111 N.E. 819 | NY | 1916
This action is brought to foreclose a mechanic's lien. The plaintiff's assignors filed their notice of lien on October 29, 1909, and the lien was entered in the docket. It was continued and redocketed on October 20, 1910. On October 19, 1911, an order was made that it be continued for another year. This order was filed with the clerk of Kings county on October 20, 1911. A fee of fifty cents is payable to the clerk for docketing a lien (L. 1906, ch. 446). This fee was not paid, and so the lien was not redocketed. The omission was discovered in February, 1912. The plaintiff procured an ex parte order that on payment of the fee the lien be redocketed nunc *286 pro tunc as of October 19, 1911. That order was vacated upon motion, and the ruling was affirmed in the Appellate Division and in this court (Matter of Manton,
Section
The effect of the failure to redocket a continued lien can be no greater than the effect of the failure to docket a lien when the notice is first filed. Section
Many decisions uphold the conclusion that the existence of a lien is not affected by the omission of a public officer to enter it in the public records. In Mutual Life Ins. Co. v. Dake
(
The defendant insists, however, that a distinction must be made between a case where the failure to redocket is due to the neglect of the clerk, and one like the case at bar where it is due to the default of the lienor himself. The distinction is a real one. The docket does not create the lien, but it does give notice of the lien. If the act of the lienor has made notice impossible, he must be held to have estopped himself from enforcing his lien against persons who would otherwise be misled to their prejudice. He cannot withhold from the clerk the fees essential to the registry of his lien, and charge the public at the same time with notice of its existence. That is not because the lien does not exist, but because his election to keep it secret deprives him in such circumstances of the right to enforce it (Trenton Banking Co. v. Duncan,
We think there is nothing in the earlier decision of this court that is hostile to this conclusion. All that was then held was that the plaintiff was not entitled to an order *289
for a redocket nunc pro tunc (Matter of Manton,
The judgment should be reversed and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, HOGAN and SEABURY, JJ., concur.
Judgment reversed, etc.