14 Abb. Pr. 284 | New York Court of Common Pleas | 1873
Lead Opinion
Before passing upon the exceptions to the referee’s report, it will be necessary to consider
It is claimed that the reference in actions brought for the enforcement of mechanic liens is, within the meaning of rule 32 of the supreme court, a reference, other than for the trial of the issues of the action, inasmuch as the amendatory lien law of 1863, Laws of 1863, p. 862, § 7, provides that the referee is to report in a summary manner as in case of claims to surplus moneys in mortgage cases. It is apparent that the person who drew the amendatory lien law of 1863, or who framed this particular provision, had no practical acquaintance with the nature of reference of claims to the surplus moneys in mortgage cases as established by the practice of the former court of chancery and regulated by the existing rules of the Supreme Court, or he would have known that a reference of “the whole matter ” in a mechanic’s lien case, so far as the right or liability of the owner may be in question, is an inquiry of a very different nature from that which arises in claims to a surplus fund in a mortgage case, as the former, when it arises, involves the trial of an issue, and the latter does not. A mortgage is foreclosed either by action or by advertisement, of which subsequent incumbrancers, such as mortgagees, judgment creditors, or those having the equity of redemption, are apprised either by being made parties to the foreclosure suit, or by being served with notice, if the foreclosure is by advertisement. If the subsequent incumbrancers have no right or interest in the premises, adverse to that of the mortgagees, they cannot, although parties, litigate in the foreclosure suit, for they are not permitted to contest their respective claims to the surplus, as between themselves, until it is ascertained that there will be a surplus (Union Insurance Co. v. Rensselaer, 4 Paige, 85 ; Farmers’ Loan, &c. Co. v. Seymour, 9 Id., 538, 544.)
If, however, the validity of the mortgage or the amount due under it, is contested by the mortgagor, or by a subsequent incumbrancer, then an issue is created upon the pleadings and the cause is placed upon the calendar and brought on for trial in the same way as other equity causes, which are tried by the court, unless the parties consent to a reference, or the issue, is one referable under section 371 of the Code, and where the whole issue thus raised by the pleadings is referred, the report of the referee, by section 373, stands as the decision of the court.
In such a proceeding there are no formal pleadings, and consequently there are no issues; for an issue, as defined by Blackstoke, is, “when, in the course of
The foreclosure of a lien, whether it arises under the mechanic’s lien law or otherwise, is a matter of equitable jurisdiction. It is an equitable, as contra-distinguished from a legal remedy; and the course of procedure, whether it relates to the pleadings, the mode of trial, the evidence, or the remedy, is in accordance with the courts of equity, except so far as it has been modified in this State by statute. Issues of fact or of law may arise in courts of equity upon the pleadings, as they do in courts of law (Gresley Eq. Ev.); as, for instance, where the defendant answers an interrogatory in the bill, and the answer is replied to, the matter of the interrogatory is deemed to be at issue (Story Eq. Pl., §§ 36, 885, 886) ; the practice of courts of equity being in most cases to order the issue, whether of fact or of law, to be tried or decided in a court of law ; but in this State, where legal and equitable and legal jurisdiction is exercised by the same tribunal, such issues, when they arise in matter of equitable cognizance, are tried by the court as an issue in the
In the present case issues superseding every other inquiry were created by the owner’s answer. He denied that the claimant, Hubbell, or the lienor, Mul - doon, did or could acquire any lien upon the premises ; that all money due from him, the owner, to the contractor, had been paid in good faith prior to the filing of either lien; that the contractor had paid whatever claim either Hubbell or Muldoon had, to which Schreyer, the owner, further added a general denial of every allegation made by either claimant.
In the notice of lien filed by Hubbell, he sets forth that he has a claim of fourteen hundred and forty-four dollars and eighty-eight cents against the owner, Schreyer, and the contractor, Holt, for building materials furnished by him in pursuance of a verbal agreement had with Schreyer, the owner, and Holt, the contractor ; and in the notice filed by Muldoon he states that he has a claim against Schreyer, the owner, of eight hundred and eighty-three dollars, and against Holt, the contractor, of thirteen hundred and forty-nine dollars, for materials furnished in pursuance of agreement, written and by parol, between Holt, the contractor, and Schreyer, the owner, and him, Muldoon.
Hubbell claims upon a contract made by him with Schreyer, the owner, and Holt, the contractor; but Muldoon claims to have a lien for one amount against the owner, and for a different and larger amount against the contractor; and it is by no means clear, upon his statement, whether he claims as a sub-contractor with Holt, -under the contract between Schreyer and Holt, or upon a contract made by him with Schreyer and Holt upon which they were responsible for different amounts.
But, as the owner, Schreyer, denies each and every
There were, therefore, two issues to be tried in respect to the claimant, Hubbell, and three in the case of Muldoon; the determination of which in the owner’s favor would put an end to the action ; for although Holt had suffered it to go by default, a personal judgment could not be obtained against him ; for to authorize such a judgment, it must be proved, or conceded, that a lien was obtained upon the premises for the work or materials for the amount or value of which a personal judg
As the pleadings stood, there were several issues to be tried: 1st. Whether the notices filed by either Schreyer or Muldoon, were notices under which any lien could be acquired; 2d. The personal liability of Schreyer, assuming the notices to be. sufficient under the statute ; 3rd. "Whether anything was due by him upon his contract with Holt, to which the lien of Muldoon could attach.
It is not essential in the case to determine whether the court, under the act of 1863, could order these issues to be tried by a referee, as the reference in this case was with consent of all the parties; although if the point were material, I should not hesitate to hold that the authority given by the act to “refer the whole matter to a referee,” is sufficient to authorize such a reference; that the referee’s report would have to be a finding upon the issues, and being a report upon the whole issue would, under section 272 of the Code, stand as the decision of the court; and that a report in a summary manner as in case of claims to surplus moneys is and can be made only when the litigation is between the claimants. The statutes declare that upon the reference “every party shall be at liberty to take proof for or against any claim or lien, and such judgment or decree shall be made thereon as to the rights and equities of the several parties among themselves, and as against any owner, as may be just.” This provision I regard as applying to the reference- generally, whether the contract is exclusively between the claimants themselves or between the claimants and the owner. I do not interpret it as providing in all cases in which the whole matter is referred, that the report
This statute, the last general amendment of the lien law, has now been in existence for more than nine years, and, so far as this court is concerned, which is made by statute the appellate court for the review of these cases when brought in the marine or district courts, and which has had also to adjudicate during that time upon a large number of such cases brought here in the first instance, the practice has been, where the contest'is between the owner and the contractor, or sub-contractor claiming to have a lien upon payments to be made to the contractor, and where the only question is the liability of the owner, or the existence of a fund in his hand to which the lien' will attach, to re-" gard the matter as the trial of an issue between the owner and the claimants ; whether it is passed upon by the court, tried by a jury, or referred ; in the latter of which cases the report of the referee, like the trial by a jury, stands as the decision of the court, to be reviewed only on appeal to the general term brought within ten days after the entry of the judgment upon
The reference being with the consent of all parties, and the referee’s finding being upon the issues in this action, judgment was properly entered upon the filing of the report. And the appeal from the judgment to the general term is correct; and, upon the exceptions filed, it brings under review the referee’s findings upon the questions of fact and law.
Hubbell’s notice of lien was of a claim against Schreyer as owner, and Holt as contractor, for material furnished in pursuance of a verbal agreement made, in the language of the notice, with the contractor and the owner. This is not, as the owner claims, a statement of two agreements, one made by Hubbell with the contractor, and the other with the owner, for the payment for the materials. If such were the construction of the notice, the lien could not be sustained; as the agreement of the owner would in that case be necessarily collateral, and being a promise, not in writing, to answer for the debt of another, it would be void by the statute of frauds. The true construction of the notice is, that it is a statement of a joint agreement on the part of Schreyer and Holt with Hubbell to pay him for the materials furnished. And regarding it in that light, there is nothing in the evidence to show that any such joint obligation was entered into by them. Holt contracted with Schreyer to furnish the materials, but it does not appear from the finding of the referee or from anything that I have been able to discover in the evidence, that Holt contracted with Hubbell to supply them on his (Holt’s) individual responsibility.
On the contrary, it appeared that Hubbell had ceased to furnish materials for the building, giving as
They were entered in Hubbell’s ledger, “Thomas Holt for John Schreyer,” which, it would appear from Hubbell’s evidence, was done to distinguish the mason work from the plastering work, Holt’s name being entered for the one and Fridenburg for the other ; in the same manner, “Orin Fridenburg for John Schreyer.” It further appears that after the materials were furnished, Hubbell asked Holt for money and gave him his (Hubbell’s) bill to give to Schreyer. That there was no joint liability is very clear. There was no promise on the part of Holt, and nothing on Hubbell’s part to show that the goods were furnished on the joint responsibility of. Holt and Schreyer, or that Hub-bell was first to look for payment to Holt, and upon his failure to pay, that Schreyer was to be responsible,
The only interpretation to be put upon the.evidence is, that it was an original promise on the part of Schreyer, that if the- materials wanted were furnished he would pay for them.
Tbs fact that the notice of lien filed set forth a joint contract, and that no joint contract was proved, but only an individual undertaking on the part of Schreyer, is not a matter of which Schreyer ought to be.allowed to avail himself.
The materials were furnished between May 25 and December 22, 1870, the notice of lien was filed on December 23 following, the day after the delivery of the last item, and the objection is taken that the lien, by the express terms of the statute, attaches only to so
It was held by the court of appeals, in Spencer v. Barnett, 35 N. Y., 94, that under the Kings county act, the lien did not attach to materials furnished more than sixty days before the filing of the notice,' although furnished under the same contract as the materials which were delivered within the sixty days.
There was a difference between the Kings county act, under which decision was made, and the act applicable to this county; as under the former act the material-man had double the time given to him for the filing of his lien, that was given to the mechanic, which has not been the case in any of the acts applicable to this city; nor is it now under the present Kings county act, this distinction in Kings county between the mechanic and the material-man having been repealed in 1862 (L. 1862, p. 949, § 3.
My colleague, Judge ‘Robihsoit, before whom and myself the argument upon this appeal was heard, is of opinion that this distinction between the provisions in the two acts can make no difference in the application of the decision of the court of appeals; that that decision, as a construction of the lien law, is as applicable to the law enacted for this county as it was to the Kangs county act; and I confess that I am not prepared to hold that the difference between the two acts is such as to warrant us in saying that that decision is to be limited to the Kings county act as it existed prior to 1862, and does not apply to the law as enacted for this county, and, but for this decision, I should certainly have taken the same view as Judge Hott in his treatise, page 89,—that the lien law did not contemplate the amount claimed being from time to time split up by separate liens, nor a repetition of a lien for parts of
Assuming, as I think we must do, that the decision of the court of appeals is to be received and followed as an interpretation of our own act, then the finding of the referee that Hubbell was entitled to a lien for his whole claim upon the building was erroneous, and the report must be modified so as to limit the lien to the items delivered after September 21,1870, my conclusion being that the notice was properly filed, and that the materials were furnished upon a contract made by Hubbell with Sehreyer.
I now pass to the claim of Muldoon. He filed the notice of his lien on January 12,1871. It set forth two claims ; one against Holt for one thousand three hundred and forty-nine dollars, and one against Sehreyer for eight hundred and eighty-three dollars. They were both for brown stone furnished for, cut and set in the building.
The stone in the claim against Holt was alleged to have been furnished, cut and set in pursuance of a contract between Holt and Sehreyer—that is, it was a claim as subcontractor—and the other was a claim for extra work and materials upon a contract made by Muldoon with Sehreyer, for which Sehreyer would be personally liable.
The lien, so far as respects the first claim of one thousand three hundred and forty-nine dollars, is objected to on the ground that Holt’s contract was made with Muldoon, Kenney and Dodnan, and in the notice filed the claim is stated to be simply the claim of Muldoon. The act of 1863 prescribes that the notice shall state to whom the amount claimed is due, and when the notice of lien was filed. Here .the amount was due, not
This being an express statutory provision, it cannot be dispensed with. The lien is created by the filing of the notice, and everything which the statute requires to be stated in it is an essential prerequisite to the creation of the lien, and if anything required.by the statute is omitted, nothing is accomplished by the filing of the notice (Beals v. Congregation B’nai Jeshurun, 1 E. D. Smith, 654 ; Nott Tr. on Mech. Lien Laws, p. 10, 11, 12).
If the claim is' due to three persons jointly, the notice should state that the amount claimed is due to them, and stating that it is due to one of them only, is not a compliance with the statute. If that were permitted, each of them might file, a separate notice in the same way, and the anomaly would be presented of three separate liens for the same claim. The parties who made the contract to perform the work and labor, or to furnish the materials, must be stated, because the filing of the notice is the foundation of a proceeding in which a personal judgment may be rendered against the party who ordered or" contracted for the work, or for the materials, and it is his right that any decisión or judgment that may be rendered in his favor upon the contract should be conclusive upon the parties to it; which would not be the case if the notice is filed, and the proceedings under it are instituted, on behalf only of one of the joint contractors.
In this case, the contract of Holt with Muldoon, Kenney and Doonan, to furnish and put up the brown stone, was in writing, so as to leave no question as to the fact; whilst in the notice filed, the agreement is set forth as made with Francis Muldoon, and the notice is to the effect that he has, and claims, a lien upon the building. The only construction that can be put upon such a notice, is, that he alone made the agreement
At the hearing before the referee, an assignment in writing of the claim by Doonan and Kenney to Muldoon, was given in evidence by Muldoon. The instrument was dated September 16, 1870, which would be more than three months before Muldoon filed his notice, the notice having been filed on January 12, 1871. The lien being a personal right, the right to create it cannot be transferred or assigned to a nother (Rollin v. Cross, 45 N. Y., 771 ; Daubigney v. Duval, 5 Tenn., 604 ; Caldwell v. Launnier, 10 Wis., 332 ; Parsons v. Tincker, 36 Me., 483).
The assignment after the filing of the notice, and the institution of proceedings to foreclose "the lien, could not .cure the defect in the notice. If the statute had not provided that the notice should state to whom the amount was due, as in the act of 1851, which had no such provision, we might get over the difficulty by leaving the owner or contractor to plead or-set up the non-joindei, in the action brought to foreclose the lien. But the a.ct of 1863 has made this statement in the notice essential, and no lien can be created where anything is omitted which the statute has expressly required.
When the evidence on the part of Muldoon was closed, a motion was made to dismiss his claim, on the ground that the work was done by the firm ; that no assignment of the claim to him by his copartners was made prior to the filing of the notice to create the lien, and that the notice should have been filed by, or on behalf of the firm.
The objection having been taken, it was error on the part of the referee to disregard it. This applied to the claim stated in the notice to be against Holt, thirteen
Though the notice of lien distinguished between the claim which Muldoon stated in the notice he had as a subcontractor against Holt, thirteen hundred and forty-nine dollars, and the claim he had separately against Schreyer, eight hundred and eighty-three dollars, the referee made no such distinction ; blit, putting both claims together, which amounted to the sum of two thousand two hundred and thirty-two dollars, he found that the whole sum was due from Schreyer to Muldoon, with interest, and- reported that Muldoon was entitled to judgment against Schreyer for that amount, with costs.
Judge Nott, in his carefully considered treatise, was of the opinion that under the acts of 1851 and 1855 distinct claims against the owner and the contractor could not be joined in the same lien; that the statutes then existing did not contemplate and would not warrant such a course. The act of 1863 is in this respect, however, more comprehensive, and as it gives the court the power to determine the rights and equities of all parties and the amounts due to each, I see no objection to including a claim against the owner and a claim against the contractor in the same notice, where, as in this case, each claim is separately distinguished ; for the court may enforce one as a lien upon the building to the extent of the payments due by the owner to the contractor, and as respects the other, not only enforce it as a lien upon the building, but render a personal judgment against the owner for the amount of it.
The first» section gives a lien to the person designated, for labor performed or materials furnished in pursuance of the terms of a contract with, or employment by the owner, or in conformity with the terms of
The referee, therefore, erred upon two grounds: 1st, by holding that upon a claim stated in the notice to be against the contractor, a personal judgment could be rendered against the owner; and 2nd, that Muldoon acquired a valid lien, upon a claim due to him jointly with two others, by filing a notice stating that the claim was due to him.
Independent of this joint contract, Muldoon claimed to recover nine hundred and sixty-seven dollars for extra work, upon which claim the referee allowed him the amount stated in his notice, eight hundred and eighty-three dollars. It did not appear that Doanan or Kenney had any thing to do with this extra work, or that any contract express or. implied was made for it with Holt. It would seem that after Muldoon’s partners left, Muldoon finished the work, and that he re
It was, under these circumstances, clearly a contract between Muldoon and Schreyer, and the referee was right in holding that Schreyer was individually responsible for the payment of this eight hundred and eighty-' three dollars.
The evidence warranted a decree for the enforcement of a lien upon the building for the materials which had been furnished by Hubbell, within three months prior to the filing of his lien. As the lien never attached to the materials which were furnished before that time, I do not think a personal judgment could be rendered in this action for the enforcement of a lien for the materials anteriorly furnished. If they had been furnished under the same contract as the materials subsequently supplied, and to which the lien attached, there might be some ground /or arguing, that having acquired jurisdiction in respect to the contract, by the action to foreclose, a lien was acquired under the contract, but not for all the materials furnished under it. We might give the relief which the statute contemplates in the rendition of a personal judgment, under the familiar rule that where a court of equity has
But Judge Robinson has pointed out that the order given by Schreyer to Hubbell for the furnishing of materials, had not the characteristics of an entire contract,, each item, in his opinion, constituting an independent contract, as to which the statute of limitations would run from the day of the delivery of the items ; and under that view, I do not think that we have jurisdiction, under the act of 1863, to render a personal judgment upon contracts performed three months before the notice of lien was filed, and which, consequently, it did not embrace.
The evidence warranted a judgment against Schreyer for the extra work done by Muldoon. The report will therefore have to be reversed as to Hubbell, except for the materials furnished within- three months, and affirmed as to the extent of these materials.
The referee’s finding upon Muldoon’s claim will have to be reversed, unless Muldoon. consents to reduce the judgment entered in his favor to eight hundred and eighty-three dollars, and interest, in which event it will be affirmed for that amount.
There were several objections taken by Schreyer to the admission and exclusion of evidence. These exceptions, or very many of them, would scarcely be available in an action at law, and in equitable proceeding or action, errors of this description are not regarded, if, taking the whole evidence together, the court is satisfied that no injustice has been done by
The distinction between references of the issues and of collateral questions is further illustrated in the following cases:
In Riley against Bnown (New York Superior Court, Special Term, June, 1872), it was held that the court have power to refer a disputed question of fact, arising on a motion, and not founded on the pleadings, for determination by the referee, instead of referring merely the taking of testimony; and that a motion, founded on a report of such referee, cannot be made until the report has been filed.
Motion to vacate judgment and to discharge the defendant.
Charles S. Spencer, for the motion.
Samuel S. Randall, in opposition.
The order of reference heretofore made by the court directed the referee not merely to take proof, but to determine the question referred to him, which question is one not arising upon the pleadings. Even upon the assumption, therefore, of the regularity of defendant’s proceedings up to the time of the rendition of the referee’s report, the said report, before the making of this motion, should have been filed, as required by rule 39 of the general rules, and notice of such filing given. That not having been done, the motion must be dismissed, but without costs.
I will add, that whenever the report shall have been filed, the plaintiff will have eight days after the service of notice of such filing, within which to file exceptions. I can find no warrant in the law to abridge that time. But if exceptions are filed, plaintiff’s motion to set aside the report upon such exceptions, and defendant’s motion for a confirmation of the report and for final relief thereon, may be heard together at special term, at the same time and place, and, upon a proper application, may be required to be thus argued on short notice.
The report having been filed, and the plaintiff having excepted thereto, a final hearing was subsequently had, and the court rendered the following decision:
Freedman, J.—The order of reference made upon the argument of the motion, when originally brought on, directed the referee not merely to take proof and to report the same with his opinions thereon, but to determine a disputed question of fact arising upon such motion, namely, whether or not there has been a service of the summons in this action upon the defendant John Brown. Although it is not the usual practice to order a reference in that form, yet the power of directing the determination of a material and controverted question of fact, arising upon a motion in the manner herein pursued, has, as 1 am informed, been exercised by the judges of this court on prior occasions, and has never before this time been seriously questioned. Indeed, the power seems to have been conferred in express terms by the third subdivision of section 271 of the Code.
The testimony taken by the referee and submitted upon the present motion appears, on examination, to be amply sufficient to sustain his findings upon the question of fact referred to him for his
Plaintiff’s exceptions to the referee’s report must be overruled, and the report confirmed.
Upon the whole case, as brought on for final hearing, the defendant is entitled to have the judgment entered against him, and all proceedings founded thereon, vacated and set aside, and to be discharged from imprisonment.
In the matter of the Harmony Fire and Marine Insurance Co. (Supreme Court, First District, Special Term, Map, 1872), it was held, that referees appointed by the supreme court, under the provision of Laws of 1862, p. 743, ch. 412,—which authorizes justices of the supreme court to refer controversies arising between receivers and members of mutual insurance companies,—must, in their reports, state their findings of fact and. their conclusions of law separately; and that if they do not, the court will direct them to do so.
Brady, J.—The referee appointed in a proceeding like this shall have the same powers, and be subject to the like duties, and shall receive the same compensation as referees appointed by the supreme court in personal actions pending therein (Laws of 1862, p. 744, ch. 412, § 2. Same statute, 3 R. S. (5 ed.), 119, § 26). It is one of the duties of a referee appointed by this court to report the facts found and the conclusions of law which govern them; and the propriety of enforcing the observance of that formula, in matters kindred to this, is apparent, inasmuch as the referee’s report is conclusive upon the rights of the parties, if not set aside by the court (3 JR. 8., supra, § 27). Such is the effect of a report in a personal action in the supreme court. It is conclusive of the rights'of the parties unless set aside. The review of a report'is much facilitated by the presentation of facts and conclusions of law, and this court has the inherent power to direct such a course of procedure. Under the old system the court would, in a proper ease, require referees to report their decision in admitting or rejecting a witness, in allowing or overruling a question, and to report other proceedings (Graham Pr. (2 ed.), 577), and would send back a case for a further report where the referee did not pass upon all the issues (Hulbert v. Young, 13 How. Pr., 411). The provision of the statute imposing a like duty upon referees appointed in these proceedings placed them in
I am of the opinion, therefore, that-the facts should be found and conclusions of law stated, if required; and if that view be erroneous, then that the court has the power to direct such a report, and should do so in a case like this.
Ordered accordingly.
This is a substantial right; but the remedy is by motion to refer back the report, not to set it aside (Van Slyke v. Hyatt, 46 N. Y., 259 ; 10 Abb Pr. N. S., 58).
Compare, however, 47 N. Y., 404.
Such a joint proceeding under the lien law would not prevent-a separate action against either on a separate contract made by him (Cremin v. Byrnes, 4 E. D. Smith, 756)
To similar effect, Roberts v. Fowler, 4 Abb. Pr., 263 ; S. C., 3 E. D. Smith, 632 ; and see Kerby v. Daly, 45 N. Y., 84.
See note on page 285. And see Guernsey's N. Y. Mech. Lien L., 159, note.
Concurrence Opinion
I concur fully in all the conclusions to which the chief justice has arrived in his opinion, and without entertaining doubt on the question suggested by him, that the lien of the plaintiff Hubbell is limited to the items of his account supplied within three months prior to the filing of his notice of lien (December 28, .1870), amounting to one hundred and seventy three dollars and forty-seven cents. The subsisting mechanics’ lien law, applicable to this city (Laws of 1863, ch. 500), by section 6, only authorized the filing of a notice and creation of a hen “within three months after the work is - done, or materials furnished.” Had all the materials of Hubbell’s claim been furnished under an entire contract, for certain materials or all such as were required by their plans and specifications for the erection of the building, it would probably have deferred the plaintiff’s compensation therefor, until his contract was completed, and have attached the right of -lien to articles that he had supplied on such contract, more- than three months prior to the filing of the notice of lien ; but I find nothing in the evidence warranting the conclusion that Hubbell furnished the materials for which his claim is made, upon an account running for seven months, upon any such entire agreement. Prior to May 23, he had been selling materials to Holt, the contractor, and being dissatisfied by reason of the difficulty in obtaining payment, refused to sell him any more, and so stated to Schreyer, the owner, who thereupon, as the testimony warrants the finding of the referee, agreed with plaintiff “to pay for such material as should thereafter be furnished by plaintiff in and about the erection of buildings.” There is no suggestion, however, in the testimony, of any agreement, ex
The mechanics’ lien law, being in derogation of common law rights, must be strictly construed, as to all essentials necessary to the creation of the lien.
While such a construction requires a prompt assertion of claim by way of lien, it also protects the owner and others interested in the property from stale claims and latent liens. Besides, the decision of the court of appeals in Spencer v. Barrett, 35 N. Y. 94, in my opinion is controlling upon the point. Except in the difference of time fixed by the Kings county act, then under review, requiring the notice of lien to be filed within sixty days after the materials are furnished, I can discover nothing in principle to distinguish from this.
Judgment as to Muldoon reversed.
Judgment as to Hubbell reduced to one hundred and seventy-three dollars and interest.
See also Roberts v. Fowler, 4 Abb. Pr., 263 ; S. C., 3 E. D. Smith, 632.