In re Rudiger

| N.Y. App. Div. | Mar 8, 1907

Laughlim, J.:

The lien was filed on the 25th day of July, 1906. Two days prior to the expiration of the time within which the lienors were required by the statute (Lien Law [Laws of 1897, chap. 418] § 17, as amd. by Laws of 1902, chap. 37) to commence an action to foreclose the lien, they obtained an order from the Special Term of the Supreme Court pursuant to said section, continuing their lien for sixty days, and granting them sixty days’ additional time within which to commence an action to foreclose it. A motion was subsequently made to vacate the order upon the ground, among others, that the court was misled or deceived. Pending this motion the lienors began an action to foreclose the lien. The contractors then applied for an order canceling the lien, upon the ground that more than three months expired after the lien was filed before an action to enforce it was commenced, and that the order extending the lien and extending their time to bring an action having been vacated, could afford no basis for the action subsequently begun. This may be so, but the question cannot be decided on this application. It may be presented by pleading the Statute of Limitations in connection with the facts. The only authority of the court to discharge liens on a motion is that con■tained. in the statute. The statute confers no authority upon the Supreme Court to cancel a municipal lien upon proof that an action lias not been brought to enforce the same within the time prescribed by the statute. The statute is self-operative and the lien is discharged without order or action if an action to enforce it be not brought within three months after filing the lien, and if notice of pendency thereof be not filed, within the same period, with the financial officer of the municipal corporation with whom the .notice of lien was filed, provided, of course, that the lien has not been continued by order of the court. (See Lien Law, §§ 17, 20, as amd. by Laws of 1902, chap. 37.) The contractors could have brought this matter to a focus by giving notice under section 3117 of the Code of Civil Procedure, requiring that the lienors commence their action to enforce the lien -within the time therein specified, and on their failure to do so authority is conferred upon the court to cancel the lien.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs.

Patterson, P. J., Ingraham, Houghton and Lambert, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs. Order filed.