122 N.Y.S. 341 | N.Y. App. Div. | 1910
This is an appeal from an order denying a motion to confirm a referee’s report in surplus money proceedings.
The contest is between lienors under a mechanic’s lien and the holder "of a mortgage. Both were filed on the same day, the lien anticipating the mortgage by. a few minutes. The question is whether or not the lien was kept alive. The statute applicable is section 16 of chapter 418 of the Laws of 1897, now section 17 of chapter 33 of the Consolidated Laws of 1909, which reads as follows: “No lien specified in this article shall be "a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien,"and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of the parties to the action, the object of the action, a brief description of the real property affected thereby, and the time of filing the notice of lien; or unless an order be granted within one year from the filing of such notice by a court of record continuing such lien, and such lien shall be redocketed as of the date of granting such order, and a statement made that such lien is continued by virtue "of such order. No lien shall be continued by such order for more than one year from the granting thereof, but a new order and entry may be made in each successive year. ' If a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the■ action within the time prescribed in this section, the lien of' such defendant is thereby continued. Such action shall be deemed an action to enforce the lien of such defendant lienor. The failure to file a notice of pendency of action shall not abate the action as to any person liable for the payment of the debt-specified in the notice" of lien, and the-action may be prosecuted to - judgment against such person.”
The lien in question was filed on April 2, 1908, and it is conceded upon the record that no order was obtained extending it, and no action brought to foreclose it within a year after its filing and no action brought to foreclose any other mechanic’s lien to which the holders of this lien were made parties defendant. The. present action was to foreclose a mortgage and the lienors were made parties
To the same effect was section 3402 of the Code of Civil Procedure. , So, also, by section 2 of the Lien Law it is provided that “ The term 6 lienor,’ when used in this chapter, means any person having a lien upon property by virtue of its provisions, and includes his successor in interest.” "We think that the clear meaning and intent of the statute is that the action to foreclose £< another lien ” which will keep alive a lien filed by .a defendant to the action, is an action for the foreclosure of a lien created by the Lien Law, and not an action to foreclose a mortgage, although that, in a sense, is a lien upon the property. In opposition to this view we are referred to Danziger v. Simonson (116 N. Y. 329), upon which the court below relied. That case, however, is clearly distinguishable, That also was an action to
It follows that the order appealed from must be reversed,' with ten dollars costs and disbursements to the appellants and the motion to confirm the report granted, with costs to the TwelftKWard Bank of the City of Hew York and John J. Dowling payable out of the fund.
Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs to appellants payable out of the fund.