 
 said, and now in the hands of the clerk of the city and county 
 of New York). 
 
 Clause — When more than one year has elapsed sin^e the filing of 
 the lien, and the same has not been continued by order of the 
 Court. 
 
 No. 29. 
 Seventh. — That more than one year has elapsed since the 
 filing of said notice of lien, and that said lien has not been con- 
 tinued by the order of the court, and that an entry of the con- 
 tinuance of said lien has not been made on the docket of said 
 lien. 
 
 Clause — In favor of Owner and against Contractor. 
 
 No. 30. 
 
 That at the time of the filing of the notice of lien by said 
 
 as aforesaid, the said , pwner, had paid 
 
 , his contractor, the sum of doUars, in full 
 
 for the matters set forth by the claimant herein, and that said 
 
 property should be exempt from said lien. 
 
 Clause — Against Contractor. 
 
 No. 31. 
 
 That the defendant , the contractor (or sub- 
 
 conj;raetor), is indebted to the claimant 
 
 for the work (or materials furnished), pursuant to said 
 
 contract with the said the contractor 
 
 (or sub-contractor), in the sum of dollars. 
 
204: FORMS. 
 
 CJatise against Owner and Contractor. 
 
 No. 32. 
 
 Eighth. — That at the time of the "filing of said notice of 
 lien the sum of dollars was due (or has since become 
 
 due, or state when it will be due) from , the owner, 
 
 to , his contractor, and that the sum of dollars 
 
 is now due (or state when it will be due) from , the 
 
 ■contractor, to , the claimant, for the work (or materials 
 
 furnished), pursuant to such contract with the said owner as 
 aforesaid, and pursuant to said contract with , the 
 
 contractor as aforesaid, no part of which last mentioned sum 
 has been paid. 
 
 Mefere^s Report as to Conclusions of Law. 
 
 No. 33. 
 
 I find, as matter of law : 
 
 First. — That the claimant is entitled to a judg- 
 
 ment against said , the owner, for the sum of 
 
 ■doUars, being the amount due , his contractor, and 
 
 the interest thereon from , amounting in aU to the 
 
 sum of dollars, and that said , the claimant, 
 
 is entitled to a judgment against , his contractor, 
 
 for the sum of dollars, and interest thereon from , 
 
 amounting in all to the sum of dollars, and that , 
 
 the claimant, have judgment against , for his costs 
 
 in this proceeding. 
 
 Clause, Adjusting Lien. 
 
 No. 34. 
 
 Second. — That by filing the notice of lien hereinbefore de- 
 scribed, the said acquired a valid lien upon aU the 
 right, title and interest which said had, on the 
 <3ay of , 1873, in and to the premises hereinbefore 
 
FOBMS. 205 
 
 described, and that said lien is still valid and subsisting upon 
 said premises, to the said extent, for the amount of the judg- 
 ment herein against the owner, and that said interest of , 
 the owner, be sold, according to law, to satisfy this judgment. 
 
 Clause — Where Lien has Expired. 
 
 No. 35. 
 
 Where the lien has expired by limitation while the pro- 
 ceedings are pending, it should continue as follows, as a con- 
 clusion of law : 
 
 ■ Second. — Ttat by filing the notice of lien hereinbefore 
 described, the said acquired a valid Heu upon alt 
 
 the right, title and interest which said had on the 
 
 day of , 1873, at 11 o'clock, 50 minutes, A. m., in 
 
 and to the premises hereinbefore described, but that said lien 
 expired at the expiration of one year from the filing thereof^ 
 and is not now a lien upon said premises. 
 
 Clause — Where Claims are Marshaled. 
 No. 36. 
 
 Where there are successive liens by the contractor, sub- 
 contractor, workman, person or persons furnishing materials, 
 and of a number of liens in favor of dififerent persons, the con- 
 clusions of law should marshal them according to § 3 {Ante^ 
 671), and be as follows, as conclusions of law : 
 
 Third. — That the said claims should be paid out of the 
 proceeds of the sale of said property as aforesaid, in the fol- 
 lowing order : 
 
 First. — ^Amount of the said judgment and costs in favor 
 of John D, &c. 
 
 Second. — Amount of the said judgment and costs in fa,vor 
 of, &c. 
 
 (Date of report.) 
 
206 FOEMS. 
 
 Judgment. 
 
 No. 37. 
 
 At a special term, &c.,* 
 (Title of the cause.) 
 
 The proceedings herein having been taken by 
 
 for an accounting and fore- 
 closure of the various notices of liens filed.^sunder the act en- 
 titled "Anact, &c., passed May .5th," 1863, relating to me- 
 chanics' liens, and issue having been joined between the 
 xespective parties thereto, and the same having, by order dated 
 been referred to Thomas H. Landon, as sole 
 referee, to hear, try and determine the issues and rights of -the 
 respective pasties herein, and he having duly made his report, 
 containing his findings of fact and conclusions of law, said 
 report bearing date , and the same having 
 
 been filed (or being herewith presented to the court), by which 
 it appears that is entitled to judgment 
 
 against , the contractor, for the sum of 
 
 dollars, and his costs herein, and that on the day of 
 
 , 1873, at 11 o'clock, 50 minutes, A. M., 
 the said duly acquired 
 
 a vaHd hen upon all the right, title and interest which the 
 said , the owner, had in and 
 
 to the premises hereinafter described, and that said lien is still 
 valid and subsisting upon said premises to the said extent for 
 the amoimt of the judgment against , 
 
 the owner, and that said interest of , 
 
 the owner, be sold according to law to satisfy the judgment 
 against , the ovmer and 
 
 contractor. 
 
 The following is a description of said premises. 
 
 Now on motion of attorneys for 
 
 It is ordered and adjudged, &c., 
 
 * The usual form of the caption as to the term and date of the judgment 
 should be according to the fact. (See Bowman vs. Tollman, 28 Mow., 482 ; Wilson 
 YS. Henderson, IS^oai., 90; Crawford ys. Wilson, 4 Sarb., BOi; Rochester Bank 
 vs. Mnerson, 10 Paige, 115, do. 359; Hancock va. Hancock, 22 JV. Y., 568.) 
 
FOEMS. 207 
 
 Clause — For. Personal Jvdgmerd against Ovmer or Contractor 
 or Svi-contr actor. 
 
 No. 38. 
 
 Recite first conclusion of law, as stated in the findings 
 and the disposition therein of the question of costs. 
 
 Clause — In Judgment, of Lien against Specific Property. 
 No. 39. 
 
 It is further adjudged that all the right, title and interest 
 which had in and to the 
 
 premises hereinafter described on the day of , 
 
 1873, at 11 o'clock, 50 minutes, A. m., the time of the filing of 
 the notice of lien thereon, as Before mentioned, be sold accord- 
 ing to law, and that the proceeds arising therefrom be applied 
 to the payment of the judgment herein as follows (then recite ' 
 these conclusions of law in findings), and that 
 have execution for the deficiency remaining unpaid upon said, 
 judgment.* 
 
 Clause — When Money Deposited. 
 
 No. 40. 
 
 It is further ordered and adjudged that the clerk of the 
 city and county of New York pay over unto said 
 or his attorney herein, the sum of dollars, and the iaterest 
 
 thereon, less his fees, the sum standing to the credit of said 
 
 , against the property situated on the 
 (give description of property.) 
 
 * For form of judgment containing full directions to the sheriff, see ante, 735, 
 and 844 note. 
 
■208 roEMS. 
 
 (jlame — When Money Deposited and Judgment against Owner or 
 
 Contractor. 
 
 No. 41. 
 
 And that the sum so paid over be credited upon the amount 
 of the said judgment herein in favor of said 
 and that for the balance remaining due said 
 from , as aforesaid, the said 
 
 have execution for the deficiency unpaid upon said judgment. 
 
 Clause-i-In favor of Owner. 
 
 No. 42. 
 
 It is adjudged that the premises herein described (or 
 money deposited thereon), be, and hereby is exempt from the 
 <3laim and the notice of lien filed in the office of the clerk of the 
 ■city and county of New York, on the day of 
 1873, by , against 
 
 debtor, for the sum of , against the property (describe 
 
 a& in notice of lien), and the clerk of the city and county of 
 New York is hereby directed to make the proper entry on the 
 •docket of said hen in accordance herewith. 
 
 Directions to Sheriff, to be endorsed on certified, copy of Decree, 
 containing directions of sale, &c.* 
 
 No. 43. 
 
 To the Sheriff of the City and County of New York : 
 
 You are hereby required to enforce the within judgment 
 against the property as within specified and directed, and to 
 make a return thereon, with a report of your proceedings 
 
 * See form of such a decree, ante, 736 note. 
 
FORMS. 209 
 
 thereon, to the clerk of the (Court of Common Pleas for the 
 city and county of New York) with all convenient speed. 
 Dated New York, September, 1873. 
 Yours, &c., 
 
 T -S, • 
 
 Atty. for 
 
 Execidion against the Specific Property covered by one or more 
 
 Liens. 
 
 No. 44. 
 
 The People of the State of New York to the Sheriff of the City 
 
 and County of New York, greeting : 
 
 Whereas, judgment was rendered on the day of 
 
 , 1873, in an action in the Court of Common 
 Pleas for the city and county of New York in certain proceed- 
 ings between owner, and , 
 contractor, and various claimants to enforce' liens filed under 
 the sta'tute against , debtor, and against 
 the building (describe as in notice of lien), in the city and 
 county of New York, and the lot of land and the appurtenances 
 to the same, which said lot and premises are bounded and 
 described as follows : 
 
 (Describe property by metes and bounds.) 
 
 And whereas, said was adjudged to be the 
 
 owner of said building and premises at the time of perfecting the 
 lien of , on the day of , 
 
 1873, at 11 o'clock and 50 minutes A. M., and the sum of 
 dollars, was adjudged to be due said ' , claimant, 
 
 from , his contractor, for work as car- 
 
 penter and joiner in erecting the building aforesaid, and the 
 sum of was adjudged to be due from 
 
 the owner, to , the said contractor, in 
 
 erecting the said building, aU of which will more fully appear 
 by the judgment roll herein, which was filed in the office of the 
 clerk of the said Court of Common Pleas on the day of 
 
 , 1873. 
 
210 FOBMS. 
 
 And whereas, the said judgment was docketed in the office 
 of the clerk of the city and county of New York, on the 
 day of , 1873, and the sum of dollars with 
 
 interest thereon from , is now actually due 
 
 upon said judgment. (The hen of each person as adjudged in 
 the decree must be set forth in the preceding manner.) 
 
 Therefore we command you that you sell all the Tight, 
 title and interest which the said , owner 
 
 as aforesaid, had in and to the building and premises above 
 mentioned at the .time of the filing of the notice of Hen of 
 
 , to wit, on the day of , 
 
 1873, at 11 o'clock and 50 minutes A. m. And that you sell the 
 right, title and interest, &c. (the same as the judgment as to 
 each lien.) 
 
 And that out of the proceeds of said sale that you satisfy 
 the amount of the judgment of 
 
 (Set forth the distribution of the proceeds as directed in 
 the judgment.) 
 
 That if any amount of said judgment remain unpaid, that 
 you satisfy the said judgment out of the personal property of 
 said judgment debtor, within your county, or if sufficient per- 
 sonal property cannot be. found, then out of the real property 
 in your county belonging to such judgment debtor on the day 
 when the said judgment was so docketed in your county, or at 
 any time thereafter, in whose hands soever the same may be, 
 ' and return this execution, within sixty days after its receipt by 
 you, to the clerk of the said Court of Common Pleas. 
 
 Witness, Hon. C. P. Daly, Chief Justice of said 
 Court of Common Pleas, at the Court House in 
 New York city, the day of , 1873. 
 
 Atty. for 
 
TABLE OF LIEN CASES CITED IN THIS VOLUME* 
 
 A, 
 
 -Uen vs. Carman, 1 E. D. S., 692. 
 
 Althause vs. Warren. ' 2 E. D. S., 657. 
 
 Anderson vs. Dillaye, 47 N. T., 678. 
 
 B< 
 
 ► alley vs. Johnson, 1 Daly, 61. 
 
 Barton vs. Hermann, 3 Daly, 320. 
 
 s. c, 8 Abb.,N. S., 399. 
 11 Abb., N. S., 378. 
 Bandon, &c., vs. Co. Judge Eens., 13 How., 398. 
 Beals vs. Cong, B. J., 1 E. D. S., 654. 
 
 Belmont vs. Smith, 1 Duer, 675. 
 
 s. c, 11 Leg. Ob., 216. 
 Berry vs. Weisse, 2 E. D. S.-, 662. 
 
 Blauvelt vs. Woodworth, 31 N. T., 285. 
 
 Brien vs. Clay, 1 E. D. S., 649. 
 
 Brinkerhoff vs. Bd. of Education, 6 Abb., N. S., 418. 
 
 s. c, 37 How., 499. 
 2 Daly, 443. 
 Broderick vs. Poillon, 2 E. D. S., 554. 
 
 do, vs. Boyle, 1 Abb., 319. 
 
 Butler vs. Magie, 2 E. D. S., 654. 
 
 * This table of cases includes all up to and in the following reports : 50 If. 
 Y. ; 45 Himard ; 6 Lansing ; 1 Robertson ; 2 Bweeny ; 1 Jones & Spencer / 63 
 Barber ; 2 Abb. Ot. of Appeals cages ; and nearly every one included in 4 Daly and 
 14 Abb., JV. S. 
 
212 
 
 TABLE OF LIEN CASES. 
 
 c 
 
 arman vs. Mclncrow, 
 
 Oonnon vs. Van Wagner, 
 Carpenter vs. Jacques, 
 Carroll vs. Coughlin, 
 
 Chamberlain vs. O'Connor, 
 
 Chapin vs. Stewart, 
 Collins vs. Ellis, 
 Conklin vs. Wood, 
 Copley vs. O'Neill, 
 
 Cox vs. Broderick, 
 Cremin vs. Byrnes, 
 Cronks vs. WMttacker, 
 Cronkright vs. Thomson, 
 Crystal vs. Plannelly, 
 Cunningham vs. Jones, 
 
 Cusack vs. TomUnson, 
 
 D. 
 
 'evlin vs. Mack, 
 Dennistoun vs. McAllister, 
 Dixon vs. LaFarge, 
 Donaldson vs. Wood, 
 Donaldson vs. O'Connor, 
 Donnelly vs. Libby, 
 Doughty vs. DevHn, 
 Dressel vs. French, 
 Duffy vs: McManus, 
 
 do Brady, 
 
 Dunning vs. Clark, 
 
 E 
 
 agleson vs. Clark, 
 
 Empire Dressing Co. vs. Pick- 
 ering, 
 Ernst vs. Eeed, 
 
 2 B. D. S., 684. 
 s. c, 13 N. Y., 70. 
 2 E. D. S., 590. 
 
 2 E. D. S.. 571. 
 
 3 Daly, 179. 
 
 s. c, 7 Abb., N. S., 72. 
 
 1 E. D. S., 665. 
 s. c, 8 How., 45. 
 
 Ante, p. 33. 
 
 21 Wend., 397. 
 
 3 E. D. S. 662. 
 39 How., 41. 
 
 s. c. 57 Barb., 299. 
 s. c. 1 Lansing, 214. 
 
 4 E. D. S., 721. 
 4 E. D. S., 756. 
 1 E. D. S., 647. 
 
 1 E. D. S., 661. 
 
 2 E. D. S., 583. 
 
 3 E. D. S., 650. 
 s. c, 4 Abb., 433. 
 
 IE. D. S., 716 
 
 2 Daly, 94. 
 
 4 E. D. S., 729. 
 1 E. D. S., 722. 
 
 22 Wend, 395. 
 1 E. D. S., 595. 
 1. Sweeny, 259. 
 
 1 E. D. S., 625. 
 7 How., 350. 
 
 3 E. D. S., 657. 
 s. c, 4 Abb., 432. 
 
 2 E. D. S., 535. 
 
 2 E. D. 8., 644. 
 s. c, 2 Abb., 364. 
 
 Nott's Lien Law, p. 44. 
 49 Barb., 368. 
 
TABLE OP LIEN CASES. 2l3 
 
 F, 
 
 erguaon vs. Burke, 4 E. D. S., 760. 
 
 Fettrech vs. Totten, 2 Abb., N. S., 264. 
 
 Foley vs. Alger, 4 B. D. S., 719. 
 
 Foley vs. Gougb, 4 E. D. S., 724. 
 
 Foster t;s. Poillon, 2 E. D. S., 556. 
 
 1 Abb., 321. 
 
 Foster vs. Skidmore, 1 E. D. S., 719. 
 
 Freeman vs. Arment, 5 Leg. Ob., 381. 
 
 Freeman vs. Cram, 3 N. Y., 305. 
 
 Gts 
 
 ay vs. Brown, 1 E. D. S., 725. 
 
 Gillen vs. Hubbard, 2 Hilt., 303. 
 
 Gourdier vs. Thorp, 1 E. D. S., 697. 
 
 Graff vs. Eosenberg, 6 Abb., N. S., 428, note. 
 
 Grant vs. Vandercook, 57 Barb,, 165. 
 
 Gridley vs. Eowland, 1 E. D. S., 670. 
 
 Grogan vs. McMahon, 4 E. D. S , 754. 
 
 " vs. Eaphael, s. c, 6 Abb., 306. 
 
 Grogan vs. The Mayor, 2 E. D. S., 693. 
 
 H. 
 
 .aU vs. Lamb, 3 Lansing 134. 
 
 Hallahan vs. Herbert, 2 Daly, 253. 
 
 11 Abb., N. S., 326. 
 4 Daly, 209. 
 Haswell vs. Goodchild, 12 Wend., 373. 
 
 Hatch vs. Coleman, 29 Barb., 201. 
 
 Hauptman vs. Catlin, 1 E. D. S., 729. 
 
 4 Abb., 472. 
 s. c, 3 E. D. S., 666. 
 affd., 20 N. T., 247. 
 Hauptman vs. Halsey, 1 E. D. S., 668. 
 
 Hazard Powder Co., vs. Byrnes, 12 Abb., 469. 
 
 s. c. 21 How., 189. 
 Henderson vs. Sturgis, 1 Daly, 3^6. 
 
 Heroy vs. Hendricks, 4 E. D. S., 768. 
 
 Hoyt vs. Miner, 7 Hill, 525. 
 
 HubbeU vs. Schreyer, 14 Abb., N. S., 284. 
 
 4 Daly, 362. 
 Huxford vs. Bogardus, 40 How., 94. 
 
214 I'ABLE OF LIEN CASES. 
 
 fj aekson vs. Sloan, 2 E. D. S., 616. 
 
 2 Abb., 104. 
 Jaques vs: Morris, 2 E. D. S., 639. 
 
 K. 
 
 .aylor vs. O'Connor, 1 E. D. S., 672. 
 
 Kennedy vs. Paine, 1 E. D. S., 651. 
 
 Kirby vs. Daly, 45 N. T., 84. 
 
 Knapp vs. Brown, 45 N. Y., 207. 
 
 s. c. 11 Abb., N. S., 118. 
 Ante, p. 31. 
 
 J^ehretter vs. Koflfman, 1 E. D. S., 664. 
 
 s. c, 1 Code, Eep., N. S., 284. 
 Lennox vs. TorkviUe Bap; Ch., 2 E. D. S., 673. 
 Linn vs. O'Hara, 2 E. D. S., 560. 
 
 Livingston vs. Mildrum, 19 N. T., 440. 
 
 Livingston vs. Miller, 16 Abb., b71. 
 
 Loonie vs. Hogan, . 2 E. D. S., 681. 
 
 s. c, 9 N. Y., 435. 
 12 Leg. Ob., 225. 
 Lowber vs. Childs, 2 E. D. S., 577. 
 
 s. c, 1 Abb., 415. 
 Lutz vs. Ey, 3 E. D. S., 621. 
 
 3 Abb., 473. 
 Lyncb vs. Cashman, 3 E. D. S., 660. . 
 
 M 
 
 altby vs. Green, 1 Keyes, 548. 
 
 3 Abb., Ot. App., 144. 
 MandeviUe vs. Eeed, 13 Abb., 173. 
 
 Mathews vs. Daly, 38 How., 382. 
 
 7 Abb., N. S., 379. 
 
 3 Daly, 214. 
 Maxey vs. Larkin, 2 E. D. S., 540. 
 
 Meeban vs. Williams, 36 How., 73. 
 
 s. c. 2 Daly, 367. 
 Meyers vs. Seebald, 11 Abb., N. S., 326. 
 
 MUler vs. Clark, 2 E. D. S., 543. 
 
TABLE OF LIEN OASES. 
 
 215 
 
 Miller vs. Moore, 
 
 Miner vs. Hoyt, 
 
 Monteith vs. Evans, 
 Moore vs. Mausert, 
 Muldoon, vs. Pitt, 
 Mushlitt vs. Silverman, 
 McAuIey vs. Mildrum, 
 McBride vs. Crawford, 
 McDermott vs. Palmer, 
 
 McGuckin vs. Coulter, 
 
 McGuckin vs. Coulter, 
 McMakon vs. Tenth- Ward, 
 McMullen vs. Chester, 
 McSorley vs. Hogan, •■% 
 
 Nc 
 
 olan vs. Gardner, 
 Noye,s vs. Burton, 
 
 o 
 
 'Donnell vs. Rosenberg, 
 Gates vs." Haley, 
 Ogden vs. Bodle, 
 Ombony vs. Jones, 
 
 Otis vs. Cusack, 
 Owens vs. Ackerson, 
 
 1 E. D. S., 739 & 747. 
 12 Leg. Ob., 53. 
 
 4 Hill., 193. 
 Affid. 7 Hill., 525. 
 
 3 Sandf., 65. 
 
 5 Lans., 173. 
 
 4 Daly, 105. 
 50 N. Y., 360. 
 1 Daly, 396. 
 
 1 E. D. S., 658. 
 
 2 E. D. S., 675. 
 s. c, 8 N. ¥., 383. 
 
 revg., 11 Barb., 9. 
 
 1 Jones & S., 824. 
 10 Abb., N. S.. 128. 
 1 Jones & S. 328. 
 &c., 12 Abb., 129. 
 
 1 Daly, 401, note. 
 
 1 Code^ E. N. S., 285.' 
 
 4 E. D. S., 727. 
 29 Barb, 631. 
 s. c, 17 How., 449. 
 
 14 Abb., N. S., 59. 
 
 1 Daly, 338. 
 
 2 Duer, 611. 
 21 Barb., 520. 
 
 affid., 19 N. Y., 233. 
 43 Barb., 546. 
 
 1 E. D. S., 691. 
 s. c, 8 How., 199. 
 
 L aine vs. Bqnney, 4 E. D. S., 734. 
 
 less fuU, 6 Abb., 99. 
 Pendleburg vs. Meade, 1 B. D. 8., 728. 
 
 People ex rel Bendon, vs. Co. Judge R., Co. 18 How., 398. 
 Pike vs. Irwin, 1 Sandf., 14. 
 
216 
 
 TABLE OF LIEN CASES. 
 
 Poillon VS. The Mayor., &o., 
 Pollock vs. Elile, 
 Porschke vs. Kedenberg, 
 Protective Union vs. Mxon, 
 
 47 N. Y., 666. 
 2 E. D. S., 541. 
 6 Abb., N. S., 172. 
 1 E. D. S., 571. 
 
 Q 
 
 nimby vs. Sloan, 
 
 Quinn vs. The Mayor, &c., 
 " vs. Oliff, 
 
 XVandolph vs. Foster, 
 
 Randolph vs. Garvey, 
 
 Randolph vs. Leary, 
 
 Rafter vs. Sullivan, 
 Reynolds rs. Hamil, 
 Roberts vs. Fowler, 
 
 RoUin vs. Cross, 
 Rudd vs. Davis, 
 
 s 
 
 chafer vs. Reilly, 
 Schaettler vs. Gardiner, 
 
 Schneider vs. Holbein, 
 Sinclair vs. Fiteh, 
 Spaulding ;;.s. King, 
 
 Spencer vs. Barnett, 
 Spratt vs. Nicholson. 
 Stone vs. Smith, 
 Stuyvesant vs. Browning, 
 Sullivan vs. Brewster, 
 
 2 E. D. S., 594. 
 s. c, 2 Abb., 93. 
 
 2 E. D. S., 558. 
 1 Abb., S2A. 
 
 3 E. D. S, 648. 
 s. c, 4 Abb., 262. 
 
 10 Abb., 179. 
 19 How., 505. 
 3E.D. 8., 637. 
 
 4 Abb., 205. 
 13 Abb., 262. 
 
 1 Code, R. N. S., 230. 
 3^. D. S., 632. 
 s. c, 4 Abb., 263. 
 45 N. Y., 766. 
 1 Hill., 277. 
 
 3 Hill, 287. 
 affd., 7 Hill 529. 
 
 50 N. Y., 61. 
 4i How., A4:3. 
 
 4 Daly, 56. 
 on app., 47 N. Y., 404. 
 
 41 How., 282. 
 
 3 E. D. S., 677. 
 
 1 E. D. S., 717. 
 s. c, 12 Leg. Ob., 186. 
 
 35 N. Y., 94. 
 3 Daly, 186. 
 
 3 Daly, 213. 
 
 1 Jones & S., 203. 
 
 1 E. D. S., 681. 
 s. c, 8 How., 207. 
 
TABLE OF LIEN CASES. 
 
 217 
 
 Sullivan vs. Decker, 
 
 Suydam vs. Hoi den, 
 Smitli vs. Coe, 
 
 Smith vs. Corey, 
 
 Smith vs. Ferris, 
 Smith vs. Manice, 
 
 1 E. D. S., 681. 
 12 Leg. Ob., 109. 
 11 Abb., N. S., 329. 
 
 2 Hilt., 364. 
 ,., 29 N. Y., 666. 
 
 3 E. D. S., 642. 
 less full, 4 Abb., 208. 
 
 1 Daly, 18. 
 
 1 Code, E. N. S., 283. 
 
 . eaz vs. Chrystie, 
 
 Telfer vs. Kierstead, 
 
 Thompson vs. Yates, 
 Tinker vs. Geraghty, 
 Trim vs. Willoughby, 
 
 an Cleve vs. Abbatt, 
 
 V 
 
 W^»„. Paine. 
 Webb vs. Van Zandt, 
 
 Welch vs. The Mayor, 
 Westervelt vs. Levy, 
 Williamson vs. Hendricks, 
 Wood vs. Donaldson, 
 
 Y 
 
 2 E. D. S., 635. 
 s. c, 2 Abb., 259. 
 
 2 Abb., 109. 
 8. c, 2 E. D. S., 621. 
 
 9 Abb., 418. 
 
 2 Hilt., 577. 
 
 28 How., 142. 
 
 1 E. D. S., 687. 
 
 44 How, 189. 
 
 3 Abb., N. S., 144. 
 
 ,2 E. D. S., 662. 
 16 Abb., 190. 
 dif., do 314. 
 19 Abb., 132. 
 2 Duer, 354. 
 10 Abb., 98. 
 17 Wend., 550. 
 affd. 22 Wend., 395. 
 
 oung Stone D. Co. vs. Wardens, &c., 61 Barb., 489. 
 
 16 
 
INDEX. 
 
 No. 
 ACTION: 
 
 pendency of, ordinary effect of 657-669 
 
 when a bar 668 
 
 election of 661 
 
 AFFIDAVIT: 
 
 (See Forms.) 
 
 AMENDMENT: 
 
 allowed as to form 406, 520, T96 
 
 not allowed to notice of lien 662 
 
 " " " verification of notice 662 
 
 when allowed as under the Code 652, 663 
 
 when referee cannot allow 521, 522 
 
 ANSWER: 
 
 form of, discussed 408, 440, 446 
 
 may contain counter-claim 447-468 
 
 (See Set-off.) 
 
 APPEALS : 
 
 time for 896 
 
 forms of 880 
 
 when allowed to Court of Appeals 884 
 
 hearing of ■ 895 
 
 from orders, when allowed '. 888-894 
 
 ARREST AND BAIL: 
 
 not allowed in lien proceedings 660 
 
 (See Provisional Remedies.) ♦ 
 
 ASSIGNMENT : 
 
 fraudulent, of owner or contractor 274 
 
 of lien cannot be before filing 7, 9 
 
 may be after filing 8 
 
 of contractor, eflect of 13-18, 131-137, 274, 610 
 
 of owner 109-112 
 
 (See Bankruptcy.) 
 
220 INDEX. 
 
 No. 
 ATTACHMENT : 
 
 against property not allowed herein 660 
 
 the person not allowed 863 
 
 (See Provisional Remedies.) , 
 
 BANKRUPTCY: 
 
 of owner, effect of 109-112 
 
 of contractor " 13-18, 131-137 
 
 effect of, before notice filed 137 
 
 " after " 137, 261-263 
 
 " before proceedings 26S 
 
 " after " 261,262 
 
 • (See Assignment.) 
 
 BILL OF PARTICULARS : 
 
 when to be given 474-477 
 
 what to contain 471 
 
 form of, discussed 471, 473 
 
 may be amended 652 
 
 evidence under 471, 483 
 
 proof of 587 
 
 (See Variance and Forms.) 
 
 CASES: 
 
 table of lien reported p. 211 
 
 CLAIM: 
 
 form of, in lien cases 438-442 
 
 for surplus in foreclosure of mortgage 641, 646 
 
 CLAIM AND DELIVERY OF PROPERTY: 
 
 not allowed herein 660 
 
 (See Provisional Remedies.) 
 
 CONTRACT: 
 
 may be expressed or implied 581, 8 
 
 effect of as evidence 577-586 
 
 effect when no 616, 618 
 
 governs all persons under it ,. 577 
 
 constrnotive notice of to all under it 578 
 
 extent of liability under it 679, 617 
 
 effect of fraudulent 618 
 
 substantial performance of, sufficient 699 
 
 when broken by cqntractor 602-613 
 
 effect of assignment (see Assignment) 
 
 measure of damages (see Damages) 
 
 COMPLAINT: 
 
 (See Pleadings.) 
 
 CONTRACTOR : 
 
 who is, 678 
 
 may commence proceedings 238, 264 
 
IKDEX. 221 
 
 No. 
 CONTRACTOR : 
 
 relations to sub-contractor 678 
 
 relations to owner 678 
 
 personally liability of 676 
 
 extent of liability of 676, 679, 680 
 
 liability of owner to 670 
 
 effect of abandoning the work 566, 602-608, 619 
 
 " " assignnaent of 13-18„131-187 
 
 " " death of 
 
 (See Bankruptcy and Assignment.) 
 
 CONTINUANCE OF LIEN: „ • 
 
 (See Lien and Forms.) 
 
 COSTS: 
 
 when allowed 790 
 
 amount of 788 
 
 on appeal 826, 826 
 
 on motions 797 
 
 allowances as '. 785, 804, 806 
 
 when referee must determine 709 
 
 COUNTER-CLAIM: 
 (See Set-off.) 
 
 COUNTY CLERK : 
 
 must docket lien ; 186. 187 
 
 enter notices of action 185 
 
 make searches for liens 186 
 
 discharge liens 200 
 
 presumed to do his duty 667 
 
 certificates of as evidence 666-667 
 
 (See Forms.) 
 
 DAMAGES : 
 
 when allowed against sub-contractgr 448, 454-469 
 
 measure of " " 454-458, 601-608 
 
 (See Setoff) 
 
 DEMURRER: 
 
 to complaint, 407, 408, 430, 428 
 
 to answer ' 408 
 
 to set-off 408,469 
 
 to reply 408, 469 
 
 to claim '. 408, 440, 446 
 
 (See Pleading.^.) 
 
 DEATH: 
 
 of owner,. effect of 124 
 
 of contractor, effect of 19 
 
 no lien by representatives 124, 127 
 
222 INDEX. 
 
 Ho. 
 
 DEFENSES: 
 
 (See Pleadings and Set-off.) 
 
 DISCHARGE OF LIES': 
 
 (See Lien and Forms.) 
 
 DISTRICT COURT : 
 
 jurisdiction of 224-229 
 
 form of notice commencing in 229, 244 
 
 parties in , 402 
 
 remoTal from, not allowed 230 
 
 pleadings in 443 
 
 costs in 788, 825 
 
 forth of judgment in 16S 
 
 " transcript ; 757 
 
 " execution - 866,858 
 
 Appeals from , 875 . 
 
 EXCEPTIONS: 
 
 (See Referee.) 
 
 EXECUTION: 
 
 form not specified 828, 844 
 
 must follow the judgment 832, 846 
 
 for deficiency 840-844 
 
 on judgment of Marine and IBstrict Courts 868 
 
 supplemental proceeding after 866 
 
 after sale on, no redemption 869, 870 
 
 (See Forms.) 
 
 EVIDENCE : 
 
 rules of, in these cases 660-629 
 
 parties may give testimony 661 
 
 burden of proof 446, 562-668 
 
 effect of contraet as (see contract) 
 
 County Clerk's certificate as '. 666-667 
 
 FORECLOSURE OF LIENS: 
 
 how commenced 235-263 
 
 parties to 264-404 
 
 pleadings and claims in 405-610 
 
 modes of trial 511-649 
 
 evidence 550-661 
 
 judgment 662-784 
 
 costs in 785-827 
 
 execution 828-899 
 
 (See Forms.) ■ 
 
 of mortgage (see mortgage). 
 
 FORMS page 181. 
 
 (For a discwaion of the subjects mentioned under this head, see 
 each under its particular title.) 
 
INDEX. 223 
 
 No. 
 
 Notice of Lien 1 
 
 verification to 2, 3 
 
 to foreclose lien by claimant 4 
 
 by owner 6 
 
 order for issues 5 
 
 complaint by sub-contractor 7 
 
 when deposit made S 
 
 affidavit for continuance of lien 8 
 
 order rfoutinuing lien 10 
 
 affidavit to discharge lien 11 
 
 when deposit made 12 
 
 order discharging lien ».. IS 
 
 when money deposited 14 
 
 affidavit and petition to be made party defendant 15 
 
 order making party defendant 16 
 
 affidavit to obtain summons \mder § 5 17 
 
 summons under §5 18 
 
 notice under §§ 4 and 5 19 
 
 order bringing in necessary party 20 
 
 bill of particulars 21 
 
 County Clerk's certificate of lien filed 22 
 
 when money deposited '. 23 
 
 when lien continued 24 
 
 when lien has expired , 25 
 
 Referee's Report : 
 
 on facts 26 
 
 when money deposited 27 
 
 when lien continued 28 
 
 when lien expired 29 
 
 in favor of owner against contractor 30 
 
 in favor of sub-contractor and owner 31 
 
 against owner and contractor 32 
 
 conclusions of law 33 
 
 adjudging lien 34 
 
 when lien expired S5 
 
 marshaling claims 36 
 
 Judgment : 
 
 general form recitals 37 
 
 personal judgment ' 38 
 
 lien against property 39 
 
 against money deposited 40 
 
 money deposited, and personal 41 
 
 in favor of owner 42 
 
 f. 
 Execution : 
 
 endorsement of, in decree of sale 43 
 
 against specific property 44 
 
224: INDEX. 
 
 No. 
 
 INJUNCTION : 
 
 may be allowed 666 
 
 (See Profisional Eemedies.) i 
 
 JUDGMENT : 
 
 what to contain 662-674 
 
 personal 61S-100 
 
 when lien expired 693-699 
 
 form of TSO-Ml 
 
 entry of 742-7*70 
 
 eflfeot of 771-781 
 
 transcript of 767 
 
 of reversal 782-783 
 
 of affirmance against owner 827 
 
 (See Forms and Referee.) 
 
 JUKISDICTION OF COURTS: 
 
 Supreme Court 222 
 
 Superior Court '. 222 
 
 Common Pleas 222 
 
 Marine Court 224-229 
 
 District Courts 224-229 
 
 Court of Appeals 884 
 
 City Court of Brootlyn 938-942 
 
 county courts 938-942 
 
 on appeal 875-899 , 
 
 KINGS AND QUEENS COUNTIES: 
 
 statutes relating to p. 161 
 
 compared with New York city, laws of 1851-65 900 
 
 ■who may acquire lien under 901, 902 
 
 time of perfecting •. 903-904 
 
 form of notice under 905 
 
 owner who is 906 
 
 notice must be served on owner 907 
 
 extent of lien. . , 919 
 
 continuance of 920 
 
 discharge of ." 922-937 
 
 time and manner of enforcing 938, 939 
 
 jurisdiction of courts in 940-943 
 
 parties to action in , 943-946 
 
 contractor cannot require commencement of action 93^, 935 
 
 pleadings under 417, 939 
 
 trial ;... 939, 951 
 
 personal judgment 952, 953 
 
 costs 954 
 
 form of judgment 956 
 
 execution 956 
 
 surplus after sale .» 957 
 
 effect of payment by owner 968 
 
 appeals under 969 
 
 effect of 960-96J 
 
INDEX. 225' 
 
 No. 
 
 LAWS: 
 
 (See Statutes.) 
 
 LiESSEE ; 
 
 when deemed owner 62-73, 628, 62^ 
 
 LESSOR : 
 
 when deemed owner 62-'73, 628, 629' 
 
 LIEN: 
 
 who may acquire 1-20 
 
 for what it may be acquired '. 21-3T 
 
 time of filing notice 38-57 
 
 on what and extent B8-139' 
 
 form of notice 140-186- 
 
 priorityof 665-673 
 
 continuance of 187—198 
 
 discharge of 199-221 
 
 how to avoid 627, 628- 
 
 judgment establishing lien (see Judgment.) 
 (See Marshaling and Forms.) 
 
 LIS PENDENS: 
 
 none under this statute 764, 765, 928- 
 
 * 
 
 MARINE COURT: 
 
 jurisdiction of y 224-22* 
 
 form of notice commencing in 229, 244 
 
 parties in . . . .' 402 
 
 costs in 788, 825- 
 
 form of judgment in 753 
 
 " transcript 757 
 
 " execution 856, 858 
 
 appeals in 875 
 
 '■ form ...876, 897, 898 
 
 MARSHALING: 
 
 how obtained 510, 533 
 
 of liens. . .' 121, 666-672: 
 
 securities and assets 610, 666-672 
 
 judgments ■■• 119 
 
 mortgages 91-94 
 
 when does not apply 864 
 
 (See Preferences.) 
 
 MORTGAGE, FORECLOSURE OF: 
 
 proceedings in 489, 621-546- 
 
 " when surplus after sale 442, 621-64& 
 
226 INDEX. 
 
 No. 
 NOTICE : 
 
 of lien, form of 140-186 
 
 claim under 438-443 
 
 to commencing proceedings on lien 229-244 
 
 from owner to lienor, requiring commencement 229—244 
 
 of trial in action on B14, 64? 
 
 motion in 614 
 
 appeal 880 
 
 argument of appeal 614 
 
 {See Forms.) 
 
 ORDER : 
 
 for issues to be joined ." 409-41 3 
 
 appealable, what is 888-894 
 
 (See Forms.) 
 
 OWNER : 
 
 who is regarded as 68-127, 628 
 
 extent of liability of property 68-139 
 
 personal liability 676 
 
 may commence proceedings 264, 236 
 
 effect of bona fide transfer 89-92 
 
 fraudulent transfer '. .93-96, 274 
 
 assignment of ^ 109-112 
 
 deathof 124 
 
 (See Bankruptcy and Assignment.) 
 
 PARTIES : 
 
 who may be 264-404 
 
 necessary : 278 
 
 proper 287 
 
 may give testimony 661 
 
 how brought in 293-402 
 
 (See Forms.) 
 
 PARTICULARS: 
 
 bill of (see Bill of Particulars}. 
 
 PLEADINGS : 
 
 form of... 406-610 
 
 Complaint. 408-436 
 
 Answer. 408, 446-467 
 
 Reply 408, 469 
 
 Demurrer , 408, 469 
 
 (See Setoff.) 
 
 Amendment of , 
 
 <See Amendment.) 
 
 verification of , 438 
 
INDEX. 227 
 
 PREFERENCES : 
 
 lieu over a judgment ;.... 119 
 
 mortgage 91-99 
 
 deed 91-93, 99 
 
 contract to sell 106 
 
 other liens 91-112, 121, 665-667 
 
 general judgments 864 
 
 (See Marshaling.) 
 PROCEEDINGS: 
 
 to continue lien 187-198 
 
 to discharge lien 1 99-221 
 
 to foreclose lien- • 235-263 
 
 mortgage 489, 621-546 
 
 "" to obtain surplus after sale 521^546 
 
 (See Forms.) 
 PROVISIONAL REMEDIES: 
 
 none allowed before judgment 660 
 
 injunction may be allowed 666 
 
 allowed after judgment 866 
 
 RECEIVER : 
 
 not allowed before judgment 564, 660 
 
 formerly allowed 666 
 
 may be after judgment 866 
 
 REFEREE : 
 
 trial by 515-518 
 
 may Report on one or more questions of fact; 615 
 
 when cannot allow amendment 621, 622 
 
 Marine and District Courts cannot refer .■ 624-228 
 
 report of, what to contain. . 664-6V3, 6T6, 697, 701, 702, 707-709, 712, 724 
 
 how regarded 710 
 
 exceptions to 711-722 
 
 judgment on 727, 731-741 
 
 (See Forms, Trial, and Judgment.) 
 SECURITY: 
 
 (See Appeal.) 
 STAY OF PROCEEDINGS: 
 (See Appeal.) 
 
 SET-OFF : 
 
 may be allowed 446-450 
 
 what may be allowed as 454-469 
 
 between whom .469-468 
 
 extent of 448,449,700 
 
 STATUTES: 
 
 relating taNew York city, 1861 p. 11-15 
 
 " " " 1866 16-17 
 
 " ■• " 1863 4-10 
 
228 INDEX. 
 
 No. 
 STATUTES: 
 
 Eelating to New York city, 1866 P- ^ 
 
 1870 10 
 
 " " " 1872 11 
 
 relating to Kings and Queens counties, 1862 _ 163-169 
 
 " " " 1845 17T 
 
 SUB-CONTRACTOR : 
 
 who is 678 
 
 may commence proceedings 264 
 
 relations to contractor 678 
 
 " to owner 678 
 
 personal liability of 676 
 
 extent of liability of 676, 679, 680 
 
 liability of owner to 676 
 
 effect on if work abandoned 656, 573, 602-608, 619 
 
 effect on if contractor assigns 13-18, 131-137 
 
 effect of death of 19 
 
 TmE: 
 
 to file notice of lien for work 21-37 
 
 to file notice of lien for materials 21-37 
 
 of service of notice of foreclosure ; 229, 235, 237 
 
 of service of pleadings 405-409 
 
 of service of claims 410, 41 1 
 
 to appeal 896 
 
 TRIAL, MODES OF: 
 
 before referee 51o-51& 
 
 by jury .' 519, 939 
 
 by the court 524 
 
 in other proceedings 258-263 
 
 (See Evidence.) 
 
 VARIANCE : 
 
 what is a material 630-655 
 
 when amendment allowed 652, 796 
 
 when to object to 653 
 
 VENDEE: 
 
 when deemed owner 80-108, 90S 
 
 VENDOR: 
 
 when deemed owner 80-108, 90& 
 
 VERIFICATION : 
 
 of notice of lien 167-177 
 
 form of, discussed 170 
 
 to pleadings 438, 439, 479 
 
 to claims 43^ 
 
 to bill of particulars ; 47ft 
 
 (See Forms.)