19 Abb. Pr. 132 | New York Court of Common Pleas | 1865
Although the lien is to be discharged of record only in the manner stated in section 10, yet by section 11 it . absolutely ceases after one year, unless continued by Order of the court. The fact that suit has been commenced will not keep the lien alive after the expiration of one year, but can only be effected by an order pursuant to section 11. I think it not going too far to hold that when the lienor has in good faith commenced proceedings to enforce his lien, an order ought, unless under very special circumstances, always to be made to continue the lien, so that he may not be prejudiced by the lapse of the year before the limitation can be terminated. Whether the order to continue be granted ex parte or upon notice is not important. If the order to continue be inadvertently granted, the.party prejudiced can move for relief.
I do not see any reason why the order to continue should not have been granted, and the motion to vacate it must therefore be denied; but as the statute is very obscure and the motion is made in good faith, I shall not give costs.
Motion denied, without costs.