41 N.Y.S. 705 | N.Y. App. Div. | 1896
This is an appeal from an order denying a motion made by the-owner of certain real estate situated in the city of New York to
It is claimed by the appellant that the provision is inapplicable to this case, for the reason that the procedure in mechanic’s lien cases is under the special provisions of the act of 1885 (Chap. 342), and not under the Code, and that, therefore, the court has a general power to discharge a Us pendens filed in a mechanic’s lien action. That is not true. There is no such general power. The filing of the Us pendens in an action to foreclose a mechanic’s lien is merely the filing of a notice as in any ordinary action to foreclose an incumbrance. It is not a proceeding independent of and disconnected from a civil action brought under the authority of and to be conducted in the
But while a general authority to remove a notice of Us pendens does not reside in the court, the right of the moving party may, by a fair construction, be brought within the provisions of the Code. An entirely new feature is introduced into the subject by the enactment known as the Mechanic’s Lien Law, and its piro visions respecting the removal or discharge of mechanic’s liens upon real property. It is provided in that law that, up>on security being given in the form of a bond, an application may be made to the court pending a suit to foreclose a lien, to discharge the lien; and that, upon the approval of such bond and the discharge of the lien by order of the court, the lien shall be transferred from the property to the bond. That procedure at once frees the real estate from the lien. There is no longer any lien upon the property; there is something substituted for it to which the lien
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.