66 N.Y. St. Rep. 494 | N.Y. Sup. Ct. | 1895
This action was brought to foreclose a mechanic’s lien filed by the plaintiffs, as sub-contractors, against certain property belonging to the defendant, The Terminal Warehouse Company, known as pier No. 57, North river, to secure a sum of money claimed to be due and owing from the defendant and appellant, The Wallis Iron "'^’orks, to them. Notice of plaintiffs’ lien was filed on the 16th of February, 1892, and this action was begun as to the appellant, The Wallis Iron Works, on the 5th of May, 1892, by summons dated April 26, 1892. On the 1st of April, 1892, upoa the Wallis Iron Works giving a bond, an order was made discharging and canceling the lien of record. It is claimed that on the 6th of March, 1892, this action was discontinued as to the Terminal Warehouse Company because of an entry upon the clerk’s day calendar of the Special Term, opposite the title of the cause, of the word “ discon
The defendant, The Wallis Iron Works, answered on the 20th of May, 1892, and the issues presented by the complaint and answer of the Wallis Iron Works were tried at the Special Term and a judgment rendered in favor of the plaintiffs; and from the judgment thus entered this appeal is taken.
The grounds which are alleged for a reversal of the judgment on this appeal are, first, that no foundation was laid for awarding a lien for any specific sum; that the plaintiffs in the action could recover nothing except the amount actually due under this contract at the time of the commencement of the action. This point is embraced in the second objection raised, to the effect that the court erred in holding that the lien could be enforced for what was not due at the time of filing the notice of lien or at the time of bringing the action. The court held that as there was something due on this contract at the time the action was begun, and .that as it was for the foreclosure of a mechanic’s lien, assimilating in practice to the foreclosure of a mortgage, judgment would go for the entire amount due at the time of the trial.
The first error into which the learned counsel for the appellant seems to have fallen is, in not recognizing the fact that a mechanic’s lien can be filed under a contract for work to be done or materials to be furnished. Upon an examination of the Mechanics’ Lien Law (Chap. 342, Laws 1885) it will be seen that the statute expressly authorized a lien to be filed in anticipation of work to be done or materials to be furnished. It further expressly provides that an action must be commenced to foreclose the lien within a certain period after the lien has been filed, and if a party has been unable to complete his contract within that time he might lose the benefit of his lien if he could not commence an action and recover for that which was subsequently to become due.
It is urged that the learned court was mistaken in attempting to assimilate the practice in lien cases and the practice in foreclosure cases, to the extent of giving in an action to foreclose a mechanic’s lien all the remedies which are given in the foreclosure of a mortgage. It is said that the foreclosure of a mortgage is an equitable proceed
Upon a consideration of the rights of parties in mechanic’s liens and liens obtained by mortgage, it will be seen that in almost a2L respects they are the same. In the case of the mechanic’s lien an action must be commenced or the lien extended within a short period. In the case of a mortgage the action must be commenced in a longer period; but if it is not commenced within the period allowed by law, the lien of the mortgage, precisely the same as the mechanic’s lien, ceases to exist by lapse of time. There was an evident intention in the statute to assimilate the practice in the foreclosure of a mechanic’s lien to that of a foreclosure of a mortgage. It was not in the contemplation of the Legislature that a mechanic should lose his lien because he was obliged to commence his action before the whole amount of the contract had become due. As in the case of a mortgage, he might commence his action and recover all that wás due at the time of the decree.
It would seem, therefore, under these circumstances, that the learned court was entirely right in holding that the plaintiffs in this action were entitled to foreclosure therein if anything was due at the time of the commencement of the action, and recover all that had become due up to the time of trial.
It is further urged that the notice of lien contained false statements which rendered it invalid. The notice of lien stated that at the time thereof there was justly due and owing to the claimants the full contract price. This point, however does not seem to have been raised upon the trial, although it is suggested in the appellant’s answer. In the brief of the appellant our attention is not called to any part of the case in which any such question was presented upon the trial, and we have been unable "to find any exception or motion which raises the same.
Judgment should be affirmed, with costs.
Judgment affirmed, with costs.