jSBl Cornell University Law Library The Moak Collection i :' PURCHASED FOR 1 The School of Law of Cornell University 1 And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter / A. M. BOARDMAN and ELLEN D. WILLIAMS / ■"" " ■ - H / 1 Cornell University Library KFN5229.A333D42 1887 The mechanics' lien Law of the state of 3 1924 022 801 553 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/cu31924022801553 THE MECHANICS' LIEN LAW OF THE STATE OF NEW YORK. (Passed May 37, 1885.) \vith: all the amendments, SUPERSEDING THE VARIOUS LOCAL STATUTES, AND APPLICABLE TO THE ENTIRE STATE. ALSO, LIEN LAWS AFFECTING MUNICIPAL PROPERTY, RAILROAD CORPORATIONS, OIL WELLS, &c. 1¥ITII NOTES OF JUDICIAL. DECISIONS, AND APPROPRIATE FORMS. By JOHN S. DERBY. OF THE NEW YORK BAR. SECOND EDITION. NEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 66 NASSAU STREET. 1887. Copyright, 1887. By baker, VOORHIS & CO. PREFACE. The remedial process, to -wbicli the title of Mechanics' Lien is somewhat inaptly applied, is in its present form the resultant of more than half a century of a growth that, hus- banded by legislative activity, expanded into cumbrous and unwieldly proportions. The first statute in this State * was little more than an attempt to induce parties to settle their disputes without liti- gation and by "amicable adjustment;" by its provisions, an owner, who had received from a workman an account against the contractor, was required to notify the latter, and if he neglected for ten days to give written notice of his intention to dispnte 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 was disputed, the con- troversy was to be submitted to the arbitration of three per- sons, whose award was final. In striking contrast with the few and simple provisions of this act were the numerous and intricate sections of the many special laws, whose alternating enactment and repeal busied the law makers and bothered the lawyers for more than a generation. Happily for the profession, however, the many and incon- sistent special statutes that were enacted for various jurisdic- tions have been wholly superseded and the law made uniform throughout the State by the present act. Although depending solely upon the statutory provisions of the various States, the forces of assimilation that are con- stantly at work in the direction of the unification of American * Act of 1830, ch. 330. 11 PEEFAOE. law have moulded these divers statutes into systems in which the same fundamental principles are recognizable, and al- though formulated in varying terms, there everywhere appear these underlying propositions : 1. That recourse can be had to this remedy only for the enforcement of rights arising upon contract. 2. That the materials or labor for which the lien is claimed must have been actually furnished for, as well as used in, the structure sought to be charged. 3. That the right is a purely personal one, created for the sole benefit of the person to whom the indebtedness ie due, and can only be acquired by him and for his benefit ; and, therefore, may be waived by him. 4. That the moneys due from the owner constitute a fund for the payment of workmen and can be diverted from that ol:)ject only by payment in good faith and in accordance with the terms of the contract by virtue of which they became due. 5. That, as a corollary to this principle, the workman may trace his right to the fund so accumulated for his benefit, through intervening contracts to which he is not a party and may require the distribution of that fund in strict accordance with the terms thereof. 6. That as to the structure itself, and those against whom no personal judgment is demanded, it is essentially a pro- ceeding in rem, and governed by the rules applicable to such cause. The formal procedure, however, by which the lien is per- fected widely differs in various jurisdictions. In some States the process is a simple common-law action of assumpsit against the person indebted upon the contract, in which judgment is entered and execution issued in the usual form, and the lien preserved by attachment and levy upon the property ; in others the proceeding is one essentially against the thing, and a personal judgment can only be ren- dered as incidental to the foreclosure of the lien ; while in still others, the filing of the notice is regarded as the com- mencement of the action and the final writ upon which the PREFACE. premises are exposed for sale can only be obtained upon the suing out of scire facias. Yet a practical uniformity even in the pleadings has been secured in those jurisdictions that follow the Code ; and it is only where the forms of the common law have maintained their technical narrowness that diversity and inconsistency are found. But, while the steady tendency of legislative action is toward uniformity, we fail to mark a line of no variation for the judicial needle, which has vibrated within ill-defined limits as it was attracted or repelled by the hidden forces of the individual mind ; and are unable to reconcile the protest of an early chancellor against the extension of the remedy to those with whom the owner has no personal contract as " op- posed to every principle of justice" and a gross violation of the rules of legal hermeneutics, with those decisions that would heedlessly sacrifice an owner's rights to the claims of a materialman. From the multitude and conflict of decisions to deduce a formula ; from opinions rendered upon statutes long obsolete to eliminate that portion which is now inapplicable ; and, more than all, to concisely digest all pertinent cases in this State, have been the aims of the author, in which he trusts he has not been entirely unsuccessful. JOHN S. DERBY. TABLE OF CASES. Abrara v. Boyd, 32, 68 Allen V. Carmen, 21 Allen V. Frument Co., 33 Althouse V. Warren, 31, 58 Ames 1). Dyer, 24 Amidon d. Benjamin, 38, 54, 56 Anderson v. Dillaye, 14, 40 Arata v. Tellurium Co., 43 Babb V. Eeid, 13, 14 B;ailey v. Adams, 30 Bailey v. Johnson, 51, 53, 53, 54 Baker v. Fessenden, 25, 28 Bank v. Curtiss, 28 Barrows v. Knight, 45 Baum V. Covert, 28 Baxter ». Smith, 40 Beals V. Congregation, &c., 39 Bell V. Vanderbilt, 80, 85 Belmont ». Smith, 15 Benedict v. Danbury R. R., 20, 21 Benton «. Wickwire, 12 Bicknell v. Trickey, 33 Birmingham v. Glen Cove, 27 Bishop V. Boyle, 30 Bishop V. Honey, 17, 27, 32 Black, Matter of, 39, 41 Blethen v. Blake, 54 Blythe «. Pultney, 20. 54, 57 Boody V. Rexford, 59, 69 Bossier v. Putney, 80 Bovven v. Aubrey, 21 Bowers ». N. Y. Christian Home, 49 Bradish v. James, 43, 53 Brady v. Anderson, 13, 30 Broadway Sav. Bk. i). Cummings, 43, 71 Broderick v. Poillon, 16, 53 Broman v. Young, 91 Brown v. Harper, 13 Brown ®. Smith, 45, 67 Brown v. Welch, 42 Brown v. Zeiss, 32, 38, 67 Burkitt V. Harper, 23, 41, 52 Burroughs v. Tostevan, 64 Burrows v. Baughan, 30 Burst V. Jackson, 14, 26 Butler V. River, 34 Byrne v. Harron, 30 Caldwell v. Lawrence, 13, 67 Carbett i>. Greenlaw, 29 Carman «. Mclncrow, 19 Carter ®. Byzantium, 31 Cashraan v. Henry, 13, 15, 17 Central Trust v. Texas Ry., 45 Cheney v. Troy Hospital, 13, 19, 55 Childs V. Anderson, 15, 33 Childs V. Bostwick, 64 Choteau v. Thompson, 38 Clarke v. Boyle, 55 Conant v. Brackett, 24 Conklin v. Baur, 47 Conklin v. Wood, 43, 45, 53 Conkright v. Thompson, 11, 51 Copley V. O'Neil, 15 Corbett i>. Greenlaw, 47 Cornell u. Barney, 13, 16, 39 Coining v. Fowler, 15 Cox V. Broderick, 15, 19, 38 Craig V. Swinerton, 33 Crane v. Genin, 19, 20 Cranston v. Union Trust Co., 86 Crawfordsville v. Barr, 52, 53 Crean v. McFee, 31 Cronk v. Whittaker, 59 Crystal «. Flannelly, 67 Cummings v. Halstead, 67 Darrow v. Morgan, 43, 49, 66 Davis V. Alvord, 11, 13, 55 Davis B. Bilsland, 67 Davis V. Humphrey, 23 Davis ». Livingston, 40 Dean i>. Wheeler, 53 Deardorflf v. Everhardt, 18 IV TABLE OF CASE3S. Dennistown v. McAllister, 13, 25 De Ronde v Olmstead, 16 Develin v. Mack, 55 Dixon V. La Farge, 16, 37, 53 Dobschultz V. Holliday, 39 Donahy «. Clapp, 13, 33 Donaldson v. O'Connor, 44 Donaldson i>. Wood, 13 Donnelly v. Libby, 43 Dorsey ». Langworthy, 17, 27 Doughty V. Devlin, 19, 53 Dowdney ». McCullara, 18, 58, 72 Driesbach v. Keller, 39 Driscoll V. Hill, 33 Drucker v. Simon, 56 Duffy V. Baker, 46 Duffy 11. McManus, 51, 53 Dugan V. Bvopliy, 13, 40, 42 Dunbar v. Diem, 39 Dunning ». Clarke, 40, 50, 58, 75 Dutro V. "Wilson, 29 Eagleson ». Clarke, 58 Ehlers v. Elder, 31 EUenwood v. Burgess, 33 Emigrant Bank v. Brown, 49 Ernst », Reed, 38 Fay V. Adams, 53 Fairchild v. Burt, 82 Fargo v. Helmer, 64, 78 Ferguson v. Burke, 21 Fettrich i>. Totten, 75 First Nat. Bk. v. Day, 13 First ISTat. Bk. ». Redman, 35 Flynn b. Butler, 50, 75 Fogarty v. Wick, 40 Ford V. Bailey, 75 Foster i>. Coxj 15 Foster v. Poillou, 51 Foster v. Skidmore, 68 Fox V. Kidd, 49, 64 Francis ». Sayles, 24 Freeman v. Carson, 33 Freeman i>. Cram, 12, 49 Freeman v. Gilpin, 25 Fulton Iron Works v. Smelting Co., 52 Galbreath v. Davidson, 27 Gambling v. Haight, 54 Garrison v. Mooney, 34 Gates V. Whitoomb, 23 Gauhn r. Mills, 56 Gauss I'. Hiissraan, 32 Gay ». Brown, 1 6, 47 Gibson «. Lenane, 20, 34 Glacius ®. Black, 17 Goodwin v. Elleardsville, 27 Gorham v. Sagner, 30 Gourdier ». Thorp, 55 Grant v. Strong, 30 Grant v. Vandercook, 11, 56 Gray v. Holdship, 26 Green v. Fox, 31 Greene ». Ely, 31 Grey v. Vorhis, 43 Grogan v. McMahon, 55 Grogan v. Mayor, 19 Gridley v. Rowland, 12 Gross V. Daly, 38, 56 Qrosz V. Jackson, 27 Grove «. Gather, -30 Hackett v. Badeau, 33, 47 Haden «. Buddenseik, 44, 50 Hagan B. Am. Bap. Soc, 21, 63 Hall u. Pettigrew, 31 Hall B. Shceban. 29, 75 Hallahan v. Herbert, 11, 13, 43, 45, 47,53 Halley i>. Alloway, 37 Haman v. Ashinead, 52 Harris v. Scbulte, 37 Hart B. Wheeler, 23 Hartness ». Thompson, 13, 17 Haslett V. Gillespie, 38 Haswell v. Goodchild, 30, 57 Hatch V. Coleman, 14, 36 Hauptman v, Catlin, 15, £8, 43 Hauptman «. Halsey, 39 Hayden v. Wulflng, 40 Hayes v. Fessenden, 16 Hazard Powder Co. v. Byrnes, 37 Heckman ». Pinkuey, 17, 18, 1'9, 31 Heidegger v. Atlantic Mill Co., ; 7 Henderson e. Sturgis, 18 Henry v. Bunker, 44 Henry v. Plitt, 39 Herbert «. Herbert, 19 Hill V. Newman, 35 Hills V. Halliwell, 17 Hilton V. Merrill, 23, 47 Hoag V. Hilmeyer, 17, 49 Hofgesang «. Meyer, 19, 34 Homans ». Coombe, 11, 56 Holland v. Garland, 39 Hooper ». Sells, 13 Hope, Matter of, 25 Hopkins v. Forrester, 31 TABLE OP OASES. Hoyt v. Miner, 16, 18, 25, 55 Hubbell V. Schreyer, 12, 39, 44 Hull of New Ship, in re, 6t Husted V. Mathes, 13, 15, 17, 22, 23 Ireland «. Atchison, &c., R. R. Co., 86 Iron Manfg. Co. v. Brown, 28 Jacques ®. Morris, 52 Jarechi v. Philharmonic Soc, 28 Jenkes ». Parsons, 52 Jennings v. Newman, 62 Johnson v. De Peyster, 17 Jones ». Holy Trinity Ch., 47 Jones «. Hurst, 39 Jones Lumber Co. _v. Murphy, 20 Kechler ■». Stumme, 51, 58 Keller v. Struck, 30 Kelley «. Kelley, 32 Kenney «. Apgar, 11, 44, 56, 64, 69 Keogh «. Main, 43 Kerby «. Daly, 13 Kerns V. Flynn, 67 Kerr e. Moore, 67 Kiel V. Carll, 41 Kinzey «. Thomas, 30 Knapp V. Brown, 12, 15, 16, 29 Knickerbocker Ins. Co. v. Hill, 59 Knox ®. Starkes, 52 Laflin ®. Powder Co., 75 Lawton ». Case, 52, 54 Leary v. Gardner, 11 Legnard ®. Armstrong, 44 Lehretter «. Koffman, 54, 59 Leiegne v. Schwartzer, 42, 52, 54 Lenox ». Yorkville Ch., 58 Leonard v. Brooklyn, 80 Lindley «. Cross, 45 Linn v. O'Hara, 21 Livingston «. Mildram, 38, 59 Livingston v. Miller, 29, 59 Lombard v. Pike, 28, 32 Loonie v. Hogan, 17, 19, 47 Lorson v. Horgan, 57 Lothian «. Wood, 24 Lowber o. Childs, 68 Lumbard ». Syracuse, 20 Luscher e. Morris, 41, 71 Lutz ». Ey, 31, 40, 43, 44 Lynch v. Feigle, 52 Machier v. Burroughs, 15 Manchester «. Searle, 16 Matthews v. Daly, 49 Marryatt v. Riley, 63 Marston «. Stickney, 15 Martine v. Nelson, 25 Manch Chunk v. Shortz, 14 Maxey «. Larkin, 12 McAdow V. Ross, 55 McAuley v. Mildrum, 32, 39, 54 McBride ». Crawford, 54 McCarty «. Carter, 15, 17 McCarty v. Van Etten, 52 McCormick v. Los Angelos, 25 McCrea v. Graig, 53 McDermott «. Palmer, 14 McDermott «. McDonald, 80 McQuckin v. Coulter, 57 McGraw v. Godfrey, 29, 47, 65 McGrew v. McCarty, 67 McGuinness v. Boyle, 15 McMillan v. Seneca, 19 McMurray ®. Hutcheson, 21, 58 McSorley v. Hogan, 53 Meehan v. Williams, 38, 54, 58 Meyer v. Seebalch, 57 Meyer v. Beach, 64 Meyers v. Bennett, 67 Miller ®. HoUingsworth, 15 Miller v. Moore, 31, 55 Mims v. Macon, 30 Miner v. Hoyt, 13, 25, 55 Montandon «. Deas, 29 Moran v. Chase, 29, 41, 43 Morgan «. Arthurs, 26 Morgan v. Stevens, 20, 26, 64 Morse ». School Dist., 23 Mountain City House ». Keame, 42 Muir «. Cross, 31 Muldoon «. Pitt, 12, 14, 16, 29, 56, 57 Mulrey v. Barrow, 23, 30, 32 Munger v. Curtis, 38, 47 Murphy v. Adams, 67 Murphy v. Murphy, 32 Murray «. Brown, 72 Murray ». Rapley, 40 Muslitt ». Silverman, 12 Mutual Ins. Co. ®. Rowand, 24 Myers v. Burnett, 16, 32 Nazareth, &c. ». Lowe, 14 Nellis ®. Bellinger, 22 Nichols v. Culver, 45 Nichols ®. Hill, 59 Nolan V. Gardner, 16 VI TABLE OF CASES. Nolan «. Lovelock, 53 Noyes 11. Burton, 38, 39 Oates V. Haley, 21 O'Donnell ». Rosenberg, 57 Ombony v. Jones, 15, 16, 39, 59 Otis «. Cusack, 16 Otis V. Dodd, 32, 23 Otley V. Haviland, 15 Owens ». Ackerson, 55 Paine ®. Bonney, 29 Pairo V. Bethell, 11, 67 Panola County «. Gillen, 80 Patterson v. Pennsylvania, &c., 80 Payne ». "Wilson, 20, 88 Peabody «. East Met., &c., 14, 34 Pearsons v. Tincker, 13, 45 Peck B. Bridwell, 32 Peck J). Brummagin, 14 Pendlebery v. Meads, 16 Peyroux v. Howard, 30, 31 Phelps -0. The Camilla, 30 Phillips ». Gallant, 17 Phillips V. Gilbert, 30 Phillips V. Hyde, 40 Phillips «. "Wright, 13, 26 Phoenix Iron Co. v. "Vessels, &c., 38 Pike «. Irvin, 19 Poerschke v. Kedenburg, 50 Pollock V. Ehle, 13 Post V. Campbell, 18, 30, 34 Portsmouth Iron Co. ». Murray, 30 Powers B. Hogan, 18 Preusser ». Florence, 50 Prior «. "White, 49 Protective Union ®. Nixon, 40 Quackenbush v. Carson, 43 Quinby v. Sloan, 11, 37, 38, 39 Quinby ». "Wilmington, 31 Quinlan «. Russell, 80 Quinn v. Mayor, &c., 16, 53 Randolph v. Leary, 1 1 Reid V. Bank of Tenn., 15 ReindoUar v. Flickinger, 43 Reynolds v. Hamill, 63 Riley v. Watson, 41 Roberts v. Fowler, 13, 44, 67 Rogers «. Currier, 13, 36 Roland ». Centreville Ry., 87 Rollin V. Cross, 13, 15, 29, 45, 47 Robs v. Derr, S5 Runey «. Rea, 42 Rush «. Able, 26 Ruth ». Jones, 63 Ryan v. Klock, 40 St. Jago, The, 30 Sands v. Sands, 33, 54 Schaeffer «. "Weed, 30 Schaettler v. Gardiner, 57, 65, 75 Scheahy v. Tomlinson, 56 Schmidt v. Gilson, 31 Schneider v. Hobein, 19 Schukraft ». Ruck, 32 Scott ». Cook, 45 Shannon v. Coursen, 75 Shaw ». Allen, 51 Sinclair v. Fitch, 38, 52 Smith V. Bailey, 21, 41, 44 Smith V. Coe, 58 Smith V. Corey, 58 Smith ®. Ferris, 21 Smith «. Norris, 23, 47 SmuUen ». Hall, 19 Southard ®. Lavelle, 51 Spencer «. Barnett, 44, 45 Spinning v. Blackburn, 15 Spurgeon v. McElwain, 17, 37 Stevens e. Lincoln, 15 Stevenson v. Stonehill, 13 Stryker v. Cassidy, 35 Stubbs V. Railroad Co., 53 Stuyvesant ». Browning, 38 Sullivan «. Brewster, 50, 53 Sullivan ». Decker, 68 Suydam 11. Holden, 68 Taylor v. Baldwin, 57 Teaze ®. Christie, 31 Telfer v. Kierstead, 44 Tewksbury ». Bronson, 13 The St. Jago, 30 Thompson's Case, 31 Thompson i). Gilmore, 11 Thompson ». "Wickersham, 30 Thompson ». Yates, 19 Tiley ». Thousand Islands, &c., 41 Tinker ». Geraghty, 43 Tisdale «. Moore, 54 Tizzard ®. Hughes, 25 Tombs V. Rochester, 30 Tooker v. Rinaldo, 56 Towner v. Remick, 39 Trask «. Searle, 26 Tuttle e. Howe, 67 Urquhart v. Mclver, 13 TABLE OF OASES. Vll Van Bremer v. Cooper, 13, 17 Vanbrouker v. Eastein, 30 Van Court v. Bushnell, 31 Vandive v. Hodge, 17 Vreeland v. Boyle, 45 Wademan v. Thorp, 36 Walker v. Paine, 16, 19, 30, 47 Walter ». Falcon Co., 43 Ward ®. Kilpatrick, 26, 56, 58 Watrous ». Elmendorf, 53, 53 Weaver v. Demuth, 31 Weaver ». Sells, 14, 36 Webb V. Van Zandt, 54, 57 Webster «. Hildreth, 15 Weeks ®. Little, 18 Welch V. Mayor, 48 Welch V. McGrath, 67 Westervelt v. Levy, 54 Wheeler v. Port Blakely, 40 Whiting «. Story, 80 Whitney v. Coleman, 75 Wilder e. French, 16 Williamette Falls v. Remicfc, 34, 25 Williams v. Root, 41 Williamson v. Hendricks, 64 Woodward ». Fuller, 17 Wright V. Roberts, 17, 20, 31 Yates V. Meadville. 14 Yates 1). Whitcomb, 47 Yeates ». Wheaden, 17 Young D. Lyman, 14 Young V. Stoutz, 47 THE MECHANICS' LIEN LAW, LAWS OF NEW YORK, 1885.-CHAPTEE 342. An Act for the better security of meclianics, laborers and others who perform labor or furnish material for buildings and other improvements in the sev- eral cities and counties of this State, and to repeal certain Acts and parts of Acts. Passed May 27, 1885 ; three-fifths being present. TTie People of the 8tate of New YorTc, represented im, Senate and Assembly, do enact as follows : § 1. By Whom and for what Acquired. § 1. Any person or persons, firm or firms, corpora- tion 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 agent or any contractor, or sub-contractor, or any other 2 10 mechanics' lien law. person contracting with sucli 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 mate- rial 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. Laws of 1873, c. 489; 1862, c. 478. THE NATURE OF THE EEMEDT. 11 The Nature of the Remedy. The design of the statute is to give security to those, who, by their labor, skill and materials, add value to property, by a pledge of the interest of their employer for their payment, and to subordinate other interests to that end. Davis V. Alvord, 94 U. S., 545. So far as it seeks to subject to this process the specific pro- perty of those against whom no personal judgment is asked, it is substantially a proceeding in rem. Conkright ». Thompson, 1 E. D. Smith, 661. Randolph v. Leary, 3 E. D. Smith, 637. Quinby ®. Sloan, 2 Abb., 93. Thompson v. Gilmore, 50 Me., 438. Homans ®. Coombe, 3 Cranch C. C, 365. Grant «. Vandercook, 57 Barb., 165. As it requires a judgment for specific property with direc- tions for the sale of such property and the disposition of the proceeds as in foreclosure of a mortgage, it partakes of the characteristics of a Bill in Equity. Davis B. Alvord, supra. Kenney ®. Apgar, 93 N. T., 54. Pairo IS. Bethell, 75 Va., 835. And even in those States where the procedure allows a personal judgment for the amount due, with directions to apply the property, upon which the lien is claimed, upon the execution if other estate of the debtor cannot be found, this fact does not change the character of the proceeding from one equity cognizance. Davis B. Alvord, svpra. Under formerly existing statutes it was holden that this remedial process did not fall within the Code definition of an " action," and therefore abated by the death of the owner. Leary e. Gardner, 63 N. T., 634. Hallahan ». Herbert, 57 N. T., 409. But section seventh of the present act expressly provides that the enforcement of the lien shall be by " a civil action." Laws of 1885, c. 842, § 7, infra. 12 mechanics' liek law. Ab the mechanic attempts hereby to obtain remuneration for labor performed or materials furnished upon or for a structure, from some person other than him with whom he contracted, and as this proceeding authorizes the encumbrance of property without the owner's express consent it is an inno- vation v/pon the com/mon law. Mushlitt -0. Silverman, 30 N. T., 360. Benton v. Wickwire, 54 N. Y., S36. Davis ». Alvord, supra. Depending for its validity upon the statute creating it, and conferring extraordinary rights, it should not be extended beyond the reasonable import of the statutory language, and should be strictly construed. Freeman ». Cram, 8 N. T., 305. Mushlitt J). Silverman, supra. Hubbell B. Shreyer, 15 Abb. N. S., 800. Dngan ». Brophy, 55 How., 121. Brady b. Anderson, 34 111., 110. And as it is inconsistent with, and a violation of, clear principles of justice that one person should, without contract, be obliged to pay the debts of another, it will not be assumed that it was so intended without a clear declaration of such intent, and the statutory provisions should not be so extended by judicial construction, as to afford equitable relief to persons not embraced within the enactment. Cheney v. Troy Hospital, 05 N. T., 383. Donaldson ». Wood, 33 Wend., 395. The remedy is cumulatvoe, and the pendency of proceedings for its enforcement is not, of itself, a bar to an action against the contractor. Gridley v. Kowland, 1 E. D. Smith, 670. Maxey ».' Larkin, 3 E. D. Smith, 540. Pollock B.Ehle, Id., 541. The /owi6?afo'(TO of the claim is &n. indebtedness existing ujpon contract, express or implied, in favor of the person who seeks ,to subject the property to the lien. Muldoon v. Pitt, 54 N. T., 369. Knapp ®. Brown, 45 N. Y., 307. Cornell v. Barney, 94 N. Y., 394. BY WHOM LIEN MAT BE ACQUIRED. 13 It affords security only for labor and materials which have actually entered into the construction or repair of the struc- ture upon which the lien is claimed. Phillips V. Wright, 5 Sandf., 343. Miner v. Hoyt, 4 Hill, 193. Dennistown v. McAllister, 4 E. D. Smith, 739. Eogers «. Currier, 13 Gray, 139. Deardorff v. Everhartt, 74 Mo., 37. By whom Lien may be Acquired, Any person who is legally capable of entering into the contract upon which the claim is based, may acquire the lien. Van Bremer i>. Cooper, 3 Johns., 279. Hartness s. Thompson, 5 Johns., 160. Cashman ». Henry, 7fi N. T., 103. Husted ». Mathes, 77 N. T., 388. Donahy ». Clapp, 13 Cush., 440. As the right to acquire the lien is a purely personal one, the lien ccmnot he acquvr'ed hy, and in the name of, an assignee j although the right after its acquisition may be prosecuted by the real owner. Roberts ». Fowler, 3 E. D. Smith, 633. EoUin V. Cross, 45 N. Y., 766. Pearsons v. Tincker, 36 Me., 384. Hooper •». Sells, 58 Ga., 137. First Nat. Bk. «. Day, 33 Iowa, 680. Caldwell v. Lawrence, 10 Wise.,' 331. Tewksbury «. Bronson, 48 Wise, 581. Brown ». Harper, 4 Oregon, 89. And cases cited under section 17, infra. An agent of an assignee may, however, take the necessary steps to acquire the lien for and in behalf of his principal. Urquhart v. Mclver, 4 Johns., 116. Eollin v. Cross, 45 N. Y., 771. Hallahan ». Herbert, 57 N. Y., 409. An owner of the building cannot prejudice the rights of other persons by acquiring a lien in his own behalf. Babb V. Reid, 6 Rawle, 151. Stevenson «. Stonehill, 5 Whart., 301. Nor will he be permitted to do so through one acting as his agent, even though the latter subsequently pay the claim himself. Kerby a. Daly, 45 N. Y., 84. 14 mechanics' lien law. For the same reason a husband cannot create a lien upon a structure erected with common funds upon the wife's land. Peck 11. Brummagin, 31 Cal., 440. Nor can the individual members, who compose a voluntary unincorporated association, charge the joint property. Babb ». Reid, 8 Rawle, 151. Though they may as against trustees, in whom the title is vested. Toung V. Lyman, 9 Penn., 449. A municipal corporation can have this remedy only by express statutory provision. Tates V. Meadville, 56 Penn., 31. Mauch Chunk v. Shortz, 61 Penn., 399. A lumber merchant, who furnishes materials to a contrac- tor, without any previously existing ^contract, and without any intention or understanding that they shall be applied to a particular building, does not come within the provisions of this statute and cannot acquire a lien upon the owner's in- terest. Burst V. Jackson, 10 Barb., 319. Hatch V. Coleman, 29 Barb., 301. Weaver v. Sells, 10 Kan., 609. The Owner. In the sense contemplated by the statute, no person is owner who is not a party to the contract. Muldoon ». Pitt, 54 N. Y., 369. McDermott v. Palmer, 11 Barb., 9. 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. T., 678. Peabody v. Bast Met., &c., 5 Allen, 540. And may be, although his grantor retains a lien for the en- tire purchase money. Nazareth, &c., Inst. v. Lowe, 1 Ky., 258. THE OWNER. 15 A contractor who has an equitable title to the premises is an owner, and may subject his interest to the lien. Belmont v. Smith, 1 Duer, 675. And the owner of the equity, in possession, is deemed the owner within the meaning of the law. Knapp V. Brown, 45 N. Y., 207. Rollin V. Cross, 45 N. T., 769. Reid V. Bank of Tenn., 1 Sneed, 263. Otley V. Haviland, 36 Miss., 19. Marston v. Stickney, 60 N. H., 113. 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 V. O'Neil, 57 Barb., 299. Lessee can subject only his interest to the lien. Stevens v. Lincoln, 114 Mass., 476. McGuinness v. Boyle, 138 Mass., 570. Poster B. Cox, Id., 45. Childs «. Anderson, 128 Mass., 108. Married woman may charge her separate estate. Cashman ». Henry, 75 N. Y., 103. Husted ». Mathes, 77 N. Y., 388. Machier v. Burroughs, 14 Ohio St., 519. 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 o. 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. Coming v. Fowler, 24 Iowa, 584. Miller v. Hollings worth, 33 Iowa, 224. "Webster B. HUdreth, 33 Vt., 457. Spinning v. Blackburn, 13 Ohio St., 131. Mortgagee can be deemed an owner only when in posses- sion under his mortgage. Cox V. Broderick, 4 E. D. Smith, 721. Ombony v. Jones, 19 N. Y., 334. 16 mechanics' lien law. Tenant can charge obIj his interest, whatever it may be, and however temporary its tenure. Knapp «. Brown, 45 N. T., 207. Muldoon 8. Pitt, 54 N. T., 269. Ombony ». Jones, 19 N. Y., 234. Tenants in possession of separate portions of joint pro- perty under a parol agreement for partition may charge the separate lots. Otis B. Cusack, 43 Barb., 546. A grantee under an agreement to convey cannot so en- cumber the estate. Hayes ». Fessenden, 106 Mass., 228. The Contract. An indebtedness existing upon contract, either express or implied, in favor of the person seeking to subject the property to the lien, is the foundation of the claim. Dixon B. La Farge, 1 E. D. Smith, 722. Gay V. Brown, 1 E. B. Smith, 725. Pendleburg v. Meads, 1 B. D. Smith, 728. Broderick v. Poillon, 2 E. D. Smith, 554. Quinn b. New York, 3 E. B. Smith, 558. "Walker «. Paine, 2 E. D. Smith, 662. Myers v. Bvirnett, 7 B.ily, 471. Be Eonde v. Olmstead, 47 Howd., 175. Knapp ». Brown, 45 N. Y., 307. Muldoon V. Pitt, 54 N. Y., 369. Cornell ». Barney, 94 N. Y., 394. And, therefore, when the indebtedness arising from the contract has been fully cancelled, the lien cannot be pros- ecuted for an amount which has been agreed upon as com- pensation for damages suffered by the contractor for the owner's fault. Nolan a. Gardner, 4 E. D. Smith, 737. Hoyt «. Miner, 7 Hill, 535. The contract which forms the basis of the lien must be suflSciently 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. THE OONTEAOT. 17 It must be such a contract as would be enforceable in an action at law ; hence a contract within the Statute of Frauds cannot be enforced by this process. Loonie v. Hogan, 9 N. T., 435. Nor can one that is barred by the statute of limitations. Teates v. Wheaden, 6 Bush (Ky.), 438. Vandive v. Hodge, 4 Id., 538. Hills V. Halliwell, 50 Conn., 270. Nor one which provides for the furnishing of labor or materials for the erection of an illegal ai/ruclm/re with an intentional aiding in the illegal purpose. Dorsey v. Langworthy, 3 Iowa, 341. Spurgeon «. McElwain, 6 Ohio, 444. Bishop ». Honey, 34 Texas, 348. It may be executed by an infomt, as his disability is solely for his protection and cannot be taken advantage of by another. Van Brenner ». Cooper, 2 Johns., 279. Hartness e. Thompson, 5 Johns., 160. McCarty «. Carter, 49 111., 58. And by a ma/rried woman in relation to her separate estate. Cashman ». Henry, 75 N. T., 103. Husted «. Mathes, 77 N. Y., 388. PeTfoTTnomoe of the conditions and requirements of the contract is as essential to a recovery in this as in other forms of action and proceedings ; but a substantial compliance, and not a literal performance, is all that is necessary. Glacius a. Black, 50 N. T., 145. Johnson ». De Peyster, 50 N. T., 666. Phillips V. Gallant, 62 N. Y., 264. Heckmann ». Pinkney, 81 N. Y., 211. Woodward «. Fuller, 80 N. Y., 312. "Wright V. Roberts, 43 Hun, 413. And performance must be affirmatively shown by the claimant, although not specifically denied in the answer. Hoag ». Hillemeyer, 15 Weekly Dig., 323. 18 mechanics' lien law. When complete performance has been waived by the mutual agreement of the parties to abandon it, a recovery may be had on a quantum meruit. Powers v. Hogan, 67 How., 255; 12 Daly, 444. So when plaintifE has been prevented from completing his contract by the insolvency of the owner, he may enforce his lien. Henderson ». Sturgis, 1 Daly, 336. Or when he has been rendered unable to seasonably per- form his agreements by the fault of the owner or his em- ployers in completing work which should have been first performed, the claimant is excused for the delay. Weeks v. Little, 9 Abb. N. C, 415. The lien is enforceable when the contract stipulates for payment in specific property, though a specific performance cannot be decreed. Dowdney«. McOuUom, 59 N. Y., 867. See section 33, infra, and cases cited. The moneys, due upon the contract, constitute a fund for the payment of those who furnish labor and materials which enter into and enhance the value of the owner's buildings. Hoyt a. Miner, 7 Hill, 525. The contract and the payments to become due thereunder constitute the security of mechanics employed by the con- tractor, and they furnish work and materials on the faith thereof. Post V. Campbell, 83 N-JY., 383. The words " liable to pay " in this section, mean liability to pay under and by virtue of the owner's contract, and in accordance with its terms. Heckmann «. Pinkney, 81 N. Y., 217. The owner of certain lots in the city of New York, having erected thereon houses which were not fully completed, con- tracted to sell them to the defendant, and to complete the houses before the day fixed for conveying the title, and sub- sub-oontractoe's rights. 19 sequently made a contract with plaintiffs to do the work and furnish materials necessary to complete the houses in ac- cordance with his contract of sale. Meld, that plaintiffs were not entitled to a lien upon the property for such work and materials, under the Mechanics' Lien Act of 1883. Smullen v. Hall, 13 Daly, 393. The contract with the owner, intended by the statute, is the plain case of a contract by which work is done for the owner, and not a contract of sale, as in the present case, where work remains to be done merely to complete an entire struc- ture which had been^ commenced by the vendor as owner, without any reference to a sale to any particular vendee, and which work the vendor agrees with the vendee to have per- formed in order to obtain possession of completed structures. Smullen v. Hall, supra. Snb-contractor's Rig;hts under the Contract. The rights of the sub-contractor are entirely dependent upon the existence of a valid contract between the contractor and owner. Pike ■». Irwin, 1 Sandf. 14. Doughty V. Devlin, 1 E. D. Smith, 635. Loonie v. Hogan, 1 E. D. Smith, 653. Walker v. Paine, 3 E. D. Smith, 663. Grogan v. Mayor, 3 B. D. Smith, 693. Cox «. Broderick, 4 E. D. Smith, 731. Thompson ®. Yates, 38 How., 143. Carman v. Mclncrow, 13 N. Y., 70. Crane ». Genin, 60 N. Y., 137. Cheney v. Troy Hospital, 65 N. Y., 383. Heckmann v. Pinkney, 81 N. Y., 311. The intent of the statute being merely to subrogate him to the contractor's right. Herbert o. Herhert, 57 How., 3.33. Schneider v. Hobein, 41 How., 333. Hofgesang v. Meyer, 3 Abb. K. C, 111. Cheney v. Troy Hospital, 65 N. Y., 383. McMillan v. Seneca, etc., 5 Hun, 13. 20 mechanics' lien law. And his lien attaches only to the amount due or to become due thereon ; that amount constituting a fund out of which the mechanic is entitled to be paid. Crane v. Genin, 60 N. Y., 127. Gibson v. Lenane, 94 N. T., 183. Post ®. Campbell, supra. And the fund so created can only be diverted from this object by payments made, hona fide, and in accordance with the terms of the contract. Crane v. Genin, supra. Payne ». Wilson, 74 N. Y., 348. Gibson o. Lenane, supra. Jones Lumber Co. s. Murphy, 64 Iowa, 166. He has a right to examine and rely upon the terms of the contracts under which this fund for his security is accumu- lated. Lumbard ». Syracuse, 65 N. Y., 494. There is no provision in the act which, directly or infer- entially, requires the contract to be fully performed as regards a lien for work and materials furnished, and used by a con- tractor in the erection of the building, if it be shown that at the time the lien was filed a sum of money had been earned by the contractor according to the agreed price, which ex- ceeded all payments theretofore made by the owner in an amount sufficient to pay the claim of a sub-contractor, for which a lien is filed. ■Wright «. Roberts, 43 Hun, 413. His rights are subject to the equities that exist between the original parties to the contract. Morgan «. Stevens, 6 Abb. N. 0., 856. And the onus prdbandi is upon him to show that his labor was performed in conformity with the contract, and that moneys are due from the owner to the contractor in accord- ance with the terms of their contract. Walker v. Paine, 2 E. D. Smith, 663. Haswell v. Goodchild, 12 Wend., 378. Blvthe V. Poultney, 31 Cal., 233. sub-contractor's rights. 21 An cibcmdonment of his contract by the contractor defeats the sub-contractor's right of recovery. Allen V. Carmen, 1 B. D. Smith, 693. Linn v. O'Hara, 2 E. D. Smith, 560. Ferguson v. Burke, 4 E. D. Smith, 760. Smith v. Ferris, 1 Daly, 18. An assignment for benefit of creditors executed by the contractor does not cut off the sub-contractor's lien. Smith ». Bailey, 8 Daly, 128. McMurray «. Hutcheson, 10 Daly, 64. When a contractor, in good faith and for value, assigns all his right and interest under the contract and to all payments arising thereunder, a sub-contractor who afterwards performs labor with a full knowledge of these facts can acquire no lien. Oates ». Haley, 1 Daly, 338. It has been held that a mechanics' lien was cut off by an arrangement, made without his knowledge, between his em- ployer and the contractor, whereby they cancelled the con- tract, through which he would otherwise have traced his right to the fund in the owner's hand, by applying on such contract an indebtedness arising from an independent transaction. Hagan v. American Baptist, &c., Soc, Gen. Tr. Com. Pleas, Oct., 1886. Larramore, C. J., dissenting. 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., 34 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 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 u. Pinkney, 81 N. T., 211. Wright «. Roberts, 43 Hun, 413. 22 mechanics' lien law. Consent. By the provision permitjting the enforcement of a lien ■when the claim arose by the owner's consent, the legislature intended to enforce the 'equitable principle that one who knowingly takes the benefit of the property and labor of another, in the form of improvements on his land, ought to have the land subjected to a lien therefor. Nellis D. Bellinger, 6 Hun, 560. Otis v. Dodd, 90 N. Y., 336. And it was also designed to meet the objection that there could be no lien against the legal owner who bad contracted to sell and to make advances for the erection of a building on the land. Nellis V. Bellinger, supra. The lien is given in accordance with this provision when- ever the owner of the land consents iy his acts or declarations to the erection of a structure upon it, to the same extent as if he had contracted directly for its construction. Nellis e. Bellinger, supra. Otis V. Dodd, supra. In order to bind the owner to a payment for labor or ma- terial for which he did not contract, the consent of the owner of the fee to their furnishing must be express. Craig «. Swinerton, 15 Supr., 144. And the person whose consent is relied upon to charge the estate must have the capacity to confer the right. Donahy e. Clapp, 13 Cush., 440. Consent may he evidenced by the fact of knowledge of the performance of the labor and the absence of objection thereto. Husted «. Mathes, 77 N. Y., 389. Nellis e. Bellinger, supra. Ab, where the owner agrees to sell, and advances money for the purpose of erecting buildings on the land, the relation CONSENT. 23 of owner and contractor does not exist between the parties, but the latter may be entitled to a lien, as having performed the labor by consent. Gates V. Whitcomb, 4 Hun, 137. Hart V. Wheeler, 1 Thomp. & C, 403. Hilton V. Merrill, 106 Mass., 538. Smith ». Norris, 130 Mass., 58. Davis V. Humphrey, 113 Mass., 309. And consent may be inferred from the fact that the owner had entered into an agreement to convey, stipulating in the agreement that all liens should be first discharged ; such clause obviously contemplating the creation of liens. Mulrey v. Barrow, 11 Allen, 153. So, where an obligation for a conveyance is given with the agreement that the obligee shall erect buildings on the land, the fee may be subjected to the lien on the ground that the owner has consented to the labor. Davis ». Humphrey, 113 Mass., 309. Hackett v. Badeau, 63 N. Y., 476. And leasing 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 «. Harper, 79 N. T., 378. Otis ®. Dodd, 90 N. Y., 336. Sub-contractors, performing work upon a structure under one employed by a building committee duly authorized by vote of the corporation owning the fee, will be deemed to furnish their labor by the owner's consent. Morse ®. School Dist., &c., 3 Allen, 307. A consent may be inferred so as to bind the estate of a married woman, when, having knowledge that her hus- band is making improvements thereon, she makes no objec- tion. Husted V. Mathes, 77 N. Y., 389. 24 mechanics' lien law. Consent will not he i/af erred, on the part of a corporate from the fact that a director was present upon a single oci sion while the work of construction was in progress. LotUan ». Wood, 55 Cal., 159. Nor, where the legal title to a church was vested in t survivor of a board of unincorporated trustees, can consent inferred from the fact that the residence of the survivii trustee is within sight of the building. Peabody ». Eastern Methodist Ch., 5 Allen, 540. A mechanic cannot acquire a lien against the fee und this provision by reason of work performed with the owne: knowledge upon property in the possession of a lessee, who h covenanted to repair. Conant %. Brackett, 113 Mass., 18. Nor where the premises are leased for a \&r^ long ten and alterations are made by the tenant in possession. Francis «. Sayles, 101 Mass., 435. The Iiabor and Materials. The remedy is extended to all loibor that is ordinarily ei ployed in the construction or repair of a building. Butler ». Eiver, 4 R. I., 38. And under the statutory term, " any labor," is includ( the skilled labor of the architect who designs as well as tl unskilled labor of the person who aids in the erection of tl building. Stryker s. Cassidy, 76 N. Y., 50. Mutual Ins. Co. «. Rowand, 26 N. J. Eq., 389. Or, time and skill employed in supervising the constru tion. Williamette ®. Remick, 1 Oregon, 169. But it has been held that services in preparing a plan of house or a model of a ship did not properly fall within tl definition. Ames ». Dyer, 41 Me., 897. THE LABOR AND MATEEIALS. 25 Labor in altering and repairing machinery will not subject premises to a lien unless it be shown affirmatively that it was of such a character as to make it a part of the realty. Baker v. Fessenden, 71 Me., 392. But the lien can be acquired only for work actually done, and will not attach for damages arising from a breach of the contract in preventing its performance. Dennistown ®. McAllister, 4 E. D. Smith, 739. Miner «. Hoyt, 4 Hill, 193. Hoyt B. Miner, 7 Hill, 535. Among the items of labor for which the lien has been held to attach, as being labor ordinarily performed in the con- struction and repair of buildings are : Charges for hanging paper. Freeman o. Grilpin, 1 Phila., 33. Painting a dweUing-house. Martina v. Nelson, 51 El., 423. Conveying materials to the structure. Hill «. Newman, 38 Penn., 151. Re Hope, 1 Sumner, 710. Hoisting materials with derricks and machinery. Tizzard «. Hughes, 3 Phila., 361. Among those items that have been excluded from the benefit of the lien as not being labor ordinarily performed in the erection of a building are : Claims for ferriage for workmen. Williamette Falls «. Bemick, 1 Oregon, 169. For supplying postage and similar charges. Ibid. Cooking food for workmen employed upon the building. McCormick ». Los Angelos, 40 Cal. 185. For varnishing carpets in and painting fences about the building. First Nat. Bk. 'b. Redman, 57 Me., 405. 3 26 mechanics' lien law. And services in moving a building have been held not to fall within the contemplation of the law. Trask v. Searle, 131 Mass., 329. Mxst/ra work which is performed for the owner and in pur- suance of employment by him or by his directions, permits the acquiring of a lien. Morgan v. Stevens, 6 Abb. N. C, 357. Rush ». Able, 90 Penn. St., 153. The materials include whatever is ordinarily used in erecting, altering or repairing, and whatever is necessarily used for those purposes, but such materials must be furnished for as well as used im, the structure. Philips ». Wright, 5 Sandf., 345. Rogers ». Currier, 13 Gray, 129. Weaver ®. Sells, 10 Kan,, 609. Therefore materials supplied by a lumber merchant to a contractor, in the ordinary course of his business, and with no knowledge of their intended use, do not afford a basis for a lien, not having been furnished for the building. Burst «. Jackson, 10 Barb., 319. Hatch ». Coleman, 39 Barb., 201. Weaver «. Sells, 10 Kan., 609. Among the items that have been regarded as falling with- in the statute and giving a lien are : Mirror frames fastened permanently to the structure, and intended to be used and to pass with it. Ward ti. Kilpatrick, 85 N. T., 413. A hoiler in a brew-house which is a necessary part of the building and a fixture thereto. Gray v. Holdship, 17 Serg. & R., 413. The engine and boiler so a part of, and a fixture in, a steam saw-mill. Morgan v. Arthurs, 3 Watts (Pa.), 140. Mill-stones in a building of which they form a part. Wademan ®. Thorp, 5 Watts (Pa.), 115. THE LABOB AND MATERIALS. 27 Furnaces for heating a house, and which would pass with the realty. Goodwin ». Elleardsville, 5 Mo. App., 289. Bolting oloih forming an essential part of the machinery of a flouring mill. Heidegger ». Atlantic Mill Co., 1 Mo. App., 337. A hoot attached to and forming a permanent portion of a wharf. Galbreath v. Davidson, 35 Ark., 490. Lightning rods affixed to the dwelling-house. Quinby «. Sloan, 3 E. D. Smith, 594. Harris ii. Schulte, 64 Iowa, 539. Powder and fuses necessarily used in construction. Hazard Powder Co. v. Byrnes, 13 Abb., 469. Hoisting a/pparatus necessarily belonging to and used in connection with the building. Dixifin v. La Parge, 1 B. D. Smith, 733. Theatre chai/rs made with special reference to the form of the auditorium, and attached to the building. Grosz «. Jackson, 6 Daly, 468. Theatre scenery, machinery and chairs made and affixed in a similar manner. Halley v. Alloway, 10 Lea (Tenn.), 538. A lien can not be acquired for materials furnished for the erection of an illegal structure with a knowledge of their intended use. Spurgeon «. Mcllvain, 6 Ohio, 444. Dorsey v. Langworthy, 3 Greene (Iowa), 34. Bishop V. Honey, 34 Texas, 345. Nor for materials jpwrchased in another State, the statute having no force beyond its jurisdiction. Birmingham, &c. ■». Glen Cove, &c., 78 N. T., 30. 28 MBCHAKICS' LIEN LAW. But when the contract was made in this State, and the sale is not complete until the materials are delivered here, al- though sent from another State, the lien attaches. Phoenis Iron Co. v. Vessell, &c., 43 Hun, 429. Eemovahle articles, such as gas iurners^ which do not form a permanent portion of the realty. Jarechi v. Philharmonic See, 79 Pa. St., 403. Stove and furnaces set up in a dwelling for ordinary heat- ing purposes. *. Lombard ». Pike, 38 Me., 141. Store counters which are not so affixed as to render them removable without injury to the building. Baum V. Covert, 62 Miss., 113. Machinery for manufacturing purposes which would not necessarily pass upon conveyance of the real estate. Iron Mfg. Co. v. Brown, 3 Sneed (Tenn.), 268. Baker a. Fessenden, 71 Me., 392. Or new machinery supplied for an old structure. Haslett V. Gillespie, 95 Pa. St., 371. The lien attaches for materials and labor furnished after the passage of the act, agreeably to a contract entered into before. Hauptman ». Cantlin, 20 N. Y., 247. Estate Iiiable to the Liea. The lot which is covered by the lien includes the parcel of land inclosed or so connected with the structure as to be naturally understood by the parties as belonging thereto. Bank «. Curtiss, 18 Conn., 343. It may consist of several lots which are capable of being used together and actually are used in such connection. Choteau v. Thompson, 3 Ohio St., 114. ESTATE LIABIiB TO THE HEK. 29 The estate so subjected may consist of several buildings erected under a single contract. Paine «. Bonney, 4 E. D. Smith, 734. Moran «. Chase, 53 N. T., 346. HaU V. Sheehan, 66 N. T., 618. And in such case, where the contract provided for a pay- ment in a gross sum, the lienor is entitled to be paid out of all or any of the buildings. Livingston v. Miller, 16 Abb., 371. A tenant cannot subject the fee of the estate to the lien by reason of any contract he may enter into with the claim- ant. Cornell v. Barney, 33 Hun, 184. The interest of the tenant whatever it may be, and only that interest, can be covered by the lien. Mnldoon v. Pitt, 54 N. T., 369. Knapp ». Brown, 45 N. T., 307. Dutro V. "Wilson, 4 Ohio St., 101. A lessee's interest embraces all improvements erected by him that are removable without injury to the freehold. Ombony v. Jones, 19 N. Y., 334. Dobshultz V. HolUday, 83 111., 371. An equitable owner cannot charge the legal estate by a contract to which the legal owner is not a party or consenting. EoUin y. Cross, 45 N. T., 766. But the estate is chargeable if the equitable owner sub- sequently acquires the legal ownership. Kollin V. Cross, supra. McGraw v. Godfrey, 56 K. T., 610. So, a contractor who has no title at the time of the execu- tion of the contract, but subsequently acquires it, may subject the premises to the lien. Carbett v. Greenlaw, 117 Mass., 167. And, generally, the perfecting of a defective title enures to the benefit of the lienor. McGraw v. Godfrey, supra. Montandon v. Deas, 14 Ala. N. 8., 33. 30 mechanics' lien law. InohoaU right of dower is not such an ownership as will be liable to be charged. Vanbroker v. Eastein, 7 Mete, 163. Grove ®. Gather, 33 III., 634. Schaeffer v. Weed, 3 Gilm. (111.), 511. Bishop v. Boyle, 9 Ind., 169. That a homestead may be rendered liable to the lien for a building erected thereon, see Thompson ■». Wickersham, 9 Baxter (Tenn.), 216. ■■ Contra, Keller v. Struck, 31 Minn., 446. The house of a minister of a' foreign government may be subjected to the lien if the building was not used for purposes connected with his representative capacity; the burden of proof being upon the owner in such case to show that the rule as to the lex rei situs does not apply. Byrne «. Harron, 1 Daly, 344. How Waived, Defeated or liost. A waiver of the right to acquire a lien may be made by the express agreement of the parties. Tombs ». Eoohester K. E.; 18 Barb., 583. Mulvey «. Barrow, 11 Allen,' 53. And may be inferred from the acts of the parties. Peyroux «. Howard, 7 Peters, 334. Mims ». Macon R. E., 3 Kelly (Ga.), 333. Portsmouth Iron Co. ii. Murray, 38 Ohio St., 333. And when the right has been once waived by the workman it cannot be again acquired or revived. Phillips V. Gilbert, 2 McArthur, 415. A 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 «. Anderson, 24 111., 110. Kinzey i>. Thomas, 38 111., 503. Burrows ». Baughman, 9 Mich., 313. Gorham ». Sagner, 22 Mo., 137. Grant «. Strong, 18 Wall., 623. HOW WAIVED, DEFEATED OR LOST. 31 As, by accepting an agreement by which he is to receire a mortgage upon real estate for the labor. Weaver v. Demuth, 40 N. J. L., 238. But the fact that the lienor has taken a mortgage on the property to secure his claim and which has been foreclosed, will not prevent him from prosecuting his lien for the defi- ciency. Hall «. Pettigrew, 10 Hun, 609. By the express acceptance of the personal credit of the owner or some other person. Bailey «. Adams, 14 Wend., 301. Muir V. Cross, 10 B. Mon., 377. Green ». Fox, 7 Allen, 85. Peyroux ». Howard, 7 Peters, 334. Or of negotiable paper which carries the date of payment beyond the statutory period for acquiring the lien. Miller i>. Moore, 1 E. D. Smith, 739. Althouse V. Warren, 3 E. D. Smith, 657. Lutz V. Ey, 3 E. D. Smith, 631. Ehlers i>. Elder, 51 Miss., 495. Quinby «. Wilmington, 5 Del., 26. But the mere acceptance of debtor's note, which does no so extend the credit, will not be construed as a waiver. Carter v. Byzantium, 1 Clifiord, 1. Teaz V. Christie, 3 E. D. Smith, 631. Althouse V. Warren, 2 E. D. Smith, 657. Van Court v. BushneU, 31 111., 624. Greene v. Ely, 2 Greene (Iowa), 508. Schmidt v. Gilson, 14 Wis., 514. Hopkins v. Forrester, 39 Conn., 351. 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 ®. Byzantium, supra. Nor will the acceptance of a bond, as security, which does not extend the credit beyond the legal limitation. Thompson's Case, 3 Browne (Pa.), 397. Crean v. McFee, 2 Miles (Pa.), 214. 32 mechanics' men law. Nor an agreement to accept the credit of a third person, which is void by the statute of frauds. Abram v. Boyd, 7 Daly, 30. The intent to waive the lien must clearly appear, as by taking a security inconsistent therewith. Peck ». Bridwell, 10 Mo. App., 524. Zien may he defeated by the destruction of the structure before filing the notice. Schukraft v. Kuck, 6 Daly, 1. But after the lien has been properly acquired, the destruc- tion of the building wiU not prevent the foreclosure of the claim upon the premises. Fieeman v. Carson, 27 Minn., 516. It cannot be defeated by the removal of the building upon which the labor has been performed. Bishop V. Honey, 34 Texas, 245. The ownership of the contracting party must continue during the performance of the contract and the death of the owner before filing the notice will defeat the lien. Meyers v. Bennett, 7 Daly, 471. Brown «. Zeiss, 9 Daly, 240. And the sale of, or parting with such ownership before the acquisition of the lien, will defeat it. Brown v. Zeiss, supra. McAuley ®. Mildram, 1 Daly, 396. Lien may he lost by including non-lien items with those for which a lien could properly be had, so that the exact amount of the latter cannot be ascertained. Fairchild «. Burt, 11 Pick., 245. Lambard i>. Pike, 33 Me., 141. Bicknell «. Trickey, 34 Me., 373. Kelley r>. Kelley, 77 Me., 135. Gauss V. Hussman, 22 Mo. App., 115. Murphy v. Murphy, Id., 18. And, it is lost when the labor and materials are furnished under an entire contract, for a single price, in which non-lien COLLUSIVE AND ADVANCE PAYMENTS. 33 items are included, whereby the amount of the lien items cannot be distinctly shown. EUenwood v. Burgess, 144 Mass., 534. Mulrey«. Barrow, 11 Allen, 152. Childs V. Anderson, 138 Mass., 108. Or by the acceptance of general payments on account of a contract which embraces both classes of items, so that the amount of the lien account cannot be fixed. DriscoU V. Hill, 11 Allen, 154. But, improper items included by mistake, which are easily separable from the lien items, may be stricken out and the lien preserved. Allen V. Frument Co., 73 Mo., 688. Sands v. Sands, 74 Me., 339. §3- CoUusire and AdTance Payments. § 2. If the owner or such person in interest as aforesaid, of any house, wharf, pier, bulkhead, bridge, vault, building and appurtenances, ' for or toward the construction, altering, repairing or improvement of which, labor or 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 34 MEOHAUIOS' LIEN LAW. 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 this Act, in the same manner as if no such collusive payment, mortgage, lien or incumbrance had been made, given or eflfected. Compare State Act, § 3; Kings Co., § 1 ; Eens. Co. Act, § 3. Laws of 1862, c. 478; 1865, c. 778. A payment made collusively and for the purpose of avoid- ing the provisions of this section, is ineffectual against the lien, although it is not found to have been in advance of the terms of the contract. Hofgesang ®. Meyer, 2 Abb. N. C, 111. And payments made in advance of the terms of the con- tract, although without fraud of collusion, cannot be allowed. Post V. Campbell, 88 N. Y., 379. These provisions, having been made for the sole benefit of the lienor, cannot be taken advantage of by the person to whom the advances were made. Post V. Campbell, supra. The acceptance of an order for the payment of money, or a legal assumption of liability, by the owner on account of the contractor, is equivalent to a payment and has the same effect. Gibson ». Lenane, 94 N. Y., 183. Garrison «. Mooney, 9 Daly, 318. DEMAND FOE TEKMS OF CONTEACT. 35 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 mating such demand of the terms of the contract or agreement under which the same are being erected, altered, repaired or made, and the amount due and unpaid upon such contract or agreement therefor, or shall intentionally and knowing- ly falsely state the terms of said contract or agreement, or the amount due or unpaid thereon ; and if the per- son, or 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, tlie 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- 36 mechanics' men law. 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. Laws of 1880, c. 143. §4- Notice of Lien. Filing and Beqnisites of. Notice upon Owner. § 4. At any time during the performance of the work or the furnishing of the materials, or within 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 is 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 prem- NOTICE OF LIEN. 37 ises 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 prop- erty 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 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 clerk on filing such notice of lien. 38 mechanics' IiIElif LAW. 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, § 4 ; Kings Co. Act, § 3. Laws of 1880, c. 143 ; 1865, c. 778; 1862, c. 478. Acquiring the liien. The lien is acquired by the filing of the notice prescribed by the statute and dates from the filing of such notice ; and convey- ances made in good faith before the filing will defeat the lien. Noyes v. Burton, 29 Barb., 631. Einst v. Reed, 49 Barb., 367. Quinby v. Sloan, 2 Abb., 93. Sinclair v. Fitch, 8 E. I). Smith, 677. Cox V. Broderick, 4 E. D. Smith, 721. Brown v. Zeiss, 9 Daly, 242. Stuyvesant v. Browning, 33 Supr., 203. Livingston v. Mildram, 19 N. Y., 440. Payne v. Wilson, 74 K. Y., 348. Hunger v. Curtis, 42 Hun, 465. The lien is not defeated unless the conveyance is made in good faith ; and that question may be tested in the foreclosure proceeding. Meehan v. Williams, 36 How., 743. Gross V. Daly, 5 Daly, 540. Amidon v, Benjamin, 126 Mass., 276. FORM AND REQUISITES OF THE NOTICE. 39 Assignee for benefit of creditors takes the property free from the lien unless it has been previously acquired. Noyes v. Burton, supra. Quinby ■». Sloan, supra. One of several buildings liable to the lien, may be conveyed without removing the lien as to the others. McAuley ». Mildram, 1 Daly, 396. Form and Requisites of the IVotice. Tlie form of the notice is immaterial so long as it is a substantial compliance with the statutory requirements. Beals V. Congregation, 1 E. D. Smith, 654. Dunbar v. Diem, 9 Weekly Dig., 231. Hubbell V. Scbreyer, 14 Abb. N. S., 287. Towner v. Remick, 19 Mo. App., 237. Certainly to a common intent is all that is demanded in fulfilment of the legal provisions. Driesboch «. Keller, 2 Pa. St., 77. Holland ». Garland, 13 Phila., 544. Its object being to put the owner and other persons in- terested in the property on their guard, and to convey to them the information necessary for that purpose. Henry ». Plitt, 84 Mo., 387. Names and residences of the claimants must be given and an association must file its lien notice in the name of the per- sons composing it. Beals V. Congregation, 1 E. D. Smith, 654. It has been hold en that a firm may make use of the firm name without stating the names of the individual members. Black's Appeal, 2 Watts & S. (Pa.), 179. Jones 9. Hurst, 67 Mo., 568. When the indebtedness is to several persons as joint con- tractors, the names of all the claimants must be used, -and a notice by one of tiiem in his own name is insufficient. Hubbell V. Schreyer, 14 Abb. N. S., 806. Hauptman v. Halsey, 1 E. D. Smith, 668. 40 mechanics' lien liAW. Nature of the claim must be set forth, so that the material steps which are necessary to acquire the lien may appear by the notice to have been taken. Murray . Boyle, 37 N. J. L., 346. The time for filing the notice cannot be extended by the doctrine of relation beyond the statutory period, by attaching one lien to another so as to bridge over the lapse of time. Spencer «. Barnett, 35 N. T., 94. As, by the addition of an item for painting weatherstrips which were supplied after the completion of the original con- tract, and not called for by it, Scott v. Cook, 8 Mo. App., 193. Or the supplying of a few bolts after all the materials were furnished under the terms of the contract. Barrows v. Knight, 55 Oal., 155. But necessary work done after the completion of the con- tract in good faith and by the owner's request will extend the time of filing the lien notice. Nichols V. Culver, 51 Conn., 177. And items of an open and running account are preserved if the last item falls within the statutory time for filing. Central Trust Co. v. Texas, &c., Ry., 23 Fed. Rep., 678. But such previously performed labor must be shown to 46 mechanics' lien law. have been part of a continuous work and not performed' for the purpose of evading the law. Duffy V. Baker, 17 Abb. N. C, 357. So, where claimant had completed his contract and agreed upon the amount due thereon, it was holden, that incidental assistance voluntarily rendered in the re-adjustment of part of the work apparently for the purpose of sustaining the filing of the notice, which would be otherwise too late, could not avail the plaintiff. Dufiy «. Baker, supra. 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 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 materials or performed labor upon any land, or towards the erec- tion 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 pro- vided 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- PBIOEITY OP LIENS. 47 ment to sell and convey the premises to the contractor 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. T. City Consd. Act, § 1809; Kings Co. Act, § 1; Buflfalo Act, § 7. A mortgage, given to secure a bank for money loaned, which was recorded two days before filing of a lien notice, was held to have priority over the lien claim, although the bank knew of the indebtedness to claimant, there being no evidence of collusion to defeat the claim. Munger v. Curtis, 42 Hun, 465. Before the passage of this provision the vendor of a lot, under a building contract, was not considered an owner, although the legal title was in him. Hallagan ». Herbert, 11 Abb. N. S., 326. Gay V. Brown, 1 E. D. Smith, 735. Walker ti. Paine, 3 E. D. Smith, 662. Loonie ». Hogan, 9 N. T., 435. Conklin ». Bauer, 63 N. Y., 620. Yates ®. WMtcomb, 4 Hun, 137. But, although the relation of owner and contractor did not exist between the legal owner and the mechanic under such an agreement, the fee might be subjected to lien on the ground of the owner's consent. Yates B. Whitcomb, supra. Hackett v. Badeau, 63 N. Y., 476. Hilton V. Merrill, 106 Mass., 538. Smith ». Norris, 120 Mass., 58. If the vendee, against whom a mechanic has a claim, sub- sequently acquires the legal title, it enures to the tatter's benefit. Eollin o. Cross, 45 N. Y., 766. McGraw •o. Godfrey, 56 N. Y., 610. Corbett a. Greenlaw, 117 Mass., 167. The lien when seasonably filed takes priority over subse- quent attachments. Jones V. Holy Trinity Ch., 15 Neb., 81. Young «. Stoutz, 74 Ala., 574. 48 mechanics' lien law. § 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 notice 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 lien, 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. The lien absolutely ceases for all purposes after the lapse of a year, if no suit is brought and no order of court ob- tained. Welsh V. Mayor, 19 Abb., 132. LIMITATION AND OONTINUANOB OP LIEN. 49 And 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. Bowers «. N. T. Christian Home, 64 How., 509. This provision, for a continuance, 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 order is necessary. Emigrant Bank, v. Brown, 75 N. Y., 127. "Where an order of continuance was made, and the clerk refused to docket it for an alleged error of a clerical nature, and it was taken away by the lienor's agent, it was holden that the lien expired notwithstanding the order. Matthews v. Daly, 7 Abb. N. S., 379. The lien continues for one year, and if proper proceedings are commenced within that time to foreclose the lien, it con- tinues until final judgment ; and if judgment is rendered for defendant and subsequently reversed, the lien still continues. Fox V. Kidd, 77 N. T., 489. Hoag V. Hillemeyer, 41 Hun, 390. Under a former act, however, it was holden, that the lien did not continue beyond the year in any event, and that even the recovery of a judgment within that time did not continue it beyond the expiration of that time. Freeman «. Cram, 3 N. Y., 305. The order of continuance may be made by any court having jurisdiction to foreclose the lien. Darrow v. Morgan, 65 N. Y., 333. It is not necessary that notice of the application for the order be given, unless the court direct it. Darrow v. Morgan, mpra. 50 MECHM. Coleman, 9 Daly, 338. 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. He 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 o. Gardiner, 4 Daly, 56. Deposit does not give claimant a right to the money with- out establishing his lien. Flynn d. Butler, 61 How., 374. Dunning ». Clarke, 2 E. D. Smith, 535. 7G mechanics' lien law. § 35. 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 tbe lien, or liens hereinbe- fore provided for, and to give jurisdiction to the courts to enforce the same. § 2e. Eepealing 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 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 REPEALING CLAUSE. 77 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 repealed by the preceding sec- tion : 1846, c. 184, Kichmond County. 1851, c. 169, Westchester, Ulster and Putnam Counties. 1852, c. 384, Repealing the last preceding act and enacting a lien law for Westchester and five other coun- ties. 1854, c. 402, Old State Act. 1857, c. 663, Saratoga Act. 1 862, c. 478, Kings and Queens Act. 1863, c. 500, Old New York City Act. 1 864, c. 366, Onondaga Act. 1865, c. 778, Rensselaer Act. 78 mechanics' LIEK liATV. 1869, c. 558, General amendment to State Act. 187'0, 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. T. City Consolidation Act, relating to liens against private property. 1883, c. 276, Amending the N. Y. City Consolidation Act. The change in the law wrought by this Act, § 14, regulat- ing the right to recover costs does not "affect, enlarge, inval- idate or defeat any lien, or right to a lien now existing, or any proceeding to enforce such lien now pending by virtue of any of the provisions of the acts hereby repealed," within the meaning of those terms as used in the saving clause con- tained in § 26, of the Act of 1885, which act repealed other acts, under which proceedings had been commenced, and which were terminated under this act. Fargo V. Helmer, 43 Hun, 17. Therefore, costs, in an action begun under a former, and terminated under this act, are governed by section 14 of this act. Ibid. The only amendment made by the Legislature of 1886 was as to the notice of lien filed prior to June 27th, 1885, as follows : Section 1. Chapter three hundred and forty-t-wo of the laws of eighteen hundred and eighty-flve, entitled " An act for the better secur- ity of mechanics, laborers, and others who perform labor or furnish material for buildings and other improvements in the several cities and counties of this State, and to repeal certain acts and parts of acts,'' shall not impair the validity of or afEect any notice of lien made and filed prior to the twenty-seventh day of June, eighteen hundred and eighty-five, if such notice was made and filed in accordance with any act or acts of the legislature which were in force at the time of the pas- sage of the act hereinbefore entitled, but such notice is and shall be held and regarded the same as if such prior act or acts were in force at the time such notice was filed, but shall be subordinate to liens, notice of which were filed under said chapter three hundred and forty-two of the laws of eighteen hundred and eighty-five. Laws o/'lSSS, chap. 383. MECHANICS' LIENS AGAINST MUNICIPAL PROPERTY. 1. Who may acquire Lien.— Against what property Lien to Attach. [Laws of 1878, Chap. 315, passed May 22, 1878.] § 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 city 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 materials, to the extent of the amount due or to grow due on said con- tract, in favor of every person or persons who shall be employed or furnish materials to the person or per- sons 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 specific contract is made in the performance of said work by the contractor. 80 MBOHANIOS' LIENS AGAINST Independently of statutory' provisions, no lien exists against municipal corporations. Leonard v. Brooklyn, 71 N. T., 498. Whiting V. Story, 54 Iowa, 81. Patterson v. Pennsylvania, &c., 92 Pa. St., 229. Panola County v. Gillen, 59 Miss., 198. And no lien lies except in cases expressly covered by the statute. Bossier v. Putney, 53 Supr., 456. A person who is made a party to sach a proceeding may have his right determined therein without bringing a separate action. McDermott v. McDonald, 50 Supr., 153. A workman cannot enforce a lien against funds retained by a municipal corporation for evidence of the payment of mechanics' liens, unless snch fund arose from the identical contract under which the work was performed. Quinlan v. Russell, 94 N. Y., 350. 2. Claim of Lienor, what to contain.— When and how Filed. § 2. At any time before the whole work to be per- formed 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 de- ducting 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 furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract MUNICIPAL PROPERTY. 81 with said city, but no variance as to tte name of tlie contractor shall affect the validity of the said claim or lien. In proceedings to acquire a lien for work or materials fur- nished toward the erection of school huUdings, the provision for service of notice is sutiiciently complied with in the city of New York by filing such notice with the clerk of the Board of Education. / ^^ Bell V. VanderWlt, 13 Daly, 467. / ^ITT'"?'^'^/ ''^ 3. Liens to be 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 binding upon, the property therein described, unless an 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 hrought. § 6. Any claimant who has filed the notice men- tioned in the second section of this act, may enforce his 82 mechanics' liens against 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, parties defendant, and as to all parties against whom no per- sonal claim is made, the plaintiff may, with the sum- mons, 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 ex- tent, 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 contract, and from the contractor to the respective claimants, and shall render judgment, directing that the said city shall pay over to the claimants, for wort done and materials furnished in the execution of the said con- tract 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 ffom 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 en- MUNICIPAL PEOPERTT. 83 forced by execution, and an appeal may be taken therefrom in the same time and manner as in civil actions. 9. SnccessiTe 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 ac- cording to the date of the filing of their liens. When several lien notices are filed for the same demand, the judgment shall provide for the proper payments 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 the plaintiff or defendants, or any or either of them, as may be just. 13. Right 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 materials furnished to maintain a personal action to recover such debt against the person liable therefor. 13. How Lien may be Discharged. § 13. The lien 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. 84 mechanics' liens agaikst 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 he construed as meaning the person with whom the contract with the said city is made, his assigns or legal representatives. 16. When Act to take effect.— Repealing Clanse. § 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. 16. In what cases Act to apply. [Added by Act of 1881, 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 Tork City Consolidation Act, where it forms Title IT, of Chapter XXIU, embracing sections 1834 to 1838, inclusive. HDNIOIPAL PROPERTY. 85 This Amendment extends the operation of the Act to all contracts, whether made with incorporated cities or with the School Trustees of a ward of the city. — >vi.^t-^ • %^ Bell V. Vanderbilt, 12 Daly, 467. /^^ r*^ / The requirement of the Act of 1878, that, to acquire such a lien, notice of claim should be tiled with the head of the department or burean having the work in charge, and with the financial officer of the city, is sufficiently complied with, in the city of New York, by filing such notice with the clerk of the Board of Education of that city, he having charge of all the papers and records of the Board, and in the office of the Comptroller of the city. Bell v. Vanderbilt, supra. The provision in the Amendment of 1881, that the act "shall apply to and include actions now pending for work done and materials furnished under any such contracts," al- though proceedings in actions -which were before invalid were thereby rendered valid, was within the power of the legislature. Bell «. Vanderbilt, iwpra. LIENS RAILEOAD COEPOEATIONS. 1. Who may acquire Lien against Railroad Corporation. — To what Property Lien Attaches. [Laws of 1876, Chap. 392, passed May ] 8.] § 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 cor- poration 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 ap- purtenances, and upon the land upon which such rail- road track and appurtenances are situated, to the ex- tent of the right, title and interest of such railroad corporation in the property existing at the time of filing the said notice. The lien must be enforced against the whole railroad, and not against such portion thereof as was benefited by the labor. Cranston v. Union Trust Co., 75 Mo., 29. Or, against so much of the road as lies within the juris- diction of the court, if the railroad have its termini in other States. Ireland v. Atchison, Topeka, &c., 79 Mo., 672. LIEKS AGAINST RAILROAD. 87 This lien, like others, is defeated by payments in good faith, and according to the terms of the contract, before filing the notice of lien. Koland o. Centreville, &c., Ry., 61 Iowa, 380. 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 oflSce, to be called the "lien docket," with the name of claimant, amount claimed, the name of such corporation against which such claim is made, and the date of the filing of the notice, hour and minute. A fee of ten cents shall be paid to said clerk on filing such lien, and said notice, when so filed, shall thereafter operate as an incum- brance upon said property. 3. What Eridence Lienor must Produce upon the Trial. § 3. Any person performing labor, in availing him- self of the provisions of this act, shall upon the trial, or at the assessment of damages, produce evidence 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 claim- ant may take judgment for the amount of claim and costs. 88 LIENS AGAINST EAILEOAD. 5. Lien to Continue One Tear. § 5. Every lien created under the provisions of this act shall continue until the expiration of one year, un- ' less 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 prop- erty of the railroad corporation against whom it is ob- tained, to the extent that other judgments are now made a lien thereon. 6. Priority of Lieng. § 6, The liens created and established by virtue of the provisions of this act shall be paid and settled ac- cording to the priority of the notice filed with the county clerk, as directed by the second section hereof. 7. How Liens may Ibe 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 claim- ant, requiring such claimant to commence an action for lilENS AGAINST EAILROAD. 89 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 corpora- tion 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, performed for such corporation, but shall not be liable to an action therefor, before an execution shall be returned unsatis- fied in whole or in part against the corporation, and the amount due on such execution shall be the amount re- coverable with costs against such stockholders ; before such laborer or servant shall charge such stockholders for such ninety days' service or less than ninety days' service, he shall give notice in writing, within twenty days after the performance of such service, that he in- tends 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 re- covery 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, &G. 1. By Whom and against what Property Lien may he Acquired. [Laws of 1880, Chap. 440, passed May 27, 1880.] § 1. Any person who shall hereafter perform any- labor in or about the sinking, drilling or completing of any oil well, or any well sunk or drilled for oil, or gas, or other volatile or mineral substances, within the State of New York, or in sinking or drilling 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 fur- nished 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 re- ceptacle as aforesaid, or who shall furnish any materi- als for any of the purposes aforesaid, including tubing, casing, sucker-rods, packers or other appurtenances or appliances to any such well as aforesaid, with the con- sent 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 MENS AGAINST OIL WELLS. 91 lessee for a term of years thereafter, or vendee in possession under a contract existing at the time of the filing of said notice, or any right, title or interest in real estate against which an execution at law may now be issued under the provisions of the statutes in force in this State, relating to liens of judgment and the enforcement thereof. The right of a mortgagee of a leasehold interest in oil lands, before default, cannot be subjected to a lien for work done for the mortgagor. He is not "an owner" within the meaning of this section. Brom'an o. Young, 35 Hun, 173. 2. Contents of ?4^otice 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 per- son furnishing the same, shall file a notice in writing in the office of the clerk of the county where the prop- erty 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 pro- ceedings 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 alpha- betical order. A fee of ten cents shall be paid to said clerk on filing said notice, and no lien shall at- tach to said land, well, tank or other receptacle or appurtenances or appliances, unless said notice shall 92 LIENS AGAINST OIL WELLS. 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 Sulb-contractor. § 3. Whenever the labor performed or materials furnished shall be upon the credit of any contractor 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 materiatls 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 mch property as aforesaid shall be sit- uated, then by mailing said notice to said owner or LIENS AGAINST OIL WELLS, 93 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 theu due or owing to the contractor, sub-contractor or assignee of 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 94 LIENS AGAINST OIL WELLS. 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 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 lieu 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 LIENS AGAINST OIL WELLS. 95 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. S. Transcript of Judgment. § 8. A transcript of every judgment rendered under this act shall be furnished by the clerk of the county where rendered and docketed to the successful party, who may file the same with the county clerk of any other county, and the same shall thereafter be a lien on the real property in the county, where the same is filed and docketed, of every person against whom the same is rendered, if 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 96 LIENS AGAINST OIL WELLS. 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 or to exceed the sum of twenty-five dollars. 10. Continuance of Lien. § 10. Every lien created tinder 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 tlie court or some legal act of the elainiant 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 utitil judgment shall be entered thereon, and for one yeatr thereafter such lien shall also continue during the pendency of an appeal and for one year after the determination thereof. When a judgtheiit 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, arid 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 stall be given or rendered, but such appeal shall not operate as a stay of proceedings or in aiiy manner to affect the foreclosure or action of any other claimant or claimants then pending. * So in original. lilENS AGAINST OIL WELLS. 97 12. Priority of liens. § 12. The liens created by virtue of tte 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. 13. Discharge of Liens. § l.S. All liens created by this act may be. dis- charged as follows : First, by filing with the coxinty 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. FOKMS. I- Notice of Lien Claim. To THE Clerk of the County of , and to whom it may CONCERN : 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 lU. 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 : 100 FORMS. 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, CotTNTY 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. COUET OF' COMMON PLEA.S. City and County or New York. C. N. ■• Complaint. o. w. 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 hounds^ II. That on the day of , the parties hereto entered into a written contract, a copy of which is hereto annexed and made part of this complaint, marked Exhibit A. \_If not a written contract, state its substance.^ ^^ III. That the plaintiff duly perforaied for defendant the work and furnished the materials prp«1ded/for in said contract, and said work was performed and said materials w^e furnished toward and actually FORMS. 101 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 irom 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 a« 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 fliaterials 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 sanrie 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 he any such liens or claims, the fact must be stated and the lienor or claimant made a party, and the demand for judgment must ask for a determination of the priority of liens or claims, and an ad- judication of the rights of the parties.] 102 FORMS. Wherefore plaintiff demands judgment : — 1. Tliat 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 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 clerk as pro- vided in § 24, the complaint should recite that 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 judgment, decree or order as may be necessary to protect his rights to the premises. [ Verification in usual form.] FOEMS. , 103 III. Complaint. Sub-Contractor against Owner and Contractor. COURT OF COMMON PLEAS. CiTr AND County of New Yore. S. C. "^ against \ Complaint. C. N. and O. W. The plaintiff, complaining against the defendant, alleges : I. That on or about the first day of January, 1887, 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, 1887, the plaintiff en- tered into a verbal contract with said C. N., the contractor aforesaid, 104 FORMS. whereby plaintiff agreed to furnish to 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 contractor, 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 pursuance of said contract and in conformity therewith, plaintiff did so furnishand de- liver said sash and blinds, and the same were actually used in and upon said building. V. That said sum of one hundred and fifty dollars become 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, 1887, 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 ofBoe 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 an^ such liens or claims exist, state the fact and make the lienor or claimant a party.] FOEMS. 105 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, 1887. 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 rights in the premises. [If the lien has been discharged by deposit, insert as in preceding formJ] IV. Complaint. Contractor against Lessee and Owner -who has Consented to the Erection. COURT OF COMMON PLEAS. City and County op New Yoek. C. N. against \- Complaint. O. W. and L. E. , The plaintiff, complaining against the defendants, alleges : — I. That on the first day of January, 1887, 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 : [Gives a specific description of the premises upon which the lien is claimed.^ 8 106 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 paragraph IV to endJ\ 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 , 1887. Present, Hon. Richard L. Labkkmore, Chief Justice. C.N. against o. w. _ A motion having been made on the pleadings herein by the plaintiff for a reference of all the issues in this action, and afler hear- FORMS. 107 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, counselor-at-law, as sole referee to hear and determine the same. VI. Report of Referee. COURT OF COMMON PLEAS. For thb City and Countt or New York. C.N. 1 against S-Be/eree's Report. O. W. , To the Court op Common Pleas for the Citt and Countt 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 complaint mentioned, prior to the day of > 18 , the defendant was the owner in fee of the lot of laud described in the complaint in this action. 108 FOEMS. 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 agi-eed 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- came 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 complied 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- FOEMS. 109 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. Seventh. That said lien has not been paid, canceled or otherwise discharged of record, and no other action or proceeding has been had or commenced to recover said debt or foreclose said lien, and that no persons have filed liens against said property nor have subsequent liens or claims by mortgage, judgment or conveyance on or against said premises, and that on the day of > 18 , within one year after the filing of said lien, a notice of the pendency of this action, which is brought to 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 mechanic's 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 pf 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, o{ 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 no POEMS. proceeds be insufficient to pay the sums aforesaid plaintiflf is entitled to judgment against the defendant for the amount of any deficiency so remaining. And I order and direct judgment accordingly. All which is respectfully submitted. Dated New York, ,18 . Referee. Vll. Judgment on Repoirt of Referee. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the County Court House in said city on the day of , 18 . Present, Hon. Richard L. Labremore, Chief Judge. C. N., plaintiff, against I O. W., defendant. J 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 diroots 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, POEMS. Ill 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 plaintiffs 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, Ir IS ADJUDGED AND DECREED, that all the right, title and interest which the defendant had in and to the premises described in the com- 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, and the said referee give public notice of the time and place of such sale according to law ; that either of the parties to this action may purchase at said sale ; that said referee deliver to the purchaser or 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, and take receipts therefor and file them with his report ; that said referee pay the surplus arising on said sale, if any, to the Chamberlain of the City of New York to the credit of this actioi), 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 hini subsequent to the filing of the notice of pendency of this action (which, as appears by said referee's report, was filed in 112 FORMS. 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 ot said premises : [Insert description of premises by metes and bounds^ VIII. Demand upon Ovrner for Terms of Contract. To , owner of the premises situated \inseri descrip- tion sufficient for identification]. You are hereby notified that I have entered, as sub-contractor, upon the performance of a contract with the contractor, for the furnishing of materials [or laborl of the following nature [state gen- erally the nature of the materials or labor to he supplied] ; that the same is to enter into the construction of the building upon said prem- ises, now in process of erection by said contractor, and that I am now furnishing the same therefor ; and I HJSBEBT DEMAND Of you the terms of the contract or agreement by which said building is being erected ; and the amount due and unpaid to said contractor under and by virtue of your agreement with him. This demand is made upon you in accordance with the provisions of section three of chapter three hundred and forty-two of the laws of eighteen hundred and eighty-five, of this State ; and I shall hold you responsible for all loss that I may be subjected to on account of your neglect or refusal to comply herewith. New York City, , 1887. Sub-contractor. FORMS. 113 IX. Affidavit to obtain Continuance of Lien. COURT OF COMMON PLEAS, CITY AND COUNTY OF NEW YORK. S. C. N. 1 1- O. W. et al. City and County of New York, ss. S. C. N., being duly sworn, says : I. That prior to the first day of October, 1880, there were fur- nished by me the materials more particularly set forth in the annexed notice of claim, which I hereby make a part of my affidavit; and said materials were furnished for and used in the construction of the building therein mentioned. II. That on said first day of October and within ninety days after the furnishing of the last item of said materials, I caused to be filed in the office of the Clerk of the City and County of New York a notice of lien against the owner of said premises and the con- tractor for the erection of said building, to whom the materials were furnished. III. That the names of the owner and contractor are, respectively, O. W. and C. N., and that a copy of the notice filed as aforesaid is annexed hereto. IV. That by the terms of the contract between said owner and contractor, the final payment is not yet due from the former to the latter, and the same will not fall due until November first of the present year, and that by the written agreement existing between this claimant and said contractor the payment for the materials fur- nished as aforesaid is not due until said last date. 114 PORMS. V. That affiant's lien expires on the first day of October of the present year, and by reason of the premises the proceedings for the foreclosure thereof cannot be commenced before November 1, 1887. Dated New York, September 30, 1887. S. C. N. Sworn to this 30th day of Sep- j tember, 1887, before me. ) J. J. T., Notary Public. X. Order continuing Lieu. At a Special Term of the Court of Common Pleas for the City and County of New York, held at the Court House in said city on the 30th day of September, 1887. Present, Hon. Richard L Larremoee, Chief Judge. S.C.N. 1 V. O.W. etal. On the affidavit of S. C. N., sworn to and filed this day, and on motion of E. & P., his attorneys : It is ordered, That the lien acquired by said S. C. N. by his notice of lien filed October 1st, 1886, upon the following premises [description in nolicel, of which O. W. is alleged to be owner, and C. N. contractor, for the erection of a building on said premises, be and the same hereby is continued agreeably to section six of chapter 342 of the Laws of 1885 of the State of New York. And the clerk of the City and County of New York is hereby directed to make a new docket of the lien continued hereby. FORMS. 115 XL Bond to Discharge Lien. § 24. Know all men by these Presents, that we, O. W., as principal, residing at No. in the city of ; and , residing at No. in said city, and residing at , as sureties are held and firmly bound unto James C. Flack, clerk of the County of New York, in the sum of dollars; to which payment, well and truly to be made, we bind ourselves, our and each of our heirs, ex- ecutors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , one thou- sand eight hundred and eighty-seven. Whereas, one S. C. N. filed with the clerk of the County of New York, on the day of October, 1887, a notice of lien agreeably to the provisions of chapter 342 of the Laws of 1885 of the State of New York, wherein he claimed a lien to the amount of dollars for materials furnished by him for the erection of a building upon the following premises [description as in notice of lien] ; and the said O. W. was named as the owner therein and one C. N. as the con-' tractor for the erection of said dwelling. Now, the condition of this obligation is such that if the said O. W. or his legal representatives shall pay any judgment that may be ren- dered against said property in any proceeding to enforce the fore- going lien, then this obligation shall be void, otherwise it shall remain in full force. (L. S.) (L. S.) (L. S.) Signed, sealed and delivered ) in presence of ) STATE OF NEW YORK, City and Countt of New York, ss. One of the sureties on the foregoing bond, being duly sworn, says, that he is a resident and freeholder within this State, and is worth 116 FORMS. double the amount of the foregoing bond, over all his debts and liabilities, ajid exclusive of property exempt by law from execution. Sworn to before me, this first day of October, 1887. Ifotary Public. [Similar justljicdtion for other surety.^ CiTT AND County op New York, ss. On this first day of October, 1887, before me personally appeared the within named , known to me to be the individuals described in and who executed the within bond, and severally acknowledged, each for himself, that he executed the same. Notary Public. I hereby approve the within bond, and of the sufficiency of the .sureties therein, , Judge. S. C. N. XII. Order Discharging Lieu on Bond. At a Special Term, <&c. V. y I O. W. ef al. J Upon the approval and filing of a bond executed in accordance with section 24 of chapter 342 of the Laws of 1885 of the State of New York, whereby the obligors therein have bound themselves to FORMS. 117 the payment of any judgment that may be rendered, in proceedings to foreclose a lien filed by said S. C. N., on the day of , 1887, against the following property \description as in lien notice], in which notice O. W. is named as owner of said premises, and C. N. as contractor for the erection of a building thereon, and on motion of G. B. G., attorney for said owner : It is ordered. That the lien aforesaid be, and the same hereby is, discharged ; and the County Clerk is hereby directed to make upon the lien docket the appropriate entry thereof. DISTRICT COUET FORMS. XIII. Summons. State op New Yoek, Citt and Coitrt of New York, ss. DISTRICT COURT IN THE CITY OF NEW YORK, PoB THE Eighth Judicial District, C. N., plaintiff, ] against ■ Summons, O.W., defendant. _ To (he defendant above-named : Yotj ARK HEREBY ScMMoNED, afld required to appear in this action, before Frederick G. Gedney, Esquire, Justice of tlie District Court in the City of New York, for the Eighth Judicial District, in the Court, at the Court Room thereof. No, 200 West 2Sld street, in the City of New York, on the day of ,18 , at half-past bine 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 . , Oierh, FORMS. 119 XIV. 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. XV. A€S,davit to obtain Order of Publication. DISTRICT COURT IN THE CITY OF NEW YORK, Fob the Eighth Judicial District. C.N. against O. W. Cut and Counxy of New York, ss, , being duly sworn, says ! I. That he is attorney for the plaintiff herein. II. That this is an action to enforce a mechanic's lien against cer- tain 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, arid whose last place of residence was No, street, in the City of New York. III. That the summons herein was issued on the day of , 18 , returnable twenty days thereafter, and was on the day of its issuing 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. 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 120 FORMS. 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 belief is based.l And deponent prays that an order be made for a service of the summons herein agreeably to the provisions of the statute. [^Siffttedrj day of ■ , 18 Notiry Public, Sworn to before me, this ) XVI. DISTRICT COURT IN THE CITY OF NEW YORK, FoK THE Eighth Judicial District. C.N. ^ I against }■ O.W. J It appearing from the return of the officer to which the summons herein was entrusted, and from the affidavit of the plaintiff's at- torney on file, that said summons cannot be served personally on the defendant by reason of his absence from this State, It is herbbt ordered, That service of the summons in this case be made on O. W., the defendant, by leaving a copy of such summons at the last place 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 . • , Judge. INDEX. ABANDONMENT of contract, 21. ACCEPTANCE of credit, a waiver, 31. ACQUISITION of lien, 13. when, 13. by whom, 13. by assignee, 13. under general act, 9. municipal act, 79. railway act, 86. oil well act, 90. ACT OF PAETIES, a waiver, 30. ACTION, to enforce lien, 11. where commenced, 50. ADVANCE PAYMENTS, 33, 34. AGENT of assignee may acquire lien, 13. owner cannot, 13. husband acting for wife, 15. AGREEMENT, to convey, 16. to discharge lien, 23. ALLOWANCE, not allowed in costs, 63. ALTERATION OF BUILDING, lien for, 9. AMENDMENT, of notice, 4^. 4^ complaint, 42. AMOUNT for which owner is liable, 10. APPEAL, from inferior courts, 62. ARCHITECT, lien for plans, 24. ASSIGNEE, cannot acquire, 13, 44. takes free from unperfected lien, 39. ASSIGNMENT of claim, after notice, 13. for creditors, 10, 21. ASSOCIATION, may acquire lien, 9. 9 122 INDEX. BILL IN EQUITY, foreclosure is, 11. BOAT, may be subject of lien, '27. BOILER, lien for, 24. BOND, acceptance of, a waiver, 31. to discharge lien, 74, 75. form of, 115. BRIDGE, lien for, 9. BULKHEAD, lien for, 9. BURDEN OF PROOF, on claimant, 20. CHAIRS, lien for, in theatre, 27. CIVIL ACTION, foreclosure is, 50. CLAIM. See Notice. COLLUSION, in payments, 33, 34. COMPLAINT. /S«e PijiADiNG ; Courts not of Record. CONSENT of owner, 9, 22. must be express, 22. by authorized person, 22. evidenced by acts, 23. when inferred, 23, 24. CONSTRUCTION, of statute, 12. CONSOLIDATION, of actions, 68. CONTINUANCE of lien, 48. order for, 114. affidavit to obtain, 113. CONTRACT, foundation of lien, 16. what constitutes, 19. must be definite, 16. enforceable at law, 17. for illegal struciure, 17. may be by infant, 17. married woman, 17. sub-contractor may rely upon, 20. performance must be shown, 17. recovery on quantum meruit, 18. for specific performance, 18. CORPORATION, lien against, 9. consent of, 24. See Municipal Cobporation. INDEX. 123 COSTS, 63. extra allowance, 63. against owner, 64. COUNTY CLERK, must docket lien, 37. COURTS NOT OF RECORD, 60, 62. summons and complaint, 60. service of, 60. procedure in, 61. trial of issues in, 62. appeals from, 62. forms for, 118-120. CREDIT, waiver of lien by, 31. notice must include, 40. CUMULATIVE nature of remedy, 12. DAMAGES, no lien for, 16. DATE of notice, 40. DEATH of owner defeats lien, 32. DEFEAT OF LIEN, 32. by destruction of building, 32. death of owner, 32. sale, 32. DEFECTIVE TITLE, when perfected, enures to lienor's benefit, 29. DEMAND upon owner, 35. DESIGN of statute, 11, 19. DISCHARGE OF LIEN, 72, 75. by certificate, 72. deposit, 73. lapse of time, 73. order of court, 73. bond, 74. under municipal act, 83. railroad act, 88. oil well act, 97. DOCKET OF LIEN, 37. EMPLOYER, name of, in notice, 42. ENGINE, lien for, 26. EQUITY, proceedings to foreclose are in, 11. 124 IKDEX. ESTATE LIABLE TO LIEN, 28, 29, 30. the "lot," 28,29. of tenant, 29. lessee, 29. equitable owner, 29. EXTENSION OF CREDIT, a waiver, 82. EVIDENCE of consent, 22, 23. burden upon claimant, 20. EXTRA ALLOWANCE, 63. EXTRA WORK, 26. FENCES, included in act, 9. FERRIAGE, no lien for, 25. FILING NOTICE, necessary to acquire lien, 44. general act, 36. municipal act, 80. oil well act, 91. FIRM, liable to lien, 9. notice by, 41. FISH POND, lien upon, 9. FIXTURES, 26, 27. FOEMS. I. Notice of lien, 99. II. CONPLAINT AGAINST OWNEE, 100-102. III. Complaint by sub-contractor, 103-105. IV. Complaint against lessee and owner, 105. V. Order of reference, 106. VI. Referee's report, 107-110. VII. Referee's report, judgment on, 110-112. VIII. Demand on, owner, 112. IX. Affidavit for continuance, 113. X. Order for continuance, 114. XI. Bond to discharge, 115. XII. Order for discharge on bond. District Courts, 118-120, XIIL Summons, 118. XIV. Complaint, 119. XV. Affidavit for publication, 119. XVI. Order for publication, 120. INDEX. ' 125 FOUNDATION OF CLAIM, 12. FOUNTAINS, lien upon, 9. FRUIT TREES, lien for, 9. FUND, moneys due on contract constitute, 18. FURNACE, when lien will attach, 27, GAS BURNERS, no lien for, 28. GOODS purchased beyond jurisdiction, no lien for, 27. GUARDIAN, estate in hands of, 15. HOISTING APPARATUS, lien for, 26. HUSBAND cannot subject wife's estate, 14. See Married Woman. INTENT of statute, 11, 19. JOINT-OWNERS, notice by, 41. JUDGMENT, for deficiency, 72. transcript of, 65. personal, 64. LABOR, that creates lien, 9. must enter into building, 13. what it includes, 24, 25. skilled labor, 24. extra work, 26. machinery, 25, 26. LEASE, may be subjected, 10. LESSEE, in possession, is owner, 1 0. / consent of, 24. " LIABLE TO PAY," meaning of, 18. LIEN, by whom and how acquired, 9. Nature of the remedy, 11. design of the statute, 11. a proceeding in rem, 11. is a bill in equity, 11. entirely statutory, 12. strictly construed, 12. cumulative, 12. applicable only to contract, 12. of claim must be set forth in notice, 40. 126- INDEX. LIEN — continued. By whom acquired, 13. firm, 9. assignee cannot, J 3. owner cannot, 13. nor owner's agent, 13. municipal corporation, 14. merchant for ordinary sale, 14. The owner, who may he, 14. cannot acquire lien, 13. person holding legal estate, 14. holder of equity, in possession, 15. infant, 15. guardian, 15. married woman, 15. mortgagee in possession, 15. tenant may charge interest, 16. name of, in notice, 42. Against municipal property, 79-85. who may acquire, 79. against what property, 79. notice of lien, 80. school building, 81. entry of, 81. time of foreclosure, 81. lis pendens, 81. extent of lien, 81. action to enforce, 81. parties to, 82. judgment, execution and appeal, 82. successive liens, 83. consolidation of actions, 83. costs, 83. personal action, 83. discharge of lien, 83, 84. "contractor," 84. to what act applies, 84, 85. Against railroad property, 86-89. who may acquire, 86. notice of lien, 87. LIEN — continmed. evidence of lienor, 87. action to enforce, 87. continuance of lien, 88. priority of, 88. discharge of, 88. personal liability of stockholders, 89. LIGHTNING KODS, lien for, 27. LIMITATION of lien, 48. LIS PENDENS, 48. when must be filed, 49. order of continuance, 49. by whom granted, 49. when granted, 50. MACHINERY, lien for, 25. MARRIED WOMEN, may contract, 17. may consent, 23. husband as agent of, 14. MATERIALS, that create lien, 9. what term " materials " includes, 26. machinery, 26, 28. fixtures, 26, 27. for dwellings, 26. mills, 27. theatres, 27. purchased in foreign State, 27, 28. re moveable articles, 28. MERCHANT, when he does not acquire lien, 14, 26. MILLSTONES, lien for, 26. MIRRORS, lien for, 26. MODEL of ship, no lien for, 24. MORTGAGE, collusive, does not bar lien, 34. MORTGAGEE, in possession, an " owner," 15. party to suit, 66. MOVING BUILDING, lien for, 26. MUNICIPAL CORPORATION, cannot acquire, 14. lien against, 79. who may have, 79. claim, 80. 127 128 INDEX. MUNICIPAL CORPOnATlON— continued. filing of claim, 80. entry of, 81. foreclosure of, 81. extent of, 81. action to enforce, 81. parties to action, 82. priority of claims, 82. judgment, 82. execution, 82. appeal, 82. successive liens, 82. consolidation of actions, 83. costs, 83. discharge of, 83. contractor, who is, 84. application of law, 84. school trustees, 85. NON-LIEN CLAIMS, joinder of, 32. NOTICE OF LIEN, 36-46. dockets of, 37. acquiring lien, 38. assignee cannot file, 44. form of notice, 39, object of, 39. certainty, 39. construction of, 40. names of claimant, 39. several claimants, 39. owner, 41. nature of claim, 40. consent of owner, 41. amount, 40. credits and set-oiT^, 40, 41. name of owner, 41. employer, 42. description of premises, 42. definite, 42. verification, 43. INDEX. 129 NOTICE OF LIE'S— continued. by sub-contractor, 43, 44. service of, upon owner, 44. filing of, 44. time of, 45. OIL WELLS, liens against, 90-97. by whom acquired, 90. notice, 91. owner's liability, 92. service upon owner, 92. collusive payments, 92. action to enforce, 93. in justice's court, 94. costs, 94. transcript of judgment, 95. form of execution, 95. continuance of lien, 96. appeals, 96. priority, 97. discharge, 97. ONUS PROBANDI, on claimant, 20. PAINTING, lien for, 25. PARTIES TO ACTION, 66-68. assignee, 67. administrator and executor, 67. heirs, 67. contractor, 67, 68. PAVING, included in act, 9. PIER, lien for, 9. PLANS, of architect, lien for, 24. PLEADING. See Pbooedurk. POWDER, lien for, 27. PRIORITY of liens, 46, 47. PROCEDURE, 51-59. complaint, 51-54. what must contain, 51. description of premises, 51. interest of parties, 52. 10 130 INDEX. - PHOCEBVUE— continued. the contract, 52. performance of, 52. notice, 52, 53. service on owner, 53. by sub-contractor, 53, 54. answer, 54, 55. counter-claim, 55. the proceeding, 55-58. equitable, 55. may attack conveyance, 56. reference, 56. appeal, 57. injunction, 57. burden of proof, 57. judgment, 58, 59. must direct sale, 58. by sub-contractor, 58. for specific property, 58. execution, 59. QUANTUM MEEUIT, recovery upon, 18. EAILEOAD, lien against, 86-89. who may acquire, 86. notice of lien, 87. filing of, 87. evidence of lienor, 87. action to enforce, 87. continuance of lien, 88. priority of lien, 88. discharge of lien, 88. by certificate, 88. deposit, 88. dismissal, 88. notice, 89. liability of stocliholders, 89. RANK of liens, 70. RIGHTS of sub-contractor, 19-21. INDEX. 131 SET-OFF, must be given in notice, 40. by contractor, 55. sub-contractor, 55. SEVERAL BUILDINGS, conveyance of one of, 39. covered by same lien, 43. SEVERAL CONTRACTORS, 39. notice by, 39. SIDEWALKS, included in act, 9. SPECIFIC PAYMENT, 7L STORE FIXTURES, 28. STOVE, no lien for, 28. SUB-CONTRACTORS, rights of, 19-21. who is, 70. depend upon contract of owner, 19. are subrogated to contractor's rights, 19. subject to equities of original parties, 20. onus is upon him, 20. cut off by abandonment, 21. assignment for creditors does not affect, 21. SUBLETTING, prohibited by contract, bars lien, 21. THEATRE chairs, lien for, 27. scenery, 27. TIME for filing lien, 36. municipal act, 80. railroad act, 87. oil well act, 91. TREES, lien for labor on, 9. TRUSTEES, consent by, 24. VAULT, lien for, 9. WAIVER, defeat and loss, 30-33. how lien waived, 30. by other security, 30, 31. personal credit, 31. negotiable paper, 31. note, 31. bond, 31. 132 iKbBt. WAIVER— continued. defeated by destruction of building, 32. death of owner, 32. sale of property, 32, 38. lost by including non-lien claims, 32. general payments, 33.