39 N.Y.S. 134 | N.Y. App. Div. | 1896
It appears from the papers in this case that on the 11th day of June, 1894, Hafker and Hollwedel filed a mechanic’s lien upon premises situate in the city of New York known as No. 229 Mott street, which were owned by Mary Ellen Carroll and others, to secure themselves for materials furnished to George W. Henry, who was doing work upon said premises as a contractor. The amount of the lien claimed was $350.
On the 18th of October, 1894, the, Carrolls and Henry deposited with the county clerk the sum of $360 to procure a discharge of the-lien, and an entry was thereupon made in the docket, opposite the entry of lien, that it was discharged by payment October 18, 1894. On the 11th of June, 1895, an application was made to the Court of Common Pleas to continue the lien, which was ordered, and the county clerk directed a new docket of the lien so continued. That, was done in the usual form.
On the 17th of October, 1895, the respondent Henry, by Allen, his attorney, made an ex parte application to the Court of Com-
The order directing- the payment of this money by the chamberlain to the depositors -was made without notice having been given to the lienors, and without any opportunity on their part to claim or establish their rights. This of itself was an irregularity for which the order should have been set aside, if it had been insisted upon. It is stated that it has been the practice to grant these orders without notice to anybody. If that be so it certainly is a practice which should continue no longer. The money deposited stands in the place of the lien and belongs to the lienors, so far as is necessary to pay the amount of their claim against the premises. It is not proper that that money should be paid out by the chamberlain and the lienors thus deprived of their right to apply it in payment of their debt, until they shall have been heard. If the motion had been made to set aside the order for that irregularity we should not hesitate to grant'it, but as that question has not been raised we must examine further and see whether or not the order directing the repayment
It appears that the lien was filed on the 11th of June, 1894, and that this money was deposited to cancel the lien on the eighteenth of October of the same year. That was done in pursuance of section 24 of the Lien Law (Laws of 1885, chap. 342). When that had been done the lien upon 'the real estate was discharged by virtue of the statute, and it was shifted to the fund which remains in the office of the chamberlain, liable for the payment of the amount which the lienors should establish to be due to them. (Ward v. Kilpatrick, 85 N. Y. 413.) From that time on the lienors had no interest in the real estate, and the charge which before then had existed upon the land, ceased to exist. The ground upon which this order was made was, that there was no provision for the continuance of the lien upon the fund, or for the continuance of the lien upon th.e real estate which had been discharged by the deposit. It is quite true that there was no provision for the continuance of the lien upon the real estate, because, as we have seen, the express provision of the statute is, that the payment of the money into court is a discharge of the lien upon the real estate. But there is no provision of the statute that the lien upon the fund shall be discharged by lapse of time. The provision with regard to the continuance of the lien is, that no lien shall hind the property therein described for more than one year unless an action is commenced to enforce it, or an order made continuing the lien. (Laws of 1885, chap.. 342, § 6.) But for this provision of the statute the lien, when once filed, would continue a charge upon the real estate indefinitely, and the statutory provision is effectual to put an end to the lien only so far as it is prescribed in the section, and that is to put an end to the lien so far as it hinds the property. Section 6 does not apply to the money deposited with the county clerk. That remains in his hands impressed with a charge in favor of the lienor for whatever amount lie shall be able to establish against it. It takes the place of the charge upon the property. (People ex rel. Flynn v. Butler, 61 How. Pr. 274.) There is no provision of the statute requiring either that the action to establish the charge upon this money should bo brought in one year, or that that charge should he continued. Subdivision 4 of section 24 of the Lien Law, which provides that
The order denying the motion to compel the repayment of the money should be reversed, with ten dollars costs and disbursements, and the motion granted that Henry pay back to the chamberlain the money so paid to him, with interest, within ten days after the service of a copy of this order, and that the appellants shall have ten dollars costs of this motion.
Barrett, Williams, Patterson and Ingraham, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted as directed in opinion, with ten dollars costs.