A 333 THE i^«iirn«« C f2 , f!li ,niversi 'y Library KFN5229.A333D42 1885 The ii«Fimi™!!K. s ' lien law of *• state 3 1924 022 801 587 NEW MECHANICS' LIEN LAW STATE OP NEW YORK. (PASSED MAY 27, 1885.) SUPERSEDING THE VARIOUS LOCAL STATUTES axd APPLICABLE TO THE ENTIRE STATE. ALSO, LIEN LAWS AFFECTING MUNICIPAL PROPERTY, RAILROAD CORPORATIONS, OIL WELLS, &C. ANNOTATED By JOHN S. DERBY, 07 THE KEW YORK BAB. NEW YORK: BAKEK, VOOKHIS & CO., PUBLISHERS, 66 NASSAU STREET. 1885. 11659 Copyright, 1885, By Baker, Vooehis & Co. Willis McDonald & Co., Printers, 35 Park Row, N. Y. PREFACE. The procedure designed to afford security to mechanics and others for labor and materials which have entered into the construction of buildings, of which the value has been thereby enhanced, by preserving to them a lien upon the premises, is peculiar to the States of this Union. , The Civil Law, indeed, contained imperfect provisions in- tended for a like purpose, which have been incorporated into the jurisprudence of all countries that traces its origin to that venerable source ; but the remedial process known to us as the " Mechanics' Lien Law," exists solely by force of the statutes of the several States. Maryland enacted the first statute just before the close of the last century, in the hope of inducing mechanics to con- tribute their labor toward the building of the then unnamed city that was destined to become the seat of the Federal government. While the laws of the various States are designed to afford the same remedy — a lien upon the property upon which the labor is expended or the materials used — the methods, by which that end is obtained, differ in important particulars. In some States the process is a simple common law action against the person indebted upon the contract, in which judg- ment is entered and execution issued in the usual form, and the. lien preserved by levy upon the property as in case of an ordinary attachment; while in others the proceeding is one essentially against the thing, and a personal judgment can only be rendered as incidental to the foreclosure of the lien. There are certain principles, however, that are everywhere recognized as fundamental ; that there must exist an indebted- ness upon a contract, express or implied, in favor of the person 4 PREFACE. who institutes the proceeding ; that the materials or labor, for which the lien is sought, must have been furnished for and actually used in the building or other structure ; ' that the right to acquire the lien is a personal one, and cannot be assigned. The first legislation upon the subject in this State was the Act of 1830, chapter 330, which was limited in its operation to the city of New York. By this Act it was declared to be the duty of the owner, whenever an account should be " placed in his hands " by a workman or material-man, to furnish the contractor with a copy thereof, in the expectation that this would result in a set- tlement of any " disagreement * * * by amicable adjust- ment." If within ten days the contractor neglected to give written notice of his intention to dispute the claim, he was to be " considered as assenting to the demand," and the owner was to pay the same from the funds in his hands. If the account were disputed the controversy was to be submitted to the arbitra- tion of three persons, whose award was final. By a rapid process of legislative accretion there was formed around this simple nucleus, not only one elaborate system, but six distinet statutes, having force in as many jurisdictions. The passage of the present Act, for the first time, secures absolute uniformity throughout the State. It has been the aim of the annotator to cite, in their ap- propriate places, all the decisions of the various courts which are applicable to the provisions of this statute. There are many that have arisen upon the construction of acts that have been repealed, and, of course, are not inserted here. The Appendix of Forms will, it is believed, afford an ade- quate guide to the pleader, with such changes as may be re- quired to adapt them to the circumstances of each particular case. J. S. DEKBY. TABLE OF CASES. Abram v. Boyd, 81. Althouse v. Warren, 20, 39. Anderson v. Dillaye, 13, 89. Babb v. Reid, 12. Bailey v. Adams, 20. Bailey v. Johnson, 35, 36. Bank v. Curtis, 19. Beals v. Congregation, &c, 29. Benedict v. Danbury R. R., 22. Benton e. Wick wire, 11. Birmingham v. Glen Cove, 18. Bishop v. Boyle, 19. Bishop v. Honey, 14, 18. Black, Matter of, 30. Boody v. Rexford, 39, 46. Bowen v. Aubrey, 22. Bowers v. N. Y. Christian Home. 34. Brady v. Anderson, 20. Broadway Sav. Bk. v. Cummings, 30,48. Broderick v. Poillon, 14, 36. Brown v. Welch, 30. Brown v. Zeiss, 21, 28. Burkitt v. Harper, 16, 30, 86. Burrows v. Baughman, 20. Burroughs v. Tosteyan, 44. Butler v. River, 17. Caldwell v. Lawrence, 11. Carman v. Mclncrow, 21. Carter ®. Byzantium, 20, 21. Cashman v. Henry, 11, 15. Cheney v. Troy Hospital, 11, 21, 22, 38. Childs v. Anderson, 13. Childs v. Bostwick, 44. Choteau v. Thompson, 19. Conklin v. Bauer, 32. Conklin v. Wood, 28, 31, 36. Conkright v. Thomas, 35. Copley v. O'Neil, 13. Cornell v. Barney, 11, 14, 19. Corning «. Fowler, 13. Cox v. Broderick, 13, 21, 28. Crane v. Genin, 21, 22. Cushman v. Henry, 13. Darrow v. Morgan, 31, 34, 44. Davis v. Humphrey, 16. Dennistown v. McAllister, 11, 17. De Ronde v. Olmstead, 14. Develin v. Mack, 22, 38. Dixon «. La Farge, 14, 18, 36. Dobschultz ». Holliday, 19. Donaldson v. O'Connor, 31. Donnelly *. Libby, 30. Dorsey v. Langworthy, 14, 18. Doughty v. Devlin, 21, 36. Dowdney v. McCullom, 15, 39, 49. Duffy v. McMannus, 35, 36. Dugan v. Brophy, 11, 29, 30. Dunbar v. Diem, 29. Dunning v. Clarke, 29, 39. Eagleson ». Clarke, 39. Emigrant Bank ». Brown, 34. Ernst v. Reed, 28. First Nat. Bk. ®. Day, 11. First Nat. Bk. «. Redman, 18. Flynn v. Butler, 53. Ford «. Bailey, 52. Foster v. Cox, 13. Foster v. Poillon, 35. Freeman v. Gilpin, 17. Gambling v. Haight, 37. Gates v. Whitcomb, 16, 32. Gauhn v. Mills, 38. Gay v. Brown, 14, 32. Gibson v. Lenane, 21, 22, 24. Glacius v. Black, 15. Gorham v. Sagner, 20. Gourdier v. Thorp, 22. TABLE OF OASES. Green «. Fox, 20. Grogan i>. McMahon, 22, 38. Gross ». Daly, 28, 37. Grove ». Cather, 19. Hackett v. Badeau, 16, 32. Haden v. Buddenseik, 28, 34. Hall e. Sheeban, 20, 52. Hallahan o. Herbert, 12, 28, 31, 32, 36. Hartness v. Thompson, 11, 14. Hauptman v. Catlin, 13, 18, 30. Hauptman v. Halsey, 29. Hazard Powder Co. v. Byrnes, 18. Heckmann v. Pinkney, 15, 21, 23. Herbert v. Herbert, 21. Hill v. Newman, 17. Hoag v. Hilraeyer, 15, 36. Hofgesang v. Meyer, 21, 24. Hooper v. Sells, 11. Hope, Matter of, 17. Hoyt v. Miner, 22. Hubbell v. Schreyer, 11, 29, 31. Husted v. Mathes, 11, 13, 15, 16. Iron Mfg. Co. v. Brown, 18. Jaques v. Morris, 36. Jenkes 0. Parsons, 36. Jennings v. Newman, 42. Johnson 0. De Peyster, 15. Kenney 0. Apgar, 31, 37, 43, 47. Keogh v. Main, 31. Kerby v. Daly, 12. Kinzey u. Thomas, 20. Knapp 0. Brown, 11, 13, 14, 19. Laflin e. Powder Co., 52. Lawson 0. Horgan, 38. Leiegne ». Schwartzer, 30, 36, 37. Lenox v. Yorkville Ch., 39. Linn 0. O'Hara, 22. Loonie 0. Hogan, 14, 21, 32. Lumbard 0. Syracuse, 21, 22. Lutz v. Ey, 20, 29, 31. Manchester 0. Searle, 14. Marryatt 0. Kiley, 43. Martine n. Nelson, 17. McAuley 0. Mildrum, 28. McCarty v. Carter, 13, 14. McCormick v. Los Angelos, 17. McGuckin v. Coulter, 39. McGraw v. Godfrey, 19, 33, 44. McGuinness v. Boyle, 13. McMurray v. Hutcheson, 22, 39. Meehan v. Williams, 28, 39. Meyers ®. Beach, 44. Miller v. Hollingsworth, 13. Miller v. Moore, 20, 22, 38. Mims v. Macon R. R., 20. Miner v. Hoyt, 11, 17, 22, 38. Montandon v. Deas, 19. Moran v. Chase, 20, 29, 30. Morgan v. Stevens, 22, 43. Muir v. Cross, 24. Muldoon s. Pitt, 11, 12, 13, 14, 19, 38. Mulvey v. Barrow, 20. Munch Chunk v. Shortz, 12. Mushlitt v. Silverman, 11. Myers v. Burnett, 14, 21. Nazaseth, &c. v. Lowe, 12. Nellis v. Bellinger, 15, 16. Noyes v. Burton, 28. Ombony v. Dain, 13, 19. Ombony v, Jones, 13. Otis v. Cusack, 14. Otis v. Dodd, 15, 16. Otley v. Haviland, 13. Owens v. Ackerson, 38. Paine v. Bonney, 20. Payne v. "Wilson, 28. Peabody v. East Met., &c, 12. Pearsons v. Thicker, 1. Peck i>. Brummagin, 12. Pendleburg 0. Meads, 14. Peyroux v. Howard, 20. Phelps v. The Camilla, 20. Phillips v. Gallant, 15. Phillips v. Wright, 11, 18. Pike ». Irvin, 20. Poerschke v. Kedenburg, 34. Post ». Campbell, 24. Powers v. Hogan, 15, 37. Prior v. White, 34. Protective Union v. Nixon, 29. Quinby ». Sloan, 18, 28. Quinn v. Mayor, &c, 14, 36. Reid v. Bank of Tenn., 13. Riley v. Watson, 30. Roberts v. Fowler, 11, 28. Rogers 0. Currier, 11, 18. Rollin v. Cross, 11, 12, 13, 19, 28, 38. Ruth v. Jones, 43. TABLE OF CASES. St. Jago, The, 20. Schaeffer v. Weed, 19. Schaettler «. Gardiner, 39, 44, 52. Scheaby v. Tomlinson, 38. Schneider ». Hobein, 21. Schukraft v. Ruck, 21. Shannon v. Coursen, 52. Sinclair v. Fitch, 28, 36. Smith ». Bailey, 22, 29, 31. Smith v. Corey, 29. Southard v. Lavelle, 36. Spencer v. Baraett, 31. Spurgeon v. McElwain, 14, 18. Stevens v. Lincoln, 13. Stevenson v. Stonehill, 12. Stryker v. Cussidy, 17. Stuyvesant v. Browning, 28. Teaz v. Christie, 20, 21. The St. Jago, 20. Thompson v. Yates, 21. Tiley v. Thousand Islands, &c , 29. Tisdale v. Moore, 37. Tizzard v. Hughes, 17. Tombs v. Rochester, 20. Tooker v. Rinaldo, 38. Trask ». Searle, 18. Urquhart ». Mclver, 12. Van Bremer v. Cooper, 11, 14. Vanbrouker v. Ea3tein, 19. Vandive v. Hodge, 14. Walker v. Paine, 14, 21, 22, 32. Wards. Kilpatrick, 18, 37, 38. Watrous v. Elmendorf, 36, 37. Webster v. Hildreth, 13. Weeks v. Little, 15. Whitney o. Coleman, 52. Wilder v. French, 14. Williamette Falls v. Remick, 17. Williams ». Root, 30. Woodward v. Fuller, 15. Yates v. Meadsville, 12. Yeates ». Wheaden, 14. Young v. Lyman, 12. M Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022801587 NEW MECHANICS' LIEN LAW FOR THE STATE OF NEW YORK. LAWS OF NEW TORE, 1885 -CHAPTER 342. An Act for the better security of mechanics, laborers and others who perform labor or furnish material for buildings and other improvements in the sever- al cities and counties of this State, and to repeal certain Acts and parts of Acts. Passed May 27, 1885 ; three-fifths being present. The People of the State of New York, represented m Senate and Assembly, do enact as follows : § 1. By Whom and for what Acquired.— Limitation of Owner's Liability. Section 1. Any person or persons, firm or firms, cor- poration or association, who shall hereafter perform any labor or service, or furnish any materials which have been used or which are to be used in erecting, altering or repairing any house, wharf, pier, bulkhead, bridge, vault, building or appurtenances to any house, build- ing or building lot, including fences, sidewalks, paving, fountains, fish ponds, fruit and ornamental trees, with the consent of the owner, as hereinafter defined, or his 10 NEW MECHANICS' LIEN LAW. [§ 1- agent or any contractor, or sub-contractor or any other person contracting with, such owner to erect, alter or improve, as aforesaid, within any of the cities or coun- ties of this State, may upon filing the notice of lien prescribed in the fourth section of this Act, have a lien for the principal and interest of the price and value of such labor and material upon such house, wharf, piers, bulkheads, bridges, vault, building or appurtenances, and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, to the extent of the right, title and interest at that time existing of such owner, whether owner in fee or of a less estate, or whether a lessee, for a term of years, or vendee in possession under a contract existing at the time of the filing of said notice of lien or of the owner of any right, title or interest in such estate, which may be sold under an execution under the general pro- visions of the statutes in force in this State relating to liens of judgment and enforcement thereof, and also to the extent of the interest which the owner may have assigned by a general assignment for the benefit of creditors, within thirty days prior to the time of filing the notice of lien specified in the fourth section of this Act. But in no case shall such owner be liable to pay by reason of all the ,liens filed pursuant to this Act, a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or in case there is no contract than the amount of the value of such labor and mater- ial then remaining unpaid except as hereinafter pro- vided. As to provisions relating to " consent " of owner, compare State Act, § 1, and King and Queens Act, § 1. § 1.] BY WHOM LIEN MAY BE ACQUIRED. 11 Nature of* the Lien. It is a purely statutory remedy, having no recognition at common law. Benton v. Wickwire, 54 N. Y., 226. Mushlitt v. Silverman, 50 N. Y., 360. • So far as it imposes new liabilities and creates new obliga- tions it should be strictly construed. Mushlitt v. Silverman, 50 N. Y., 360. Dugan v. Brophy, 55 How., 121. Hubbell v. Schreyer, 15 Abb. N. S., 300. Cheney *. Troy Hospital, 65 N. Y., 282. . See Section 25, infra. The foundation of the claim is an indebtedness existing upon contract, express or implied, in favor of the person who seeks to subject the property to the lien. Muldoon v. Pitt, 54 N. Y., 269. Cornell v. Barney, 94 N. Y., 394. Knapp v. Brown, 45 N. Y., 207. It affords security only for "labor and materials that actual- ly entered into the construction or repair of the structure upon which the lien is claimed. Phillips v. Wright, 5 Sandf., 343. Dennistown v. McAllister, 4 E. D. Smith, 729. Miner v. Hoyt, 4 Hill, 193. Rogers v. Currier, 13 G-ray, 129. By whom Lien may be acquired. Any person who is legally capable of entering into the contract which forms the basis of the claim may acquire a lien. Van Bremer v. Cooper, 2 Johns., 279. Hartness v. Thompson, 5 Johns., 160. Cashman v. Henry, 75 N. Y., 103. Husted v. Mathes, 77 N. Y., 388. The right to acquire the lien is a purely personal one, and it cannot be acquired by an assignee. Roberts v. Fowler, 3 E. D. Smith, 632. Rollin v. Cross, 45 N. Y. ( 766. Pearsons v. Tincker, 36 Me., 384. Hooper v. Sells, 58 Ga., 127. First Nat. Bk. v. Day, 52 Iowa, 680. Caldwell v. Lawrence, 10 Wis., 331. 12 NEW MECHANICS' LIEN LAW. [§ 1. Except where the claim is made for the benefit of the as- signor and to be enforced by claimant as his agent. Urquhart ». Mclver, 4 Johns., 102. Rollin v. Cross, 45 N. T., 771. Hallahan v. Herbert, 11 Abb. N. S., 326; s. c, 57 N. Y., 409. The owner of the building cannot prejudice the rights of other persons by acquiring a lien for himself. Babb v. Reid, 5 Rawle, 151. Stevenson v. Stonehill, 5 Whart., 301. Nor can the agent of the owner, even though he subse- quently pay the claim. Kerby v. Daly, 45 N. Y., 84. A husband cannot have a lien upon a building erected with common funds upon wife's land. Peck v. Brummagin, 31 Cal., 440. Nor can members of a voluntary unincorporated associa- tion, upon joint property. Babb v. Reed, 5 Rawle, 151. Young v. Lyman, 9 Penn., 449. A municipal corporation can have this remedy only by express statutory provision. Yates v. Meadsville, 56 Penn., 21. Mauch Chunk v. Shortz, 61 Penn., 399. The Owner. In the sense contemplated by the statute, no person is owner who is not a party to the contract. Muldoon v. Pitt, 54 N. Y, 269. The person holding the legal title, though purchased with trust funds, is the owner, and may subject the property to the lien. Anderson ». Dillaye, 47 N. Y., 678. Peabody «. East Met., &c, 5 Allen, 540. And may, although his grantor retains a lien for the en- tire purchase money. Nazareth, &c, Inst. v. Lowe, 1 Ky., 258. § 1.] THE OWNER. 13 An infant may subject his estate to the lien, if his con- tract be perfected by ratification. McCarty v. Carter, 49 111., 53. But a guardian cannot encumber trust property. Copley r>. O'Neil, 57 Barb., 299. Lessee can subject only his interest to the lien. Stevens v. Lincoln, 114 Mass., 476. McGuinness v. Boyle, 123 Mass., 570. Poster v. Cox, Id., 45. Childs v. Anderson, 128 Mass., 108. Married woman may charge her separate estate. Cushman v. Henry, 75 N. Y., 103. Husted v. Mathes, 77 N. Y., 388. Performance of labor at the instance of the husband and with her knowledge is sufficient to establish his agency and render her estate liable. Hauptman v. Catlin, 20 N. Y., 247. But where the labor is performed upon the sole credit of the husband, who has contracted in his own behalf in good faith, the property cannot be charged. Corning v. Fowler, 24 Iowa, 584. Miller v. Holliugsworth, 33 Iowa, 224. Webster v. Hildreth, 33 Vt., 457. Mortgagee can be deemed an owner only when in possession under his mortgage. " Cox v. Broderick, 4 E. D. Smith, 721. Ombony ». Jones, 19 N. Y., 234. And the owner of the equity, in possession, is deemed the owner within the meaning of the law. Knapp d. Brown, 45 N. Y„ 207, Rollin v. Cross, 45 N. Y., 769. Reid v. Bank of Tenn., 1 Sneed, 262. Otley v. Haviland, 36 Miss., 19. Tenant can charge only his interest whatever it may be. Knapp v. Brown, 45 N. Y., 207. Muldoon v. Pitt, 54 N. Y., 269. Ombony v. Dain, 19 N. Y., 234. 14 NEW MECHANICS' LIEN LAW. [§ 1. And tenants in possession of separate portions.of joint prop- erty under parol agreement for partition may charge the separate lots. Otis v. Cusack, 43 Barb., 546. The Contract. An indebtedness existing upon contract, express or implied, in favor of the person seeking to subject the property to the lien, is the foundation of the claim. Dixon v. La Forge, 1 E. D. Smith, 732. Gay a. Brown, 1 E. D. Smith, 725. Pendleburg ». Meads, 1 E. D. Smith, 728. Broderick v. Poillon, 2 E. D. Smith, 554. Quinn «. New York, 2 E. D. Smith, 558. Walker «. Paine, 2 E. D Smith, 662. Myers v. Burnett, 7 Daly, 471. De Konde v. Olmstead, 47 How. Pr., 175. Knapp «. Brown, 45 N. Y., 207. Muldoon v. Pitt, 54 N. Y., 369. Cornell «. Barney, 94 N. Y, 394. It must be sufficiently definite to enable the amount due to be determined with reasonable accuracy and precision. Wilder ». French, 9 Gray, 393. Manchester v. Searle, 121 Mass., 418. A contract void by the statute of frauds cannot afford a basis for the lien. Loonie v. Hogan, 9 N. Y., 435. Nor one that is barred by the statute of limitations. Yeates v. Wheaden, 6 Bush (Ky.), 438. Vandive ». Hodge, 4 Bush, 538. Nor one which provides for the furnishing of labor or ma- terials for the erection of an illegal structure with an inten- tional aiding in the illegal purpose. Dorsey «. Langworthy, 3 Iowa, 341. Spurgeon «. McElwain, 6 Ohio, 444. Bishop v. Honey, 34 Texas, 248. May be executed, by an infant, as his disability cannot be taken advantage of by another. Van Brenner «. Cooper, 2 Johns., 279. Hartness v. Thompson, 5 Johns., 160. McCarty «. Carter, 49 111., 53. § 1.] CONSENT. 15 And by a married woman in relation to her separate estate. Cashman v. Henry, 75 N. Y., 108. Husted v. Mathes, 77 N. Y., 388. Performance of the conditions and requirements of the ■contract is as essential to a recovery in this as in other forms of proceedings, but a substantial performance, and not a liter- al compliance, is all that is necessary. Glacius v. Black, 50 N. Y., 145. Johnson v. De Peyster, 50 N. Y., 666. Phillips v. Gallant, 62 N. Y., 264. Heckmann v. Pinkney, 81 N. Y., 211. Woodward v. Fuller, 80 N. Y., 812. And performance must be shown by the plaintiff, though not specifically denied in the answer. Hoag v. Hilmeyer, 15 Weeks Dig., 328. Where there has been a mutual abandonment of the con- tract, plaintiff may recover on a quantum, meruit. Powers v. Hogan, 19 Weekly Dig., 459. That the owner or his employees did not seasonably per- form other work which should have been completed first, is a sufficient excuse for plaintiff's non-performance within the time limited in the contract. Weeks ». Little, 9 Abb. N. C, 415. The lien is enforceable when the contract stipulates for pay- ment in specific property, though a specific performance can- not be decreed. Dowdney v. McCullom, 69 N. Y., 367. See Section 23, infra, and cases there cited. Consent. A lien is given whenever the owner of the land consents by his acts and declarations to the erection of a structure upon it, to the same extent as if he had contracted directly for its construction. Nellis v. Bellinger, 6 Hun, 560. Otis v. Dodd, 90 N. Y., 336. By this provision the Legislature intended to enforce the •equitable principle, that one who knowingly takes the benefit 16 NEW MECHANICS' LIEN LAW. [§ 1. of the property and labor of another, in the form of improve- ments on his land, ought to have the land subjected to a lien therefor. Nellis v. Bellinger, tupra. Otis v. Dodd, supra. The statute was designed to meet the objection that there could be no lien against the legal owner who. had contracted to sell and to make advances for the erection of a building on the land. Nellis v. Bellinger, 6 Hun., 560. Consent may be evidenced by the fact of knowledge of the performance of the labor and the absence of objection there- to. Husted v. Mathes, 77 N.Y., 389. Nellis v. Bellinger, supra. Where the owner agrees to sell and advances money for the purpose of erecting buildings on the land, the relation of owner and contractor does not exist between the parties, but the latter is entitled to a lien, as having performed the labor by consent. Gates ®. Whitcomb, 4 Hun, 137. Leasing of premises with an agreement that tenants shall erect improvements which are to become the property of the owner at the expiration of the term, will render the owner liable to the lien. Burkitt . Cantlin, 20 N. Y. ( 247. § l.J ESTATE LIABLE TO TEE LIEN. 19 Estate liable to the Lien. Estate of the lessor cannot be charged with the lien by reason of a contract entered into by the tenant. Cornell v. Barney, 33 Hun, 134. The interest of the tenant, whatever it may be, is all that can be subjected on account of such contract. Ombony v. Dain, 19 N. T., 234. Knapp v. Brown, 45 N. T., 207. Muldoon v. Pitt, 54 N. T., 269. The interest of a lessee embraces all improvements erected by him that are removeable without injury to the freehold. Ombony v. Dain, 19 N. T., 234. Dobschultz v. Holliday, 82 111., 371. Nor can the legal estate be charged by reason of the con- tract of the equitable ovmer. Rollin v. Cross, 45 N. Y., 766. But the estate is chargeable if the equitable owner subse- quently acquires the legal ownership. Rollin v. Cross, 45 N. Y., 766. McGraw v. Godfrey, 56 N. Y., 610. And, generally, the perfecting of a defective title enures to the benefit of the lienor. lb. Montandon ». Deas, 14 Ala. N. S., 33. Inchoate right of dower is not such an ownership as will be liable to be charged. Vanbrouker v. Eastein, 7 Mete, 162. Grove ». Cather, 23 111., 634. Schaeffer ®. Weed, 3 Gilm. (111.,) 511. Bishop v. Boyle, 9 Ind., 169. The lot which is covered by the lien includes the parcel of land inclosed or so connected with the structure as to be nat- urally understood by the parties as belonging thereto. Bank, &c. v. Curtiss, 18 Conn., 342. It may consist of two or more lots ordinarily used in con- nection with each other. Cboteau v. Thompson, 2 Ohio, 114. 20 NEW MECHANICS' MEN LAW. [§ 1. May include several buildings erected under one contract. Paine s. Bonney, 4 E. D. Smith, 734. Moran v. Chase, 52 N. T., 346. Hall v. Sheehan, 69 N. Y., 618. How W aired or Defeated. A wawer of the right to acquire a lien may be made by the express agreement of the parties. Tombs v. Rochester R. R., 18 Barb., 583. Mulvey v. Barrow, 11 Allen, 52. And may be inferred from the acts of the parties. Peyroux v. Howard, 7 Peters, 324. Mims v. Macon R. R., 3 Kelly (Ga.), 333. Claimant will be deemed to have waived his security by lien when he accepts securities of another nature for the in- debtedness. The St. Jago, 9 Wheat., 416. Phelps v. The Camilla, Taney, 400. Brady v. Anderson, 24 111., 110. Kinzey e. Thomas, 28 111., 502. Burrows v. Baughman, 9 Mich., 213. Gorham v. Sagner, 22 Mo., 137. By the express acceptance of the personal credit of \ the owner or some other person. Bailey v. Adams, 14 Wend., 201. Muir v. Cross, 10 B. Mon., 277. Green v. Pox, 7 Allen, 85. Peyroux v. Howard, 7 Petere, 324. Or of negotiable paper whieh carries the date of payment beyond the statutory period for acquiring the lien. Miller v. Moore, 1 E. D. Smith, 739. Althouse v. Warren, 2 E. D. Smith, 657. Lutz v. Ey, 3 E. D. Smith, 631. But the mere acceptance of debtor's note, which does not so extend the credit, will not be construed as a waiver. Carter v. Byzantium, 1 Clifford, 1. Teaz v. Christie, 2 E. D. Smith, 621. Althouse «. Warren, 2 E. D. Smith, 657. § 1.] HOW WAIVED OR DEFEATED. 21 The fact that the paper accepted be actually negotiated will not amount to a waiver, if the claimant regain possession of it before the foreclosure proceedings. Teaz «. Christie, supra. Carter v. Byzantium, supra. An agreement to accept the credit of a third person, which is void by the statute of frauds, is not a waiver. Abram v. Boyd, 7 Daly, 30. Jden may be defeated by the destruction of the structure before filing the notice. Schukraft e. Ruck, 6 Daly, 1. The right of the sub-contractor may be defeated by a pay- ment in good faith by the owner to the contractor before no- tice is filed. Lumbard v. Syracuse, 55 N. Y., 491. Gibson o. Lenane, 94 N. T., 183. Death of the owner or sale of the premises before filing pf notice defeats the claim. Meyers v. Bennett, 7 Daly, 471. Brown *>. Zeiss, 9 Daly, 240. The rights of the sub-contractor are entirely dependent upon the existence of a valid contract between the contractor and owner. Pike v. Irvin, 1 Sandf., 14. Doughty «. Devlin, 1 E. D. Smith, 625. Loonie v. Hogan, 1 E. D. Smith, 652. Walker ». Paine, 2 E. D. Smith, 662. Cox v. Broderick, 4 E. D. Smith, 721. Thompson ». Yates, 28 How., 142. Carman v. Mclncrow, 13 N. Y, 70. Crane o. Cenin, 60 N. Y., 127. Cheney ». Troy Hospital, 65 N. Y., 282. Heckmann v. Pinckney, 81 N. Y., 211. The intent of the statute being merely to subrogate him to the contractor's right. Herbert ®. Herbert, 57 How., 333. Schneider v. Hobein, 41 How., 232. Hofgesang o. Meyer, 2 Abb. N. C, 111. Cheney ». Troy Hospital, 65 N. Y, 282. 22 NEW mechanics' lien law. [§ 1. And his lien attaches only to the amount due or to become due thereon. Lumbard ». Syracuse, 55 N. Y., 491. Crane v. Genin, supra. Gibson v. Lenane, 94 N. Y., 183. Being subject to the equities existing between the original parties. Morgan v. Stevens, 6 Abb. N. C, 856. Gibson v. Lenane, supra. He must show that his labor was performed in conformity with the contract. Walker v. Paine, 2 E. D. Smith, 662. Counter-claim may be set up in proceedings between con- tractor and sub-contractor. Grogan v. McMahon, 4 E. D. Smith, 754. Miner ». Hoyt, 4 Hill, 193. Hoyt v. Miner, 7 Hill, 525. Between the owner and the sub- contractor any damages arising out of the contract through the fault of either the contractor or sub-contractor may be set up. Cheney v. Troy Hospital, 65 N. Y., 382. Miller v. Moore, 1 E. D. Smith, 739. Gourdier v. Thorp, Id., 698. Deyelin v. Mack, 2 Daly, 100. Hoyt v. Miner, supra. The sub-contractor's right of lien is not cut off by a gen- eral assignment for benefit of creditors made by the con- tractor. Smith «. Bailey, 8 Daly, 128. McMurray v. Hutcheson, 10 Daly, 64. The contractor's abandonment of his contract defeats the sub-contractor's right of recovery. Linn v. O'Hara, 2 E. D. Smith, 560. A provision in the contract prohibiting the sub-letting of the work will not permit a sub-contractor to acquire a lien. Benedict v. Danbury R. R., 24 Conn., 320. Bowen v. Aubrey, 22 Cal., 566. The provision that the liens must not exceed the amount the owner would be otherwise liable to pay is intended to- § 2.] COLLUSIVE AND ADVANCE PAYMENTS. 23 limit his liability in the aggregate to the contract amount, and the fact that nothing was due when the notice was filed is immaterial. Heckmann v. Pinkney, 81 N. T., 211. §2- Collusive and Advance Payments. § 2. If the owner or such person in interest as aforesaid, of any house, wharf, pier, bulkhead, bridge, vault, building or appurtenances, for or toward the construction, altering, repairing or improvement of which, labor and service have been performed or materials have been furnished by contract, whether oral or written, shall for the purpose of avoid- ing the provisions of this act or in advance of the terms of any contract, pay by collusion any money or other valuable thing on such contract, or give a mortgage or make any other lien or incum- brance upon said house, wharf, vault, building or ap- purtenances, lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, or said improvement shall be made, and the amount still due or to become due to the contractor, sub-contractor or assignee after such payment has been made, shall be insufficient to satisfy the claims made in conformity with the provisions of this Act, the owner or other person in interest as aforesaid, shall be liable to the amount that would have been unpaid to said contractor, sub-contractor or assignee, had. said owner or other person in interest made no such payment or given no such mortgage, or effected no such lien or incumbrance, at the time of filing the notice of lien prescribed in the fourth section of 24 NEW MECHANICS' LIEN LAW. [§ 3. this Act, in the same manner as if no such collusive payment, mortgage, lien or incumbrance had been made, given or effected. Compare State Act, §3; Kings Co., §1; Reus. Co. Act, §3. A payment made collusively and for the purpose of avoid- ing the provisions of the act, is ineffectual against the lien, although not found to have been made in advance of the terms of the contract. Hofgesang v. Meyer, 2 Abb. N. C, 111. And payments made in advance of the terms of the con- tract, although without fraud or collusion, cannot be allowed. Post v. Campbell, 83 N. Y., 279. Acceptance of an order for payment or an assumption of liability by the owner is equivalent to a payment. Cibson v. Lenane, 94 N. Y., 183. Demand upon Owner for Terms of Contract. § 3. Any person or persons, firm or firms, corpora- tion or association, performing any labor, or service, or furnishing any materials for any of the purposes speci- fied in the first section of this act, to or for any person other than the owner, may at any time demand of such owner or of his authorized agent, the terms of the con- tract or agreement by which said house, wharf, pier, bulkhead, bridge, vault, building or appurtenances is being erected, altered, repaired or improvements made to any such house, building or building lot, and the amount due or unpaid the person or persons, firm, cor- poration or association, erecting, altering, repairing or improving the same ; and if such owner or his said agent at the time of said demand shall neglect or re- fuse to inform the person making such demand of the § 4.] NOTICE OF LIEN, ETC. 25 • terms of the contract or agreement under which the same are being erected, altered, repaired or made, and the amount due and unpaid upon such contract or agreement therefor, or shall intentionally and knowing- ly falsely state the terms of said contract or agreement, or the amount due or unpaid thereon ; and if the per- son, persons, firm or firms, corporations or associations furnishing such materials or performing such labor or service, shall sustain loss by reason of such refusal or neglect or false statement, the said owner shall be liable to them in an action therefor and the return un- satisfied of an execution against the party to whom such materials were furnished or for whom such labor and service were performed, in an action for the collec- tion of the value thereof, shall be presumptive proof of such loss, and the person or persons, firm or firms, cor- poration or association furnishing such materials or per- forming such labor and service or making such im- provement, shall by filing within the time and in the manner the notice of lien prescribed by this act, have a lien upon the house, wharf, vault, pier, bridge, bulk- head, building or appurtenances, and upon the lot, premises, parcel or farm of land upon which the same may stand or be intended to stand, or improvement is made, as in this act provided, for all the materials furnished and labor and service performed after such neglect, refusal, or false statement. Buffalo Act, § 4. §4. Notice of Lien. Filing and Requisites of. Notice upon Owner. § 4. At any time during the performance of the work or the furnishing of the materials, or within 26 NEW mechanics' lien law. [§ 4. ninety days after the completion of the contract or the final performance of the work, or the final furnish- ing of the material for which a lien ia claimed, dating from the last item of work performed or from the last item of material furnished, the person or persons, firm or firms, corporation or association furnishing such materials or performing such labor or service may file a notice of lien in writing in the clerk's office in the county where the property is situated against which the lien is asserted, containing the names and resi- dences of the claimants, the nature and amount of the labor and service performed, or the materials furnished or to be furnished, with the name of the owner, lessee, general assignee or person in possession of the pre- mises against whose interest a lien is claimed ; the name of the person or persons, firm or firms, corpora- tion or association by whom he was employed, or to whom he furnished or is about to. furnish such ma- terials, or whether all the work for which the claim is made has been actually performed or furnished, and if not, how much of it, and also a description of the pro- perty to be charged with a lien sufficient for identifica- tion, and if in a city or village the situation of the building or buildings by street and number, if the street and number be known. But the failure to state the name of the true owner, lessee, general assignee, or person in possession shall not impair the validity of the lien. The said notice of lien must be verified by the per- son or one of the persons, member of a firm or firms, an officer of the corporation or association making the claim or his, its or their agent, to the effect that the statements therein contained are true to the knowledge § 4.] NOTICE OF LIEN, ETC. 27 or information and belief of the person making the same. The county clerk of each county shall provide and keep a book in his office to be called the " lien docket," which shall be suitably ruled in columns headed *' claimants," " against whom claimed," " owners and parties in interest," " premises," " amount claimed ; " in which he shall enter the particulars of such notice of lien together with the date, hour and minute of filing of the notice of lien, and what proceedings have been had, the names of the owners and persons in in- terest, and other persons against whom the claims are made shall be entered in said book in alphabetical order. A fee of twenty cents shall be paid to said •elerk on filing such notice of lien. Every claimant shall within ten days after filing his notice of lien as herein provided, serve a copy of such notice upon the owner, or other person in interest by delivering the same to him personally or by leaving a copy thereof at his last known place of residence in the city or town in which such lands or part thereof are situated, with some person of suitable age and dis- cretion, or if such owner or person in interest has no such residence, or such person cannot be found, by affixing a copy thereof conspicuously on said premises described in said notice of lien, between the hours of nine o'clock in the morning and four o'clock in the afternoon. And after such service such owner or the person in interest shall not be protected in any payment made to such contractor or other claimant. Service on owner, see Buffalo Act, § 5 ; Rensselaer Act, § i ; Kings Co. Act, §3. 28 NEW MECHANICS' LIEN LAW. [§ 4 Acquiring the Lien. The lien is acquired by the filing of the notice prescribed by the statute, and dates from the filing of such notice ; and conveyances made in good faith before the filing will defeat the lien. Noyes e. Burton, 29 Barb., 631. Ernst v. Reed, 49 Barb., 367. Quinby ». Sloan, 2 Abb. Pr., 93; s. C, 2 E. D. Smith, 59. Sinclair v. Pitch, 3 E. D. Smith, 677. Cox i). Broderick, 4 E. D, Smith, 721. Brown v. Zeiss, 9 Daly, 242. Stuyvesant v. Browning, 33 Supr. Ct., 203. Payne v. Wilson, 74 N. T., 348. But the lien is not defeated unless the conveyance is in good faith. Meehan v. Williams, 36 How., 73. Grass v. Daly, 5 Daly, 340. Assignee for benefit of creditors takes the property free from the lien unless it has been previously perfected. Noyes o Burton, supra. Quinby v. Sloan, supra. Where several buildings are liable to one lien and one is conveyed the others remain subject to the lien. McAuley v. Mildrum, 1 Daly, 396. By whom Notice may be filed. The right to acquire a lien is a personal right and cannot be assigned. Boberts v. Fowler, 3 E. D.Smith, 632. Rollin v. Cross, 45 N. Y., 766. Though an assignee may acquire a lien for the assignors benefit to be held for him as agent. Rollin v. Cross, supra. Hallahan v. Herbert, 57 N. T., 409. A second notice may be filed when the first was discharged upon an unfulfilled promise of payment. Haden v. Buddensiek, 6 Daly 3. The notice cannot be amended. Hallahan v. Herbert, 57 N. T., 409. Conklin v. Wood, 3 E. D. Smith, 662. § 4.] POEM AND REQUISITES OP THE NOTICE. 29 Form and requisites of* the Notice. The form is immaterial so long as it is a substantial com- pliance with the statutory requirements. Beals v. Congregation, &c, 1 E. D. Smith, 654. Dunbar s. Diem, 9 W. Dig., 231. Hubbell v. Schreyer, 14 Abb. N. S., 284. Names and residences of persons composing an association ■should be given. Beals v. Congregation, &c, supra. Where the indebtedness is to several persons as joint con- tractors, a notice by one in his own name stating it to be due himself is insufficient. Hubbel ». Schreyer, 14 Abb. N. S., 306. Hauptman v. Halsey, 1 E. D. Smith, 668. Amount must be stated and judgment cannot be rendered for more than the amount claimed. Protective Union ». Nixon, 1 E. D. Smith, 671. Dunning v. Clarke, 2 E. D. Smith, 535. Lutz v. Ey, 3 E. D. Smith, 621. Claim is not necessarily limited to exact amounts paid employees, when the action is brought to recover disburse- ments. Anderson v. Dillaye, 47 N. Y., 678. All just credits and off-sets should be deducted and the «laim made for the balance. Dugan v. Brophy, 55 How., 121. A reference to a bill annexed to the notice containing " a correct statement of the work done and the moneys paid and the balance due," is a sufficient statement of the amount. Smith ». Bailey, 8 Daly, 128. The name of the owner is sufficiently stated if it appear in the notice who such owner actually was, though the claim is inadvertently made against another person. Moran «. Chase, 52 N. T., 347. .When the ownership has changed during the progress of the work the person owning the property at the time of filing is the owner against whom the notice should be filed. Tiley v. Thousand I'd Hotel, 9 Hun, 424. 30 NEW mechanics' men law. [§ 4. An error in the name in the notice can be corrected in the complaint by setting forth the error and naming the true owner. Leiegne v. Schwartzer, 10 Daly, 547. Name of owner by whose consent the property is sought to be changed should be set out. Riley v. Watson, 6 T. & C, 310. But notice need not set forth the fact of the consent by which the lien is claimed, that being simply an allegation of the pleadings. Burkitt v. Harper, 79 N. Y., 273. If the owners are partners the firm name may be used in the notice. Be Black, 2 Watts & Serg., 179. Name of the employer should be given and not the name of the agent of the employer, with whom the contract was made. Hauptman v. Catlin, 20 N. Y., 247. Notice has been held sufficient which named but one of several joint employers. Brown v. Welch, 5 Hun, 582. Dugan v. Brophy, 55 How., 121. Plaintiff is not estopped by the recitals of his notice from showing that the materials were actually sold to another per- son. Williams v. Root, 14 Weekly Dig., 238. Description of the premises is absolutely necessary to the validity of the claim. Donnelly v. Xibby, 1 Sweeny, 259. Several contiguous buildings may be covered by the same lien. Moran v. Chase, 52 N. Y., 347. And in this case the notice should specify the amount claimed against each building, otherwise priority will be given to a lien which does so specify. Broadway Sav. Bk. v. Cummings, Daily Reg., Jan. 10, 1884. § 5.] PRIORITY OP LIENS. 31 Sub-contractor in a notice of lien for materials furnished a contractor should state that fact and the relation of the latter to the owner ; but the neglect to do so is not a fatal defect. Lute v. Ey, 3 E. D. Smith, 621. Darrow v. MorgaD, 65 N. Y., 333. Need not state that his contract was not in writing, if that be the fact. Smith v. Bailey, 8 Daly, 128. May join a claim against the owner and the contractor in the same notice. Hubbell v. Schreyer, 14 Abb. N. S., 284. Must be filed within the statutory period or the claim is wholly void. Donaldson v. O'Connor, 1 E. D. Smith, 695. Lutz v. Ey, 3 E. D. Smith, 621. Hubbell e. Schreyer, supra. Spencer ». Barnett, 35 N. T., 94. Verification is indispensable and without it the claim is a nullity. Conklin v. Wood, 3 E. D. Smith, 662. Hallahan v. Herbert, 57 N. ¥., 409. Verification " to the best of his own knowledge " was holden insufficient under former act. Keogh v. Main, Weekly Dig., Aug. 1, 1884. Service upon the owner is not necessary to the validity of the lien ; this is only required to prevent payments upon the contract. Kenney v. Apgar, 93 N. T., 541. §5. Priority of Liens. Building Contract. § 5. The liens provided for in this act shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in 32 NEW MECHANICS' LIEN LAW. [§ 5. the fourth section of this act, and prior to advances made upon any mortgage on the premises after the filing of such notice of lien, and prior to the claim of any creditor who has not furnished materi- als or performed labor upon any land, or towards the erection or improvement of premises, described in said notice of lien and which have been assigned by the owner, lessee, or person in possession thereof, by a general assignment for the benefit of creditors within thirty days before the filing of the notice of lien provided for in the fourth section of this act. But nothing in this Act shall affect the priority of the amount actually owing on a mortgage given for purchase-money. In cases in which the owner has made an agree- ment to sell and convey the premises to the con- tractor or other person, such owner shall be deemed to be the owner within the intent and meaning of this Act, until the deed has been actually delivered and re- corded, conveying said premises pursuant to such agreement. Compare N. Y. City Consd. Act, § 1809 ; Kings Co. Act, § 1 ; Buffalo Act, § 7. Before the passage of this statute the vendor of a lot, un- der a building contract, was not considered an owner, although the legal title was in him. Hallahan v. Herbert, 11 Abb. N. S., 326. Gay v. Brown, 1 E. D. Smith, 725. Walker v. Paine, 2 E. D. Smith, 662. Loonie i>. Hogan, 9 N. T., 435. Conklin e. Bauer, 62 N. T., 620. Gates v. Whitcomb, 4 Hun, 137. Although the relation of owner and contractor does not exist between the parties to such a contract, the fee may be subjected to the lien on the ground that the owner consented to the erection. Gates v. Whitcomb, 4 Hun, 137. See Hackett v. Badeau, 63 JST. Y., 476. § 6.] LIMITATION AND CONTINUANCE OF LIEN. 33 If the vendee subsequently acquires title, it enures to the benefit of a lienor in a proceeding against him. Rollin v. Cross, 45 N. Y., 766. McGraw v. Godfrey, 56 N. Y., 610. §6. Limitation and Continuance of Lien. Lis Pendens. § 6. No lien provided for in this act shall bind the property therein described, for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same ; and if the action is in a court of record, a no- tice of the pendency of such action is filed with the county clerk of the county in which such notice of lien is filed, containing the names of the parties to the action, the object of the action, and a description of the premises affected thereby, and the time of filing the notice of lien. Or unless an order be made by a court of record continuing such lieu, and a new docket be made stating such fact. And when a claimant is made a party defendant to any action brought to enforce any other lien, such ac- tion shall be deemed an action to enforce the lien of such defendant, who is a claimant within the pro- visions of this act. The neglect to file the notice of pendency, provided for by this act, shall not abate any action which may be pending to enforce the lien, but such action may be prosecuted to judgment against the person or per- sons, firm or firms, corporation or association liable for the debt. Compare Buffalo Act, § 8 ; Cities Act, § 5, as to provision for continuing lien, and N. Y. City Act, § 1813. 34 NEW MECHANICS' MEN LAW. [§ 7. The lien is discharged at the expiration of one year if no- notice of pendency has been filed, even if the case has been meanwhile tried. Prior v. White, 32 Hun, 14. The notice of pendency must be filed within the statutory time, and if the last day is Sunday, the time is not thereby extended to the following day. Bowes v. N. Y. Christian Home, 64 How., 509. The provision that the lien shall cease at the end of a year unless continued by order of court, has reference only to the lien on the premises ; and does not refer to the lienor's 'right to surplus moneys arising from the sale of land upon a judgment of foreclosure. If he has a right thereto at the time of sale, no further order is necessary. Emigrant, &c, Bank ». Brown, 75 N. Y., 127. The order continuing the lien may be made by any court having jurisdiction of the lien. Darrow v. Morgan, 65 N. Y., 333. No notice of the application for the order is necessary un- less the court so direct. Ibid. The order continuing the lien cannot be granted after the expiration of the year. Poerschke v. Kedenburg, 6 Abb. N. S., 173. In the computation of time the day of the filing of the notice is to be excluded. Haden v. Buddensiek, 6 Daly, 3. Action to Enforce Lien. §'7. Any claimant who has filed the notice of lien mentioned in the fourth section of this act, may en- force his claim against the property therein mentioned, and against the person or persons, firm or firms, cor- § 8.] PROCEDURE TO ENFORCE. PLEADING. 35 poration or association, liable for the debt, by a civil action in a court of record in the city or county where the property is situated, which would have jurisdic- tion to render a judgment in an action founded upon a contract, for a sum equal to the amount of the lien. Compare Buffalo Act, § 9, and N. T. City Act, § 1814. §8. Procedure to Enforce. Pleading. § 8. The manner and form of instituting and pros- ecuting any such action to judgment, or an appeal from such judgment shall be the same as in actions for the foreclosure of mortgages upon real property, except as herein otherwise provided. A certified copy of the notice of lien filed, as herein provided, shall be entitled to be read in evi- dence, with the same force and effect as if the orig- inal were provided [produced], and such copy shall be prima facie evidence of the execution and filing of the original. Compare Buffalo Act, § 10, and N. Y. Act, § 1814. Pleading-. The complaint must show that the claimant has taken the necessary steps to acquire a lien. An ordinary complaint for work and labor will be set aside on motion. Conkright v. Thomas, 1 E. D. Smith, 661. Foster v. Poillon, 2 E. D. Smith, 556. Bailey ®. Johnson, 1 Daly, 61. Must show affirmatively plaintiff's right to the remedy, and it is not sufficient to merely recite'the notice. Duffy ». McMannus, 3 E. D. Smith, 657. 36 NEW MECHANICS* LIEN LAW. [§ 8. Must also show that the facts by which it is sought to sub- ject the owner's premises. Sothard t. Lavelle, 4 Month. L. Bui., 30. If it is sought to charge the owner as having consented to the erection, that allegation should be made in the pleadings. Burkett v. Harper, 79 N. T., 273. Should aver the verification of the notice before filing. Hallahan v. Herbert, 2 Daly, 253. Conklin v. Ward, 3 E. D. Smith, 662. Should contain an averment of the performance of the •contract. Jaques v. Morris, 2 E. D. Smith, 639. And a description of the premises sufficient to enable the sheriff to determine the property to be sold. Dufly v. McMannus, 3 E. D. Smith, 657. That materials were furnished for as well as used in the building. Watrous v. Elmendorf, 55 How., 461. In an action by a sub-contractor the complaint must show: 1. That labor or materials were furnished in conformity with the contract between the owner and the contractor. Doughty «. Devlin, 1 E. D. Smith, 625. Dixon «. La Farge, 1 E. D. Smith, 722. Broderick v. Boillon, 2 E. D. Smith, 554. Quinn v. The Major, 2 E. D. Smith, 558. Bailey v. Johnson, 1 Daly, 61. 2. That the notice was properly filed. Bailey «. Johnson, supra. 3. That at the time of filing or subsequently, a payment was due or has become due from the owner to the contractor on the contract. Bailey v. Johnson, supra. Leiegne ». Schwartzer, 10 Daly, 547. 4. The interest of the parties in the premises. Bailey v. Johnson, supra. Sinclair v. Fitch, 3 E. D. Smith, 677. Jenkes ». Parsons, 2 Hun, 667. § 8.] THE PROCEEDING. 37 Complaint need not set out all the facts that are required in the notice ; an allegation that plaintiff has filed the notice in the manner and form required by the statute is sufficient. Watrous v. Elmendorf, 55 How. Pr., 461. May demand that a conveyance be declared void for fraud. Tisdale v. Moore, 8 Hun, 19. The process may be amended as in other actions. Gambling ». Haight, 58 N. T., 623. An error in the name of the owner in the notice may be corrected in the complaint by setting out the error and giving the true name. Leiegne v. Schwartzer, 10 Daly, 547. The Proceeding is an equitable one, and a jury trial cannot be demanded as of right. Kenney v. Apgar, 93 N. T., 541. When lien has been discharged by deposit, the claimant need not prove the filing of a notice of pendency of action. Ward v. Kilpatrick, 85 N. T., 413. Performance of the conditions of the contract must be shown by plaintiff, although the answer does not specially al- lege its non-performance. Haag v. Hilmeyer, 15 Weekly Dig., 323. When contract has been abandoned plaintiff may recover on a quantum meruit without giving excuse for non-perform- ance. Powers ». Hogan, 19 "Weekly Dig, 459. The bona fides of a conveyance of the premises may be inquired into where it was alleged to have been made in fraud of claimant's right, and the rights of the parties be adjusted in this process. Gross v. Daly, 5 Daly, 540. Counter-claim may be set up in defense to an action, and between the owner and contractor any matter of defense may 38 NEW MECHANICS' lien LAW. [§ 8. be taken advantage of that would be available iu a personal action between the parties. Owens v. Ackerson, 1 E. D. Smith, 691. Miner v. Hoyt, 4 Hill, 93. The same rule is applicable to proceedings between con- tractor and sub-contractor. Miner v. Hoyt, supra. Grogan v. MoMahon, 4 E. D. Smith, 754. Between the owner and sub-contractor any damages arising out of the contract, through the fault of either the contractor or sub-contractor, may be recouped. Cheney v. Troy Hospital, 65 N. T., 282. Miller v. Moore, 1 E. D. Smith, 739. Develin v. Mack, 2 Daly, 100. Reference is properly made when the owner sets up a pay- ment in full. Tooker v. Rinaldo, 11 Hun, 154. The reference must be of the whole matter in controversy. Scheahy v. Tomlinson, 1 "W. Dig. 24. Court may appoint a referee to sell and report the deficien- cy, as in foreclosure of mortgage. Gauhn v. Mills, 2 Abb. N. C, 114. After trial before a referee to hear and determine the is- sues, judgment should be entered by the clerk without ap- plication to the court. "Wards. Kilpatrick, 1 Mon. L. Bui., 31. Appeal will not stay proceedings unless undertaking be given, even when deposit has been made. Lorson v. Horgan, 2 Mon. L. Bui., 74. As this is an equity proceeding, final judgment may be given on appeal contrary to the finding of the jury, if just- ice require. Muldoon v. Pitt, 54 N. T., 269. In reversing a special term order discharging a lien and vacating an order continuing the lien, the general term may include in the order of reversal an order requiring the § 8.] JUDGMENT. 39 county clerk to restore the lien and the record of the order continuing it. McGuckin 8. Coulter, 33 Supr. Ct., 328. The objection that it does not appear that a copy of the notice has been served on the owner, must be taken at the trial. Schaettler v. Gardiner, 4 Daly, 56. Judgment. Judgment must direct a sale, not of the property, but of the owner's interest therein, and the manner in which the proceeds shall be distributed. Althouse v. Warren, 2 E. D. Smith, 657. Lenox n. Yorkville Ch., 2 E. D. Smith, 673. Smith v. Corey, 3 E. D. Smith, 642. Meehan v. Williams, 2 Daly, 367. When the lien has been discharged by payment into court, the judgment should not give a lien upon the property. Dunning v. Clarke, 2 E. D. Smith, 539. In a proceeding by sub-contractor against owner, a judg- ment upon default should direct a sale of the owner's interest in the premises ; the application of the proceeds to the claim and costs and for a deficiency against contractor. Eagleson v. Clarke, 2 E. D. Smith, 644. Where a contractor assigned for benefit of creditors, his assignee completed the contract and discharged by deposit a sub-contractor's lien filed after the assignment, the latter was held to be entitled to be paid therefrom with costs. McMurray v. Hutchinson, 10 Daly, 64. Where the contract provides for payment in specific prop- erty the judgment cannot be rendered for a specific perform- ance. Dowdney v. McCullom, 59 N. T., 367. An execution directing a sale of defendant's interest of a date earlier than the lien, may be amended, and a sale there- under is not void. Boody v. Rexford, 13 Weekly Dig., 130. As to personal judgment, see § 15, infra. 40 NEW MECHANICS' LIEN LAW. [§§ 9, 10. §9. Jurisdiction of Courts not of Record. Summons and Com- plaint. § 9. An action to foreclose a lien, provided for in this act, may be brought in a court not of record, which would have jurisdiction to render a judgment in an action upon a contract for a sum equal to the amount of the lieu, and shall be commenced by the personal service anywhere within the State, of a summons and a complaint verified according to the provisions of section five hundred and twenty-six of the Code of Civil Procedure, upon the owner or other person in interest as described heretofore in this act. The complaint must set forth substantially all the facts contained in the notice of lien filed with the clerk of the county as provided in section five [four} of this act, and the substance of the contract. The form and contents of the summons shall be the same as prescribed by the Code of Civil Proced- ure for the commencement of an action in a court not of record. The summons must be returnable not less than twelve nor more than twenty days after the date when it is issued. Compare State Act, § 8, et seq., and Renssalaer Act, § S et seq. §io. Service of Summons in Courts not of Record. § 10. When the summons in an action in a court not of record cannot be served personally on the owner or party in interest, by reason of absence from the State or concealment therein, such service may be § 11.] PROCEDURE IN COURTS NOT OP RECORD. 41 made by leaving a copy of such summons at the last place of residence of such owner or person in interest, as aforesaid, and by publishing a copy of such sum- mons for three weeks in succession in a newspaper pub- lished in the city or county where the property is situ- ated. If the service of the summons is made by publica- tion, the time when said summons is returnable shall commence to run from the day of the last publication. § 11. Procedure in Courts not of Record. § 11. At the time and place specified in the sum- mons for the return thereof, issue must be joined if both parties appear, by the owner or other person in interest filing with the justice an answer in writing verified as herein provided for verifying the complaint, and which may contain a general denial of each alle- gation of the complaint or a specific denial of one or more of the material allegations thereof ; it may also set forth any legal or equitable defense or counter- claim to such complaint. If the owner or other party in interest fails to appear on the return day of the summons on proof by affidavit of the service of the summons and complaint, if personal service thereof be made, or if by publica- tion or [on] proof of the service of summons by adver- tisement, judgment may be entered for the amount claimed in the complaint with the costs ; execution may thereupon be issued for the collection of said judg- ment and costs, the same as upon judgments in actions on contract in such courts, except that the execution 4 42 NEW MECHANICS' MEN LAW. [§§ 12,' 13. shall direct the officer to sell the right, title and inter- est of the owner or other person in interest as aforesaid in the premises, upon which the claim set forth in the complaint was a lien at the time of filing the notice of lien prescribed in the fourth section of this act. A justice's judgment in the ordinary form held, in con- nection with the previous proceedings, a sufficient judgment to establish the lien. Jennings v. Newman, 52 How. Pr., 282. §13. Trial of Issues in Courts not of Record. § 12. The issue joined as provided in the proceed- ing section, must be tried the same as other issues are tried in the respective courts in which the action is brought, and the judgment thereon be enforced ; if for the claimant as provided in the proceeding section, if for the owner or other person in interest it must be en- ' forced the same as in actions arising on contracts in the respective courts. §13. Appeals from Courts not of Record. § 13. Appeals may be taken from such judgments rendered in courts not of record, in the same manner and according to the same provisions provided by statute for appeals from judgments in actions in such courts arising on contract for the recovery of money only. § 14.] costs. 43 §14. Costs. § 14. Costs and disbursements, except in courts not of record, in which they shall be the same as al- lowed in civil actions in such courts, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defend- ants, or any or either of them as may be just and equit- able except as provided in section nineteen of this act, and shall be included in the judgment recovered there- in. The expenses incurred in serving the summons by publication may be allowed in courts not of record, and added to the amount of costs now allowed in said courts. When an action is brought in a court of record such direction shall be made in the discretion of the court, as to the payment of costs as shall be just and equit- able, and the judgment entered shall specify to whom and by whom the costs are to be paid. In an action against an executor or administrator where the claim has not been unreasonably resisted the court may properly refuse costs. Marryatt v. Riley, 2 Abb. N. C, 119. Court may require owner to pay costs in addition to amount due to contractor. Kenney v. Apgar, 93 N. T., 539. The Act of 1875, ch. 379, did not authorize the court to grant an extra allowance. Ruth v. Jones, 1 Mon. L. Bui., 61. When there are several liens the claimants who have es- tablished their liens should have costs against the owners who contested the claims. Morgan v. Stevens, 6 Abb. N. C. 356. 44 NEW MECHANICS' MEN !LAW. [§§ 15, 16. §15. Personal Judgment. § 15. Whenever in any action brought under the provisions of this act, any claimant shall fail, for any reason, to establish a valid lien, he may nevertheless re- cover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him, and which he might recover in an action upon a contract against the said party or parties. Prior to the enactment of this provision the power to ren- der a personal judgment was merely incidental to the enforce- ment. If no lien had been acquired no personal judgment could be rendered. Burroughs v. Tpstevan, 75 N. T., 571. Meyer v. Beach, 79 N. Y., 409. Childs v. Bostwick, 65 How., 146. But having once acquired jurisdiction such judgment could be rendered as justice required. Schaettler v. Gardiner, 47 N. Y., 610. McGraw ». Godfrey, 56 N. Y., 610. Darrow ®. Morgan, 65 N. T., 338. § 10. Transcript of Judgment. § 16. A transcript of every judgment rendered un- der and according to the provisions of this act headed " lien docket " shall be furnished by the clerk of the county where rendered and docketed to the successful party who may file the same with the clerk of any other county, and if the judgment is for twenty-five dollars or upwards exclusive of costs, the same shall thereafter be a lien on the real property in the county where the same is filed and docketed of every person against whom the same is rendered, in like manner and § 17.] PARTIES TO ACTIONS. 45 to the same extent as in other actions for the recovery of money arising on contracts. . "When the action is tried and the judgment ren- dered in a court not of record, the justice of the court in which the action is tried, or other person authorized to furnish transcripts of judgments therein shall fur- nish the successful party a transcript thereof, who may file the same with the clerk of the county with whom the notice of lien is filed. The filing of such transcript shall have the same •effect as the filing of transcripts of judgments rendered in such courts not of record. In all cases where the judgment is against the -claimant or claimants the county clerk shall enter the word " discharged " under the last head in his lien docket. §1*. Parties to Actions. § 17. Any person or persons, firm or firms, corpo- ration or association, filing a notice of lien, or the as- signee of such person or persons, firm or firms, corpo- ration or association, after the filing thereof, shall be the plaintiff in such action. The plaintiff must make the parties who have filed notice of liens against the property as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendant. And as to all persons, firms, corporations or associa- tions against whom no personal claim is made the plaintiff may with the summons serve a notice stating "briefly the object of the action, and that no personal •claim is made against it or them. 46 NEW mechanics' lien law. [§ 18. And all persons, firms, corporations or associations,, who have filed notice of liens under this act shall by- answer in such action set forth the same, and the court in which the action is brought may settle and deter- mine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims of all parties to the action and upon every counter-claim or set-off alleged therein, to the extent of their respec- tive jurisdictions. The provisions in this section in regard to making parties who have filed notices of liens against the pro- perty as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendants shall not apply to proceedings to enforce liens instituted in courts not of record. §18. Consolidation of Actions. §18. Any persons, firms, corporations or associa- tions claiming liens upon the same property may join in the same action, and when separate actions are com- menced the court in which the first action was brought may, upon the application of the owner of the prop- erty, or of any part thereof, or of any party to either action, consolidate them. The provisions of this section shall not apply to aetions commenced in courts not of record. Compare N. Y. Act, § 1815 ; Buffalo Act, § 12. Several liens created at different times and by different per- sons of whom plaintiff is assignee, may be enforced in one ac- tion if no other rights have intervened between the several filings. Boody v. Rexford, 13 Weekly Big., 130. §§ 19, 20.] SUB-CONTRACTOR. 47 Subsequent as well as prior lienors may be made parties and the equities adjusted between them. Kenney v. Apgar, 93 N. Y., 539. § 1». Offer of Payment. § 19. At any time after an action is commenced, the owner or owners of the property affected, may, in writ- ing, offer to pay into court any amount stated in the offer, or to execute and deposit any securities or papers which he may describe, in discharge of the lien or liens. If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that on executing and depositing with the clerk of the county the amount offered or the se- curities or papers described, the lien or liens be dis- charged and the moneys or securities deposited take the place of the property upon which such lien or liens was or were created, and shall be subject to the same- In case the offer shall not be accepted within ten days, and the plaintiff fails to recover any more favor- able judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer. See Buffalo Act, § 13, and N. T. City Act, § 1816. §20. Suh-Contractor. Eank of Various Liens. § 20. All persons, firms, corporations or associa- tions entitled to liens, under the provisions of this act, except those who contracted with the owner, shall be 48 NEW MECHANIC*' LIEN LAW. # [§21. deemed sub-contractors, and the court in the judgment shall direct the amount due sub-contractors to be paid out of the proceeds of sales, before any part of such proceeds are paid to the contractor. In case of several buildings erected, altered or re- paired under one contract and of conflicting liens, each lienor shall have priority upon the particular building or premises where his labor is performed or his material used. Persons standing in equal degree as co-laborers or various persons furnishing material shall have priority according to the date of filing their liens. Where several notices of liens are filed for the same demand, as in case of a contractor including claims for workmen to whom he is indebted, and the lien by the workmen, the judgment shall provide for the proper payment, so that, under the liens filed, double pay- ment shall not be required. And no payments voluntarily made upon any claim which has been filed as a lien shall impair the lien of any person except the lien of the person so paid to the amount of such payment. Lienors claiming liens upon several buildings who do not specify the amount due on each will be postponed to claimants who do so specify. Broadway Sav. Bk. v. Cummings, Daily Reg., Jan. 30, 1884. §21. Bank of various Liens. How determined. § 21. In every case in which different liens are as- serted against property, the court in the judgment must declare the priority of each lien, and the proceeds of §§22, 23.] JUDGMENT FOE DEFICIENCY. 49 the sale of the property must he applied to each lien in the order of its priority. N.Y. City Act, §1818. §22. Contract for Payment in Specific Property. § 22. Whenever, hy the terms of his contract, the owner has stipulated for the delivery of bills, notes or other obligations or securities, or of any other species of property in lieu of money, the judgment may direct that such substitute be delivered or deposited as the court may direct, and the property affected by the liens can only be directed to be sold in default of the owner to deliver said substitutes within such time as may be directed. N. Y. City Act, § 1819, and Buffalo Act, § 16. The lien has long been held to be enforceable when the contract stipulates for payment in specific property. Dowdney v. McCullom, 59 N. Y., 367. But the court cannot decree a specific performance of the contract. Ibid. §23. Judgment for Deficiency. § 23. Whenever, on the sale of property against which a notice of lien is filed as provided in the fourth section of this act, there is a deficiency of proceeds, judgment may be docketed for the deficiency against the persons, firms, corporations or associations named in the judgment as personally liable therefor, and therein 50 NEW mechanics' lien law. [§24. adjudged to pay the same in like manner and with like effect as in actions for the foreclosure of mortgages. The provisions of this section shall not apply to actions commenced in courts not of record. N. Y. City Act, § 1820. §34. Discharge of Lien. § 24. A lien may be discharged as follows : 1. By filing a certificate of the claimant or his suc- cessor in interest, duly acknowledged or proved, stat- ing that the lien is satisfied and may be discharged. 2. By depositing with the county clerk, if before the suit, of a sum of money equal to the amount claimed, with interest to the time of such deposit. 3. After the commencement of the action, by the deposit with the clerk of the county of such sum of money as in the judgment of the court, after due no- tice to all claimants or parties to the action, will be sufficient to pay any judgment which may be recovered against the property. In case the deposit of money is made with the county clerk as provided in subdivisions two and three of this section, the same shall be repaid by said clerk to the party making such deposit, or his assigns, upon the lien or liens being discharged by the claimants who have filed a notice or notices of lien or liens. 4. By the lapse of time. When one year has elapsed from the time of filing the notice of lien, and no action has been commenced either to enforce such claim or order of the court made continuing said lien, as provided in section six of this act. §24.] DISCHARGE OF LIEN. 51 5. By order of the court for neglect of the claim- ant to prosecute the same, as hereinafter provided. The owner of the property or of any part thereof af- fected by any notice of lien filed under this act, or the person or persons, firms, corporations or associations against whom the claim is made, may, at any time after the filing of the notice of lien, serve a notice in writing upon the claimant or any one of several claimants united in interest, or by leaving such notice at his last known place of residence, with some person of suitable age, with direction to deliver the same, requiring said claimant to commence an action to enforce the .claim within the time to be specified in the notice, which shall not be less than thirty days from the time of such service ; or to show cause at a special term of any court of record, at which a motion might be made in an action to enforce the lien or at a county court of the county in which the property is situated, at a time to be specified in such notice, why the notice of lien filed should not be vacated and canceled of record. There- upon, upon due proof of the service of said notice, and that no action has been commenced to enforce the claim, the court may make an order that the claim be vacated and canceled of record. 6. By the owner of the premises, person or per- sons, firm or firms, corporations or associations against whom or which the notice of lien is filed, executing with two or more sufficient sureties, who shall be freeholders, a bond to the clerk of the county where the premises are situated, in such sum as the court may direct, not less than the amount claimed in said notice, conditioned for the payment of any judgment which may be rendered against the property. The 52 NEW MECHANICS' LIEN LAW. [§24. sureties on said bond must justify in at least double the sum named in said bond. A copy of said bond, with a notice that the sure- ties will justify, before the court or a judge thereof, at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the court or a judge thereof. Compare N. Y. City Act, § 1821 ; Kings and Queens Act, § 7, and Buffalo Act, § 18. Motion to discharge lien upon giving bond cannot be en- tertained unless the applicant has first had the amount of de- posit fixed by the court. Shannon v. Coursen, Daily Reg., Oct. 12, 1882. Part of the property cannot be discharged on motion, but bond must be given to secure the whole lien. Ford v. Bailey, 5 Monthly L. Bui., 95. Leinor may release a portion of the property, and retain his lien upon the remainder. Hall®. Sheehan, 69 N. Y., 618. "When an instrument which has been filed to obtain a dis- charge has no seal, but is otherwise in proper form and ap- proved by the court, and the lien has been discharged, liability cannot afterwards be evaded in a suit thereon. Whitney v. Coleman, 9 Daly, 238. An order of court is not necessary to obtain a return of the money deposited, after the lien has lapsed by not bringing the action. « Be Laflin, &c, Powder Co., 5 Monthly L. Bui., 64. In an action against the contractor and owner, if the former deposits the amount of the claim and costs, the pro- ceeding should be dismissed as to the owner, against whom no personal claim is made. Schaettler v. Gardiner, 4 Daly, 56. §§25,26.] EJEPEALING CLAUSE. 53 Deposit does not give claimant a right to the money without establishing his lien. Flynn v. Butler, 61 How. Pr., 274. §25. Construction of Statute. § 25. This act is hereby declared to be a remedial statute and is to be construed liberally to secure the beneficial interests and purposes thereof; and a sub- stantial compliance with its several provisions shall be sufficient for the validity of the lien, or liens hereinbe- fore provided for, and to give jurisdiction to the courts to enforce the same. § 36. Repealing Clause. § 26. Chapter one hundred and eighty-four of the laws of eighteen hundred and, forty-six, chapter one hundred and sixty-nine of the laws of eighteen hun- dred and fifty-one, chapter three hundred and eighty- four of the laws of eighteen hundred and fifty-two, chapter four hundred and two of the laws of eighteen hundred and fifty-four, chapter six hundred and sixty- three of the laws of eighteen hundred and fifty-seven, chapter four hundred and seventy-eight of the laws of eighteen hundred and sixty-two, chapter five hundred of the laws of eighteen hundred and sixty-three, chap- ter three hundred and sixty-six of the laws of eighteen hundred and sixty-four, chapter seven hundred and seventy-eight of the laws of eighteen hundred and sixty-five, chapter five hundred and fifty-eight of the 54 NEW mechanics' lien law. [§27. laws of eighteen hundred and sixty-nine, chapter one hundred and ninety-four of the laws of eighteen hun- dred and seventy, chapter four hundred and eighty- nine of the laws of eighteen hundred and seventy- three, chapter five hundred and fifty-one of the laws of eighteen hundred and seventy-four, chapter three hun- dred and seventy-nine of the laws of eighteen hundred and seventy-five, chapters one hundred and forty-three and four hundred and eighty-six of the laws of eight- een hundred and eighty, sections eighteen hundred and seven to eighteen hundred and twenty-three inclu- sive of chapter four hundred and ten of the laws of eighteen hundred and eighty-two, sections eleven to twenty-seven inclusive of chapter two hundred and seventy-six of the laws of eighteen hundred and eighty-three and all acts amendatory of the above mentioned acts or extending the provisions thereof, are hereby repealed. But this act shall not be so construed as to af- fect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce such lien, now pending by virtue of any of the pro- visions of the acts hereby repealed, nor to revive any other or former acts or parts of act repealed by the acts hereby repealed. § 27. This act shall take effect immediately. The following are the acts included in the repealing clause : 1846, c. 184, Eichmond County. 1851, c. 169, Westchester, Ulster and Putnam Counties. 1852, c. 384, Repealing the last preceding Act and enacting a a lien law for Westchester and five other counties. ACTS INCLUDED IN REPEALING CLAUSE. 55 1854, c. 402, Old State Act. 1857, c. 663, Saratoga Act. 1862, c. 478, Kings and Queens Act. 1863, c. 500, Old New York City Act. 1864, c. 366, Onondaga Act. 1865, c. 778, Kensselaer Act. 1869, c. 558, General amendment to State Act. 1870, c. 194, Amending last preceding Act. 1873, c. 489, State Act. 1874, c. 551, Extending State Act to Erie County. 1875, c. 379, New York City Act. 1880, c. 143, Buffalo Act. 1880, c. 486, Cities' Act. 1882, c. 410, The provisions of the N. Y. City Consolidation Act, relating to liens against private property. 1883, c. 276, Amending the K Y. City Consolidation Act. MECHANICS' LIENS AGAINST MUNICIPAL PROPERTY. 1. Who may acquire Lien. — Against what property Lien to Attach. [Laws of 1878, Chap. 31B, passed May 22, 18*78.] § 1. Any person or persons who shall hereafter as laborer, mechanic, merchant or trader, in pursuance of, or in conformity with the terms of any contract made between any person or persons and any incorporated «ity in the State of New York, perform any labor or furnish any material toward the performance or com- pletion of any contract made with said city, on com- plying with the second section of this act, shall have a lien for the value of such labor or materials or either, upon the moneys in the control of the said city, due or to grow due under said contract with said city to the full value of such claim or demand, and these liens may be filed and become an absolute lien to the full and par value of all such work and mate- rials, to the extent of the amount due or to grow due on said contract, in favor of every person or persons who shall be employed or furnish materials to the person or persons with whom the said contract with said city is made, or the sub-contractors of said person or persons, their assigns or legal representatives, provided that no city shall be required to pay a greater amount than the contract price or value of the work and the materials furnished, when no spe- 58 LIENS AGAINST MUNICIPAL PROPERTY. cific contract is made in the performance of said work by the contractor. 2. Claim of Lienor, what to contain.— When and how Filed. § 2. At any time before the whole work to be performed by the contractor for the city is completed or accepted by the city, and within thirty days after the same is so completed or accepted, any claimant may file with the head of the department or bureau having charge of said work, and with the financial officer of said city, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and if not due,, when it will be due, giving the amount of the demand after deducting all just credits and offsets, with the name of the person by whom employed, or to whom materials were furnished ; also a statement of the terms, time given, conditions of his contract", and also that the work was done or materials were fur- nished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city, but no variance as to the name of the contractor shall affect the validity of the said claim or lien. 3. Liens to he Entered.— What Entry to contain. § 3. The financial officers of said city shall enter the claims in a book kept for that purpose by him, ' called the " lien book." Such entry shall contain the name and residence of claimant, the name of the contractor, the amount and date of the filing and a brief designation of the contract upon which the claim is made. 4. Time within which Lien must he Foreclosed.— Lis pen- dens, where Filed. § 4. No lien provided for in this act shall be bind- ing upon the property therein described, unless an LIENS AGAINST MUNICIPAL PROPERTY. 59 action be commenced within ninety days from the filing of the same, and a notice of pendency of said action be filed with the financial officer of the city. 5. When Lien Attaches.— Extent of lien. § 5. The lien shall attach from the time of filing thereof to the extent of the liability of the contractor for the claim preferred upon any funds which may be due or to grow due to the said contractor from said city, under the contract against which the lien is filed. 6. Civil Actions to enforce Liens, where brought. § 6. Any claimant who has filed the notice men- tioned in the second section of this act, may enforce his claim against the said fund therein designated and against the person or persons liable to the debt by a civil action. Actions to determine or terminate said liens may be commenced by the contractor or said city in any court of competent jurisdiction. 7. Who must he made Parties.— Priority of Claims. § 7. The plaintiff must make all parties who have filed claims the contractor, and the said city, par- ties defendant, and as to all parties against whom no personal claim is made, the plaintiff may, with the summons, serve a notice stating briefly the object of action, and that no personal claim is made. But all parties who have filed claims under this act may, by answer in such action, set forth the same, and the court in which the action is brought, may decide as to the extent, justice and priority of the claims of all parties to the action. 8. Judgments in Foreclosure.— Execution.— Appeals. § 8. The court in which the action is brought shall determine the validity of the lien, the amount due from the debtor to the contractor under his con- 60 LIENS AGAINST MUNICIPAL PBOPERTY. tract, and from the contractor to the respective claimants, and shall render judgment, directing that the said city shall pay over to the claimants, for work done and materials furnished in the execution of the said contract or contracts, whose claims or liens it shall hold to be valid and just, in the order of their priority as determined by said court to the extent of the sum found due to said claimants from their contractor, so much of said funds or money which may be due from the said city to the contractor, under his contract, against which the lien is filed, as will satisfy their liens or claims, with interest and costs, to the extent of the amount due from said city to said contractor. The judgments rendered under this act may be enforced by execution, and an appeal may be taken therefrom in the same time and manner as in civil actions. 9. Successive Liens.— Priority according to Date of Filing. § 9. In case of successive liens, or a number of liens, in favor of different persons, their rights and priorities shall be determined as follows: Persons standing in equal degrees as co-laborers, or various persons furnishing materials shall have priority accord- ing to the date of the filing of their liens. When sev- eral lien notices are filed for the same demand, the judgment shall provide for the proper payments according to priority, so that, under liens filed, double payment shall not be required. 10. When Actions may be Consolidated. § 10. When separate actions are commenced, the court in which the first action was brought may, upon the application of the said city, consolidate them. 11. Costs in the Discretion of the Court. § 11. Costs in all actions shall rest in the discre- tion of the court, and shall be. awarded to or against LIENS AGAINST MUNICIPAL PROPERTY. 61 the plaintiff or defendants, or any or eitKer of them, as may be just. 12. Bight to Personal Action not affected. § 12. Nothing contained in this act shall be con- strued to impair or affect the right of any person to whom any debt may be due for work done or mate- rials furnished to maintain a personal action to recover such debt against the person liable therefor. 13. How Lien may he Discharged. § 13. The Hen may be discharged as follows: First. By filing a certificate of the claimant, or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. Second. By lapse of time when ninety days have elapsed since the filing of the claim, and no action shall have been commenced to enforce the claim. Third. By satisfaction of any judgment that may be rendered in actions to foreclose said liens or claims. 14. Term "Contractor" defined. § 14. The term "contractor," as used in this act, shall be construed as meaning the person with whom the contract with the said city is made, his assigns or legal representatives. 15. When Act to take effect.— Repealing Clause. § 15. This act shall take effect immediately; but nothing herein contained shall affect the validity of any claims or liens upon moneys due or to grow due under contracts made by cities prior to its passage. All acts and parts of acts inconsistent with the terms of this act are hereby repealed. 62 LIENS AGAINST MUNICIPAL PROPERTY. • 16. In what cases Act to Apply. [Added by Act of 188] , Chap. 429.] § 16. This act shall apply to and include all cases and contracts under which work and materials have heretofore been, or shall hereafter be done and fur- nished upon any land, the title of which was, at the time of the making of the contract, and now is in any city, and for the performance of which appropriations have been, or shall hereafter be made and raised by any city; and shall apply to and include actions now pending for work done and materials furnished under any such contract. The foregoing Act, relative to Liens against municipal property, was incorporated into the New York City Consolidation Act, where it forms Title II, of Chapter XXIII, embracing sections 1824 to 1838, inclusive. LIENS RAILROAD CORPORATIONS. 1. Who may acquire Lien against Railroad Corporation.— To what Property Lien Attaches. [Laws of 1876, Chap. 392, passed May 18.] § 1. Any person who shall hereafter perform any- labor for a railroad corporation shall, on filing with the county clerk of any county in which such railroad corporation is situated, or through which the road of such corporation passes the notice prescribed by the second section of this act, have a lien for the value of such labor upon such railroad track, rolling stock And appurtenances, and upon the land upon which such railroad track and appurtenances are situated, to the extent of the right, title and interest of such railroad corporation in the property existing at the time of filing the said notice. o 2. Notice of Lien, when and how filed. § 2. "Within thirty days after the performance and completion of such labor, such person shall file a notice, in writing, with the county clerk of the county where the property is located, specifying the amount of claim, and the corporation against whom the claim is made. The county clerk shall enter the particulars of such notice in a book to' be kept in his office, to be called the " lien docket," with the name of claimant, 64 MENS AGAINST RAILROAD CORPORATIONS. amount claimed, the name of such corporation against which such claim is made, and the date of the filing of the notice, hour and minute. A fee of ten cents shall be paid to said clerk on filing such lien, and said notice, when so filed, shall thereafter operate as an incumbrance upon said property. 3. What Evidence Lienor must Produce upon the Trial. § 3. Any person performing labor, in availing himself of the provisions of this act, shall upon the trial, or at the assessment of damages, produce evi- dence to establish the value of such labor, and that the same was performed for such railroad corporation. 4. Action to Enforce Lien, where brought. § 4. Any laborer performing any work, or assignee thereof, may, after such labor is performed, and the service of the notice required by the first section of this act, bring an action in any of the courts of the county in which said property is situated to enforce said lien, requiring such railroad corporation to appear, by attorney, within thirty days after such service and answer the same, or, in default thereof, the claimant may take judgment for the amount of claim and costs. 5. Lien to Continue One Year. § 5. Every 'lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of the claimant in the proceedings ; but when a judgment is entered therein, and docketed with the county clerk within said year, it shall be a lien upon the real property of the railroad corporation against whom it is obtained, to the extent that other judg- ments are now made a lien thereon. MENS AGAINST BAILKOAD COKPOKATIONS. 65 6. Priority of Liens. S 6. The liens created and established by virtue of the provisions of this act shall be paid and settled according to the priority of the notice filed with the county clerk, as directed by the second section hereof. 7. How Liens may be Discharged. § 7. All liens created by this act may be discharged as follows : 1. By filing with the county clerk a certificate of the claimant, or his successors in interest, acknowl- edged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged; or 2. By depositing with the court or clerk of the court a sum of money equal to double the amount claimed, which money shall be thereupon held subject to the determination of the lien ; or 3. By an entry of the county clerk, made in the book of liens, that the proceedings on the part of the claimant have been dismissed by the court in which it is brought, or a judgment rendered against the said claimant; or 4. By an affidavit of the service of a notice from such railroad corporation, or its attorney, to the claimant, requiring such claimant to commence an action for the enforcement of said lien within twenty days after service of said notice and the failure of said claimant to commence an action as aforesaid. 8. Personal Liability of Stockholders, how Enforced. § 8. Each and all the stockholders of such corpor- ation shall be jointly and severally liable for the debts due or owing to any of its laborers or servants, other than contractors, for personal service for ninety days' service, or less than ninety days' service, per- formed for such corporation, but shall not be liable to 66 LIENS AGAINST RAILROAD CORPORATIONS. an action therefor, before an execution shall Be returned unsatisfied in whole or in part against the corporation, and the amount due on such execution shall be the amount recoverable with costs against such stockholders; before such laborer or servant shall charge such stockholders for such ninety days' service or less than ninety days' service, he shall give notice in writing, within twenty days after the per- formance of such service, that he intends to so hold him liable, and shall commence such action therefor within thirty days after the return of such execution unsatisfied, as above mentioned; and every such stockholder against whom any such recovery by such laborer or servant shall have been had, shall have a right to recover the same of the other stockholders in such corporation in ratable proportion to the amount of the stock they shall respectively hold with himself. LIENS AGAINST OIL WELLS, &o. 1. By Whom and against what Property lien may be Acquired. [Laws of 1880, Chap. 440, passed May 27, 1880.] Section 1. Any person who shall hereafter per- form any labor in or about the sinking, drilling or completing of any oil well, or any well sunk or drilled for oil, or gas, or other volatile or mineral substances, within the State of New York, or in sinking or drill- ing any water well, sunk or drilled for the purpose of drilling or operating any such oil well or other well as aforesaid, or who shall erect, build or furnish any tank or other receptacle for oil, gas or water which shall be built, erected or furnished for any of the purposes aforesaid, or who shall perform any labor, or furnish any materials in or for the building or erecting of such tank or other such receptacle as aforesaid, or who shall furnish any materials for any of the purposes aforesaid, including tubing, casing, sucker-rods, packers or other appurtenances or appli- ances to any such well as aforesaid, with the consent of the owner, being such owner as in this section hereinafter described, shall, on filing with the county clerk of the county in which the property is situated, the notice prescribed by the next section of this act, have a lien for the value of such labor and materials upon such tank or other receptacle as aforesaid, and upon such well as aforesaid, and appurtenances, and upon the lot, premises, parcel Or farm of land upon which the same shall be situated, to the extent of the right, title and interest of the owner of the property, whether owner in fee or of a less estate, or whether lessee for a term of years thereafter, or vendee in 68 LIENS AGAINST OIL WELLS, ETC. possession under a contract existing at the time of the filing of said notice, or any right, title or interest in real estate against which an execution at law may now he issued under toe provisions of the statutes in force in this State, relating to liens of judgment and the enforcement thereof. 2. Contents of Notice and Docketing of Lien. § 2. Within sixty days after the performance and completion of such labor or the final furnishing of such materials, the contractor, sub-contractor, laborer or person furnishing the same, shall file a notice in writing in the office of the clerk of the county where the property is located, specifying the amount of the claim and the person against whom the claim is made, the name of the owner or of the party in interest as aforesaid of the premises, lot, parcel or farm of land, together with a description of said lot, parcel or farm of land. The county clerk shall enter the particulars of such notice in a book to be kept in his office to be called the " lien docket," which shall be suitably ruled in columns headed " claimants," " against whom claimed," owners and parties in interest, " amount claimed," and the date of the filing of the notice, hour and minute, what proceedings have been had, the names of the owners and parties in interest and the person against whom the claim is made, shall be entered in said book in alphabetical order. A fee of ten cents shall be paid to said clerk on filing said notice, and no lien shall attach to said land, well, tank or other receptacle or appurtenances or appli- ances, unless said notice shall be filed by said clerk, and when so filed said notice shall thereafter operate as an incumbrance upon said property. 3. Limitation of. Owner's Liability to Snh-contractor. § 3. Whenever the labor performed or materials furnished shall be upon the credit of any contractor LIENS AGAINST OIL WELLS, ETC. 69 who shall have made a contract therefor with the owner of the property, or such party in interest as aforesaid, whether such contract shall be oral or in writing, or express or implied, or for any specified sum or otherwise, or on the credit of any sub- contractor or the assignee of any contractor or sub- contractor, the provisions of this act shall not oblige the owner or party in interest as aforesaid, to pay for or on account of any such labor or materials, any greater sum or amount than the price stipulated and agreed to be paid therefor by said contract, or the value of such labor and materials except as in the next section provided. 4. Service of Notice upon Owner.— Collusive Payments. § 4. At the time of the filing of said notice pre- scribed by the second section of this act, the person filing said notice may serve upon the said owner, or party in interest as aforesaid, a written notice specify- ing the amount of the claim, the name of the person against whom the claim is made, and for what labor or materials the claim is made, which said notice shall be served, by delivering the same to such owner or party in interest as aforesaid personally, or if there shall be two or more of such owners or parties in interest, to either or any one of them, or by leaving the same at the place of residence of such owner or party in interest, or if there be two or more, of either or any one of them, or in case said owner or party in interest shall have no place of residence within the county where such property as aforesaid shall be sit- uated, then by mailing said notice to said owner or party in interest, securely inclosed in a sealed envelope directed to said owner or party in interest at his post-office address, with the postage prepaid thereon, and from the time of the service of such notice as aforesaid, such owner or party in interest shall be liable to said claimant to the amount then due or owing to the contractor, sub-contractor or assignee of 70 LIENS AGAINST OIL WELLS, ETC. such contractor, sub-contractor, upon whose credit such labor shall be performed or materials furnished as hereinbefore provided. And in any case whether the notice above prescribed shall or shall not be served as above provided upon such owner or party in inter- est as aforesaid, if such owner or party in interest as aforesaid shall pay, or cause to be paid, to any con- tractor, sub-contractor or assignee, or any other person, any money or other valuable thing for the purpose of avoiding or with intent to avoid any of the provisions of this act, when the amount still due or to grow due to said contractor, sub-contractor or assignee shall be insufficient to satisfy the demands made in conformity with the provisions of this act, the owner or other party in interest as aforesaid shall be liable to the amount that would have been due or owing to said contractor, sub-contractor or assignee, at the time of the filing of the notice in the second section of this act, in the same manner as if no such payment had been made. 5. Action to Enforce Lien. § 5. Any contractor, sub-contractor, mechanic, laborer, or other person performing any work or fur- nishing any materials as above provided, or the assignee of any such person or persons, may, after such labor has been performed or materials furnished, and the filing of the notice provided by the second section of this act, when the amount of the claim exceeds fifty dollars, bring an action in the supreme court in the county in which the property is situated, or in the county court of said county, to enforce such lien, which action shall be commenced, and the proceedings therein conducted, and judgment entered in the same manner and to the same effect as in actions brought in said courts to enforce liens, provided by chapter four hundred and two of the laws of eighteen hundred and fifty-four, and the several acts amending the same, and the said courts shall have full power to adjust LIENS AGAINST OIL WELLS, ETC. 71 and enforce all the rights and equities between any or all of the parties to such actions, and enforce or protect the same by any of the remedies usual in said courts. 6. Action in Justice's Court. § 6. "When the amount of the lien claimed is two hundred dollars or under, the claimant may commence his action in a justice's court of the town or city in which the premises are located, which action shall be commenced, and the proceedings therein conducted and the judgment entered, and transcript filed in the same manner and with the effect as in actions com- menced in justices' courts to enforce liens pursuant to said chapter four hundred and two of the laws of eighteen hundred and fifty-four, and the several acts amending the same. 7. Costs. § 7. Costs and disbursements, in actions to enforce liens provided for by this act, shall be allowed to either party upon the principles and by the same rules as are now allowed by law in actions for relief arising on contract, and shall be included in the judg- ment recovered therein, and the expenses incurred in serving the notice by which such actions shall be commenced by publication may be allowed in justices' courts and added to the amount of costs now allowed in said courts. When the action is brought in the supreme court or in a county court, such direction shall be made in the discretion of the court as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid. 8. Transcript of Judgment. § 8. A transcript of every judgment rendered under this act shall be furnished by the clerk of the 72 LIENS AGAINST OIL WELLS, ETC. county where rendered and docketed to the successful party, who may file the same with the county clerk of any other county, and the same shall thereafter be a lien on the real property in the county, where the same is filed and docketed, of every person against whom the same is rendered, if for twenty-five dollars or upwards, exclusive of costs, in like manner and to the same extent and enforceable by execution in the same manner, as in other actions for the recovery of money arising on contract. 9. Form of Execution. § 9. Whenever any judgment shall be entered in any such action as aforesaid, execution shall thereupon issue for the enforcement and collection of such judg- ment in the same manner as executions are issued upon other judgments in actions on contract for the payment of money only, except that when the judg- ment is in favor of the claimant the execution shall direct the officer to sell the right, title and interest which the owner or other party in interest had in the premises at the time of filing the notice prescribed by the second section of this act, and if the same shall be insufficient to satisfy said judgment, then to collect such deficiency as shall remain out of the personal property of such owner or party in interest, or if there be two or more of either of them, or if sufficient personal property cannot be found, then out of the real property of such owner or party in interest, or if there be two or more, of either of them, in the county to which said execution is issued, on the day such judgment was docketed in said county, or on any day thereafter. But no such deficiency shall be collected out of any real property, unless such deiency* shall amount to or exceed the sum of twenty-five dollars. * So in original. LIENS AGAINST OIL WELLS, ETC. 73 10. Continuance of Lien. § 10. Every lien created under the provisions of this act shall continue until the expiration of six months from the time of filing the notice prescribed in the second section of this act, unless sooner dis- charged by the court or some legal act of the claimant in the proceedings ; but if within such period of six months proceedings are commenced to enforce or fore- close such lien, then such lien shall continue until judgment shall be entered thereon, and for one year thereafter such lien shall also continue during the pendency of an appeal and for one year after the determination thereof. When a judgment is rendered as aforesaid it may be docketed in any county of this State and enforced as if obtained in an action in a court of record. 11. Appeals. § 11. Appeals from judgments rendered pursuant to this act may be taken by either party in the same manner, within the same time, and subject to the same rules and course of procedure as in appeals taken in civil actions arising on contract, and with like costs and disbursements, and the judgment thereon shall be enforced as judgments on appeal are now enforced and collected. Such appeal shall be had and taken only in the proceeding or action wherein judgment shall be given or rendered, but such appeal shall not operate as a stay of proceedings or in any manner to affect the foreclosure or action of any other claimant or claimants then pending. 12. Priority of Liens. § 12. The liens created by virtue of the provisions of this act shall be paid and settled according to pri- ority of notice filed with the county clerk as directed by the second section of this act. 74 LIENS AGAINST OIL WELLS, ETC. 13. Discharge of Liens. § 13. All liens created by this act may be dis- charged as follows: First, by filing with the county clerk a certificate of the claimant or his successor in interest, acknowl- edged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged. Second, by depositing with the justice before whom, or the clerk of the court in which proceedings shall be commenced to enforce or foreclose said lien, a sum of money equal to double the amount claimed, which money shall thereupon be held subject to the determination of such proceedings; or, Third, by an entry of the county clerk made in the book of liens that the proceedings on the part of the claimant have been dismissed by the court or a judg- ment rendered against the said claimant. FORMS. i. Notice of Lieu Claim. To the Clerk or the County of AND TO WHOM IT MAT CON- CERN : Take notice, that , residing at No. , Street, in the city of , claims a lien in accordance with the facts below stated, and alleges : I. That the nature of the labor and services, for which a lien is claimed, and the amount justly due claimant therefor, is as fol- lows : II. That the name of the owner [or lessee, general assignee or person in possession] of the premises upon which this lien is claimed is III. That the name of the person by whom the claimant was employed [or, to whom he furnished the materials] as below stated, is IV. That the labor and materials for which this lien is claimed were actually performed and furnished in accordance with a written contract of the following purport : [If the contract was not in writ- ing, state its substance.] V. That all the work and materials for which this claim is made have been actually performed and furnished towards the construction [alteration or repair] of a house situated in Ward of the city of , and numbered on Street ; the following being a diagram of the premises upon which said house is situated and this lien is claimed : 76 FOKMS. VI. That a lien is hereby claimed against said building, the land upon which it stands, together with the appurtenances thereto, pursu- ant to the provisions of the laws of this State. Dated, New York, County of , ss.: , the claimant above named, being duly sworn, says : that he has read the foregoing notice and claim and knows the contents thereof, and that the statements therein contained are true to the knowledge [or, information and belief] of this deponent. Subscribed and sworn to ) before me this f II. Complaint. Contractor Against Owner. COUKT OF COMMON PLEAS. City and County of New York. C. N. " vs. )■ Complaint. I O. W. J The plaintiff, complaining against the defendant, avers : I. That at the time hereinafter mentioned the defendant was, and still is, the owner [if the defendant is not the owner of the fee, set forth specially the interest which he has in the premises] of the follow- ing real estate, situated in the City of New York, and thus de- scribed : [Insert a careful description of the premises by metes and bounds.] II. That on the day of , the parties hereto entered into a written contract, a copy of which is hereto annexed and made part of this complaint, marked Exhibit A. [If not a written contract, state its substance.] III. That the plaintiff duly performed for defendant the work and "furnished the materials provided for in said contract, and said work FOftMS. 77 ■was performed and said materials were furnished toward and actually used in the erection [altering or repairing] of the building mentioned in the contract aforesaid on the lot above described ; that the plaintiff ■duly fulfilled all the conditions of said contract on his part to be per- formed, within the time therein specified [or allege any excuses for non-performance upon which plaintiff relies] , and on the day of , plaintiff became entitled to receive from defendant the sum of , which sum has not been paid [except the sum of ], and there is now due the plaintiff from the defendant the sum of , under said contract. IV. That on the day of , 188 , and within ninety ■days after the completion of the contract above set forth, the plaintiff filed a notice of lien in writing in the clerk's office of the county in which the property aforesaid against which a lien is asserted is situ- ated, on and against the said premises for the amount of labor and materials aforesaid, to wit, dollars; that said notice of lien contained the name and residence of the claimant, this plaintiff, the nature and amount of the labor and service per- formed and the materials furnished,, with the name of the owner as hereinbefore given ; the name of the person by whom plaintiff was employed ; together with a statement that the work for which the claim was made had been actually performed and the ma- terials actually furnished, and contained also a description of the property to be charged with the lien sufficient for identification ; that said notice of lien was duly verified and complied in all respects with the requirements of the statutes of the State of New York ; and that on the day of , 188 , said lien was duly entered and docketed by said clerk in the lien docket kept in his office. Plaintiff -annexes hereto a copy of said notice of lien and makes the same a part of this his complaint, the same being marked Exhibit B. V. That on the day of , and within ten days after filing his notice of lien as hereinbefore set forth the plaintiff caused a •copy of said notice to be served personally upon the owner, the de- fendant herein. VI. That no other persons have filed liens against said property nor have subsequent liens or claims by judgment, mortgage or con- veyance. [If there be any such liens or claims, the fact must be stated and the lienor or claimant made a parly •, and the demand for judgment must ask for a determination of the priority of liens or claims, and an ad- judication of the rights of the parties^] 78 FORMS. Wherefore plaintiff demands judgment : — 1. That he be adjudged to have a lien on said property for the sum of 2. That the defendant and all persons claiming under him be- foreclosed of all equity of redemption or other interest in said premises. 3. That the defendant's interest in said premises be sold as provided by law, and that from the proceeds of such sale the plaint- iff be paid the amount of his lien aforesaid and interest thereon from , together with the expenses of sale and costs of this- action. 4. That plaintiff have judgment against the defendant for any de- ficiency that may remain due him after said sale. 5. That plaintiff may have such further judgment, decree or order as may be necessary to protect his rights in the premises. [If the lien has been discharged by deposit with the cleric as pro- vided in § 24, the. complaint should recite thai fact, and the demand for judgment should be as follows :] Wherefore plaintiff demands judgment against the defendant: — 1. That it be adjudged that he acquired a valid lien on said prem- ises, and has now a lien on the money in the hands of the clerk for the sum of dollars and interest thereon from , and the costs hereof. 2. That plaintiff have judgment against the defendant for any de- ficiency that may remain after applying the amount of said deposit to the payment of his claim, with interest and costs hereof; 3. That plaintiff have such further jndgment, decree or order a» may be necessary to protect his rights to the premises. [ Verification in usual form.] POEMS. 79 III. Complaint. Sub-Contractor against Owner and Con- tractor. COURT OF COMMON PLEAS. City and County of New York. S. C. "I against )■ Complaint. C. N. and O. W. The plaintiff, complaining against the defendant, alleges : I. That on or about the first day of January, 1885, the defendant, C. N., made, executed and entered into a written contract with de- fendant, O. W., the owner of the premises below described, whereby the said C. N. agreed to furnish and provide all the carpenter work and materials for and towards the erection of a dwelling house on the following described lot : [Insert a careful description of the premises by metes and bounds.] II. That in and by said contract it was agreed that said contractor should be paid by said owner the sum of three thousand dollars, to be paid in installments, as follows : one thousand dollars when said building had been erected to the first tier of beams ; one thousand dollars when the building should be enclosed, and the balance upon the final completion of the building in accordance with the con- tract. III. That said contractor duly performed all the conditions of said contract on his part to be performed and so far completed the same as to become entitled at the time below stated to receive there- on a payment of one thousand dollars ; and that at the time of the filing of the notice of lien below mentioned there was due to said con- tractor from the owner aforesaid the sum of one thousand dollars [or, if the amount is not known, say, " a sum in excess of the amount of the plaintiff's claim herein."] IV. That on the second day of February, 1885, the plaintiff en- tered into a verbal contract with said C. N., the contractor aforesaid, 80 FOKMS. whereby plaintiff agreed to furnish io said contractor and to deliver upon the premises aforesaid all the sash and blinds for said building being part of the labor [or, materials] required and stipulated to be furnished by the contract between the said owner and con- tractor, for the sum of one hundred and fifty dollars, to be paid to plaintiff upon the delivery of the same as aforesaid ; and that in pur- suance of said contract plaintiff did so furnish and deliver said sash and blinds, and the same were actually used in and upon said build- ing. V. That said sum of one hundred and fifty dollars became due to the plaintiff upon the 6th day of April last past, upon which day the last of the materials aforesaid were furnished, and that said sum is now due to plaintiff. VI. That on the twentieth day of April, 1885, and within ninety days after the completion of the contract above set forth, plaintiff filed a notice of lien in writing, in the clerk's office of the county in which the property against which the lien is asserted is situated ; that said notice of lien contained the names and residences of the claimant, this plaintiff, the nature and amount of the labor and service performed, and the materials furnished, with the name of the owner as hereinbe- fore given; the name of the person by whom the plaintiff was em- ployed ; together with a statement that the work for which the claim was made had been actually performed and the materials actually furnished, and contained a description of the property to be charged with the lien sufficient for identification ; that said notice of lien was duly verified and complied in all respects with the requirements of the statutes of the State of New York, and that on said twentieth day of April last past said lien was duly entered and docketed by said clerk in the lien docket kept in said office. Plaintiff annexes hereto a copy of said notice of lien and makes the same a part of this his complaint. VII. That on the twenty-first day of April last past and within ten days after the filing of the notice of lien aforesaid, plaintiff caused a copy of such notice to be served personally upon the owner, said O. W., one of the defendants herein. VIII. That no persons have filed liens against said property nor have subsequent liens or claims by judgment, mortgage or convey- ance. [If any such liens or claims exist, state the fact and make the lienor or claimant a party, .] FOEMS. 81 Wherefore plaintiff demands judgment : — 1. That he be adjudged to have a lien on said property for the sum of one hundred and fifty dollars and interest from April 6, 1885. 2. That defendants and all persons claiming under them be for- ever foreclosed of all equity of redemption or other interest in said premises. 3. That said premises be sold as provided by law, and that from the proceeds of such sale plaintiff be paid the amount of his lien aforesaid, and interest, with expenses of sale and costs of this pro- ceeding. 4. That plaintiff have judgment for any deficiency, that may then remain against said C. N. 5. That plaintiff have such further judgment, decree or order, as may be necessary to protect his right in the premises. [If the lien has been discharged by deposit, insert as in preceding form.] IV- Complaint. Contractor against Lessee and Owner who has Consented to the Erection. COURT OF COMMON PLEAS. City and County of Nbw Yore. C. N. ^ I against y Complaint. O. W. and L. E. The plaintiff, complaining against the defendants, alleges : — I. That on the first day of January, 1885, plaintiff made, executed and entered into a written contract with the defendant L. E., lessee in possession of the premises hereinafter described, whereby the plaintiff agreed to erect a building upon the following described premises : \Give a specific description of the premises upon which the lien is chimed.'] 82 FORMS. II. That between the first day of January aforesaid and the sixth day of April last past, plaintiff furnished at the special instance and request of the said L. E. certain labor and materials in and towards the erection of the building aforesaid, a more specific statement of which is shown by the bill of particulars hereto annexed and made a part of this complaint ; that said labor and materials were reason- ably worth the sum of five hundred dollars. III. That said sum of five hundred dollars is still due to the plaint- iff and that said labor and materials were performed and furnished for the erection of, and were actually used in the building afore- said. IV. That the defendant O. W. is the legal owner of the premises hereinbefore described, and on the day of , executed a lease thereof to defendant L. E. for the term of five years, and that said L. E. thereafter entered into and has since continued in posses- sion of said premises. V. That O. W., the owner of said premises, consented to the erec- tion of the building aforesaid and .the labor and materials for which this plaintiff claims a lien were furnished and performed with the consent of said owner. [Follow Form II, from parapraph IV to end.] V. Order of Reference. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the County Court House in said city on the day of , 1885. Present, Hon. Charles P. Daly, Chief Justice. C.N. against O. W. A motion having been made on the pleadings herein by the FOKMS. 8$ plaintiff for a reference of all the issues in this action, and after hear- ing the parties by their respective counsel, and upon motion of M. J. E., Esq., attorney for the plaintiff, It is ordered, That the above-entitled action and all the issues therein be and: the same hereby are referred to , Esq., of the City of New York, counsellor-at-law, as sole referee to hear and determine the same. VI. Report of Referee. COURT OF COMMON PLEAS. For the City and County or New York. C.N. ^ against )■ Referee's Report. I O. W. J To the Court op Common Pleas for the City and County of New York : I, , the Referee named in the order made herein and dated the day of , 18 , by which the above-entitled' action and all the issues therein were referred to me to hear and de- termine the same, do respectfully report — That I have been attended by the parties to this action with their respective counsel, and having taken and subscribed the oath pre- scribed by law, I have heard the proofs and allegations of the respec- tive parties, and from the pleadings and such proofs and allegations, I find and decide as MATTERS OF FACT. First. That at the several times hereinafter and in the eomplaint mentioned, prior to the day of , 18 , the defendant was the owner in fee, of the lot of land described in the complaint in this action. 84 FORMS. Second. That on or about the day of , 18 , the plaintiff made a contract with the defendants, whereby plaintiff agreed to construct for said defendant and furnish to him seventy rear and gable window frames and sash for the price of two hundred and forty dollars, which sum, defendants promised and agreed to pay to the plaintiff, for the work and materials aforesaid. Third. That thereafter, and between said day of , 18 , and the day of , 18 , the plaintiff, under and pursuant to the terms of the contract aforesaid, performed certain work, consisting of constructing the window frames and sash aforesaid, and furnished to said defendants, pursuant to said contract, materials, being the window frames and sash aforesaid. Fourth. That all of the work performed and materials furnished as aforesaid were agreed to be, and were so performed and furnished to be used, and were actually used in and toward the erection of five buildings on the land hereinbefore mentioned and in the complaint described, and were so performed and furnished under, pursuant to and in conformity with the terms of the contract aforesaid, that plaint- iff performed all the conditions of said contract on his part to be per- formed, and prior to the filing of the lien hereinafter mentioned be- oame entitled to receive from said defendants, under and by the terms of said contract, the sum aforesaid, to wit, the sum of two hundred and forty dollars. Fifth. That said sum has not, nor has any part thereof been paid, and in said sum and interest thereon from ,18 , said de- fendants are now justly indebted to plaintiff. Sixth. That within ninety days after the completion of said con- tract, and on the day of , 18 , the plaintiff caused to be filed in the office of the clerk of the City and County of New York, a notice of claim and lien on and against said buildings and land (which are situate in said county) for said sum of two hundred and forty dollars, the unpaid price of said work and materials, which no- tice was duly verified and was in the form prescribed by and con- tained all the statements required by, and compiled in all respects, with the requirements of the statutes of the. State of New York in such case made and provided, and was so filed pursuant to said stat- utes. That on said day of , 18 , said lien was duly entered and docketed by said clerk on the lien docket kept in his office. EORMS. 85 Seventh. That said lien has not been paid, canceled or otherwise dis- charged of record, and no other action or proceeding has been had or commenced to recover said debt or foreclose said lien, and that no persons have filed liens against said property nor have subsequent liens or claims by mortgage, judgment or conveyance on or against said premises, and that on the day of ,18 , within one year after the filing of said lien, a notice of the pendency of this action, which is brought to foreclose the same, was duly filed and re- corded in the office of said clerk. AND AS CONCLUSIONS OF LAW. First. That under and by the terms of the contract aforesaid, and for and on account of the work and materials aforesaid, the defendant was at the time of the filing of the lien hereinbefore mentioned, and when this action was commenced was and now is justly indebted unto the plaintiff, in said sum of two hundred and forty dollars, and interest thereon from ,18 . Second. That by the performance and furnishing of said work and materials and the filing and docketing of said lien, the plaintiff ac- quired and now has a good and valid mechanics' lien on all the right, title and interest which the defendants had on the day of ,18 , at the time of the filing of said lien, in and to the buildings and land hereinbefore and in the complaint mentioned. Third. That the plaintiff is entitled to judgment against the de- fendant, barring and foreclosing him of all interest and equity of re- demption in and to said premises, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing said lien, and for the payment to plaintiff from the proceeds of such sale, of said sum of two hundred and forty dollars and interest thereon from ,18 , which, at this date, amounts to four dollars and eighty cents, making together two hundred and forty-four dollars and eighty cents and the plaintiffs' costs and disbursements of this action, to be taxed, which are hereby granted to him; and also in case said proceeds be insufficient to pay the sums aforesaid to judgment against the defendant for the amount of any deficiency so remaining. And I order and direct judgment accordingly. All which is respectfully submitted. Dated New York, ,18 . , Referee. 86 FORMS. VII. Judgment on Report of Referee. At a Special Term of the Court of Common Pleas for the City and County of New York held at the County Court House in said city on the 23d day of , 18 . Present, Hon. Charles P. Daly, Chief Judge. [C. N., plaintiff, " against \ O. W., defendant. , This action being for a foreclosure of a mechanic's lien, and the issues therein having been referred to , Esq., as sole referee, to hear and determine the same, by order duly made and entered herein bearing date ,18 , and the said referee having duly made his report dated , 18 , and which has been duly filed, whereby he orders and directs judgment in favor of the plaintiff against the defendant, barring and foreclosing him of all interest and equity of redemption in and to the premises described in the com- plaint herein, and for a sale of all the right, title and interest which he had in and to said premises, at the time of filing the lien described in the complaint herein, and for the payment to plaintiff, from the proceeds of such sale, of the»sum of two hundred and forty -four dol- lars and eighty cents, being the amount of plaintiff's claim and inter- est to the date of said report, and the plaintiff's costs and disburse- ments of this action to be taxed, which are thereby granted to him, and in case said proceeds be insufficient to pay the sums aforesaid, for judgment against the defendant for the amount of any deficiency so remaining, and the plaintiff's costs having been duly taxed at ninety- six dollars : Now, on motion of M. J. E., plaintiff's attorney, It is Ordered, that said report be and the same is hereby, in all respects, confirmed, and on like motion, It is adjudged and decreed, that all the right, title and interest which the defendant had in and to the premises described in the com- FOKMS. 87 plaint herein, and hereinafter particularly described on the day of ,18 , at the time of filing plaintiff's lien described in the complaint herein be sold in one parcel at public auction in the City and County of New York, by or under the direction of , Esq., of the City of New York, counselor-at-law, who is hereby appointed referee for that purpose, that the said referee give public notice of the time and place of such sale according to law ; that either of the parties to this action may purchase at said sale, that said referee deliver to the purchaser or purchasers a deed or deeds of the premises sold on the purchaser's complying with the terms on which the same were sold ; that out of the proceeds of such sale after deducting his fees and the expenses thereof the said referee pay to the plaintiff or his attorney ninety-six dollars, the costs taxed as aforesaid hereby adjudged to said plaintiff with interest thereon from this date, and that he further pay to the plaintiff or his attorney two hundred and forty- four dollars and eighty cents, the amount of claim and interest re- ported due as aforesaid and with interest thereon from the date of said report, or so much thereof as the purchase money of said premises will pay of the same, take receipts therefor and file them with his re- port ; that said referee pay the surplus arising on said sale, if any, to the Chamberlain of the City of New York to the credit of this action, to be drawn only on the order of this court signed by the clerk and a judge thereof within five days after he receives the same ; that he make a report of such sale and file it with all convenient speed with the clerk of this court; that if there.be any deficiency remaining on such sale said referee specify the amount thereof in his report of sale, and that the plaintiff recover of the defendant the amount of defi- ciency so remaining and have execution therefor, and that the purchaser be let into possession on production of the referee's deed. And it is further adjudged that the defendant and all persons claiming under him subsequent to the filing of the notice of pendency of this action (which, as appears by said referee's report, was filed in the office of the clerk of the City and County of New York on the day of ,18 ), be forever barred and foreclosed of all right, title, interest, estate, claim, lien and equity of redemption of, in and to the premises sold as aforesaid and every part thereof, with the appurtenances. The following is a description of said premises : [Insert description of premises by metes and bounds.] 88 FORMS. " DISTRICT COURT FORMS. VIII. Summons. State of New York, City and County of New Yore, ss. DISTRICT COURT IN THE CITY OF NEW YORK, For the Eighth Judicial District. C. N., plaintiff. ) I against y Summons. I 0. W., defendant. J To the Defendant above-named : You are hereby Summoned, and required to appear in this action, before Frederiek G. Gedney, Esquire, Justice of the District Court in the City of New York, for the Eighth Judicial District, in the Court, at the Court Room thereof, No. 200 West 22d street, in the City of New York, on the day of , 18 , at half-past nine o'clock in the forenoon [the return day should be not less than twelve nor more than twenty days], to answer the complaint of the plaintiff in this action, who will take judgment'against you for the sum of dollars, with interest from the day of one thousand eight hundred and eighty- , together with the costs of this ac- tion, if you then fail to appear and answer. Dated New York, ,18 . , Clerk. FOKMS. 89 IX. Complaint in District Court. Follow the preceding forms, omitting the allegation as to persons who have filed liens against the property, and who have subsequent liens or claims by judgment, mortgage or conveyance. X. Affidavit to obtain Order of Publication. DISTRICT COURT IN THE CITY OF NEW YORK, For the Eighth Judicial District. CN. -J against y O. W. J City and County of New Yore, ss. , being duly sworn, says : I. That he is attorney for the plaintiff herein. II. That this is an action to enforce a mechanics' lien against certain premises situated in the Sixteenth Ward of the City of New York and more particularly described in the complaint, on file in this court, of which O. W., the defendant, is owner, and whose last place of resi- dence was, No. street, in the City of New York. III. That the summons herein was issued on the day of 18 , returnable twenty days thereafter, and was on the day of its is- suing delivered to James Boylan, marshal, for service. IV. That said summons has been returned by said officer with a certificate thereon, that he is unable to find the defendant, though he has made proper and diligent effort so to do. 7 90 FORMS. V. That deponent is informed and believes, that defendant, at the date of the issuing of said summons, was, and still is, absent from the State, and that personal service of said summons cannot be had ; the reason of deponent's belief is as follows : [State the facts upon which the belief is based.] And deponent .prays that an order be made for a service of the summons herein agreeably to the provisions of the statute. [Signed.'] Sworn to before me, this ) day of , 18 . j Notary Public. XL DISTRICT COURT IN THE CITY OF NEW" YORK, Fob the Eighth Judicial District. C.N. o. w. It appearing from the return of the officer to which the summons herein was entrusted, and from the affidavit of the plaintiff's attorney on file, that said summons cannot be served personally on the defend- ant by reason of his absence from this State, It is ordered, That service of the summons in this case be made on 0. W., the defendant, by leaving a copy of such summons at the. last plaee of residence of said O. W., and it is further ordered that a copy of said summons be published three weeks in succession in the Daily Regis- ter, a newspaper published in the City of New York. Dated New York, , 18 . , Judges INDEX. INDEX. ABANDONMENT OF CONTRACT, 22. ACQUIRING THE LIEN. general act, 9. municipal act, 57. railroad act, 63. oil well act, 67. by whom acquired, 11. against whom, 12. for what required, 17. dates from filing notice, 28. ACTION TO ENFORCE LIEN, in court of record, 34, 35. injustices' courts, 41. railroad act, 63. oil well act, 70, 71 . AGENT of owner cannot acquire, 12. contractor may, for principal, 12, 28. APPEAL. from courts not of record, 42. undertaking on, necessary for stay, 38. oil well act, 73. ASSIGNEE cannot acquire lien, 11, 28. may for assignor's benefit, 28. for creditors, completing work is liable to lien, 39. ASSIGNMENT FOR CREDITORS. •within thirty days does not bar lien, 10. by contractor does not defeat sub-contractor, 22. ASSIGNOR, lien may be acquired for, by assignee, 28. ASSOCIATION, may acquire lien, 9. 94 INDEX BUILDING. See Premises. destruction of, defeats lien, 21. BUILDING CONTRACT. vendor deemed owner, 82. may be charged as consenting, 16. CLAIM. See Notice. how docketed, 27. CLAIMANT. any person capable of contracting, may be, 11. COLLUSIVE PAYMENT, no defence to claim, 23. ineffectual, though not in advance, 24. under oil well act, 69. COMPLAINT. requisites of, 35, 36, 37. by sub-contraGtor, 36. in courts not of record, 40. forms of, 76, 79, 81. CONSENT. owner bound by, 9. what constitutes, 15, 16. CONSOLIDATION OF ACTIONS. in courts of record, 46. against public property, 60. CONSTRUCTION OF STATUTE, 53. CONTINUANCE OF LIEN. general aet, 33. order continuing lien, 34. public buildings, 58. railroad act, 64. oil well act, 73. CONTRACT. foundation of claim, 1 1, 14. ' must be definite, 14- valid, 14. not for illegal structure, 14. infant's, enforceable, 14. married woman's, relating to her estate, 15. performance must be shown, 15. abandonment defeats sub-contractor, 22. INDEX. 95 CONTRACT— continued. for specific property, 15, 49. terms may be demanded, 24. building contract, 32. CONTRACTOR. definition of, 47, 61. form of complaint against, 79. in favor of, 76, 81. COPY OF NOTICE, admissible in evidence, 35. CORPORATION. may acquire lien, 9. municipal, cannot, 12. liens against municipal, 57. COSTS, 43. upon offer of payment, 47. COUNTERCLAIM. between owner and contractor, 37. owner and sub-contractor, 38. contractor and sub-contractor, 38. DEFAULT. in courts not of record, 41. DEFICIENCY, judgment for, 49. DEMAND FOR TERMS OF CONTRACT, 24: DESCRIPTION OF PREMISES, 26, 30. DISCHARGE OF LIEN, 50, 51, 52. public work act, 61 . railroad act, 65. oil well act, 74. DOCKETING LIEN, 27. DOWER RIGHT, not liable, 19. ENFORCEMENT OF LIEN. See Action to Enforce 1 . ESTATE LIABLE TO LIEN. See Premises. EXECUTION. in courts not of record, 41. public work act, 59. oil well act, 72. FILING NOTICE, under general act, 26. 96 INDEX. FILING NOTICE— continued. public work act, 58. railroad act, 63. oil well act, 68. FORECLOSURE. See Action to Enforce. FORMS. notice of lien, 75. complaint, contractor v. owner, 76. sub-contractor v. owner, &c, 79. contractor v. lessee and owner, 81. order of reference, 82. referee's report, 83. judgment on report, 86. summons in District Court, 88. complaint in, 89. affidavit of defendant's absence, 89. order of publication, 90. GUARDIAN, cannot subject trust property, 13. HOISTING MACHINERY, lien for, 17. HUSBAND has no lien on common property, 12. cannot charge wife's estate, 12. ILLEGAL STRUCTURE, no lien for, 14. INFANT, may subject his property, 14. JOINDER OF ACTIONS, 46. JOINDER OF PARTIES, 46, 47. JUDGMENT. for deficiency, 49. personal, 44. on contract payable in specific property, 49. in courts not of record, 41, JUSTICES' COURT. jurisdiction of, 41. oil well act, 71. procedure in, 41. INDEX. LABOR AND MATERIALS. general act, 9, 10, 17. public work act, 57. railroad act, 62. oil well act, 67. LAND. See Premises. LESSEE. estate liable to lien, 10, 19. what it embraces, LIEN. under general act, 9, 17. public work, 57. railroad, 62. oil well, 67. nature of, 11. by whom acquired, 11. who liable to, 12. waiver of, 20. limitation of, 33. notice of, 25. LIGHTNING RODS, lien for, 18. LIMITATION of lien, 33. of owner's liability, 10. LIS PENDENS, 33. public work act, 58. MARRIED WOMAN. may charge separate estate, 13. MATERIALS. See Labor and Materials, MIRROR FRAMES, lien for, 18. MORTGAGE, waiver by, 20. MORTGAGEE not an "owner," 13. MUNICIPAL CORPORATION, cannot acquire lien, 12. proceedings against, 57 et seq. NATURE OF LIEN. statutory, 11. construction, 11,53. NOTE, waiver by, 20. NOTICE OF LIEN, 25. docket of, 27. 8 98 INDEX. NOTICE OF LIEN— continued. requisites of, 25, 29. form not material, 29. lien acquired by, 28. who may file, 28. assignee cannot, 28. second notice, 28. not amendable, 28. name of owner, 29. description of premises, 30. sub-contractor's notice, 31. service on owner, 26, 31 . NOTICE, that no personal claim is made, 45. OFFER OF PAYMENT. 47. OIL WELLS. how lien acquired, 67. notice and docketing lien, 68. owner's liability to sub-contractor, 68. service upon owner, 69. collusive payments, 69. enforcement of lien, 70, 71. costs, 71. transcript of judgment, 71. execution, 72. continuance of lien, 73. discharge of lien, 74. appeals, 73. priority of lien, 73. OWNER, who is, 12, 13.' limitation of liability, 10, 68. PAINTING, lien for, 17. PARTIES TO ACTION, 43. public work act, 59. PAYMENT. by collusion, 23, 69. PERFORMANCE OF CONTRACT, 15. PERSONAL JUDGMENT, 44. PERSONAL LIABILITY OF STOCKHOLDERS. under railroad act, 65. INDEX. 99 PLEADING, 35. requisites of complaint, 35, 36. forms of, 76, 79, 81, 89. PREMISES, liable to lien, 19, 20. general act, 9. public work act, 57. railroad act, 63. oil well act, 67. PRIORITY OF LIENS. general act, 48. public work act, 57. railroad act, 65. oil well act, 73. PROCEDURE, 35, 36, 37, 38, 39. in courts not of record, 41. PUBLICATION, service by, 40, 41. PUBLIC PROPERTY, lien against, 57. RAILROADS, liens against, 63. who may acquire, 63. notice, 63. action to enforce, 64. evidence necessary to substantiate, 64. continuance of lien, 64. priority of liens, 65. discharge of, 65. liability of stockholders, 65. RANK of liens, 47. See Priority op Liens. REFERENCE, 38. SECURITY, waiver by acceptance of, 20. SERVICE, on owner, 27. oil well act, 69. by publication, 40. SPECIFIC PERFORMANCE, 49. SPECIFIC PROPERTY, contract for payment in, 49. SUB-CONTRACTOR. definition of term, 47. limitation of right of, 10. 100 INDEX. SUB-CONTRACTOE— continued. public work act, 59. oil well act, 68. SUCCESSIVE LIENS. See Priority of Liens. SUMMONS. in courts not of record, 40. service of, 40. form of, 88. TRANSCRIPT OF JUDGMENT, 44, 45. in courts not of record, 45. oil well act, 71. TRIAL, in courts not of record, 42. railroad act, evidence necessary on, 64. VENDOR, under building contract, 32. may be charged as consenting, 16. VERIFICATION, of notice, 31 . under general act, 26. public work act, 58. WAIVER OF LIEN, 20, 21, 22.