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 CJornell IGaui ^rlynnl library 
 
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 KFN5229.N91 
 
 A treatise on the mechanics' lieji i laws o 
 
 3 1924 022 801 280 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022801280 
 
!W ' KTQOMBF^ 
 
 A%y 4 Cfoniyfelloj;. 
 Ithaca, Jf. Y. 
 A TEEATISE 
 
 MECHANICS' LIEN LAWS 
 
 STATE OF NEW-YORK, 
 
 p> 
 
 EMBRACING THE 
 
 GENERAL ACT FOR CITIES AND VILLAGES 
 
 SPECIAL ACTS FOE THE COUNTIES OF NEW-YOBK, KINGS, EICHMOND, WEST- 
 
 CHESTEE, ONEIDA, COETLAND, BEOOME, PUTNAM, EOCKLAND, 
 
 OELEANS, NIAGAEA, LITINGSTON, OTSEGO, LEWIS, 
 
 OEANGE, DUTCHESS, CHEMUNG AND 
 
 ULSTEE, AND THE CITY 
 
 OF BUFFALO. 
 
 i , Jr 
 
 ij 
 
 r *r ~* 
 
 BY CHAKLES C. N,OTT, 
 
 COTO8ELOK AT LAW. 
 
 ALBANY : 
 
 W. C. LITTLE & CO., LAW BOOKSELLERS, 
 
 STATE STREET. 
 
 1856. 
 

 6 
 
 + *> & 8 ^ 
 
 Entered according to act of Congress in the year eighteen hundred and fifty-six, 
 By WEAEE C. LITTLE, 
 in the Clerk's office of the District Court of the United States for the Northern District of 
 
 New-York. 
 
 WEED, PAE80N8 * CO., PEIHTBH8, 
 ALBANT. 
 

 PEEFACE. 
 
 I publish this work without hesitation or reluctance, for 
 the reason that, notwithstanding its errors and its faults, 
 I am assured that it is needed by the profession. Should 
 an apology be necessary, a sufficient one exists in the 
 fact that its preparation was undertaken at the request 
 of some members of the bar to whose superior learning 
 and ability I would, on all other subjects, look for counsel 
 and assistance. A business which has caused me unwil- 
 lingly to undergo the harassment of exploring an unsettled 
 practice, and the anxiety of conducting important cases, 
 dependant upon doubtful and undetermined principles, 
 has brought within my own experience almost every 
 question that has yet grown out of these vague and vexa- 
 tious statutes, and has led to the request with which I 
 have here endeavored to comply. 
 
 The greater portion of the following pages relate to 
 the New- York law — in part because nearly all of the ques- 
 tions, thus far judicially decided, have arisen under that 
 
iv PREFACE. 
 
 act; but chiefly because one court, (and particularly one 
 learned judge, who has recently left its bench,) has been 
 able to find, in that enactment of the legislature, some- 
 thing beside unconstitutional nullities, and to develop 
 and establish some principles, which (we may at least 
 hope,) will explain similar statutes, and guide other 
 tribunals. 
 
 New-York, June, 1856. 
 
CONTENTS. 
 
 CHAPTER I. 
 
 THE NEW-YORK LIEN LAW. 
 
 SECTION I. 
 Of the Lien. 
 
 PASS. 
 
 First. The requisites of the notice of lien, , 10 
 
 I. The name of claimant, &c. , 10 
 
 II. Facts to be- set forth, 10 
 
 III. Statement as to time and date, 11 
 
 IV. Amount of claim, 12 
 
 V. Description of contractor, 12 
 
 VI. Description of owner, T 12 
 
 VII. Situation and description of the premises, 13 
 
 VJLLl. Subscription of notice, 14 
 
 IX. Verification of lien, 14 
 
 Second. The filing of the lien, , 14 
 
 Third. The docketing, 14 
 
 SECTION II. 
 
 Of the Proceedings to Enforce, 
 
 First. Of the process and of the defendant's proceedings, previous to 
 
 appearance, 16 
 
 I. As to the form of process, 16 
 
 II. As i o the service of process, 20 
 
vi CONTENTS. 
 
 PAGE- 
 
 1. Where it may be served, 20 
 
 2. Upon whom, 21 
 
 3. The manner and proof of service, 23 
 
 III. As to the proceedings to keep alive the lien, 24 
 
 IV. As to the owner's proceedings before appearance in court,. 25 
 
 1. As to the proceedings to compel on action, 25 
 
 2. Astoset-off, 28 
 
 Second. Of the proceedings of the claimant in court, if there be no 
 
 appearance by the defendant, 29 
 
 Third. Of the proceedings of the claimant, if there be an appearance, . 30 
 
 1. As to the proceedings in court, 31 
 
 2. As to the pleadings, 32 
 
 Fourth. Of parties and amendments, 35 
 
 1. As to necessary parties, 35 
 
 2. As to proper parties, 37 
 
 3. As to amendments, 44 
 
 Fifth, Of the trial and evidence, 45 
 
 I. As to the trial, 45 
 
 1. As to the trial, where there has been no appearance, 45 
 
 2. As to the trial, where issue has been joined, 48 
 
 EC. As to the evidence necessary to sustain a lien, 48 
 
 1. Where the owner does not appear, 48 
 
 2. Where issue has been joined, 49 
 
 Sixth. Of costs, judgment, execution, surplus, funds and discharge of 
 
 liens, 53 
 
 I. As to costs, 53 
 
 1. In what cases and to what amount parties are liable for 
 
 costs, respectively, 53 
 
 2. When and to what amount costs. are recoverable, 60 
 
 II. As to the judgment, 61 
 
 III. As to the execution, 71 
 
 IV. As to the surplus funds, 72 
 
 V. As to the discharge of liens, 75 
 
 SECTION III. 
 
 Of the Juriidiction of and Proceedings in the Marine and Justices' 
 
 Courts. 
 
 1. Of the jurisdiction of the Marine court, 77 
 
 2. Of the jurisdiction of Justices' courts, 77 
 
 3. Of the proceedings in these courts, 77 
 
CONTENTS. 
 
 4. Of their powers as to amendments, &c, 78 
 
 5. Of their powers respecting real property, 79 
 
 SECTION IV. 
 Of the nature and extent of the rights granted and secured by the 
 
 Act. 
 First. Of the parties entitled to a lien, t 81 
 
 1. Of the contractor and sub-contractor, 81 
 
 2. Of the contractor of the sub-contractor, 85 
 
 3. Of those occupying a representative position as assignees, 
 
 executors, heirs, 86 . 
 
 Second. Of the cases and circumstances in and under which a lien may 
 
 be acquired and closed, 87 
 
 I. As to the applicability of the law to materials furnished after 
 
 its passage, 87 
 
 II. As to the lien proceeding barring other suits, 88 
 
 III. As to the time for acquiring and closing liens, 89 
 
 IV. As to the effect of money not being due by the owner — of 
 
 credits given by the claimant — of forfeiture suffered by 
 the contractor, 92 
 
 V. As to the services, &c, for which a lien may be acquired, . . 97 
 Third. Of the parties against whom a lien may be acquired, and of the 
 
 interest bound, 100 
 
 I. With respect to the parties, 100 
 
 1. As to the owner, within the meaning of the act, 100 
 
 2. As to legal and equitable owners, 103 
 
 3. As to owners who are femes covert, 106 
 
 4. As to those who are minors, 107 
 
 5. As to those who are owners in some representative capa- 
 
 city, as executors, trustees and heirs, 108 
 
 6. As to those who are not owners of an estate, but of a_ 
 
 mere equity, Ill 
 
 II. With respect to the extent of the owner's liability, and the 
 
 extent and quality of the estate or interest bound by 
 
 the lien, 112 
 
 Fourth. Of the owner's privileges and defences, 121 
 
 I. As to releasing the premises from the effect of the lien, 121 
 
 II. As to compelling the claimant to commence his foreclosure, 121 
 HI. As to joining the contractor as a defendant, and the effect 
 
 of omitting to do so, 121 
 
 IV. As to recoupment, set-off and interpleader, 126 
 
CONTENTS. 
 
 CHAPTER II. 
 
 THE KINGS COUNTY LIEN LAW. 
 
 SECTION I. 
 Of the Lien. 
 
 FAGB." 
 
 First. The requisites of the notice of lien, 136 
 
 Second. The filing and service of the lien, 139 
 
 SECTION II. 
 Of the Owner's Proceedings. 
 
 First. As" to the owners and contractor's power to compel the com- 
 mencement of the foreclosure, 141 
 
 Second. As to the owner's right to substitute money, 143 
 
 Third.' As to the owners or contractor's right to discharge the lien, 
 
 by giving security, 143 
 
 Fourth. As to the owner's right to have the lien discharged, on motion 
 
 in certain cases, 143 
 
 section m. 
 
 Of the Foreclosure. 
 
 First. Of the courts having jurisdiction of lien cases, 147 
 
 Second. Of the period within which the foreclosure must be commenced, 148 
 
 Third. Of the proper and necessary parties, 149 
 
 Fourth. Of the action to foreclose a lien, 150 
 
 1. As to the requisites of the complaint, 150 
 
 2. As to the owner's defences," 152 
 
 Fifth. Of the judgment and execution, '.. 153 
 
 1. As to the judgment, 153 
 
 2. As to the execution, 153 
 
 SECTION IV. 
 Of the Natv/re and Extent of these Liens. 
 
 First. As to the owner's contract, 154 
 
 Second. Ab to payments made after the service of a copy of the lien, . 156 
 
CONTENTS. ix 
 
 CHAPTER III. 
 
 THE GENERAL LIEN LAW. 
 
 First. Manner of acquiring liens, 157 
 
 Second. Requisites of specification and notice, 159 
 
 Third. Foreclosure of lien, 160 
 
 Fourth. Proceedings on and effect of default by either party, 161 
 
 Fifth. Proceedings on and after joining issue, 161 
 
 Sixth. Proceedings, when claimant is a sub-contractor, 162 
 
 Seventh. The judgment and execution, 165 
 
 Eighth. Discharge of liens, 169 
 
 Ninth. Extent of the lien and of the owner's liability, 169 
 
 Tenth. Period for creating and foreclosing liens, ' 170 
 
 Eleventh. Contractor's agreement not to acquire a lien, 176 
 
 CHAPTER IV. 
 
 THE RICHMOND COUNTY ACT. ' . 
 
 First. The lien, how created and acquired, ■. 178 
 
 Second. The manner of closing, ' 178 
 
 Third. The judgment and nature of the remedy, ." 180 
 
 Fourth. The proceedings which the owner may take to discharge liens, 181 
 Fifth. The time within which liens must be closed, 185 
 
 CHAPTER V. 
 
 THE ULSTER COUNTY ACT. 
 
 Difference between this and the Richmond county acts considered. 
 
 First. As to courts, .' 187 
 
 Second. As to the entry of judgment, 188 
 
 Third. As to the nature of the judgment, .* 188 
 
 Fourth. As to the right of the owner to commence proceedings to close, 189 
 B 
 
CONTENTS. 
 
 CHAPTER VI. 
 
 THE ACT RELATING TO THE COUNTIES OF EENSSELAER 
 AND CHEMUNG. 
 
 PASS. 
 
 First. The lien, and extent of the owner's liability, 190 
 
 Second. The manner of acquiring a lien, 191 
 
 Third. The foreclosure or action to enforce, 192 
 
 Fourth. The judgment and execution, 193 
 
 Fifth. The period for acquiring and closing, and the owner's privileges, 195 
 
 CHAPTER VII. 
 
 THE ACT RELATING TO THE COUNTIES OF WESTCHESTER, 
 ONEIDA, CORTLAND, BROOME, PUTNAM, ROCKLAND OR- 
 LEANS, NIAGARA, LIVINGSTON, OTSEGO, LEWIS, ORANGE 
 AND DUTCHESS. 
 
 First. The peraons who may acquire a lien, 198 
 
 Second. The manner and time of acquiring, 200 
 
 Third. The foreclosure of liens, and the courts having jurisdiction, 201 
 
 Fourth. Judgment and execution, 209 
 
 Fifth. Appeals, 210 
 
 Sixth. Owner's proceedings, 210 
 
 Seventh. Discharge of liens, 211 
 
 CHAPTER VIII. 
 
 THE ACTS RELATING TO THE CITY OF BUFFALO. 
 Effect of amendatory act of 1851, ' 214 
 
CONTENTS OF APPENDIX. 
 
 PAOB. 
 
 New-York Law, 1851, 218 
 
 " « 1855, 222 
 
 « " 1830, 224 
 
 " " 1832,.. 227 
 
 Kings County Law, 1853, 228 
 
 Kensselaer, &c, " 1852, 232 
 
 Westchester,&c. " 1854, 238 
 
 Forms, 248 
 
MECHANICS' LIEN LAWS. 
 
 CHAPTEE I. 
 
 THE NEW-YORK LIEN LAW. 
 
 In examining a statute of the character of the Lien Law, 
 the subject naturally falls into two divisions, viz: the 
 rights which the legislature have granted or secured, and 
 the remedy or means of attaining them. But as in the 
 statute before us, the practitioner frequently has to pro- 
 ceed in great haste to file his lien, or commence proceed- 
 ings thereupon, without there being time for the critical 
 examination of delicate questions of law ; and as, more- 
 over, the rights given by this statute are few and simple, 
 and such as are readily engrafted on the mind of any 
 lawyer, I shall reverse this order, and proceed first to the 
 remedy, or practice under the lien law. 
 
 SECTION I. 
 
 OP THE LIEN. 
 
 To obtain a lien three things are necessary: First. 
 There must be a notice in writing, properly drawn and 
 subscribed ; Second. This notice must be filed with the 
 
10 MECHANICS' LIEN LAWS. 
 
 county clerk ; Third. It must be by Mm docketed in 
 the manner prescribed by law. J 
 
 First. The requisites of the notice are prescribed by 
 the sixth section of the act (chap. 513, Laws of 1851, 
 see App). To constitute a good notice, the following 
 distinct facts must be set forth : 
 
 I. It should state the name and character of the 
 claimant. And herein it should state : first, whether he 
 be a " contractor" or " sub-contractor" ; and second, whe- 
 ther a "laborer" or' "person furnishing materials"; for 
 in these divisions are comprised all the persons who can 
 possibly acquire a 'lien (vide § 6. Gusack vs. Tomlin- 
 son, 1 E. D. Smith's R, 716). 
 
 II. As the lien is only given under these conditions : 
 Firstly (in the case of contractors), where the labor has 
 been performed or materials furnished " by virtue of a 
 contract" between the claimant and the owner, or (in 
 the case of sub-contractors) where the labor has been 
 performed or materials furnished " in pursuance of an 
 agreement" between the claimant and the contractors ; 
 secondly, where the same shall have been performed or 
 furnished " in conformity with the terms" of the original 
 or owners' contract ; thirdly, where the same shall have 
 been performed or furnished in building, altering or 
 repairing " any house or other building, or appurtenan- 
 ces to any house or other building ;" and fourthly, whese 
 the house or building is situated " in the city and county 
 of New- York," it follows that such of these facts as must 
 form the basis of the claimant's lien, should be stated in 
 the notice. Thus it should be stated that by virtue of 
 a contract between the claimant and the owner, and in 
 
 1 See as to effect of the omission to docket, p. 14, post. 
 
THE NEW-YORK LIEN LAW. 11 
 
 conformity with the terms thereof, certain materials were 
 furnished, &c. ; or, that in pursuance of an agreement 
 between the complainant and John Doe, the contractor 
 of the owner, and in conformity with the terms of the 
 contract between said contractor and owner, the certain 
 materials, &c, &c, were furnished. 
 
 It is proper, also, to observe that different claims (that 
 is, claims against different contractors, or distinct claims 
 against the owner and contractor) should not be joined 
 in the same lien. The point has never indeed been 
 expressly decided; but the statute does not contemplate 
 and will not warrant such a course ; and it is probable 
 that had the court thought differently in HaupPman vs. 
 Halsey (1 E. D. Smith, 668, where the proof showed that 
 part of the work was done directly for the owner, while 
 the lien stated it was all for the contractor), some such 
 intimation would have been given in the decision. 
 
 Should the contract have been made with the agent 
 of the owner, it is still his contract and should be so 
 described, i. e., as the contract of the owner A B, by 
 his agent C D; and a lien filed against the owner, 
 avering that the goods were furnished by virtue of a 
 contract made with a person who might have been the 
 owner's agent, has been held bad. (Hawptman vs. CatUn, 
 id., 734.) 
 
 III. As the act provides that the notice must be filed 
 " within six months after the performance of" the "labor 
 or the furnishing of" the materials, and as this proviso 
 is placed in the same section which prescribes the 
 requisites of the notice, and is directly and grammatically 
 coupled with such requisites, it should state that the 
 claimant has performed the labor or furnished the 
 
12 MECHANICS' LIEN LAWS. 
 
 materials specified, "within six months," to wit, since 
 such a day 1 , naming the time. 
 
 IV. It should specify "the amount of the claim;" and 
 as this is an express statutory provision, its omission 
 would render the lien wholly void. It is to be observed, 
 also, that although a party may have judgment for a 
 less sum than he claims (which has always been the 
 practice), he could not have judgment for 'a greater. 
 {The Protective Union vs. Nixon. 1 E. D. Smith, Rep., 
 67 1.) Care must therefore be had that the amount is 
 correctly stated. 
 
 V. It must specify "the person against whom the 
 claim is made ;" and this is also an express statutory pro- 
 vision. In case the claimant is a contractor, this person 
 will be the owner, and in case the claimant is a sub-con- 
 tractor, this person will be the contractor. As this 
 affects the rights of third parties, and as a person is 
 reasonably bound to know with whom he has been 
 dealing, it is probable that the name of this person 
 should be correctly stated ; and it is doubtful whether 
 filing against a party by an erroneous or fictitious name 
 would be deemed a sufficient specification within the 
 meaning of the statute. 
 
 VI. It must specify " the name of the owner of the 
 building ;" and the practitioner will here observe that 
 it is not the owner of the lot which the statute pre- 
 scribes, or of any estate or interest in the premises, but of 
 the building. As to who is to be deemed the owner, 
 within the meaning of the statute, we shall consider 
 under the second part of the subject (vide section IV, 
 post). The practitioner will also observe that this is in 
 
 1 As to the time when the six months commences running, see section IV, pott. 
 
THE NEW-YORK LIEN LAW. 13 
 
 like manner an express statutory provision, and one 
 which must be rigidly complied with ; and indeed it has 
 "been expressly held that this is " an essential prerequi- 
 site to the creation of the lien," and its omission a defect 
 which cannot be cured by amendment. (Beals vs. Con- 
 gregation B., Nai Jeshurun, id. 654.) 
 
 It is also necessary that the claimant file against 
 the owner, although he may have dealt with an agent, 
 and in the case referred to where the only allegations of 
 ownership were as follows: "The contractor or agent 
 for whom the work was done, and materials furnished, 
 is one Joseph D. Purss ; one of the trustees, committee 
 men, managing agents and owners, is one Mark Levy," 
 the lien was held bad, though quaere, whether giving 
 the name of one of several joint owners is sufficient? 
 and whether " a description of the owner, given in any 
 form sufficient to identify him, would answer?" and 
 whether " an error in the name, which would not mislead 
 any one to his prejudice, would not be fatal?" The 
 rule with respect to joint owners to be deduced from 
 the case is this: If the owners are a corporation, the 
 corporation should be named, as owner, by its corporate 
 name, if they are an association, but not a body cor- 
 porate, then the individuals composing the association 
 should be described either by their associate or joint 
 name, or otherwise, so that they can be identified ; if 
 they are merely joint tenants or tenants in common, 
 then each should be individually and severally described. 
 
 VII. It must specify " the situation of the building by 
 its street and number, if the number be known." Should 
 the number of the building be known, the practice under 
 this provision is easy and plain ; but if it is not known, 
 it would be necessary to describe the building briefly 
 
14 MECHANICS' LIEN LAWS. 
 
 by its situation on the street and the distance at which 
 it commences from some other street or known boundary. 
 As the statute requires, imperatively, that if the street 
 number be known the building shall be described by it, 
 it follows that the reason and excuse for this omission 
 should appear on the lien itself; for it may be a question 
 whether the lien can be holpen by proof " aliunde the 
 record." 
 
 It is also necessary that the building be described as 
 situate in the city and county of New- York; though 
 indeed, where the notice was addressed to the clerk of 
 the city and county of New- York, and the building was 
 described as situate in 85th-street, without stating that 
 it was in the city, the court held that it was a sufficient 
 compliance with the act to sustain a judgment. (Tinker 
 vs. Geraghty, 1 E. D. Smith,. 687.) 
 
 VIII. Although perhaps not necessary, it is proper 
 that the lien be subscribed in .the name of the claimant. 
 
 IX. Finally it must be verified in the same manner as 
 a pleading under § 157 of the Code. (Amendments of 
 1855.) 
 
 Second. The notice must be filed with the county 
 clerk, and his fee for filing must be paid. (§ 6.) 
 
 Thied. It is the duty of the county clerk forthwith to 
 docket the lien by entering the following "particulars" 
 " in a book to be kept in his office, to be called the lien 
 docket," viz : 1. The name of the claimant ; 2. The name of 
 the person against whom the claim is made ; 3. The name 
 of the owner ; 4. The situation of the building ; 5. The 
 amount of the claim ; and 6. The date of the notice, by 
 which the act means the date or time of the filing. 
 
THE NEW-YORK LIEN LAW. 15 
 
 Although this is made by the statute the express duty 
 of the county clerk, and although the statute provides 
 that a party upon filing the notice shall " have a lien," 
 yet it may "be doubted whether, as against innocent third 
 parties (an owner paying his contractor, a vendee pay- 
 ing the purchase money, a mortgagee making advances), 
 the hen would be valid if not docketed ; and whether 
 the act, by the term filing, does not mean the whole 
 proceeding of filing and docketing. Should the county 
 clerk neglect or refuse to docket the hen, he might be 
 compelled by mandamus, or an action would lie by the 
 party damnified ; for the doctrine has been well settled 
 since the case of Green and the Hundred of Buccle 
 Church (1 Leonard's R. 328), that an action will he 
 against a ministerial officer, neglecting or refusing to per- 
 form his official duties, in favor of any party rightfully 
 demanding them ; and to the same point are the cases of 
 Rogers vs. Rrewsters (5 Johns. 125), and Rochester 
 White Lead Go. vs. City of Rochester, (3 Comst., 466). 
 
 SECTION II. 
 
 OP THE PROCEEDINGS TO ENPOKCE A LIEN. 
 
 The practitioner will observe that the proceedings to 
 obtain a lien are entirely distinct from the proceedings 
 to enforce one. The lien is a quasi mortgage; the pro- 
 ceeding to foreclose a quasi action. Over the former 
 the court has no power ; over the latter it may exercise 
 the same discretion that it would in an ordinary action. 
 " We cannot (says Mr. J. Woodruff in the case of Reals 
 vs. Congregation £., Nai Jeshurun, 1 E. D. Smith, 
 658), by amendment, give the claimant a lien, when the 
 
16 MECHANICS' LIEN LAWS. 
 
 act has not been complied with any more than, in a pro- 
 ceeding to foreclose a mortgage, we can (on discovering 
 that the plaintiff has no mortgage) direct the defendant 
 to execute and deliver one." 1 
 
 This proceeding to enforce or foreclose a lien must 
 be commenced within one year. from the time of filing 
 (§ 11, subd. 3), unless a notice, allowed by the statute, 
 be given by the owner ; in which case it must be com- 
 menced within thirty days from the time specified in 
 the notice. (§ 11, subd. 4.) But these provisions of 
 limitation we will hereafter examine more closely 
 (vide section IV, post). 
 
 The steps to be taken under the statute are peculiar, 
 and we will consider them under the following heads : 
 First. Of the process and of the defendant's proceedings 
 previous to appearance ; Second. Of the proceedings of 
 the claimant in court, if there be no appearance by 
 the defendant ; Third. Of the proceedings if there be 
 an appearance ; Fourth. Of parties and amendments ; 
 Fifth. Of the trial and evidence ; Sixth. Of costs, judg- 
 ment, execution, surplus funds and the discharge of liens. 
 
 First. In regard to process, two things are necessarily 
 to be examined: I. As to the form; and' II. As to 
 the service ; and to these may be added : III. Of the 
 proceedings to keep alive the lien ; and IV. Of the 
 owner's proceedings before the appearance of the parties 
 in court. 
 
 I. The process provided by the act (§§ • 4 and5,) is 
 much more intricate than the ordinary summons, though 
 it answers but the same purpose. It consists of a notice 
 
 1 As to the power of the court to aid the proceedings by amendment, vide 
 section II, post. 
 
THE NEW-YORK LIEN LAW. 17 
 
 and bill of particulars, both to be served in the same 
 manner, though the Jatter may be served either with or 
 at any time " within fifteen days after the service" of 
 the notice. The bill of particulars is not in his verbis 
 termed a summons or writ ; but as by the statute it is 
 required that it be served either with the notice or 
 within a certain period, which expires before its return 
 day, and as it must be served upon the same party and 
 in the same manner ; and as, moreover, a failure to serve 
 might be deemed a quasi discontinuance of the pro- 
 ceeding or a fatal omission of the claimant, he being 
 allowed to sever it from the notice and serve it sub- 
 sequently through the regard the legislature ever 
 intends to pay to the convenience of suitors, I think 
 it may, with propriety, be regarded as a necessary part 
 of the original process. x 
 
 The first point in regard to the proceedings to fore- 
 close, is to determine the court having jurisdiction. 
 Three courts have exclusive jurisdiction of these pro- 
 ceedings, and the jurisdiction of each is limited and 
 determined. These are the common pleas, the marine 
 and the justices courts of the city. The jurisdiction of 
 the first is limited to cases where " the amount claimed" 
 (by which is meant the amount claimed in the lien) 
 exceeds one hundred dollars (§ 4). The jurisdiction of 
 the others will be considered subsequently (vide, section 
 III, post). 
 
 The notice to commence proceedings, prescribed by 
 the act (§ 4), being allowed only when the labor has 
 been performed or materials furnished, it follows that 
 this fact should appear on the face of the notice. It is 
 true that in one case the common pleas held that the 
 notice need not state when the one was performed or 
 s 
 
18 MECHANICS' LIEN LAWS. 
 
 the other furnished (Tinker vs. Geraghty, 1 E. D. 
 Smith, 687); but it may be that this referred to the 
 time and not to the fact. The notice must also require 
 the owner to appear ; and it should be at a special term, 
 such being the rule and practice of the court, and it 
 having been expressly held that a notice to appear 
 before the clerk was bad under the act for Westchester 
 county, which in this particular is precisely similar in 
 language to the act we are considering. (Vide, opinion 
 of Mr. J. Harris, in Dressel vs. M-encJi, 1 How. Pr. R, 
 352.) The requirement is, however, to be modified by 
 the appearance, being " either in person or by attorney." 
 The time at which the owner is thus to be required to 
 appear, must be at a " time certain." By which time the 
 statute intends a specific hour ; for it immediately adds, 
 " upon some day to be specified in such notice." This 
 time and day must be " not less than twenty days from 
 the service " of the notice, which forms in practice an 
 unfortunately inconvenient provision; for as no practi- 
 tioner can certainly tell at what time his notice can 
 certainly be served, it is necessary for him to put the 
 return day so far in advance as to have a sufficient inter- 
 val in which to secure the service. The purpose for 
 which the owner is to be required to appear, is to 
 " submit to an accounting and settlement in such court 
 of the amount due or claimed to be due for the labor 
 thus performed or the materials thus furnished." 
 
 To these requirements of the statute, the court has 
 added two others, which, though not suggested by the 
 statute, are perhaps implied in it. 
 
 It was held in the case of M'Sorley vs. Hogan, (1 
 Code Rep. N. S., p. 286,) by, Mr. J. Daly, that the notice 
 "should apprise the owner of the fact of the lien, stating 
 the amount of it, and when it was docketed." 
 
THE NEW-YORK LIEN LAW. 19 
 
 This case is, however, somewhat modified in the case of 
 Tinker vs. Geraghty, (1 E. D. Smith's R, 687,) where 
 the rule laid down at general term was that the notice 
 need not " state when the notice [lien] was filed with 
 the county clerk," " nor when the labor was performed ;" 
 but that it " should contain a sufficient reference to the 
 alleged lien." 
 
 In addition to this requirement, which has been decided 
 to be necessary, the court has suggested two others. In 
 the case last referred to (Tinker vs. Geraghty), the court 
 intimate that it is a question whether "it be at all neces- 
 sary to describe the building otherwise than by a refe- 
 rence to the creation of the lien ;" and in the case of 
 M' Bride vs. Crawford (I E. D. Smith's R, 658), whether 
 the omission of the contractor's name was not a fatal 
 defect in the notice. The language of the court would 
 imply that it was. Mr. J. Daly says, in delivering the 
 opinion of the court": " The defendant, by entering upon 
 the subject matter of his defence, waived any objection 
 to the form of the notice to appear in court, under § 4 of 
 the act. He appeared and contested the claim, upon the 
 ground that nothing was due by him to the contractor ; 
 and it does not lie with him now to object that he was 
 not notified of the name of the contractor to whom the 
 materials were furnished." 
 
 From what has been said, we may conclude that a 
 notice to commence proceedings should contain : 1. A 
 proper entitling of the case, giving the name of the court 
 and the names of the parties ; 2. A direction to the de- 
 fendant, by his or its proper or corporate name ; 3. A 
 sufficient reference to the lien and the filing thereof; 4. 
 A statement that the labor has been performed or ma- 
 terials furnished ; 5. A requirement to appear in court, 
 
20 MECHANICS' LIEN LAWS. 
 
 at a special term thereof; 6. A notice that the appear- 
 ance may be either in person or by attorney ; 7. A state- 
 ment of the precise time and day at which the party is 
 required to appear ; 8. A notice of the object of such 
 appearance, namely, that it be to submit to "an ac- 
 counting and settlement" " of the amount due or claimed 
 to be due ;" 9. The name of the contractor, where the 
 claimant is a sub-contractor ; 10. The amount claimed to 
 be due: 11. A description of the premises affected by 
 the lien; and, 12. The name of the claimant and his 
 attorney. (Vide App. for forms.) 
 
 II. The service of the process, which in ordinary 
 actions is one of the simplest steps trodden by the 
 practitioner, may, under the lien law, be one of the most 
 difficult. I purpose to examine : 1. Where it may be 
 served ; 2. Upon whom ; and 3. The manner and proof 
 of service. 
 
 1. And firstly it is to be remembered that this process 
 and both its parts, that is to say, both the notice and 
 bill of particulars, are to be served in all cases and 
 under all circumstances personally. Now the courts, 
 having exclusive jurisdiction of these proceedings, are 
 all courts of limited jurisdiction ; and the area, within 
 which their jurisdiction is ordinarily confined, is the 
 city and county of New-York. A doubt might therefore 
 arise at the very outset of the proceedings, as to whether 
 an owner could be served beyond the ordinary jurisdic- 
 tion of these courts. Inasmuch, however, as thi^ is 
 the only remedy given by the statute, while the legis- 
 lature had the right to extend the jurisdiction in these 
 cases, we may consider it as extended for this purpose ; 
 and as the courts have no power to order service by 
 publication where the defendant is absent, we may con- 
 
THE NEW-YORK LIEN LAW. 21 
 
 elude that a service would be good, though it were made 
 beyond the state itself. It may also be observed that 
 this is a proceeding against the property and, not against 
 the party, as will subsequently appear; and hence (the 
 situs giving the court jurisdiction over the property) 
 the notice is sufficient to comply with the principle of 
 law, that no one is to be deprived of his property 
 without an opportunity of being heard. 
 
 2. The person upon whom the notice may be served, 
 is not left free from doubt by the statute. The language 
 is (§ 4) : ' Any contractor or laborer, or any person fur- 
 nishing materials, in pursuance of any contract made by 
 such contractor with such owner or his said agent there- 
 for, may, after such labor has been performed or materials 
 furnished, enforce or bring to a close such lien, by serv- 
 ing or causing a notice to be served personally on such 
 owner or his agent, contractor or laborer, or person fur- 
 nishing materials, requiring him to appear in the court 
 of common pleas," cfec. Stripped of its unnecessary 
 verbiage, this means that any person, entitled to a lien, 
 may foreclose it by serving a notice personally. But on 
 whom? A glance at the section will show that at least 
 a part of the words in italic have been, through some 
 mistake of the legislature, improperly used. The legis- 
 lature certainly never intended to allow " a contractor," 
 " laborer" or " person furnishing materials," to commence 
 proceedings against the owner by serving a " contractor," 
 " laborer " or " person furnishing materials." Nor, cer- 
 tainly, could the legislature intend this, when the safe- 
 guard of a personal service was imperatively and inva- 
 riably required. All after the word " agent," must 
 therefore be necessarily excluded ; and upon this point 
 
22 MECHANICS' LIEN LAWS. 
 
 we can have but little doubt and our courts little em- 
 barrassment. 
 
 The history of this error is worth observing. The 
 section is moddled after § 4 in the act of 1844 ; and in 
 that act these words were used. But the section in 
 which they were used (vide App. for act), instead 
 of commencing with the words " any contractor," <fec, 
 began by saying " any owner and any contractor," &c. 
 It was therefore the object of that act to allow any owner 
 to commence the proceedings by serving "the contractor, 
 or laborer or person furnishing materials," while it is the 
 intent of this one to allow that privilege only to the 
 claimant, and thus has been retained a clause which is 
 applicable to no subject. 
 
 Had there been no such erroneous retention of these 
 words, there would be no reason for questioning the 
 remainder of the clause; but being obliged to reject a 
 part, a question instantly arises as to the remainder. In 
 short, should the words " or his agent" be retained as a 
 part of the real text of the statute, or rejected as a part 
 of the erroneous interpolation? On the one hand, it may 
 be urged that the legislature never intended to enact 
 such a provision, it being opposed to the long recognized 
 principle of law and justice, that no man shall be de- 
 prived of his rights or property without being duly 
 notified of the proceedings instituted against him ; and 
 on the other, that a service upon an agent, who had acted 
 for and was the legal representative of the owner, would 
 be, to all intents, a service upon him. The fact that the 
 succeeding words must be of necessity rejected, and that 
 the subsequent sections (§§ 7 and 8) speak of the ap- 
 pearance of the owner, either eo nomine or as one of 
 the parties, without reference to the agent, either directly 
 
THE NEW-YORK LIEN LAW. 23 
 
 or indirectly, coupled with the abhorrence which our law 
 has always shown to any proceeding affecting the rights 
 of a citizen where he has not been reasonably and actu- 
 ally put upon his defence, are strong reasons for the 
 former conclusion, while the fact that the words can be 
 retained without their being actually repugnant to the 
 act, and that the first, the second and the third sections 
 use the words "or his agent" in precisely the same 
 manner, making the agent co-equal with the owner, 
 while the subsequent section, which relates to the ser- 
 vice of a part of the same process (the bill of particu- 
 lars), uses the words " on such owner or Ms legal repre- 
 sentatives" a term certainly including that of agent, are 
 strong reasons for the latter. As a matter of practice, 
 it would undoubtedly be the only safe course, never to 
 trust to the service upon the agent unless it should be 
 impossible to serve the owner. 
 
 3. As to the manner of service, it is provided that it 
 be personal. The same rules which apply to ordinary 
 process would undoubtedly apply to this. It might, of 
 course, be made by the sheriff or any other person. The 
 language of the statute (§ 4) would even indicate that 
 it may be served by the claimant himself. " Serving, or 
 causing a notice to be served," are certainly words which 
 would bear such a construction. It is probable, how- 
 ever, that the court would look with a scrutinizing eye 
 upon any such service, and require further proof than 
 the claimant's affidavit. 
 
 No rule has been laid down by the court in regard to 
 proof of service ; and affidavits have been received by 
 the common pleas which have not complied with the 
 rule of the supreme court in regard to the service of 
 summons. The better plan would be to follow precisely 
 
24 MECHANICS' LIEN LAWS. 
 
 the form required by that rule ; and this would not only 
 be a compliance, should the rule ever be held applicable, 
 but as full and precise a form as any court could reason- 
 ably ask. 
 
 III. It is to be noted here, that in addition to com- 
 mencing proceedings within the time specified by the 
 act, another step is necessary to keep alive the lien, and 
 which should always be taken immediately after com- 
 mencing ; as its omission within the prescribed time would 
 be fatal. The owner is allowed by the act to compel the 
 claimant to commence proceedings. This will be con- 
 sidered more fully subsequently. But should he do so, 
 it is necessary that the proceedings be commenced and 
 an affidavit thereof be filed with the county, clerk, within 
 thirty days after the time specified in the owner's notice 
 (§11, subd. 4). And I may here observe that it is ex- 
 ceedingly doubtful what will be the effect of this pro- 
 vision, in case such a notice should be given, and the 
 claimant be unable to find the owner within the period pre- 
 scribed. Should such a case arise, the better way would 
 be, after due diligence, to treat the noticeas an appear- 
 ance on the part of the defendant, and to serve the notice 
 to close the lien in the manner provided by the Code and 
 supreme court rule (Code, § 414, RuleV.), and then to file 
 an affidavit that proceedings have been commenced, set- 
 ting forth the facts. It is probable that such a course 
 would be sustained by every court, as, otherwise, the ob- 
 ject of the statute might be wholly lost, and a provision 
 intended for the owner's convenience, enable him to evade 
 the act itself. 
 
 But should no notice be given by the owner, it is still 
 necessary that within one year after the filing of the lien, 
 a notice be given to the county clerk, stating that " legal 
 
THE NEW- YORK LIEN LAW. 25 
 
 steps" have been taken " to enforce the lien." The fail- 
 ure to give this notice would discharge the lien ; and I 
 understand it to be necessary, under all circumstances, 
 and whether the affidavit, just referred to, be filed or not. 
 
 IV. The proceedings on the part .of the. defendant 
 or owner, previous to his appearance in court, are limited 
 to but two acts, and these are not always necessary. 
 
 1. In case a lien has been put upon a building, which 
 for any reason the owner .wishes should be removed or 
 determined, the act (§ 11, subd. 4), by implication (for 
 there is no express provision in regard to this), allows 
 him to compel the claimant to commence his foreclosure 
 within thirty days. The language of the statute is: 
 " The lien may be discharged as follows : 4. By an 
 affidavit of service of a notice from the owner to the 
 claimant, requiring him to commence an action for the 
 enforcement of his lien on or before a certain hour or 
 day, specified in said notice, and the lapse of thirty days 
 thereafter, without any affidavit from the claimant, 
 being filed of the service of the notice required in sec- 
 tion four." The only construction that can be placed 
 upon this rather obscure provision, is that within thirty 
 days after the time, specified in the owner's notice, the 
 claimant may commence his proceedings and file his 
 affidavit, and it would reasonably be required that the 
 time specified, be a time subsequent to the time of ser- 
 vice upon the claimant. 
 
 But before proceeding to take this step, the owner 
 must bear in mind that his so doing may subject him to 
 one burthen, which otherwise he would not be made to 
 bear. It has not, indeed, been expressly decided, but it 
 has been very plainly intimated by the court of common 
 pleas, that such a step by the owner would conclude 
 
26 MECHANICS' LIEN LAWS. 
 
 him from saying that moneys were not yet due under 
 his contract, which might at some subsequent period 
 become due. Says Mr. J, Woodruff, in the case of 
 Miller vs. Moore,, (1 E. D. Smiths' R, 745,) at a special 
 term : " Suppose, then, having given a credit of three 
 months, and filed his claim for the purpose of obtaining 
 a lien by way of security, he receives immediate notice 
 from the owner, requiring him to commence an action 
 for the enforcement of his lien, as contemplated by sub- 
 division 4 of section 11 of the act. If he receives such 
 notice, he must commence his action or his lien is lost ; 
 and if he do commence his action, shall he be defeated 
 because his claim has not yet become payable by the 
 terms of his own- contract ? Or shall it be said that the 
 owner, by giving him the notice, waives the objection 
 that the term of the credit has not expired and by his 
 own act is estopped to set up any such defence ?" And 
 Mr. J. Ingraham, at the general term, in deciding the 
 same case, says (id. p. 1 4*7) : "It is not necessary here 
 to repeat what was said by Judge Woodruff, so fully on 
 the motion for a new trial before him on this point. 
 Although the question is not free from difficulty, I am 
 disposed to concur in his view of it, as stated in his 
 opinion at special term." (Vide, section IV, post.) 
 
 If, however, there is no such objection to the step, 
 and the owner desires the lien terminated, the notice 
 may be given. The silence of the statute in regard to 
 it renders every proper precaution necessary, as there 
 is no telling what the courts may deem necessary. Se- 
 veral provisions may be inferred from the prescribed 
 requisites of the affidavit. The notice should evidently 
 be addressed to the claimant. It should require him 
 " to commence an action for the enforcement of his lien 
 
THE NEW-YOKK LIEN LAW. 21 
 
 on or before a certain hour " of the day of its date and 
 service (care being taken that this hour is subsequent to 
 the hour in which the notice is served), or on or before 
 a subsequent day, to be expressly named, and this is 
 about the only construction that can be placed upon the 
 obscure phraseology " on or before a certain hour or 
 day." For the two reasons, viz: that the claimant is 
 entitled to be correctly informed of the lien sought to 
 be discharged, and that the county clerk would not be 
 authorized in discharging a lien not clearly and correctly 
 described, it should be referred to and specified with 
 great care. I have before adverted to the fact that the 
 courts would probably treat this notice, if necessary, as 
 an appearance of the owner (p. 24, ante). Should they 
 not do so, still a fair and honorable course requires that 
 the residence or place of business of the owner shall be 
 specified. Especially should this be done by every 
 member of that profession, whose members have long 
 been characterized by. their disinterested courtesy and 
 by the liberality with which they aid and facilitate each 
 others practice. It is also probable that should the 
 claimant, after making all proper efforts, be unable to 
 make personal service, that the court would enjoin the 
 county clerk from discharging the lien, and thus add 
 expense and delay to the proceedings. 
 
 Should no action be commenced, but two things 
 remain to be done by the owner : In the first place, an 
 affidavit must be drawn, setting forth the service of the 
 notice ; and which, as before recommended, should fol- 
 low the rule of the supreme court in regard to the ser- 
 vice of a summons. This affidavit had better follow the 
 form of the statute, and at the same time have annexed to 
 it a copy of the notice; though, probably, either would 
 
28 MECHANIC'S LIEN LAWS. 
 
 be held sufficient. When this is done, it should be filed 
 with the clerk : and the clerk should then be required 
 (the thirty days having elapsed) to discharge the lien. 
 
 2. A proceeding is necessary on the part of the owner 
 to secure any offset he may have, either against the 
 claimant or contractor, before his appearance in court, 
 for the purpose of joining issue. This is a step often 
 overlooked, for serving a bill of particulars, by a defend- 
 ant, before his setting forth by pleading his grounds of 
 defence, would be an anomaly in ordinary practice. The 
 statute, however, provides (§ 5,) that " a bill of particu- 
 lars of any offset which may be. claimed," shall be served 
 upon the claimant within the time within which the claim- 
 ant may serve his own bill, viz : " fifteen days after the 
 service " of the notice to close the lien, and consequently 
 at least five days before the day for joining issue. The 
 nature and extent of the ofiset allowed, I will hereafter 
 speak of (section IV). The effect of an omission to serve 
 the bill of particulars has not yet been passed upon, and 
 it is possible that the courts will hold that it is fatal, as 
 regards the ofiset, and beyond the reach of an amendment. 
 The statute (which, I may observe, seems in all cases and 
 under all circumstances to regard the practice which it 
 prescribes as above the reach of omissions and mis- 
 takes) clearly does not contemplate an amendment, for 
 the 8th section provides that "on the appearance of 
 , " both parties, in pursuance of the above requirement, 
 issue shall be joined upon the claims made and notice of 
 setoff served? It is also doubtful whether the courts, if 
 they have the power, would exercise it in favor of a 
 party guilty of omission, except under very peculiar 
 circumstances. A party having an offset, is, of course, 
 informed of that fact, and ignorantia legis excusat nem- 
 
THE NEW-YOEK LIEN LAW. 29 
 
 inem is a maxim which may be held to apply even to 
 the lien law. 
 
 The service of the bill of particulars must be made in 
 the same manner as that of the claimant ; that is to say, 
 it must be a personal service (§ 5). 
 
 In any event, whether the owner has any off-set or not, 
 a notice of appearance should be given, in case he intends 
 to defend. The object of this is the mutual convenience 
 of the attorneys. The claimant's attorney, being informed 
 who his adversary is, will be enabled to send a stipula- 
 tion and rule for pleading, and thus save the trouble 
 and delay of an unnecessary appearance at the special 
 term. This will be apparent under the subdivision rela- 
 ting to the proceedings on the appearance of the owner. 
 (Vide post?) 
 
 Second. We come now to the second step in the 
 proceedings to enforce a lien, viz., to the proceedings of 
 the claimant in court, if there be no appearance on the 
 part of the owner. 
 
 After waiting the usual time beyond the hour speci- 
 fied in the notice, the attorney must have the owner 
 called by the crier of the court. He will, of course, be 
 provided with the affidavit of service and the original 
 notice and bill of particulars. Besides these, he should 
 also have a copy of the lien exemplified by the county 
 clerk, and his own affidavit of the default of the owner, 
 after being properly called. I do not find that the first 
 of these has been always, or, indeed, in the majority of 
 cases, required by the judges of the common pleas ; but 
 as they have again and again held that the lien is the 
 very foundation of the proceedings in court, it is difficult 
 to perceive how proof of such a jurisdictional fact can 
 
30 MECHANIC'S LIEN LAW. 
 
 properly be omitted from the record. The court has 
 also held, in a contested case, that proof of the lien is 
 necessary (Cronhright v. Thomson, id. p. 662), and the 
 learned judge who delivered the opinion in that case, 
 expressly says, that " the very first step, when the par- 
 ties are brought into court,, is to establish a lien ; for with- 
 out that, there is no foundation for the proceeding." 
 With respect to the affidavit snowing the default, it is 
 to be noted that it is daily held, in the same court, in cases 
 of attachment, that the court will not take notice of the 
 default of a party, but that it must appear by the papers 
 on which the attachment is granted ; and it is, moreover, 
 expressly required by the lien law itself (§ 7), that an 
 affidavit " of the default of the owner to appear" is to 
 be filed " with the county clerk, or with the clerk of 
 the marine court, or with the justice," prior to the 
 assessment of damages. Upon these papers the claim- 
 ant will be entitled to an order directing that a writ 
 of inquiry issue to the sheriff, or that a referee be 
 appointed, for the purpose of having the damages 
 assessed. 
 
 The power of ordering a reference was given by the 
 amendments of 1855 (vide App.), and the manner of 
 proceeding will be as in ordinary references. The sher- 
 iff's jury, however, will be found by the practitioner 
 the easiest, cheapest and, except in special cases, the 
 most expeditious method. For the mode of proceeding 
 and the evidence required, the reader is referred to the 
 subdivision on the trial and evidence (vide infra), and 
 for forms, to the App. 
 
 Third. The proceedings, if there be an appearance, 
 consist partly in what takes place in court, and partly in 
 
THE NEW-YOKK LIEN LAW. 31 
 
 the framing of issues, or, in other words, the draught- 
 ing and service of the pleadings. 
 
 1. The first of these consist in simply filing certain 
 papers and entering the proper rule. The papers to be 
 filed, are the notice to close the lien and the bills of par- 
 ticulars (claimants and owners). The rule to be entered, 
 is to the effect that on the appearance of the parties and 
 the filing of the papers, the plaintiff be directed to file 
 and serve a copy of his complaint within ten days, and 
 that the defendant, in like manner, file and serve his 
 answer within twenty days after the service of the com- 
 plaint. The statute (§ 8), indeed, contemplates a join- 
 ing of issues in open court ; but the great delay and 
 inconvenience of this practice, compelled the court, at 
 an early day, to resort to another method ; and the rule 
 was accordingly laid down in Smith v. Maince (1 Code, 
 Rep. N. S., p. 230) ; in which case, Mr. J. Daly says : 
 " The mechanic must file his complaint, as in an ordinary 
 action, within ten days herefrom, and the owner will 
 have the usual twenty days to answer. The cause then 
 proceeds like any other action." 
 
 In practice, should an appearance have been put in 
 on behalf of the owner, the attorney's trouble will be 
 much lessened by sending, previous to the day for join- 
 ing issue, a copy of the rule and a blank consent that 
 it be entered. This consent, if signed by both attor- 
 neys, will enable either to enter the rule without the 
 delay which is the usual sequence of the special term ; 
 and it has been the practice of numerous practitioners 
 always, in such cases, to omit the provision requiring 
 the filing of the complaint and answer ; though, as in 
 ordinary actions, they ultimately will form a necessary 
 part of the record. A copy of the rule is, of course, to 
 
32 piCHANIC'S LIEN LAWS. 
 
 be certified by the clerk and served upon the defend- 
 ant's attorney ; and from this point " the cause," as has 
 been said, " proceeds like any other action." 
 
 2. The pleadings which take the place of more infor- 
 mal issues are the complaint and answer ; and, when 
 necessary, a reply or demurrer. The issues are not, by 
 the act, restricted to issues of fact. (Doughty v. Dev- 
 lin, 1 E. D. Smith, 625.) The rule should provide for 
 a reply; and, perhaps, without such a provision in 
 the rule, none would be authorized. The statute, in 
 requiring the defendant's bill of particulars to be 
 served before the joining of issues, would seem to 
 intimate that the issues should be definite ; and probably 
 the safest way would be for the plaintiff to serve a reply 
 whenever the answer sets up a counter claim or set-off. 
 The defendant would then be estopped from raising the 
 objection that the counter claim was not traversed ; and 
 the reply, certainly, could not in any way prejudice the 
 plaintiff. 
 
 The complaint should show all those facts relating to 
 the claim and lien which are necessary to entitle the claim- 
 ant to the relief he seeks. As the necessity of these has 
 been or will be discussed, it will be sufficient to simply 
 enumerate them here ; and this is done for the reason, 
 that, although a knowledge of the material facts forming 
 the legal requisites of a pleading is sufficient to enable 
 the pleader correctly to draught his complaint, yet, in the 
 hurry of business, and in a branch of the law compara- 
 tively unfamiliar to the profession, it is often found that 
 careful and diligent lawyers make those omissions which 
 are fatal to a pleading, and sometimes to an action. I 
 therefore note, for their convenience, what I believe 
 form all the material links in this legal chain. 
 
THE NEW-YORK LIEN LAW. 33 
 
 The complaint should set forth : 1. The contract or 
 sale of materials ; or performance of work out of which 
 the claim arises. 2. Averments as to the performance 
 under it, and of the value of the materials or labor, and 
 that the payments therefor are due, as in an ordinary 
 action. • 3. Special averments as to the time of perform- 
 ance, showing clearly it was within the period allowed 
 for the filing of the lien. 4. The contract, in pursuance 
 of which the building has been erected, and the name of 
 the owner and contractor. 5. Averments, showing that 
 money has become due under this contract from the 
 owner, and to a sufficient amount. 6. Averments, show- 
 ing that the work was performed, or materials furnished, 
 under and in pursuance of the terms of this contract, 
 and for the purpose of erecting or repairing the build- 
 ing. 7. A full description of the premises. 8. An 
 averment of the filing of the lien, showing clearly that 
 the same was filed within the period allowed by the 
 statute. (For forms vide App.) 
 
 To the complaint the defendant may either answer or 
 demur. (Doughty v. Devlin, 1 E. D. Smith, 625.) These 
 pleadings will depend entirely on the facts as to sub- 
 stance, and in form need not differ from those allowed 
 in other actions. 
 
 I am not aware that the question has ever been raised 
 whether the provisions of the Code in regard to the veri- 
 fication of pleadings can apply to those under the lien 
 law. My own conclusion is that they do not. The rea- 
 sons which lead me to it are these : The provisions of 
 the Code apply to pleadings under the Code. The 
 pleadings under this act are not provided for by the 
 Code, or, indeed, by any statute, but simply by an order 
 3 
 
34 MECHANICS' LIEN LAWS. 
 
 of the court, made to promote the convenience of suit- 
 ors. They take the place of oral averments, and are, in 
 effect, the reduction of the issues, contemplated by the 
 act, to writing. The provisions of the act, therefore, 
 which are applicable to the joining of issues, apply to 
 the pleadings, and applying, govern them. The act, 
 obviously, never contemplated that the averments form- 
 ing the issues should be under oath ; partly, because it 
 does not provide so, as originally passed, and partly be- 
 cause the amendment expressly requires that the lien 
 itself be verified. The subject of verification being 
 before the legislature, the legislature made a verifica- 
 tion applicable only to the facts set forth in the lien. 
 Mcpositio alius est exclusionem alterius. The court, 
 having power to determine the manner in which the pro- 
 visions of the act shall be carried out, has not power to 
 annex additional provisions. The analogy of other 
 actions cannot apply in this particular, for it is only the 
 ll issue n which shall have been "joined upon the claims 
 made and notice of set-off served," that is to be noticed 
 for trial, and " governed, tried and the judgment there- 
 on enforced in all respects in the same manner as upon 
 issues joined and judgments rendered in all other civil 
 actions." Yet in practice, the want of this provision is a 
 great inconvenience, especially as regards evidence of 
 title ; the law, as it now stands, requiring the claimant 
 in effect to verify his whole case by verifying his lien, 
 and allowing the defendant to interpose a fictitious 
 defence by interposing an unverified answer; and it 
 would afford me much pleasure to see the courts come 
 to a different conclusion than the one which I have 
 drawn. 
 
THE NEW-YORK LIEN LAW. 35 
 
 Fourth. The persons to be made parties under the 
 lien law are of two classes : I. Those who are neces- 
 sary ; and II. Those who are proper. 1 
 
 I. In regard to the former: It may be taken as 
 settled, that all whom the claimant is required to make 
 parties, are those who sold the material or furnished the 
 labor, as joint contractors, as plaintiffs, and those who 
 were contracting owners, as defendants. Thus, in the 
 case of Sullivan vs.. Decker (1 E. D. S. R, 713), Mr. J. 
 "Woodruff says : " The plaintiff, having followed the very 
 letter of the statute, and brought the owner into court, 
 he is, in all respects, regular. "We could hardly sustain a 
 demurrer to the plaintiff's proceedings in this respect, 
 when he has taken the precise steps which the statute 
 prescribes." But notwithstanding this very clear inti- 
 mation, a case shortly after arose (Foster vs. Skidmore, 
 1 E. D. S. E., 719), founded upon a misconception of the 
 decision in Sullivan vs. Decker, and in which the defend- 
 ant actually interposed a demurrer to the plaintiff's com- 
 plaint, because the contractor was not made a party. 
 The court overruled the demurrer, and the same justice, 
 in delivering the opinion, says: "It was held by this 
 court, in Sullivan vs. Decker, that a contractor was a 
 
 'The term "necesBary" is not used by Mr. J. Woodruff in Sullivan vs. 
 Decker, 1 E. D. S. R., 699, in its ordinary sense. In that very able opinion, the 
 learned justice is considering what parties are necessary, under the statute, "in 
 order to do justice" to all concerned, and not who. are necessary to enable the 
 plaintiff to maintain his action or the defendant his defence. Thus, the learned 
 judge says (and the italics are his own), "the necessity of having the contractors 
 and owner both before the court, in order to do justice, to my mind makes the ex- 
 ercise of the power necessary," p. 1 10. Therefore) the meaning of the term, as 
 used by the court, is those parties whom the court has discretionary power to 
 add in order to secure the more full and perfect attainment of justice, while the 
 term, as ordinarily used, and as used in the text, implies those parties without 
 whom the plaintiff cannot maintain his aotion, or the defendant his defence. 
 
36 MECHANICS' LIEN LAWS. 
 
 proper party to a proceeding for the enforcement of a 
 lien (created under the act known as the Mechanics' Lien 
 Law), when the lien is claimed by a laborer or sub-con- 
 tractor ; and that the defendant might make application 
 to the court to require the contractor to be brought in." 
 " But the court did not intend to be understood as hold- 
 ing that the claimant, who had followed the precise 
 course pointed out by the statute itself, could' be met by 
 a demurrer to his proceeding, because he did not also 
 give a notice which the statute does not prescribe. * * * 
 And if the claimant, in pleading, alleges every fact, 
 which, by the statute, entitles him to his lien, and every 
 fact which is necessary, if he has obtained a lien, to enti- 
 tle him to recover, I think no objection to his proceedings 
 can be sustained, however proper it may be for the court' 
 to call in other parties who have an interest in the mat- 
 ters alleged. The claimant is,in such case, in all respects 
 rectus in cwia * * * ." So also, in the case of Lowber 
 vs. Childs (not reported, vide infra), which was an 
 appeal from the marine court, where that court had 
 dismissed the proceedings, on the ground that the con- 
 tractor had not been made a party, the common 
 pleas reversed the judgment, and the same justice, in 
 delivering the opinion of the court, said : " The opinion 
 given by this court in Sullivan vs. Decker, did not war- 
 rant the judgment rendered in the marine court in this 
 action ; and the decision in Foster vs. Skidmore is, so far 
 as this court is concerned, conclusive that such judgment 
 was erroneous. The plaintiff had taken the very steps 
 which the statute prescribed, and the court thereby 
 obtained jurisdiction of the matter, and should have 
 proceeded therein." 
 
THE NEW-YORK LIEN LAW. 37 
 
 In connection with these decisions, the late amend- 
 ments of the legislature, it will be observed, have estab- 
 lished the law as the common pleas has construed it. 
 The fifth section of the amendments (chap. 404,. Laws 
 1855,) provides that "when the proceedings are con> 
 menced, by a person having a claim against a contractor, 
 with the owner, such contractor may be made a defend- 
 ant with such owner," the statute not requiring that the 
 contractor be made a party, but allowing it where the 
 claimant or the court deems it advisable. 
 
 And it is also, in this connection, to be observed that 
 no incumbrancers or lien holders are necessary parties, 
 unless their liens are disputed by the claimant, or a 
 higher equity is claimed. The question was very fully 
 considered in the case of Kaylor vs. 0' 'Connor (1 E. D. 
 S., 6*72), and was there certainly and definitely settled. 
 The fourth section of the amendments, also provides that 
 the interest of the owner shall be sold, subject to any 
 prior liens, unless such claimants shall have been 
 made parties. We may, therefore, conclude that the 
 only necessary parties are the claimant and the owner ; 
 or, to state the rule more correctly, all of the claimants 
 and all of the owners, who were respectively joint con- 
 tractors. 
 
 II. In regard to proper parties ; by which is meant 
 those parties whose presence is necessary in court, in 
 order that full and complete justice may be done the 
 original suitors, and that further and unnecessary litiga- 
 tion may be prevented. And these may be said to be 
 the precise parties who, in an ordinary equitable action, 
 it would be proper to join ; as the contractor on behalf 
 of the owner, who may, and naturally will, wish to pre- 
 
38 MECHANICS' LIEN LAWS. 
 
 vent a second suit by the contractor, should the sub-con- 
 tractor's recovery be called in question after he (the 
 owner,) shall have satisfied it (as to effect of this see 
 post); or a prior lien holder, or incumbrancer, or 
 grantee, on the part of the claimant, whose lien or inte- 
 rest he intends to question or contest. Of the former 
 of these it may be remarked that the statute of 1855 
 has confirmed and enlarged the powers of the courts, 
 the fifth section expressly providing that the " contractor 
 may be made a defendant with such owner, and judg- 
 ment may be rendered against the contractor for the 
 amount which shall be found owing by him, in addition 
 to the judgment hereinbefore provided for, against such 
 owner." Hence, it would, in most cases, be advisable 
 for the claimant (being a sub-contraetor) to join the 
 contractor in the first instance, as he might thus secure 
 a recovery against one party, should he fail against the 
 other. 
 
 The other parties, whom it might be necessary to have 
 joined, would be prior lien holders, incumbrancers, 
 grantees, or judgment creditors, in cases where it was 
 designed to contest their liens or interests. Unlike an 
 ordinary mortgage foreclosure, subsequent incumbran- 
 cers need not be made parties defendant ; for the " lien 
 is by the statute unqualified and unconditional for the 
 sum due the claimant, to the extent of the owner's inte- 
 rest in the building, and so far forth as there remains 
 money in his hands payable, according to the terms of 
 his contract, for the erection. And there is nothing in 
 the statute warranting the suggestion that any event, 
 subsequent to the filing of the notice, can operate to 
 destroy the lien, or reduce its amount." * * * " My 
 
THE NEW-YORK LIEN LAW. 39 
 
 first impressions strongly inclined me to hold that it is 
 proper to call in all who hold liens, when the proceeding 
 is commenced ; but further examination of the statute, 
 leads me to the conclusion that full protection to all 
 those interests does not require it ; and that the legisla- 
 ture did not contemplate a proceeding which should 
 necessarily require the presence, as parties, of any but 
 those who, independently of the statute, had rights which 
 might be affected by the suit." * * * "The statute, 
 would, in this respect, seem to have established a relation 
 among lien holders similar to that existing between judg- 
 ment creditors." * * * " Some time must be deemed 
 fixed, or be taken, at which the necessity of adding par- 
 ties must cease, and whatever stage be selected, it must 
 be by regarding that stage as having the practical effect 
 of a notice of Us pendens, and making all interests, sub- 
 sequently acquired, subordinate to the suit, without any 
 necessity of calling the parties before the court. The 
 language of the statute does not prescribe any such con- 
 dition of parties; and unless some rule of equity, which 
 is not inconsistent with the statute, requires it, the direct 
 and simple mode of conducting the foreclosure, without 
 any such addition, ought to be pursued. And in this 
 view of the subject, there is neither impropriety nor 
 injustice; nor, as I apprehend, danger of injustice in 
 giving to the mere filing of the claim with the county 
 clerk the effect of a Us pendens, so far forth as respects 
 any subsequent change of interest in the property 
 affected ; and as to liens upon the property thereafter 
 acquired." (Kaylor vs. O'&onnor, 1 E. D. S. R., 672, per 
 Mr. J. Woodruff. 1 ) 
 
 1 The reasons quoted in the text, are a few of several given in the very able 
 opinion of judge Woodruff; but appear sufficient and satisfactory. 
 
40 MECHANICS' LIEN LAWS. 
 
 The prior lien holders and incumbrancers, as has been 
 intimated, need not be joined, unless it be intended to 
 contest their interests. Should such be the intent, the 
 cases cited above would warrant the conclusion that they 
 are proper parties. In cases where these parties are 
 grantees or mortgagees, the principles of law which would 
 govern ordinary incumbrancers, would apply to lien 
 holders ; and hence need not be entered into here. In 
 cases where these parties are prior lien holders, the utter 
 absence of cases where such questions have arisen leaves 
 little to be said. One rule and one example have, how- 
 ever, been mentioned by the court, which it would be 
 well for the practitioner to note. In the leading case of 
 Doughty vs. Devlin (1 E. D. S. R., p. 644), the court, 
 while considering the subject of its right to mould the 
 judgment to conform to the equity of the case, among 
 other instances, supposed a case where "the contractor 
 files the first wotice of claim, and afterwards, and 
 before his claim is foreclosed, his laborers and material, 
 men whose claims, though second to his in time, are prior 
 in equity, acquire liens." The intimation here given was 
 afterwards more fully expressed in the case of JZaylor 
 vs. O" 1 Connor (id., p. 675), where the court says : "There 
 may be cases in which prior equities among the lien hold- 
 ers, existing independently of the statute, may disturb a 
 preference founded on the mere order of time, if those 
 who shall claim such prior equity take proper measures 
 therefor in due season ; as where the contractor himself 
 has filed notice of claim for the whole balance due upon 
 the contract, while he had himself made default of pay- 
 ment to the sub-contractor, laborers, material, men, &c. I 
 cannot doubt that, in such case, they might successfully 
 
THE NEW-YORK LIEN LAW. 41 
 
 invoke the equitable powers of the court to prevent the 
 defeat of liens acquired by them, although filed subse- 
 quent to his, and require the owner to apply the fund to 
 their benefit." But (the court adds,) until they do take 
 such affirmative action, and establish such higher equity, 
 the prior claimant must be first paid in full. It would, 
 therefore, appear proper to join these parties in a case 
 where this question is involved ; and, although the fore- 
 going remarks are merely the dicta of the learned judge 
 who delivered the opinion of the court in those cases 
 (Mr. J. Woodruff), and were not intended to be under- 
 stood as being more, still the justice and convenience of 
 the principle, and the obvious injustice and inconveni- 
 ence which would arise in its absence, inclines me to 
 believe that it would be adopted by every court where 
 the question of its adoption might arise. 
 
 Having thus seen who may be made parties in a lien 
 foreclosure, it remains only to inquire in what manner, 
 and at what time, this is to be done. The question was 
 asked and answered in the leading case upon the subject 
 {Sullivan vs. Decker, 1 E. D. S. R, 713). " How, then," 
 (says Mr. Woodruff,) " shall the parties be brought m ? 
 Upon this subject, there can be no difficulty in follow- 
 ing, in substance, the former equity practice. An order 
 being made to add the contractors, as parties, they can 
 be summoned to answer the plaintiff's complaint with 
 the other defendant, already in court; and, on being 
 served with the order, summons and complaint, they 
 would be clearly bound to do so," &c. This was re- 
 affirmed in the case of Foster vs. Skidmore (id., 721), 
 where the same learned judge remarked : " It is not 
 very material in what particular form the application to 
 
42 MECHANICS' LIEN LAWS. 
 
 cause the contractors to be made parties comes before the 
 court. If it was urged in the answer of the owner, or 
 on his motion or petition, we should not charge the 
 plaintiff with costs for not having already anticipated 
 the defendant's wish in this respect. * * * I deem 
 it, however, most suitable to direct that this demurrer be 
 overruled, and leave the defendant to apply, specifically, 
 to have the contractors called in. That practice will be 
 most simple and convenient, and least expensive ; indeed, 
 when the rule is once settled, the order will be almost of 
 course, where the owner seeks it." 
 
 It therefore appearing that the manner of bringing in 
 parties is, as in ordinary equity cases, by a simple motion, 
 founded on a notice, or petition, the principal difficulty 
 will be found to arise as to the time when this should be 
 done. As far as the opinion of the court has been giv- 
 en, the views of that tribunal are conceived in the same 
 liberal spirit which has hitherto actuated all the deci- 
 sions on this obscure law. The same important leading 
 case refers to this point, and leaves it in a satisfactory 
 light. " On first impressions (opinion of Mr. J. Wood- 
 ruff, id., p. f 12), I was much inclined to sustain the order 
 made at special term, on the ground that the application 
 should not be made until after the defendant had 
 answered, so that the court could see that the issues 
 made between the plaintiff and defendant related to a 
 subject in which the contractors were interested ; but 
 further reflection satisfies me that although the necessity 
 of having the contractors before the court may be set 
 up in the answer, and viewed strictly as an objection to 
 the plaintiff's proceedings, it should, in analogy to the 
 former equity practice, be set up by the defendant in his 
 
THE NEW-YOEK LIEN LAW. 43 
 
 answer, or demurrer ; yet there is no sufficient reason 
 why the application may not be made on the appearance 
 of both plaintiff and defendant in court, upon proper 
 notice ; and this appears to me to be the most conve- 
 nient practice. The facts are then all before the court, 
 which show the necessity of summoning the contractors. 
 The notice of claim filed with the county clerk, the 
 notice to the owner to appear and submit to an account- 
 ing, <fcc, by which the foreclosure is instituted, and the 
 bill of particulars of the plaintiff's claim— and, probably, 
 also the counter claims set up by the defendant in Ids 
 bill of particulars — all show what relation the contrac- 
 tors bear to the controversy, and that their presence is 
 necessary. In the present case, where the owner set up 
 as a defence, not only a set-off against the contractors, 
 but also a claim against them for damages, this was espe- 
 cially true ; and I think a proper, and, indeed, the most 
 appropriate time to make the order to add parties, was 
 before the issues were joined. As a mere rule of prac- 
 tice, under the act, this question of time is not very 
 important ; and ant time after appearance, which best 
 expedites the proceeding, would seem to me most 
 
 SUITABLE." a 
 
 From these remarks, it may be seen that the only 
 restriction that the court will probably impose will be 
 in regard to time ; or, in other words, that the court will 
 always grant a motion to bring in new parties, unless 
 the person moving has waived his right to ask it by his 
 laches. It might be taken as a safe and convenient rule, 
 
 1 In quoting the decisions of judges, the italics which they employ will always 
 be preserved, while those words to which the attention of the reader is desired, 
 will be indicated by small capitals. 
 
44 MECHANICS' LIEN LAWS. 
 
 that a party, be he plaintiff or defendant, is bound to 
 move as soon as the facts are disclosed which render 
 the motion advisable ; and, in case he omits doing so, 
 then it is probable that the motion would be denied, or, 
 if granted, granted upon terms. 
 
 3. In the third place, it is worth inquiry, what is the 
 effect of errors in the process and pleadings in lien cases, 
 and whether the courts can relieve by allowing amend- 
 ments. 
 
 Whatever may be said in regard to amendments, it is 
 to be understood as settled by the case of Beals vs. Con- 
 gregation B'Nai, &c. (id., p. 654), that the lien itself, i. e., 
 the notice to the county clerk, which is the foundation of 
 all the proceedings, cannot be aided by the court. In 
 regard to the various proceedings, it would seem that 
 the court would allow the same amendments, and that 
 they are subject to the same rules as ordinary process 
 and pleadings. Thus, the court said, in the case just 
 cited, that if the defect was " a merely formal error in 
 the notice, by which the proceedings to foreclose were 
 instituted, that defect might be deemed waived by a 
 general appearance ;" and thus, in the case of McBride 
 vs. Crawford (id., p. 659), the court expressly held that 
 by " entering upon the subject matter of his defence," 
 the defendant had waived any^defect in the form of the 
 notice. Thus, too, in the case of Foster vs. Skidmore 
 (id., p. *719), the court allowed the plaintiff to withdraw 
 his demurrer and plead ; and thus, in the case of Empire 
 Stone Dressing Co. vs. Pickering (not reported), the 
 plaintiff was permitted to amend his complaint, and a 
 new trial was granted, after the cause had once gone to 
 trial and been submitted by the counsel. In this case, 
 
THE NEW-YORK LIEN LAW. 45 
 
 the court was understood as saying, that inasmuch as the 
 pleadings in lien cases are required by the court, and not 
 by the statute, that the court will look upon them with 
 greater leniency than upon ordinary pleadings, and will 
 exercise, with respect to amendments, a more liberal 
 discretion. To the same effect is the case of McSorley 
 vs. Hogan (1 Code R, N. S., 285), where the court 
 dismissed the proceeding for an irregularity in the notice, 
 but stated that a second notice might be given; and 
 also the case of Reynolds vs. Hamil (id., 230), where it 
 was held that the notice was a summons, and the service 
 carried with it the right to recover costs. 
 
 Fifth. Of the trial and evidence. 
 
 From the time the answer is served, " the cause pro- 
 ceeds like any other action."* {Smith vs. Maince, 1 Code 
 R., N. S., p. 230). I have, therefore, only to remind 
 the profession that a notice of inquest and -affidavit of 
 merits are applicable here. 
 
 This section, however, relates to : I. The trial of a lien 
 foreclosure; and II. The evidence proper and neces- 
 sary to sustain the case. And under the former divi- 
 sion, we have to examine : 1. The mode of trial in 
 actions where there has been no appearance by the 
 defendant ; and herein where the trial is before a referee 
 or the sheriff's jury ; and 2. The trial in an action 
 where issue has been joined. 
 
 I. With regard to trials; and herein, 
 
 1. Where there has been no appearance by the defend- 
 ant. We have already seen the manner of proceeding 
 on the failure of the defendant to appear, and the steps 
 necessary to be taken in order that the plaintiff may be 
 
46 MECHANICS' LIEN LAWS. 
 
 entitled to an order of reference or writ of inquiry (p. 29). 
 Should he select a reference, an ordinary order must be 
 entered, directing that the cause be referred to A. B., to 
 assess the damages in the action, and report the same to 
 the court ; and, as in ordinary actions^ a certified copy 
 is to be procured from the clerk and served upon the 
 referee. But if, instead of an order of reference, the 
 plaintiff prefer a writ of inquiry, the attorney will then 
 enter an order directing that a writ of inquiry issue to 
 the sheriff, directing him, by a jury, and in the manner 
 provided by law, to assess the damages due to the plaintiff. 
 
 The writ, though issued and tested in the name of the 
 court, need not be signed by either a judge or by the 
 clerk. A certified copy of the order is, however, to 'be 
 annexed to it, and which is generally considered as a 
 sufficient authority to the sheriff. Besides the writ and 
 order, the bill of particulars (being here in the nature 
 of a complaint), or a copy, should be also annexed to 
 the writ. In some cases this is done by copy ; and in 
 others, the original is annexed by the clerk to the copy 
 order, it being refiled on the return of the writ. 
 
 Should the defendant have given a notice of appear- 
 ance, without having appeared, for the purpose of joining 
 issue, it is probable that he would be deemed entitled to 
 a notice of the time and place for the assessment of the 
 damages, pursuant to § 246, subd. 2 of the Code. It is 
 true, that the lien law does not accord this privilege, and 
 that it- does not provide that the proceeding shall pro- 
 ceed like any other action until after the joining of issue ; 
 it is possible, too, that the court would not feel author- 
 ized- in disturbing a judgment, regular in other respects, 
 because this notice had not been given by the plaintiff; 
 
THE NEW-YORK LIEN LAW. 47 
 
 yet it is, at the same time, probable that a rule so well 
 designed to prevent overcharges and mistakes* and to 
 save, thereby, defendants the trouble and expense of 
 contesting in cases where the amount of the claim might 
 be excessive, would, if possible, be applied by the court 
 to lien as well as to all other cases. It would, there- 
 fore, be the safest course to give notice of the time when 
 the damages are to be assessed, either before the referee 
 or sheriff's jury. 
 
 The times when the sheriff's jury sit, can, as most 
 practitioners are aware, be ascertained from printed lists, 
 issued at the sheriff's office. Before the time when it 
 will be convenient to take the inquest, the attorney must 
 deliver to the sheriff the writ, order, &c. 
 
 He must also, before the inquest, have prepared an 
 inquisition for the sheriff and jury to sign, as there will 
 not be sufficient time to prepare one when the inquest is 
 taken. (For forms, vide App ) The sheriff's fees are to be 
 paid at the time of commencing the inquest, and are $3. 
 After it is taken, the inquisition is to be signed by the 
 sheriff and jury, and the sheriff must attach his seal. 
 Although a very loose practice exists in this respect, it 
 has, nevertheless, been expressly held that the jury must 
 find a verdict and sign their inquisition before hearing 
 any other case, and that hearing another case, intermedi- 
 ate the closing of the evidence and the signing their 
 inquisition, will render the whole proceedings irregular. 
 ( Van Waggonen vs. McDonald, 3 Wend., 478.) Nothing 
 further than this remains for the attorney to superintend 
 while the case is with the sheriff, as that officer takes 
 charge" of the papers and returns them to the clerk of 
 the common pleas. 
 
48 MECHANICS' LIEN LAWS. 
 
 2. As after the appearance of the parties in court 
 the case proceeds like an ordinary action, nothing need 
 be said, except to remind the practitioner that the ordi- 
 nary practice as regards notices of trial, notices of 
 inquest, affidavits of merits, and notes of issue, is to be 
 pursued. 
 
 II. In regard to the evidence necessary to sustain 
 a lien or bring it to a judgment. And here, as the legis- 
 lature seem to have contemplated a difference in the 
 evidence necessary to obtain judgment in cases which 
 are not contested, from those which are, we may briefly 
 consider them separately. 
 
 1. In cases where, the owner does not appear, we have 
 already seen, in part, what evidence is necessary to secure 
 a judgment, viz., that which the court requires before 
 issuing a writ of inquiry (vide p. 29, ante). The statute 
 clearly, in terms, requires but proof as. to two facts, 
 viz : the service of the notice to appear upon the owner, 
 and damages (§ 7., act. 1851). Besides these, it would 
 seem that the filing of the lien, being a jurisdictional fact, 
 and the existence of the lien the foundation of the 
 whole proceeding, some proof, showing that the hen has 
 been properly filed, would be necessary to authorize the 
 action of the court, or to sustain its judgment. Apart 
 from this, it would seem that the statute contemplated 
 the other facts being presumed by the court ; and that the 
 failure to appear, is an admission on the part of the 
 owner of all the other facts necessary to sustain a judg- 
 ment. Thus, proof is not required as to the ownership, 
 although, in a contested case, such an omission would be 
 fatal, if an objection "be properly taken and insisted 
 upon." (Dixon vs. La Farge, id., 724.) So, also, proof 
 
THE NEW-YORK LIEN LAW. 49 
 
 is not required to show that anything is due under the 
 contract, for the owner's conduct evidently admits it. 
 And should it be said that proof should be given, in the 
 case of a sub-contractor who has not made the contractor 
 a party, it might be answered that all the proof necessary 
 is already taken ; for, in order to prove damages, it is 
 necessary to show the sale (express or implied), the 
 delivery and the value, and this would constitute a 
 prima facie case against the contractor in an action at 
 law. 
 
 For these reasons, the only evidence necessary to be 
 produced before the sheriff's jury is such as bears upon 
 the damages to be assessed by the jury. In other words, 
 all that the plaintiff's counsel has to prove is the sale of 
 the goods, their delivery and their value. But this, as 
 in an ordinary action (it is perhaps unnecessary to remind 
 the legal reader), is to be done by the best evidence the _ 
 nature of the case admits of; the written contract being 
 (should there be one,) the best evidence of the sale, 
 the price agreed upon, of the value, &c, &c. 
 
 2. But in contested cases, something more than this 
 is necessary and must be established, either by way of 
 admission or of proof; and the following points are those 
 which (perhaps with others not susceptible of being 
 noticed,) will almost certainly arise where the general 
 issue has been pleaded : 
 
 (1.) "The proceeding is not an action to recover 
 money from the defendant (the owner,) personally, for 
 goods sold to a contractor, or labor done for him ; it is 
 instituted to foreclose a lien upon property ; it is a pro- 
 ceeding in rem; and the very first step in the proceeding, 
 when the parties are brought into court, is' to establish 
 4 
 
50 MECHANICS' LIEN LAWS. 
 
 a lien ; for without that there is no foundation for the 
 proceeding; there is no lien to foreclose; there is no 
 claim in which the owner has any interest." (Cronhright 
 vs. Thomson, id., p. 663, per Woodruff, J.) 
 
 The proof necessary to sustain this is a copy of the 
 original lien, duly exemplified by the county clerk, and 
 his certificate of the filing. 
 
 (2.) " The time when the labor was performed must 
 appear on the trial ; and it must appear then that the 
 notice of claim was filed within six months next ensuing 
 the performance, &c. And that was shown in this case 
 by the appellant's admission that the work, &c, was 
 done under the employment of a contractor, whose con- 
 tract was made in August, and the notice of claim was 
 shown to have been filed in October." (Tincker vs. 
 Ger eighty, id., p. 689, per Woodruff, J.) 
 
 As to the time from which the period of six months 
 'begins to run, see section fourth, post. 
 
 (3.) "It has been recently held in this court, at a 
 special term, that where there is neither allegation nor 
 proof at the trial that the defendant, in proceedings 
 under the lien law of 1851, is the owner of the building 
 upon which the lien is claimed, the claimant cannot 
 recover, if that objection be properly taken and insisted 
 upon." (Dixon vs. La Farge, id., p. 724, per Mr. J. 
 Woodruff.) 
 
 As this is not a treatise upon evidence, it is not my 
 purpose to examine the nature of the proof which might 
 be necessary in the various cases arising under the law. 
 
 (4.) "The claimant under the lien law must show 
 that a payment has become due upon the contract with 
 
THE NEW-YORK LIEN LAW. 51 
 
 the owner, before he can maintain an action against the 
 owner." (Spalding vs. King, id., p. 718, per Daly, J.) 
 
 "Is it necessary, then, that the sub-contractor, or 
 material man, should show that a payment has become 
 due upon the contract before he can recover against the 
 owner, or is it sufficient to show merely the existence of 
 a contract between the parties ? If the action had been 
 between the contractor and the owner, upon the con- 
 tract, the contractor, to make out a prima facie case 
 against him, would be required to show the performance 
 of work sufficient, under the contract, to entitle him to 
 payment. The operation of the lien law is to transfer to _ 
 the sub-contractor so much of the contractor's claim 
 against the owner as would be sufficient to pay the debt 
 of the contractor to his sub-contractor. It would be but 
 reasonable to, require the same amount of proof to 
 recover against the owner, for the same debt, whether 
 the suit is brought by one or the other claimant. It is said 
 that this would be requiring the plaintiff to prove a ne- 
 gative. This is not so. It is an affirmative proposition 
 that there was a contract ; and also that a payment has 
 become due upon it." (Sullivan vs. Brewster, id., p. 684, 
 per Ingraham, First J.) 
 
 "It rests with the plaintiff to make out a case, to show 
 that he is entitled to recover against the owner. To do 
 this, he must show the work done, under the contract, 
 for the contractor, and the performance on the part of 
 the contractor, so as to entitle the latter to a payment 
 under it. He then makes out a prima facie case." 
 (Hawptman vs. Halsey, id., 669, per Ingraham, First J.) 
 
 " If, therefore, the plaintiff shows that the contractor 
 owes him for labor, that does not make out his case ; he 
 
52 MECHANICS' LIEN LAWS. 
 
 must also show that the defendant owes the contractor. 
 He must, at least, make out a prima facie case." (Has- 
 well vs. Goodcliild, 12 Wend. R, p. 373, per Savage, 
 Ch. J., referring to the lien law of 1830.) 
 
 But it is a " well established rule that when you show 
 work done under a contract, and all the days of pay- 
 ment past, it throws the onus of proving actual payment 
 on the employer." (Rudd vs. Davis, 1 Hill's R, 277, 
 per Cowen, J., unanimously affirmed in the court of 
 errors, 7 Hill's R, p. 529, referring to the law of 1830.) 
 
 "The plaintiff is not bound to negative a possible 
 defence, It is enough that he shows a prima facie 
 right to recover. The statute gives him the lien and 
 the right to institute proceedings to test its extent and 
 enforce it at any time after his work is done. If pay- 
 ment to the original contractor is a good defence to the 
 owner, he must set up such payment in his answer. It 
 would be against all former rules to require the plaintiff 
 to prove on the trial such a negative? (Doughty vs. 
 Devlin, 1 E. D. Smith, 631, per Woodruff; J.) 
 
 (5.) " Where a painter, or other person, is employed to 
 perform work, he is entitled to recover, not what he pays 
 his workman, with a per centage thereon, but quantum 
 meruit; and as to the materials furnished, quantum vale- 
 bant. Now, if entries in the plaintiff's books are to be 
 deemed, when the books are properly -proved, prima facie 
 evidence, how is a defendant, in any case, to show that time 
 was needlessly wasted in or about the work, and that the 
 fair value of the work is less than the aggregate charges 
 in the plaintiff's books? Obviously by submitting the 
 work to the inspection of experts, and proving its fair 
 
THE NEW-YORK LIEN LAW. 53 
 
 value." (Hauptrnan vs. Collin, 1 E. D. Smith's E., p. 
 V34, per Woodruff, J.) 
 
 Sixth. We come finally to examine the more remedial 
 parts o'f the act ;. and this will consist of an examina- 
 tion concerning the costs, judgment, execution, surplus 
 funds and discharge of liens. 
 
 I. Then, in regard to costs; and here, upon the 
 outset, a very important question arises, viz: In what 
 cases and to what extent is the owner liable for costs ; 
 or, in other words, whether he would be liable to a sub- 
 contractor for costs, personally, in cases where the recov- 
 ery absorbed all the moneys due to the contractor. We 
 will, therefore, examine ; 1. In what cases and to what 
 extent the various parties are liable for costs ; and, 2. 
 When and to what amount costs may be recovered. 
 
 1. The question was mentioned by the court as one 
 to be hereafter determined in Doughty vs. Devlin, (id:, 
 646,) " whether costs, if recovered, are ultimately to 
 come out of the fund in the owner's hands, or are to be 
 paid by the owner, in addition to the contract price." 
 The numberless cases in which it may be differently 
 involved, will for some time to come harass the court 
 and embarrass the practitioner. Thus it may arise in a 
 proceeding between the contractor and owner where (it 
 being in the nature of an action upon the contract,) costs 
 should clearly be recoverable against the owner, person- 
 ally. It may arise in a suit between a sub-contractor 
 and owner, where the owner defends, a* his own option; 
 and again in a similar suit, where he defends at the 
 request of the contractor. It may arise where the fund 
 in the owner's hands is sufficient to discharge the entire 
 
54 MECHANICS' LIEN LAWS. 
 
 judgment, and again where it is simply sufficient to 
 discharge the claim without the costs. It may arise 
 between the owner and the claimant in a second suit ; 
 the former claiming that the costs recovered in the first 
 should be allowed him, and the latter that they formed 
 no part of a payment upon the contract. It may arise in 
 cases where the owner has paid the amount claimed 
 into court to discharge the lien, and where he has 
 reserved sufficient funds to discharge the claim, and has 
 then paid the balance to his contractor, or (what is 
 much more probable and important,) had a judgment 
 recovered against him for this balance by the contractor. 
 It may arise where numerous suits have been commenced 
 to reach parts of a fund in the owner's hands ; where, if 
 costs are allowed out of the fund, they would virtually 
 be paid by the younger claimants. 
 
 In but one of these cases has a determination of the 
 court set a doubt at rest, and it hardly falls within the 
 meaning and scope of the question m Doughty vs. Dev- 
 lin ; but as the decision discusses the subject, and inci- 
 dentally the question, and is not to be found in the reports, 
 I insert it at length. (Dunning et al. vs. Clarice, special 
 term, April 1854, per Ingraham, First J.:) 
 
 "This is a proceeding under the Mechanics' Lien Law, 
 in which, after service of a notice to bring the lien to a 
 close, the defendant paid to the county clerk the amount 
 claimed by the plaintiffs, and verbally notified the plain- 
 tiffs' attorney that he had so paid the money and obtained 
 a discharge of th«riien, under the eleventh section of that 
 act. He also gave a like notice to an assignee of the 
 contractor. On the day for the appearance of the parties 
 the defendant did not appear, and a writ of inquiry was 
 
THE NEW-YOKK LIEN LAW. 55 
 
 issued for the assessment of damages. Upon the return 
 of this writ, lie entered up judgment for the amount 
 claimed and costs. This motion is now made to vacate 
 so much of the judgment as allows to the plaintiffs the 
 costs of the proceeding. The payment of the money to 
 the county clerk, by the owner, has no other effect than 
 to release the land from the plaintiffs' lien, and to sub- 
 stitute in its place the money so paid. The right to the 
 possession of it still remains to be disposed of; and to 
 recover it, the plaintiffs must still prosecute their claim 
 before the court. If they fail in establishing their claim, 
 the defendant would be entitled to a return of the money 
 from the clerk. It must, therefore, be evident that the 
 payment of the amount claimed to the clerk in nowise 
 settles the rights of the parties, or relieves the defendant 
 from his liability for costs of the proceeding. If the 
 defendant had appeared and joined issue, and the plain- 
 tiffs had recovered against him, there can be no doubt of 
 the plaintiffs' right to costs. 
 
 " Under the seventh section the writ of inquiry was 
 issued ; and that section provides that upon the return 
 of the writ of inquiry, judgment shall be entered and 
 execution issued in the same manner as in other cases in 
 the court. By section nine, a transcript of every judg- 
 ment rendered may be docketed, &c. ; and this applies 
 both to a judgment upon a writ of inquiry and a judg- 
 ment upon an issue joined between the parties. 
 
 "By section ten, costs are allowed in the proceeding as 
 now allowed by statute in civil actions, and form a 
 part of the judgment recovered. These sections, taken 
 together, show that it was intended to allow costs to the 
 plaintiff, in all cases in which he recovered a judgment. 
 
56 MECHANICS' LIEN LAWS. 
 
 By statute, costs are allowed upon a judgment in a return 
 to a writ of inquiry, as well as in other cases. The pro- 
 ceeding in this case was necessary to establish the plain- 
 tiffs' claim. He obtained a judgment in that proceeding, 
 and there can be no doubt that he is entitled to recover 
 whatever costs are provided by law, in judgments 
 recovered in other cases in which the damages are 
 assessed upon a writ of inquiry. 
 
 " An objection is taken to the form of the judgment in 
 this case; the defendant alleging that it should be spe- 
 cial, directing a foreclosure of the lien upon the property, 
 and not a general judgment against the defendant. In 
 this case, a judgment relating to the property, merely, 
 would be erroneous, because the lien had been discharged 
 and the money substituted in its place. Whether, in such 
 a case, the judgment should be against the defendant 
 personally, or only directing the money to be paid to the 
 plaintiffs, which was deposited with the county clerk> is 
 immaterial on this motion, because' the plaintiffs have 
 received that amount, and the judgment is satisfied, 
 except as to costs. I have no doubt that the defendant 
 is personally liable for the costs ; . and even if the judg- 
 ment was erroneous, the plaintiff would be allowed to 
 amend, on motion. The costs which the defendant 
 seeks to be relieved from would still remain the same. 
 It is unnecessary, therefore, to express an opinion upon 
 this point." 
 
 "We may infer that two things are determined by this 
 decision ; first, that costs are recoverable, without 
 regard being had to the amount due the contractor ; and 
 secondly, that the owner is personally liable for them. 
 A glance at the theory of the law, will, I think, confirm 
 
THE NEW-YORK LIEN LAW. 57 
 
 this belief in the correctness of the decision, and aid in 
 eliminating a principle to govern other cases. 
 
 The law of 1830, which was the simplest of all the 
 statutes upon this subject, merely transferred from the 
 moneys due to the contractor a sufficient sum to discharge 
 the claim of the sub-contractor. Where the claim was 
 disputed by the contractor, the matter was to be settled 
 by arbitration. When so settled, and the amount due 
 the claimant was determined, it became, after the lapse 
 of a few days, the duty of the owner to pay this amount^ 
 " with the costs incurred," (which were evidently only the 
 disbursements,) " out of the fund'''' provided by the act, 
 viz., the moneys due, or to become due to the contractor. 
 Thus far, the reader will perceive, there was nothing in 
 controversy between the owner and claimant, the arbi- 
 tration being to determine the questions between the con- 
 tractor and claimant. But from this point the proceed- 
 ing necessarily was changed, the controversy being 
 solely between the owner and claimant. To meet this, 
 the act provided no remedy of its own, but effectually 
 provided for the rights of the parties by giving to the 
 claimant (after having thus transferred to him a specific 
 portion of the funds due to the contractor,) an action at 
 law " for money had and received." 
 
 The lien law of 1844 (which is, in this particular, essen- 
 tially the same as that of 1851,) enlarged the act of 
 1830, combining the remedy against both contractor 
 and owner, and giving a remedy against the latter. This 
 remedy is, in its object, essentially the same as the action 
 at law given by the former act. Now it is apparent 
 that under that act the owner would be responsible for 
 the costs of the action, and that the contractor or the 
 
58 MECHANICS' LIEN LAWS. 
 
 fund would not. Applying the same principle to the 
 act before us, it becomes, in this respect, clear and easy 
 of application. The proceeding, before the proceed- 
 ing to close, transfer the funds from the contractor to 
 the claimant ; the proceedings to close (where there is 
 no dispute between the claimant and contractor,) are in 
 the nature of an action against the owner. In the con- 
 templation of law, if the owner defends, he unjustly 
 endeavors to retain the possession of the funds ; and if 
 he puts the claimant to the trouble of commencing pro- 
 ceedings to foreclose, he improperly neglects to pay 
 what is really his indebtedness. Nor would this course 
 ever be more unjust than the application of our common 
 rules and statutes in other and familiar cases ; for a suit 
 may be brought to recover an ordinary debt without a 
 demand being first made, and the defendant, though 
 without moral or unreasonable neglect, will be put to 
 costs. Such, in my opinion, is the rule which will 
 probably prevail ; but „the reader will please to note that 
 this is but an individual opinion, and that the extent of 
 the decisions upon the subject has been heretofore stated 
 in the opinions of the court. It, however, seems to me 
 that this construction is not only imperatively required 
 by the law, but that it would set at rest the doubts and 
 meet the various cases which, as suggested at the com- 
 mencement of this inquiry, will arise. In this opinion I 
 am strengthened by the repeated decisions holding that 
 the lien only transfers the funds of the contractor to the 
 sub-contractor, and by the view taken of the subject in 
 the case decided at the special term. 
 
 It may be here observed, that the fourth section of the 
 act of 1855 declares that the payment of any valid lien, 
 
THE NEW-YOKK LIEN LAW. 59 
 
 or of any judgment by the owner, "snail enure to 
 Mm, as a payment, to the amount thereof, to the con- 
 tractor." But I cannot believe that the legislature meant 
 by this that the owner can squander a fund in litigation, 
 equitably belonging to other persons ; still less, that he 
 can defend a suit, against the wishes, but at the expense 
 of the contractor. (Vide section fourth, post.) 
 
 And with respect to interest, the same rules and rea- 
 soning will apply ; for interest is but damages allowed by 
 law for the improper withholding of funds, or neglect 
 to discharge a debt. If the owner is legally liable, and 
 does not discharge the lien, it would seem proper that 
 he should pay damages for the delay the claimant has 
 suffered. 
 
 But in regard to another class of cases, an entirely 
 different rule probably will, and ought to prevail. These 
 are those cases in which the owner, being willing to pay 
 his indebtedness, defends at the instance of the contract- 
 or. What disposition would have been made with these 
 cases, in respect to costs, had not the amendatory act of 
 1855 been passed, it is not easy to say ; but since that 
 statute, the course of the practitioner, in the outset of a 
 cause, and of the court at its termination, is made plain, 
 it being the duty of the attorney, in such cases, to have 
 the contractor "made a defendant," and of the judge 
 " to award costs against such of the parties as shall be 
 just." (§ 5.) It is, perhaps, proper to add, that in all 
 cases where the contractor is joined as a party, and a 
 judgment is rendered against both him and the owner 
 in the same cause, the disposition of the costs is placed 
 within the discretion of the court. 
 
60 MECHANICS' LIEN LAWS. 
 
 The foregoing view of this question, if correct, will 
 also dispose of any question which might arise in regard 
 to interest ; for if interest is simply damages allowed for 
 withholding moneys from a party entitled to them, 
 it would seem both that the claimant might recover inte- 
 rest in a lien case, and that the owner would be person- 
 ally liable for it. 
 
 2. Having thus endeavored to determine which of the 
 parties are liable, in different cases, for costs, it remains 
 to ascertain when, and to what amount, costs are reco- 
 verable. 
 
 Costs are not recoverable until the notice to foreclose 
 the lien has been served; and this appears sufficiently 
 plain from what has been said concerning the lien and 
 the proceeding to foreclose (p. 15, ante); and has also 
 been expressly decided by the court of common pleas, 
 in a case previously cited. (Reynolds vs. Hamil, 1 Code 
 E. N. S., p. 230.) 
 
 The costs recoverable are those which are recoverable 
 in an ordinary action, in which judgment can only be 
 had, on failure to answer, by application to the court. 
 Thus the costs, after service and before trial, would be 
 $12 ; for trial, either before a referee or the sheriff's 
 jury, $15 ; and where issue has been joined, the same as 
 in other actions. 
 
 In regard to motions, the same rules will be adopted 
 as in actions at law. The only instance that can thus far 
 be adduced of the court establishing a rule is the case of 
 Foster vs. Skidmore, where the motion was by the defend- 
 ant to bring in the contractor, and the court intimated that 
 the plaintiff would not be chargeable with costs in cases 
 where such order is granted. This would not, however, 
 
THE NEW-YOKK LIEN LAW. 61 
 
 apply to cases where the plaintiff unreasonably opposed 
 the motion. 
 
 II. There are no provisions of the New-York Lien Law 
 which have occasioned more doubts or more mistakes 
 than those in regard to the judgment. There are seve- 
 ral provisions in the act pertaining to this which we will 
 observe, in order to arrive, if possible, at a just conclu- 
 sion. 
 
 In the first place the lien, which is the foundation of 
 the proceedings, and which the proceedings are instituted 
 to foreclose, is only upon " the house or building and 
 appurtenances, and upon the lot of land upon which the 
 same stand, to the extent of the right, title and inte- 
 rest at that time existing [the time of filing the lien,] of 
 such owner." (§ 1.) In the second place, the judgment, 
 which is the result of the proceedings — the foreclosure 
 of this limited and prescribed lien — is to be entered upon 
 the assessment of the amount of the claim, in cases 
 where there is no defense (§ 7) ; and in cases where issue 
 has been joined, it is to be " enforced, in all respects, in 
 the same manner as upon issues joined and judgments 
 rendered in all other civil actions for the recovery of 
 moneys." (§ 8.) In the third place, " a transcript of every 
 judgment rendered, headed 'lien docket,' shall be fur- 
 nished by the clerk of the court or the justice to the suc- 
 cessful party, who may file the same with the county clerk, 
 whose duty it shall be to enter -.the name of the court 
 and the amount of the judgment ; or where the payment 
 is against the claimant, the word 'discharged,' under 
 the last head in his docket? (§ 9.) Immediately following 
 the provision of § 7, and separated only by a comma, 
 are the words, " and execution shall issue for the enforce- 
 
62 MECHANICS' LIEN LAWS. 
 
 ment of said claim so adjudicated and established, in the 
 same manner as in cases upon other judgments." A 
 careless reading would confound this, which applies only 
 to the execution, with the provision immediately prece- 
 ding it, and which applies only to the judgment. Sepa- 
 rated from this, it is evident that the seventh section 
 merely provides that judgment is to be rendered upon 
 the assessed damages, but not its extent or form. In 
 the same manner, a careful reading shows that the eighth 
 section does not prescribe the form or extent of the 
 judgment, or require that it shall be rendered in the 
 same manner, i. e., in the same form or to the same 
 extent as in other actions, but simply that it shall be 
 " enforced" in the same manner. In other words, the 
 decree having been framed so as to direct a sale of the 
 property or future application of funds, is to be enforced 
 by an execution or an attachment, as in all other actions 
 for the recovery of moneys. The last section quoted 
 (§ 9), renders this still clearer ; for it there appears 
 that the transcript to be furnished is not to be docketed, 
 as in an ordinary personal action, but is to be entered in 
 the " lien docket," in the last column, not for the purpose 
 of incumbering all the property of the defendant, but 
 for the purpose of showing that the lien has been merged 
 or discharged. The erroneous opinions which have been 
 entertained upon this branch of the law, have arisen in 
 part from its confused and obscure language, and in part 
 from a careless reading of the several sections; but 
 chiefly, I imagine, from a mistaken view of the extent of 
 the relief designed by the act. 
 
 It has been, I am aware, frequently the practice with 
 regard to these cases to enter a general judgment against 
 
THE NEW-YORK LIEN LAW. 63 
 
 the owner, and, after having it docketed so as to bind 
 all his realty within the county, to issue a common exe- 
 cution against his real and personal estate. I am com- 
 pelled to regard this as entirely unauthorized ; firstly, 
 because the previous readings of the statute indicate a 
 different method was intended; secondly, because the 
 court has expressly decided that the owner is not per- 
 sonally liable to a sub-contractor {Cronkright vs. Thom- 
 son, id., p. 661) ; thirdly, because it was held in Gridley 
 vs. Rowland, (id., p. 670,) and Sullivan vs. Brewster, 
 (id., p. 686,) that "a proceeding under the lien law is a 
 mere foreclosure of a security," and does not prevent an 
 action at the same time against the contractor. The 
 reason of this restricted relief in cases where the sub- 
 contractor is the plaintiff, is clearly because there is no 
 personal liability as between him and the claimant. But 
 in other cases where the contractor is the plaintiff, and 
 there is a personal liability on the part of the owner, it 
 is to be presumed that the decree, though termed a judg- 
 ment, may be moulded so as to do complete justice. 
 Precisely as in cases of mortgage foreclosure, where 
 there is no bond or personal liability clause, the decree 
 is merely for the sale of the property, while, if the defend- 
 ant is personally liable, there is a right to docket a trans- 
 cript for a deficiency ; so in these foreclosure cases, it will 
 be varied to meet the existing facts. 
 
 From what has been said (p. 60, ante), it would seem 
 that the relief given for interest and costs should follow 
 the same rule ; and generally it would seem safe to say 
 that wherever there is a personal liability, the plaintiff 
 (if the property be insufficient for the purpose,) will be 
 entitled to a personal remedy for the deficiency. 
 
64 MECHANICS' LIEN LAWS. 
 
 Since the amendments of 1855, this matter has been 
 somewhat simplified by the fifth section of that act, for 
 by it a full determination of the sub-contractor's claims, 
 against both owner and contractor, can be obtained ; 
 and the court has full power to make a just disposition 
 of the costs. 
 
 Before leaving this, it is to be noted that the judg- 
 ment may be adapted " to the special circumstances of 
 the case," and that " the foreclosure contemplated by the 
 statute is an equitable proceeding, in which the powers 
 of the court, as a court of equity, are peculiarly invoked 
 to mould the remedy to suit the circumstances of each 
 case." (Doughty vs. Devlin; Miller vs. Moore, cited 
 supra.) . 
 
 Having thus spoken of the nature and extent of the 
 judgment, but little need be said in respect to its form. 
 Indeed, from the flexible nature of it, no form could be 
 devised that could be relied upon in the numerous cases 
 that constantly arise. The first section of the amend- 
 ments of 1855 alone bears upon the point; and it I take 
 to be chiefly declaratory of the pre-existing law. One 
 important addition is, however, given by the section, and 
 it is that the judgment direct that the residue of the 
 proceeds of sale " be paid to the clerk of the city and " 
 county of New-York, to abide the further order of the 
 court." In draughting the judgment, the attorney should 
 keep this section in view, as it clearly and briefly states 
 all the principal points necessary to be incorporated 
 therein. 1 
 
 1 With respect to the form, and, indeed, the nature of the judgment, in eases 
 where the lien has been removed from the premises by the payment of money 
 into court, the reader is referred to the case of Dunning vs. Clark, p. 64, ante. 
 
THE NEW-YORK LIEN LAW. 65 
 
 It remains now only to speak of the effeet of a judg- 
 ment in a lien foreclosure, both as regards the claimant 
 and the owner. And here it is to be noted that the im- 
 mediate effect of a judgment is in all cases either to 
 merge or discharge the lien. The principal question 
 arising in the former of these cases relates to the rights 
 of those parties who, having an estate or interest in the 
 premises subordinate to the plaintiff in the foreclosure 
 suit, would, after ordinary judgment sales, be permitted 
 to redeem. 
 
 Although this topic has caused discussion among mem- 
 bers of the bar, the judges of the common pleas have 
 either wholly overlooked it, or else have studiously 
 refrained from uttering a syllable which might be taken 
 as expressive of their opinion. 
 
 On the one side of this question, it might be urged 
 that the judgment being special, affecting only a certain 
 limited right or interest, and, moreover, one statute (act 
 1855, § 1,) providing that the judgment shall direct the 
 sale " of the interest of the owner in the land and prem- 
 ises upon which the lien exists, to the extent of the right 
 of such owner at the time of the filing of the notice of 
 lien," it is in the nature of a decree in an ordinary fore- 
 closure suit, leaving no redemptory rights ; and that the 
 right of redemption, if reserved to the owner or his 
 creditors, would be a contradiction of the words of the 
 last act — " to the extent of the right of stich owner," &c. 
 It might also be urged that the court has viewed these 
 as in the nature, of ordinary equity proceedings, in which 
 prior incumbrancers, if not made parties, will hold a 
 preference over the plaintiff, while subsequent incum- 
 brancers need not be joined, for the reason (it being, 
 5 
 
66 MECHANICS' LIEN LAWS. 
 
 however, one of many,) that the notice of lien itself 
 might be taken as a notice of lis pendens. (Kaylor vs. 
 O'Connor, id., p. 6*79.) Upon the broader ground of 
 principle, it might be also advanced that the legislature, 
 not having said, could not have intended that a reserved 
 right should be secured to the owner ; nor that a build- 
 ing erected by the labor or with the materials of the 
 lien holder, should inure to the advantage of subsequent 
 creditors. 
 
 On the other side of the question there is, however, 
 something to be said. Firstly, the statute itself, which 
 gives this mode of relief and creates the rights of all 
 claimants under it, expressly provides : 1. That execu- 
 tion shall issue for the enforcement of the claim in the 
 same manner as in cases upon other judgments; and 2. 
 That the issue shall be "governed, tried and the 
 judgment thereon enforced, in all respects, in the same 
 manner as upon issues joined and judgments rendered 
 in all other civil actions for the recovery of moneys." 
 Still this may apply to the manner and form, and not to 
 any matter of substance. But it will be observed that 
 there is no exemption given here from the rules and 
 provisions of other statutes regulating judgment sales 
 by virtue of an execution. In ordinary foreclosure 
 cases, the Sale is not under execution but by virtue of 
 the decree itself. The lien law does not allow a sale in 
 virtue of the judgment alone, but, as in other cases for 
 the recovery of moneys, directs that an execution shall 
 issue for the enforcement of the claim. 
 
 Now the Revised Statutes (2 R. S., p. 370, § 42,) pro- 
 vide that "upon the sale of real estate, by virtue of 
 any execution, the officer making the same shall make 
 
THE NEW-YORK LIEN LAW. 67 
 
 out and subscribe duplicate certificates," stating, among 
 other things, " the time when such sale will become abso- 
 lute and -the purchaser will be entitled to a conveyance." 
 The forty-fifth section then provides that "within one year 
 from the time when such sale shall have been made, the 
 real estate so sold" may be redeemed (§46) "by the 
 person against whom the execution was issued, and whose 
 right and title were sold in •pursuance thereof" and by 
 others therein specified. Pursuing the examination of 
 the statute, we find (§-49), " upon such payment being 
 made by any person so entitled to redeem any real' 
 estate so sold, the sale of the premises so redeemed and 
 the certificates of such sale shall be null and void." 
 After providing for the redemption of the property by 
 other creditors, the statute declares that (§ 61) " the 
 right and title of the person against whom the execution 
 was issued to any real estate which shall be sold thereby, 
 shall not be divested by such sale until the expiration of 
 fifteen months from the time of such sale ;" and further, 
 that (§ 62) "after the expiration of fifteen months from 
 the time of the sale of any real estate, if any part of the 
 premises shall remain unredeemed," "then the officer 
 making such sale shall complete the same by executing 
 a conveyance;" "which conveyance shall be valid and 
 effectual to convey all the right, title and interest which 
 was sold by such officer." 
 
 Retracing our way through these provisions, we find 
 that all depend from and apply to the words in the forty- 
 second section — " the sale of real estate by virtue of any 
 eoaecutionP 
 
 Is the sale of real estate, by virtue of an execution 
 issued under the lien law, exempt from these provisions 
 
68 MECHANICS' LIEN LAWSi 
 
 of the Revised Statutes ? Does the lien law prescribe an 
 execution so essentially different from that which issues on 
 an ordinary judgment that the Revised Statutes cannot, 
 and in reason do not control it ? And though the exe- 
 cution prescribed is in form and substance the same as 
 those to which the Revised Statutes do apply, would the 
 provisions of the lien laws, with respect to judgments, 
 control the provisions of the Revised Statutes with respect 
 to executions; or is the intent of the legislature. to declare 
 sales absolute, and without the condition of redemption, 
 sufficiently expressed to abrogate the operation of the 
 former statutes, should it be deemed that otherwise they 
 would control the latter one ? 
 
 Yet, while making these inquiries, it is not to be for- 
 gotten that the provisions of the Revised Statutes, just 
 referred to, form a part of a chapter relating to personal 
 actions ; and it is possible that they would be held appli- 
 cable only to such cases. The executions issued out of 
 chancery, under the former practice, seem to have been 
 considered as writs of fieri facias, and would, therefore, 
 come under those provisions. Hoffman, in his Chancery 
 Practice (vol. 2, p. 92), speaks of them as such ; and the 
 chancellor, in Van Ness vs. Oantine (4 Paige, 55), says 
 that it is " doubtful whether afifa can be issued upon a 
 mere order for the payment of interlocutory costs." 
 
 Such being the uncertainties attending the act of 1851, 
 it may be asked whether they have not been removed 
 by the amendments of 1855 ? It would seem that they 
 had. The first section provides that the judgment shall 
 " direct the sale of the interest of the owner ;" " and that 
 the proceeds of such sale shall be applied to the pay- 
 ment of the costs of the proceeding and of the amount 
 
THE NEW-YORK LIEF LAW. 69 
 
 found to be due ;" " and that the residue of such proceeds 
 be paid to the clerk of the city and county of New-York, 
 to abide the further order of the court." "We have here 
 a judgment precisely similar in form to the judgment 
 rendered in a mortgage foreclosure ; and, like it, opera- 
 ting merely as the foreclosure of a security, and that 
 security a lien upon real property. When the legisla- 
 ture thus conformed the judgment in the one case to that 
 already existing in the other, the only rational conclusion 
 that can be drawn from, and the only rational construc- 
 tion that can be given to their act, is that they intended 
 that it should have the like effect. To say that two reme- 
 dies, precisely alike, or, indeed, to say that the same rem- 
 edy, in cases so nearly identical, should carry with them 
 entirely opposite consequences, is a conclusion certainly 
 not unavoidable in the present instance. When the 
 legislature said, the u judgment shall direct the sale" apart 
 from any analogy, it might have been inferred that the 
 judgment under this act should supplant the former exe- 
 cution. When this provision is coupled with the fact 
 that the other enactments changed the remedy to the 
 form of one well known and indisputably settled, the 
 inference becomes an unavoidable conclusion. I have, 
 therefore, little hesitation in expressing the opinion, that 
 since the amendments of the last legislature the sale 
 should take place under and by virtue of a decree, pre- 
 cisely as it has in actions brought for the foreclosure of 
 mortgages. 
 
 - But although it is unsettled what the immediate effect 
 of a judgment agMnst the owner may be, it is not doubt- 
 ful what is the effect of one against the claimant. It may, 
 indeed, be taken as settled, that any judgment against 
 
70 MECHANICS' LIEN LAWS. 
 
 the claimant, even though it be but a judgment of non- 
 suit, will discharge the lien without a possibility of its 
 revival. {Sullivan vs. Brewster, id., p. 686.) 1 
 
 It is not, however, to be inferred that a judgment, 
 afterwards reversed, will be equally operative. An 
 erroneous judgment is, indeed, a void one ; and, as was 
 said by Chief Justice Oakley, in the Forest case, if the 
 successful party in an action for divorce should marry 
 while an appeal was pending, it would be at his peril. 
 But whether a good faith purchaser, having no notice of 
 the appeal, and purchasing while the lien appeared satis- 
 fied upon the docket, would be bound by the hen, after 
 the reversal of a judgment, remains to be decided. It 
 would be advisable, perhaps, to file a notice of lis pen- 
 dens, stating the fact; and in a suit involving a conside- 
 rable amount, it is possible that the court would restrain 
 the clerk from discharging the lien, by injunction, until 
 the decision of the appeal. But while suggesting these, 
 I do not mean to intimate that the ordinary stay of pro- 
 ceedings, on giving security, would not restrain both 
 the defendant and the clerk from discharging the hen ; 
 nor that this is not the proper and most effectual remedy. 
 The preceding suggestions are, indeed, offered more with 
 regard to cases where the claimant is unable to give the 
 necessary security, than from any doubts as to the effec- 
 tiveness of the latter course. The fact that after issue is 
 joined, the proceedings are to be governed by the ordi- 
 nary rules, would, I think, clearly bring them within the 
 purview of those provisions regulating appeals in ordi- 
 nary actions. 
 
 1 By this is meant, the defendant will be entitled to a transcript, which, by 
 filing with the county clerk, will procure the discharge. 
 
THE NEW-YOKK LIEN LAW. 71 
 
 But it is not to "be understood, that because any judg- 
 ment against the plaintiff will work a discharge of the lien 
 that an order will have the same effect. And in the case 
 of McSorley vs. Hogan (1 Code R, N. S., p. 285), where 
 the proceedings were dismissed on account of an irregu- 
 larity in the claimant's notice to close the lien, Mr. J. 
 Daly expressly says, while granting the motion, that 
 " the defendant must give another notice ;" or, in other 
 words, that he may commence de novo. 
 
 III. The execution which the act of 1851 prescribed 
 is the same as that allowed in ordinary actions, and is to 
 be issued in the same manner and to the same officer. It 
 should, however, conform to the judgment, and direct 
 the sale of the estate or interest which the defendant 
 had in the property affected by the lien at the time of 
 its filing. (Laws 1851, § 1.) There is no provision for 
 the sale of a subsequently acquired interest ; and the 
 usual form which the defendant then had, or may have 
 since acquired, would be unauthorized, and at least pro 
 tanto void. It might even be held to void the entire 
 sale, and should never, in any event, be inserted. 
 
 With respect to the sheriff's proceedings and the right 
 of redemption, sufficient has been said under the prece- 
 ding division. Should the sheriff assume the responsi- 
 bility of saying there is no right of redemption, he will 
 proceed as in the case of a mortgage sale by giving a 
 deed, containing the proper recitals ; should he, however, 
 regard this as an ordinary execution, he will, of course, 
 give the ordinary certificate of sale. As to the supplant- 
 ing of the execution by the decree under the present 
 law, enough has already been said. (Ante, p. 68.) If 
 the conclusion there arrived at be correct, a certified 
 
72 MECHANICS* LIEN LAWS. 
 
 copy of the decree will constitute the authority for the 
 sale. 
 
 IV. An entirely new provision has been added to the 
 law by the amendments of 1855, respecting the surplus 
 moneys which may arise on a sale. The first section of 
 that act directs that the residue of the proceeds of a sale 
 shall be paid, to the county clerk, to abide the further 
 order of the court. The second section provides that the 
 owner may apply to the court of common pleas for an 
 order, directing the clerk to pay over the proceeds. This 
 section contains the words, " upon producing the certifi- 
 cate of the clerk of the city and county of New- York that 
 there are no liens docketed in his office against or affecting 
 the said premises ;" but whether this is intended as a con- 
 dition to the granting of the order, or as a provision to 
 be inserted therein, the language of the act does not indi- 
 cate ; from the fact, however, that the former is the meth- 
 od prescribed by the supreme court rules in similar cases, 
 and that the succeeding section prescribes the action of 
 the court, in case there should be other liens, we have 
 little difficulty in determining that this is the real intent 
 of the section. 
 
 The third section applies to a different class of cases, 
 viz., to those in which there are other lien holders 
 whose liens affect the premises. Here, to protect the 
 equitable rights of such parties, the statute requires that 
 the owner's application shall be on notice to these claim- 
 ants respectively, and allows the court to order a refer- 
 ence to take proofs in relation to their rights and priori- 
 ties. No time is specified upon which the notice is to be 
 
THE NEW-YOEK LIEN LAW. 73 
 
 given; and it should, therefore, be a notice of eight 
 days, as prescribed by the Code. 
 
 It may be a question whether this provision of the 
 act is intended to apply to any but subsequent liens; 
 subsequent, that is, to the lien under which the premises 
 have been sold. The language is, indeed, general, viz., 
 other liens affecting the said premises ; but the following 
 section provides that in all sales under judgments in 
 these proceedings "the interest of the owner shall be 
 sold, subject to any prior liens existing thereon, unless the 
 claimants under such liens shall be made parties to the 
 proceedings." If, under this section, they are made par- 
 ties, the court is to settle their respective rights ; and it 
 would follow, ordinarily, that they would be first enti- 
 tled to be paid from the avails of the sale ; while, if they 
 are not made parties (the property being sold subject 
 to their liens), they would have no equitable interest in 
 the proceeds, their liens remaining paramount and entire. 
 A different construction might cause great injury to the 
 owner and to junior lien holders; for the property being 
 sold subject to the prior liens would, of course, sell for a 
 less amount, the purchaser regarding the Hens as a part 
 of his purchase money. Hence, a junior Hen holder 
 would, on the one hand, be precluded from resorting to 
 his lien, and on the other deprived of his share of the 
 surplus moneys by a party whose rights had been 
 expressly secured in another manner by the same statute. 
 In the same manner, the owner, after seeing his property 
 sold subject to such a lien, would be obliged to yield 
 his interest in the' surplus without being able to resort to 
 any person for the loss he would sustain. Yet, as a 
 matter of practice, it would be advisable for the attor- 
 
74 -MECHANICS' LIEN LAWS. 
 
 ney to join these lien holders in his motion, and leave it 
 to the court to determine whether they could be entitled 
 to a share. 
 
 Another question may arise under these provisions ; 
 and it is, whether any other person than the owner 
 can make the application referred to in the third section, 
 The language of the act apparently contemplates no 
 other person doing so ; for the second section only says, 
 " the owner may apply ;" while the third, referring to 
 the second, uses the words, "such application." Should 
 it be held that this application only can be made by the 
 owner, the resulting question would be, in what manner 
 could funds lodged with the county clerk be made 
 available to junior lien holders, in cases where the owner 
 should neglect or refuse to make the application ? 
 
 One more question is also undetermined by these sec- 
 tions ; and it is, perhaps, more difficult to resolve than 
 either of the others. Their language clearly contem- 
 plates by the word liens, liens created under the Mechan- 
 ics' Lien Laws. Thus, the second section allows the 
 owner to apply, on producing the certificate of the county 
 clerk that there are no liens affecting the premises 
 "which have been filed under the said act;" and the 
 third section requires the notice to be given to the " claim- 
 ants" "filing, the notices creating such liens." Now, as 
 numerous hens may accrue by way of judgments or 
 mortgages, after the filing of the mechanics' lien which 
 has been foreclosed, and which, being subsequent, would 
 be subject to it, the judgment creditors or mortgagees 
 having no remedy against the property, would have the 
 strongest equitable claim upon the surplus funds. In- 
 deed, a trivial lien, under such a construction, might 
 
THE NEW-YORK LIEN LAW. 75 
 
 wholly defeat a large mortgage, or compel the mortga- 
 gee to save his security by redeeming. 1 
 
 V. A lien may be discharged in six different ways. 
 
 1. It maybe discharged (§ 11,'subd. l,Law 1851,) by 
 the act of the claimant ; and this is to be done by a cer- 
 tificate of the claimant, "stating that the lien is dis- 
 charged." The certificate should contain a sufficient 
 reference to the notice of lien, and should describe the 
 premises in the same language. It must, according to 
 the statute, be " acknowledged or proved in the same 
 manner as the satisfaction of a mortgage ;" and be filed 
 with the county clerk, whose duty it then becomes to 
 enter the satisfaction in the lien docket. (Vide App. for 
 forms.) 
 
 2. A lien may be discharged, as a hen on property, 
 " by substituting a sum of money, equal to the amount 
 claimed," in the stead of the building and premises. 
 This is done by depositing the money with the county 
 clerk, which is thereupon held subject to the hen. The 
 manner in which this fund can be reached on judgment, 
 has already been discussed, (p. 54, ante.) 
 
 3. A lien is liable to be discharged by the mere lapse 
 of time, as we have seen before (vide p. 24 ante). To 
 perfect the discharge, the clerk must enter in the lien 
 docket, after a year from the time of filing has elapsed, 
 that no notice has been given him of legal steps to 
 enforce the lien. When this has been done, the lien is 
 fully discharged. 
 
 1 The right of redeeming does not, the reader will remember, depend upon 
 any statute, but is a general equitable right, always enforced by courts of 
 equity, and which would, undoubtedly, be enforced as well against a lien 
 judgment as any other. 
 
76 MECHANICS' LIEN LAWS. 
 
 4. A lien may also be discharged by lapse of time in 
 cases where notice has been given by the owner, requir- 
 ing the claimant to commence his proceedings (vide p. 
 24, ante, and for forms vide App).- In this case all that 
 the owner need do, after having served his notice, is to 
 make an affidavit of service on the claimant, and (al- 
 though the act does not in words require it) file the affi- 
 davit and notice with the county clerk. "When thirty- 
 days have elapsed from the time specified in the notice, 
 without any affidavit of the claimant's being filed that 
 he has commenced proceedings by serving his notice, the 
 lien becomes discharged. 
 
 5. The lien will, of course, be discharged by the 
 judgment, in an action brought to foreclose being satis- 
 fied ; and the return of the execution or report of sale, 
 satisfied in whole, would be sufficient to warrant the 
 clerk in entering the same as satisfied in the docket. 
 
 6. Lastly, a lien will be discharged by any judgment 
 dismissing the owner's complaint, even though it be but 
 a judgment of nonsuit. The manner of proceeding in 
 this case we have already examined (vide p. TO, ante). 
 
 SECTION III. 
 
 OF THE JURISDICTION OF AND PROCEEDINGS IN THE MARINE 
 AND JUSTICES' COURTS. 
 
 Having thus gone through the whole course of prac- 
 tice in foreclosing a lien in the common pleas, which is 
 the only court of record having cognizance of these pro- 
 ceedings, we have now to glance at the jurisdiction of, and 
 manner of proceeding in the other courts having cogni- 
 
THE NEW-YORK LIEN LAW. 77 
 
 zance of such cases. These are the marine court and the 
 justices' courts in the city of New- York. The points 
 "of difference between these and the common pleas are 
 few and simple, and it will be necessary only to briefly 
 note them. 
 
 1. The jurisdiction of the marine court is given by 
 the fourth section of the act of 1851, and differs from 
 the common pleas only as regards the amount of the 
 claim. By the lien law this amount was fixed at $100 ; 
 but by the acts of 1852 and 1853, it has generally been 
 conceded that it was increased to $500. (Vide chap. 
 389, § 9, Laws 1852, and chap. 617, § 2, Laws 1853.) 
 This supposition is strengthened by the case of Churchill 
 vs. MarcJi (decided September, 1855), where the general 
 term of the common pleas held that "the acts of 1852 
 and 1853, extending the jurisdiction of the marine court 
 so as to permit a recovery to the amount of $500, also 
 extended the power of that court to issue an attachment 
 against the property of a non-resident, when the sum 
 claimed does not exceed that sum." 
 
 2. The jurisdiction of the justices' courts is still fur- 
 ther limited by the act of 1851. In addition to the 
 amount being restricted to $100, it is required that the 
 the building must be situated in the same judicial dis- 
 trict, over which the court has general jurisdiction. 
 
 3. The manner of proceeding in these courts is pre- 
 cisely the same as in the court of common pleas, up to 
 the point of taking or applying for judgment. At that 
 point, the only difference is that while the common pleas 
 may issue a writ of inquiry or order a reference to assess 
 the damages, in these courts the damages must be ascer- 
 tained by the court. (§ 6, act 1855.) 
 
78 MECHANICS' LIEN LAWS. 
 
 In practice, it is necessary for the attorney to be pre- 
 sent at the court on the return day and file his papers. 
 The notice will then be treated like a summons ; and 
 when called, issue may be joined as in an ordinary case. 
 
 4. With respect to the power of these courts over the 
 proceedings, it may be taken as settled that they have 
 the same as the common pleas. This was determined 
 in the case of Lowber vs. CMlds (decided April, 1855, 
 at general term) ; and as the case is not yet reported and 
 bears upon several points, I quote it in full : 
 
 Woodruff, J. " The opinion given by this court in 
 Sullivan vs. Decker, E. D. Smith K., 699, did not war- 
 rant the judgment rendered in the marine court in this 
 action, and the decision in Foster vs. SMdmore, id. 719, 
 is, so far as this court is concerned, conclusive that such 
 judgment was erroneous. The plaintiff had taken the 
 very steps which the statute prescribed; and the court 
 thereby obtained jurisdiction of the matter, and should 
 have proceeded therein. 
 
 I do not discover any defect of power in the marine 
 court, to make any order which may be essential to 
 carry into full execution the jurisdiction which the 
 statute itself has conferred upon them, by authorizing 
 the proceeding to be had in that court; and in this 
 respect it is not material whether the foreclosure be 
 deemed a strictly legal or an equitable proceeding. 
 Besides, § 64, subd. 15 of the Code of Procedure, makes 
 the provision of the Code, respecting parties to actions, 
 applicable to the justices' courts ; and § 68, in like man- 
 ner, makes § 64 apply to the marine court ; § 121 of 
 the Code, in terms, provides that when a complete deter- 
 mination of the controversy cannot be had without the 
 
THE NEW-YOEK LIEN LAW. 79 
 
 presence of otter parties, the court must cause them to 
 be brought in. It seems to me, that in this the marine 
 court has ample power to cause a contractor to be 
 summoned, and that it should have been done. But 
 further ; it appears by the notice, to bring the lien to a 
 close, that the contractor was made a party defendant ; 
 and if one defendant only had been served, still the 
 proceedings should not have been dismissed. The 
 defendant might have been brought in as in cases where 
 only one of two defendants are served. The judgment 
 must be reversed." 
 
 5. It has been held that the judgment in these courts, 
 as in the common pleas, must be special and against the 
 property. {Gronkriglit vs. Thomson, 1 E. D. S. R., p. 
 661.) The property, therefore, is the only source out 
 of which the execution can be satisfied. Now, the 
 Revised Statutes do not allow an execution issued by a 
 justice to extend to real estate (11 Rev. Stat., p. 249, 
 § 131) ; and when the sale of real property is desired, in 
 order to satisfy a justice's judgment, it is necessary to 
 docket a transcript, and issue an execution from the 
 county court ; and when this is done, the power of the 
 justice over the judgment ceases. (Id., p. 254, §§ 165, 
 167.) The provisions of the Revised Statutes do not 
 authorize a constable to sell real estate (id., p. 252, § 148), 
 and contemplate its being sold only by a sheriff. (Id., p. 
 365, art. 2d.) The lien law of 1851 provides that 
 execution shall issue for the enforcement of the claim, 
 in the same manner as in cases upon other judgments in 
 such courts. (§ 7.) Was it intended that execution 
 should issue from the court of a justice of the peace, 
 directing and authorizing the sale of real property, or 
 
80 MECHANICS' LIEN LAWS. 
 
 that the court should have exclusive jurisdiction of a 
 case in which it could render a judgment utterly beyond 
 its power to enforce ? 
 
 With this doubt end the doubts with which this 
 treatise has thus far been so liberally laden, and with 
 which the steps of the practitioner, under this statute, 
 it is hoped will be impeded. In concluding that portion 
 of this work, which relates to the practice under the 
 New- York law, I cannot but express my admiration for 
 the conduct of that court, to whose unwavering efforts 
 and far reaching sagacity the suitors under this law 
 must ever remain indebted, and whose bold and com- 
 prehensive constructions have alone given to the statute 
 consistency, and to the presumed intentions of the legis- 
 lature the appearance of justice. 
 
 SECTION IV. 
 
 OF THE NATURE AND EXTENT OF THE EIGHTS GRANTED AND 
 SECURED BY THE ACT. 
 
 Having thus examined the jurisdictions of those courts 
 having authority to adjudicate cases arising under the 
 lien law, and having examined the proceedings by which 
 a lien is closed and the relief given by the law attained, 
 it remains now to examine the nature and extent of the 
 rights granted and secured to claimants under the act. 
 
 For this purpose these remarks will treat of the fol- 
 lowing subjects : First. Of the parties entitled to a lien ; 
 Second. Of the cases and circumstances in and under 
 which a lien may be acquired and closed ; Third. Of 
 the parties against whom a lien may be acquired, and 
 
THE NEW-YOEK LIEN LAW. 81 
 
 herein of the estate bound by the lien ; Fourth. Of the 
 owner's privileges and defences. 
 
 First. Of the parties entitled to a lien ; and herein it 
 will be most convenient to speak : I. Of those who occupy 
 an undoubted position with respect to the statute, as the 
 contractor and sub-contractor ; II. Of those who occupy 
 a questionable position with respect to the statute ; and 
 in this division, the contractor of the sub-contractor is 
 the only person whose rights need be considered ; III. Of 
 those who occupy a representative position, as the assignee 
 the executor or the heir. 
 
 I. The act of 1851, it is to be noted, differs some, 
 what from those which have preceded it ; and in order 
 to understand better the nature of its remedy and the 
 bearing and reasoning of the cases decided under the 
 former laws, it will be advisable to glance briefly at 
 those statutes. 
 
 The act of 1830/ enlarged by the act of 1832, 2 allowed 
 a laborer or material-man, who had performed work or- 
 furnished materials for a contractor, to deliver to the 
 owner an attested account of his claim against the con- 
 tractor. (§ 1.) It thereupon became the duty of the 
 owner to deliver a copy of this account to the contractor 
 in order that, if there was any disagreement between 
 him and the claimant, they might (says the statute), 
 "by amicable adjustment between themselves or by 
 arbitration, ascertain the true sum due." Should the 
 contractor fail to notify the owner of his intention to 
 dispute the account, he was considered as assenting 
 
 1 Vide App. 
 
 a The act of 18S0 did not include material-men. 
 6 
 
82 MECHANICS' LIEN LAWS. 
 
 to it; should lie dispute it, it was to be settled by- 
 arbitration, and the arbitration was final upon both 
 the parties. By the statute it was made the duty 
 of the owner, on receiving the attested account, to 
 retain out of any subsequent payments to the contractor 
 a sum sufficient to discharge the claim ; and after the 
 claim had been adjusted, should the contractor fail to 
 discharge it, it became the duty of the owner to do 
 so from any funds of the contractor in his possession. 
 Finally, should the owner neglect to do this, the claim, 
 ant would have an action against him as for money had 
 and received. It will, therefore, be perceived that the 
 operation of this act was, firstly, only to aid sub-con- 
 tractors ; and secondly, merely to transfer funds of the 
 contractor, in the owner's hands, to the claimant. It 
 was not, therefore, in any sense of the word a lien law, 
 but simply " an act for the better security of mechanics." 
 
 The act of 1844 gave a specific lien to both contractor 
 and sub-contractor ; the first section of that act being 
 the same as the first section of the present one. The 
 act of 1844 did not repeal that of 1830 and 1832, but, 
 on the contrary, was looked upon as giving an indepen- 
 dent and different remedy. The recent case of McDer- 
 mot vs. Palmer (4 Seld. K., 383), was brought under 
 those acts subsequent to the act of 1844 ; and the court 
 of appeals regarded it as well brought. 
 
 It will thus be perceived that the contractor was not 
 the party originally sought to be protected ; but that the 
 care and attention of the legislature were at first 
 directed solely toward the sub-contractor. 
 
 But under the act of 1851 the interests of both of 
 these are protected, provided they conform in their 
 
THE NEW-YORK LIEN LAW. 83 
 
 transactions to the requirements of the statute. The 
 act provides (§ 1,) that " any person who, by virtue of 
 any contract with the owner, or that any person who, in 
 pursuance of an agreement with such contractor and in 
 conformity with the terms of such contract, perform any 
 labor or furnish any materials in building, altering or 
 repairing any house or building, or the appurtenances 
 thereof," may acquire a lien. By this, then, it is seen that 
 the persons who may acquire a lien must be acting 
 directly with the owner, or his agent (which is the same 
 thing), or directly with some one who is a contractor of 
 the owner ; and in both cases the materials must be fur- 
 nished, or work performed, by virtue of and in conformity 
 with the terms of the owner's contract. 
 
 It may be taken as an undoubted principle of this 
 law, that any person will be entitled to a lien who has 
 furnished materials, or performed labor under a valid 
 contract with the owner ; or who (if a sub-contractor,) 
 has furnished them under a valid contract with the 
 contractor, the latter having applied them in pursuance 
 of a valid contract with the owner. In other words, a 
 valid contract is the foundation of every lien. If the 
 claimant is acting directly with the owner, one valid 
 contract is all that is necessary to support his claim; 
 while if he has been acting through a third party, i. e., 
 a contractor, it will necessarily rest upon two. But, as the 
 effect of void and voidable contracts will be hereafter 
 discussed under those branches of this inquiry in which, 
 in practice, they will be most likely to occur (vide 
 infra), it will be sufficient here to say that the law allows 
 the contractor with the owner and the contractor with 
 such contractor to become lien holders, when their claim 
 
84 MECHANICS' LIEN LAWS. 
 
 is for materials furnished or labor performed in building, 
 altering or repairing any bouse or otber edifice within 
 tbe city. 
 
 But it may not be amiss to inquire here what would 
 be the position of that case where the person performing 
 the labor or furnishing the materials had no power to 
 contract or legal capacity to sue ; as a feme covert who 
 has sold materials, or a minor who has performed work. 
 Such cases have not yet arisen, nor have such points 
 been determined ; but it would, nevertheless, seem tole- 
 rably certain that a valid lien could be acquired in these 
 cases. The language of the act is as broad as is possible 
 — " any person" is to have a lien who has complied with 
 its conditions. The object of the act is to secure all 
 persons whose materials or labor have aided in the erec- 
 tion of a building. There would, therefore, be no reason 
 why materials or labor should not be so secured when- 
 ever it is possible that their consideration can be sued 
 for and recovered at law. Thus, if the goods sold by 
 the wife were a part of her separate property, though 
 unable to bind herself by contract (vide cases, infra,) 
 she might bring her action; and hence (the lien law 
 being an auxiliary of the ordinary remedy), it would 
 seem reasonable, that after filing a lien in her own name 
 she may, by her next friend, carry on proceedings to 
 foreclose it. (Code, § 114.) But if the goods sold were 
 not a part of her separate property under the statutes 
 (Laws 1848 and 1849), the law, regarding them as the 
 husband's, and she as his agent, would enable the hus- 
 band to acquire a lien in his own name. In the same 
 manner, I have no doubt that a lien might be acquired 
 in the name of a minor, and that the proceeding to fore- 
 
THE NEW- YORK LIEN LAW. 85 
 
 close might be conducted in the name of a guardian 
 (Code, § 115) ; for while an infant has no capacity to sue 
 a party having received his goods or his services, cannot 
 avail himself of the infancy to avoid payment. ( Van 
 Bramer vs. Cooper, 2 J. E., 279 ; Hartness vs. Thompson 
 5 id., 160.) In some cases he is entitled to recover for his 
 services, and may himself bring the action after he comes 
 of age. {Canover vs. Cooper, 3 Barb. R, 115 ; Burlin- 
 game vs. Burlingame, 7 Cow., 92.) 
 
 But by this it is not intended that where the contract 
 was made by a general guardian or trustee, that in such 
 case the lien should not be in his name, as such trustee 
 or guardian ; for, on the contrary, I presume that it 
 should be, and that it would be deemed a security, taken 
 for the benefit of the cestui que trust. 
 
 II. Of the contractor of the sub-contractor ; and here 
 I - intend simply to inquire whether such a person is 
 entitled to a lien, under the act of 1851. The question 
 has been once before the court, but was not decisively 
 passed upon, the court inclining " to the opinion that 
 the decision in Wood vs. Donaldson (17 Wend., 550, 
 and 2 Wend., 395,) must be applied to the lien law of 
 1851, and. that the employee of a sub-contractor cannot 
 acquire a lien ;" but deeming that it was not necessary 
 to the determination of the case then before the court 
 "to express a decided opinion." (Cusack vs. Tomlinson, 
 1 E. D. Smith's R, 716.) Notwithstanding the cautious 
 language of the court, there is hardly room for a doubt 
 upon this point ; and it is now, I believe, universally con- 
 ceded by those members of the profession whose prac- 
 tice has fitted them to judge, that the act of 1851 does 
 
86 MECHANICS' LIEUT LAWS. 
 
 not include other persona than contractors and their sub- 
 contractors. 
 
 III. Of the rights of those occupying a representative 
 position as assignees, executors and heirs, the statute 
 does not speak ; nor is it easy to determine what was the 
 intent of the legislature with respect to such persons. 
 The question which this presents, is whether the holder 
 of a valid claim, in assigning it, may not assign all of 
 his legal rights, so that they will transfer and draw with 
 them all of his legal remedies and securities; and also 
 whether such a claim, in descending by devise to a 
 man's executors, or by operation of law to his heirs^ 
 should not be deemed to carry with it the same remedies 
 which the testator did himself have ; or whether this 
 (being a statute giving a new and peculiar form of 
 relief, and indeed giving not only this, but creating new 
 rights and interests not before known to the law,) can 
 be enlarged by construction so as to include any but 
 those actually named therein. 
 
 Whatever may be ultimately decided, it is certainly 
 to be wished that the former construction should prevail. 
 Great inconvenience might otherwise be occasioned, as 
 in the case of a debtor, who could not assign for the 
 benefit of his creditors without sacrificing what might 
 alone render the chose valuable; or great injustice 
 might be occasioned, as where a large claim, descending 
 to the children of the claimant, would be stript of its 
 only real value. 
 
 Yet there are differences in the positions which these 
 legal representatives may occupy; and it may be, in the 
 rights they consequently will possess. "We have seen 
 that a lien is a quasi mortgage, and the proceeding to 
 
THE NEW-YORK LIEN LAW. 87 
 
 close it a quasi action, and that consequently the party 
 acquires a right or cause of action by the filing of the 
 lien which before he did not possess, (p. 15, ante.) This, 
 therefore, is a security not incidental to the debt, but to 
 be acquired by taking a certain legal step. After this 
 step is taken, and this security, not previously existing, 
 is created, it may be rendered available by a certain 
 legal proceeding which, up to the time of joining issue, 
 is governed (as it was created,) by the act alone. After 
 the issue has been joined a third appearance is given to 
 the claim ; and it is provided that the rules pertaining to 
 ordinary actions shall govern the proceeding. 
 
 I have little doubt but that in this last stage of the 
 case the court might order a change of parties, as in 
 ordinary actions, where there has been a change of in- 
 terest (Code, § 121) ; and with respect to the second, 
 it would seem reasonable that a legal security might 
 legally pass with a debt legally transferred ; but in rela- 
 tion to the first, it must be regarded as exceedingly 
 doubtful, until some decision shall throw light upon the 
 question or put it at rest. (And vide, infra.') 
 
 Second. We come now to the second branch of this 
 inquiry, viz., the cases and circumstances in and under 
 which a lien may be acquired and closed. 
 
 I. Though no case will now probably arise in which 
 the question will be involved, yet it is worthy of being 
 noted that this law applies to all cases where the labor 
 has been performed or materials have been furnished 
 subsequent to the passage of the act ; and this is so 
 clearly the intent of the act, that a lien has been repeat- 
 edly held to be good, although the contract between the 
 
88 MECHANICS' LIEN LAWS. 
 
 parties was made prior to the enactment of the law. 
 (Sullivan vs. Brewster, 1 E. B. Smith's R., 681 ; Don- 
 aldson vs. ''Connor, id., 695 ; Miller vs. Moore, id., 739). 
 II. It is to be noted that the lien is not a new remedy, 
 but a new security ; and that the proceeding upon it is 
 not an action for the collection of a debt, but a suit for 
 the foreclosure of a security. (Vide p. 61 , ante.) It is a 
 well settled principle that a creditor may pursue his col- 
 lateral securities, and also proceed against his debtor. 
 (Ghipman vs. Martin, 13 Johns. R., 240 ; Day Vs. Leal, 
 14 id., 404 ; Taggard vs. Curtensius, 15 Wend. R., 15Y ; 
 Bay vs. Gunn, 1 Den , 108.) It would, therefore, be the 
 natural sequence of this principle, that in many cases the 
 lien would not interfere with the prosecution of the ordi- 
 nary remedies^ A creditor, accordingly, may file his lien 
 against the owner notwithstanding he has taken the con- 
 tractor's note for the amount (Miller vs. Moore, IE. D. 
 Smith's R., 744), unless, indeed, the terms of credit given 
 by the note should extend beyond the period in which 
 the lien can be foreclosed ; an effect which I shall here- 
 after discuss (p. 92, post). A failure to recover against 
 the owner will not per se bar a recovery against the con- 
 tractor. (Sullivanvs. Brexoster, id., 686.) The pendency 
 of the proceeding to foreclose the lien as against the own- 
 er, is no defence to a suit for the same debt as against the 
 contractor. {Gridley vs. Rowland, id. 670.) I perceive 
 no reason, either why the pendency of a suit against the 
 contractor could be a defence in a proceeding against 
 the owner, or a recovery against the former would pre- 
 vent a lien against the latter. The reasoning in Miller 
 vs. Moore (s'upra,) leads to the conclusion that they 
 would not. We have seen what the judgment in these 
 
THE NEW-YORK LIEN LAW. 89 
 
 proceedings may be where the owner is personally liable 
 in whole or in part; and that against him a second suit 
 would be unnecessary (p. 62, ante). 
 
 There is, however, one case where I presume this 
 double litigation would be unnecessary, and, if resorted 
 to, would never be allowed ; and that is where, urder the 
 amendments of 1855 (§ 5), the contractor is made a 
 party to the lien suit. The reason for this distinction is, 
 that in this case the act allows judgment to be " ren- 
 dered against the contractor for the amount which shall 
 be found owing by him." The proceeding is, therefore, 
 as regards him, an action ; and any other action for the 
 same matter might be pleaded in abatement to it, or it 
 to any other. Should, however, the contractor be made 
 a party at the instance of the owner, while a suit was 
 pending against him, it is probable (unless the claimant 
 made a personal claim against him in his complaint,) 
 that he would be regarded merely as a defendant in 
 equity, brought in to be made cognizant of the suit; and 
 that there would be no reason for his pleading the other 
 suit in abatement. 
 
 III. The time allowed parties to acquire and close liens 
 is fixed by statute. With respect to the former, the 
 period fixed by the act is six months. The only question 
 that can arise is, whether this period runs from the mo- 
 ment the party commences or concludes performing 
 the labor or furnishing the materials. In cases where 
 the work has been furnished for a long time continu- 
 ously, or where there has been a running account, the 
 question is important. The language of the act leaves 
 it (if not doubtful,) unsettled ; and the courts have not 
 
90 MECHANICS' LIEN LAWS. 
 
 yet determined the doubt, if it exists. It is provided 
 (§ 6,) that " within six months after the performance of 
 the labor," within six months after "the furnishing" 
 of the materials, the Hen must be filed. Does this mean 
 six months after each article has been furnished, or six 
 months after all ? Four solutions, it appears to me, are 
 afforded by the statute. 
 
 1. It contemplates the materials being furnished from 
 time to time ; for it provides (§ 5,) for this by requiring 
 a bill of particulars to be furnished ; an instrument gene- 
 rally applied to those claims which consist of different 
 items, furnished at different times. 
 
 2. The statute refers to work and labor, which obvi- 
 ously could not be performed at one time, but which, 
 from the nature of things, must be rendered during a 
 protracted period ; and the statute refers to it by the 
 words " after the performance." 
 
 3. The statute has a particular reference, using the 
 words " such labor," " such materials," thereby referring 
 to the labor and materials which make up the "bill of 
 particulars" and constitute the consideration for the 
 " amount " referred to in the preceding section, and ne- 
 cessarily meaning not a part but the whole. 
 
 4. The statute does not contemplate the amount 
 claimed being from time to time split up by separate 
 liens, nor does it contemplate a repetition of a lien fqr 
 parts of the same thing. In analogy to the statute of 
 limitations, it is the obvious intention of this act to allow 
 a period, after the transactions between the parties' have 
 been concluded, in which proceedings can be commenced ; 
 and any other construction would be unnecessarily incon- 
 venient. 
 
THE NEW-YORK LIEN LAW. 91 
 
 The point has never been before the court, and the 
 judges have never adverted to it ; yet incidentally they 
 have several times had occasion to speak of this clause 
 of the statute, and their manner of speaking indicates 
 that the statute is thus understood by them. Thus Mr. 
 J. Woodruff, in Donaldson vs. ' Connor (id., 695), says: 
 "The answer states that the plaintiff's work and mate- 
 rials were all furnished, &c, more than six months be- 
 fore the notice of claim was filed with the county clerk. 
 If this be true, and I understood the counsel to concede 
 it on the argument, the plaintiff is too late. The sixth 
 section requires that the notice be filed within six months 
 after the performance of the labor, &c." And in Tinker 
 vs. GeragMy (id., 689), the same justice says : " The time 
 when the labor was performed must appear on the trial ; 
 •and it must appear then that the notice of claim was 
 filed within six months next ensuing the performance," 
 &c. And again, in Doughty vs. Devlin, (id., 640), he 
 says : " Since six months are allowed after the work, &c, 
 is done, within which notices of claim maybe filed," &c. 
 
 Two periods are assigned within which the proceed- 
 ings to close a lien must be commenced. The first of 
 these is absolute, and is the period of one year from the 
 time of acquiring the lien. The other of these is con- 
 tingent, and depends upon the action of the owner. He 
 has the right of compelling the claimant to commence 
 upon & notice of thirty days, or of forfeiting his lien. 
 But while the proceedings may be commenced within 
 these periods, it does not follow that in all cases they 
 can. On the contrary, it is a principle of the lien law 
 that the claimant must be in a proper position to demand 
 relief as we shall presently see. 
 
92 MECHANICS' LIEN LAWS. 
 
 IV. The effect of money not being due by the 
 owner; of credits given by the claimant, and of forfeiture 
 suffered by the contractor, is next to be considered. 
 With respect to the lien, it has been held that it may 
 be acquired before anything has become due under the 
 owner's contract, and even before anything has become 
 due to the claimant. The reason of this is the language 
 of the sixth, fourth and fifth sections of. the act. By 
 the sixth, it is provided that any person, after furnishing 
 materials, &c, may acquire a lien ; while the fourth and 
 fifth, which relate to the proceedings to foreclose, speak 
 of the amount due, or claimed to be due. This point 
 has been frequently raised, and (unless it be in the case 
 of a specific credit given by the claimant,) it may be 
 deemed settled, that the lien, may be acquired before 
 any payments have become due. (Doughty vs. Devlin f 
 id., 625 ; Sullivan vs. Brewster, id., 681 ; Pendleburg vs. 
 Meade, id., 728 ; Miller vs. Moore, id., f 39.) This con- 
 struction appears the more reasonable, from the fact that 
 the statute has given so long a period in which the fore- 
 closure may be commenced. The reason for this would 
 not be apparent, unless it was intended by the statute 
 as a period for claims to mature. 
 
 But a more delicate question arises with respect to 
 the right of a sub-contractor to foreclose when his claim 
 is due, but when no payments' have become due from 
 the owner to the contractor. In order to comprehend 
 the difficulties which attend the disposition of such a 
 case, it must be understood : 1. That the claimant's pro- 
 ceedings, like other suits, cannot be holpen by facts 
 which transpire after they are commenced ; and hence, 
 that at the time of commencing, he must be entitled to 
 
THE NEW-YORK LIEN LAW. 93 
 
 • 
 
 judgment, either final or interlocutory ; 2. That the 
 owner (as we shall hereafter more clearly perceive, 
 infra,) cannot be compelled to pay before the pay- 
 ments have become due under his contract ; 3. That 
 the claimant must commence his proceedings within the 
 year, or lose his lien. Now, it will at once be observed 
 that cases may occur where the year would expire 
 before any payments become due under the owner's 
 contract. In such a case shall the claimant lose his lien, 
 or shall the owner be compelled to pay in advance of 
 his contract, or shall an interlocutory judgment be given, 
 settling the rights of -the parties, but providing for the 
 future satisfaction of the debt ? 
 
 The question was discussed but not determined in 
 Doughty vs. Devlin (see pp. 633, and 642 to 645). 
 The opinion, however, was plainly expressed by the 
 court, that there was nothing in the act to prevent the 
 proceeding from being so controlled " that justice may 
 be done." It was suggested, but not decided (p. 645,) 
 by the court; that this might be done by staying the 
 proceedings, or by fixing the time of payment in the 
 judgment, or by exercising " an equitable control over 
 the judgment" after it was rendered. It has not yet 
 been determined which of these methods would be pre- 
 ferred by. the court ; and these questions, discussed but 
 not decided in the first published case under the lien 
 law (Doughty vs. Devlin), are discussed but not decided 
 in the last. (Miller vs. Moore.) I, however, apprehend 
 that in such a case an interlocutory judgment would be 
 granted ; and the same learned judge concludes his 
 able opinion in the last named case by saying : " The 
 difficulties above suggested, however, confirm me in the 
 
94 MECHANICS' LIEN LAWS. 
 
 opinion often expressed, that the foreclosure contem- 
 plated by the statute is an equitable proceeding, in 
 which the powers of the court, as a court of equity, are 
 peculiarly involved to mould the remedy to suit the cir- 
 cumstances of each case; that the beneficial purposes 
 of the act may be accomplished, and yet justice be done 
 to all parties without altering the contracts they have 
 made among themselves." 
 
 The case thus far supposed, is where the claimant is 
 obliged by the statute to foreclose or lose his hen. A 
 second one may occur ; and that is where, without being 
 so compelled, the claimant has, through ignorance or 
 misinformation, commenced proceedings after the con- 
 tract has been performed, but before the judgments are 
 due. It is plain that here, there are not the same equi- 
 table reasons for aiding the claimant ; and yet it is to be 
 hoped that if the court may, in the one case, render a 
 judgment providing for the future payment of money, 
 that it would in the other. 'No injury by such a course 
 can accrue to the owner, and great inconvenience and 
 often great injustice will be prevented to the claimant. 
 It often happens that the sub-contractor has no means 
 of ascertaining the terms of the owner's contract, or is 
 misled by the statement of the contractor; and to dis- 
 miss his proceedings, and destroy his lien under such 
 circumstances would be both unnecessary and unjust. 
 As a question of law, however, this is a good defence ; 
 and it remains to be seen whether such would be a case 
 in which the court could exercise any discretion. (Vide, 
 infra.) 
 
 A third case is where the year has not expired, but 
 where the claimant is compelled to commence by a 
 
THE NEW-YORK LIEN LAW. 95 
 
 notice from the owner ; and this case is more easily dis- 
 posed of than the others. For in the first place, it not 
 only falls within the principle of the first, but it can, 
 without any forced conclusions, be held that this notice 
 is a waiver by the owner of the defence he would other- 
 wise be entitled to set up. Indeed, the opinion which 
 has been expressed by the court will warrant us in 
 believing that this notice will entitle the claimant to 
 immediate payment (if successful in making out his 
 case), even though nothing be yet due under the 
 owner's contract with the contractor, or the contrac- 
 tor's contract with the claimant ; for every principle of 
 justice would forbid that a party should compel another 
 to commence his action, and then say the payments have 
 not yet become due. You have commenced too soon. 
 (Miller vs. Moore, id., 739.) 
 
 In the next place, with respect to the effect of an 
 express credit given by the claimant, it has been very 
 plainly intimated, if not expressly decided by the com- 
 mon pleas, that this will not prevent the claimant from 
 acquiring a lien. (Miller vs. Moore, supra.) Yet this 
 was rather a case of implied credit ; for the facts were 
 that the note of the contractor had been taken, and 
 while it was running the hen had been filed. There are 
 two difficulties in the way, one of which will be opposed 
 to the adoption of either rule. Under the former law, 
 a claimant could file his contract, and acquire a lien 
 immediately after the former was executed, notwith- 
 standing the terms of credit it might contain. In effect, 
 all contracts were in subordination to the law ; and the 
 law did not allow contracts to be made in derogation of 
 its provisions. It was, in fact, a law restraining the 
 
96 MECHANICS' LIEN LAWS. 
 
 rights of individuals from motives of public policy, and 
 resembling the usury laws, which, in like manner, fetter 
 private contracts. These credits are, however, given 
 voluntarily, and generally to enable the owner to pro- 
 cure funds by mortgage upon the property, and a lien 
 would in most cases be a greater burden to the owner 
 than an action. Accordingly, the courts in determining 
 the intent of the legislature, will have to choose from 
 these two positions, and say that this is a security which 
 a party may, by his own acts, deprive himself of, or 
 else that it is a statutory security, founded on public 
 policy, and which it was not intended should ever be 
 abrogated by the contracts of individuals. 
 
 But with respect to the foreclosure, it is certain that a 
 credit given by the claimant, be it an express credit or 
 such as is implied by his acts in law, will prevent him 
 from commencing his foreclosure, unless it be necessary 
 to do so in consequence of the owner's giving notice as 
 before suggested. "If (says Mr. J. Woodruff) the 
 claimant has voluntarily given credit, he must clearly 
 wait till the credit has expired before he can compel 
 payment." (Miller vs. Moore, id., 745.) And this is 
 also the rule, though the term of credit should extend 
 beyond the period in which -proceedings must be, com- 
 menced. It has not, indeed, been expressly decided ; but 
 the position which the claimant would occupy is well 
 stated in the same case by the first judge, when he says: 
 " If by giving too long credit the creditor deprives him- 
 self of the benefit of the act, he cannot complain if the 
 lien becomes useless." 
 
 As it is frequently supposed that when a contractor 
 allows his contract to be forfeited, and the owner enters 
 
THE NEW-YORK LIEN LAW. 97 
 
 and completes the building, the sub-contractors have 
 some more than ordinary equity under the statute, I 
 devote a few words to the subject, though the idea is 
 utterly groundless. It would, perhaps, seem that when 
 a party has advanced materials or rendered services to a 
 contractor, the benefit of which the owner receives and 
 avails himself of, he should have some redress as against 
 the party really benefited. The case would seem still 
 stronger, should the contractor have forfeited without 
 having received any consideration for these same mate- 
 rials or services. ~%et no redress is given in such cases 
 by the act ; and all the cases go upon the principle that 
 " the operation of the lien law is to transfer to the sub- 
 contractor so much of the contractor's claim against 
 the owner as would be sufficient to pay the debt of the 
 contractor to his sub-contractor." (Sullivan vs. Brewster, 
 per Ingraham, First J.) Should there be any moneys 
 due the contractor, the" sub-contractors could of course 
 avail themselves of them by their liens ; but in the case 
 we are considering, inasmuch as their claims are in sub- 
 ordination to the owner's contract, nothing could be re- 
 covered by them because nothing could be recovered 
 upon it. The question is not, however, open to discus- 
 sion ; for it has been before the court and by it decided. 
 (Vide Allen vs. Carman, id., 699.) 
 
 V. Before leaving this branch of the subject, we will 
 briefly inquire for what services and materials a lien may 
 be acquired. 
 
 The only case under all of the lien statutes where an 
 
 objection has been taken to the lien on this ground, was 
 
 the case of MoDermot vs. Palmer, which arose under 
 
 the act of 1830, and has. recently been decided by the 
 
 7 
 
98 MECHANICS' LIEN LAWS. 
 
 court of appeals. (4 Seld. E., 383.) "When that case 
 was before the supreme court (11 Barb. S. C. R, p. 9), 
 the right of the parties to recover for such services was 
 not questioned ; and the case was decided upon entirely 
 distinct grounds, while, when before the court of appeals, 
 this was the only question considered by that court. 
 The services referred to were for "flagging the side- 
 walks, yards and areas" of certain houses in the city of 
 New- York. It does not appear by either report what 
 the precise nature of the claim was ; but, in the opinion 
 delivered in the supreme court, it appears that there 
 was a contract for the erection of thirteen houses, and 
 that this lien was for a part of the work included in 
 the contract. Whether anything else was included in 
 the claim, than the work for flagging, <fec, cannot he 
 ascertained from the reports. 
 
 The lien law of 1830 differs from the present law, 
 and from the law of 1844, in applying only to work 
 performed " towards the erection, construction or finish- 
 ing of any building," while the two latter acts apply to 
 work performed " in building, altering or repairing any 
 house or other building, or appurtenances to any house 
 or other building." Accordingly, the court of appeals 
 held, that under the act of 1830, the claimant could 
 not recover for flagging the side- walks, yards and areas; 
 but Mr. J. Taggart, who delivered the opinion of the 
 court, in speaking of the law of 1844, which uses 
 precisely the same language as that of 1851, says: 
 " The term ' appurtenance^ may perhaps include, with- 
 out any forced construction, the yard and side- walk; and 
 work and labor performed, and materials furnished for 
 such appurtenances, are probably within the spirit of 
 the statute." 
 
THE NEW-YORK LIEN LAW. 99 
 
 This term, "appurtenances," is said by Jacobs to (Law- 
 Die.,) "signify things both corporeal and incorporeal, 
 appertaining to another thing as principal ; as hamlets to 
 a chief manor;" and that "outhouses, yards, orchards 
 and gardens are appurtenant to a messuage." By the 
 supreme court of the United States, it has been said that 
 (Harris et al. vs. Elliott, 10 Peters, p. 54,) "this term, 
 both in common parlance and in legal acceptation, is 
 used to signify something appertaining to another thing 
 as principal, and which passes as an incident to the prin- 
 cipal thing." 
 
 Beside questions arising in regard to the place where 
 the work is performed, others may arise with respect to 
 the , character of the work itself. I find but two cases 
 where such could have arisen ; and in both it appears 
 to have been assumed, or rather not to have been ques- 
 tioned, that a recovery could be had. The first of these 
 was the case of Dixon vs. La Farge (1 E. D. Smith's R., 
 722), in which " the claim was for furnishing to the con- 
 tractor hoisting apparatus, and labor in the use of it, upon 
 the erection of the defendant's building." The second case 
 was that of Quimiy vs. Sloan (decided at the general term 
 of the common pleas, July 28, 1855) ; and here the claim 
 was for attaching lightning rods. A safe rule, and indeed 
 a natural test would be to consider, as a part of the build- 
 ing, whatever would, at common law, be considered a 
 fixture, and not severable from the freehold. It may 
 also be that greater favor would be shown to those 
 things, which, being questionable in themselves, are 
 included in a building contract; and what would at one 
 time be considered a part of the house, or its appurte- 
 nances, would at another be deemed the pavement of a 
 
100 MECHANICS' LIEN LAWS. 
 
 public street. And this is not wholly fanciful nor merely 
 specious; for it would be but conforming to the ordinary 
 opinions and practice of those for whose protection the 
 lien law was enacted. 
 
 Third. Of the parties against whom a lien may be 
 acquired, and of the interest bound by the lien, under 
 which is intended an examination as to the parties whose 
 estate can or cannot be affected by a lien ; and then as 
 to the extent of this liability, and the extent and quality 
 of the interest so bound. 
 
 I. With respect to the parties ; and here we will 
 inquire: 1. Who is the owner within the meaning of 
 the act ; 2. As regards the owners of ordinary legal and 
 equitable estates; 3. With regard to owners who are 
 femes covert; 4. With respect to those who are minors; 
 5. With respect to those who are owners in virtue of 
 some representative capacity, as executors, trustees or 
 heirs ; and, 6. With respect to those who are not own- 
 ers of an estate, but of a mere equity in the property. 
 
 1. The party who is, in the contemplation of the act, 
 owner, is not always the party who is the owner, in the 
 ordinary acceptation of the term. The act seems to con- 
 sider him as owner who is owner of the building, and 
 utterly to disregard the person in whom may be the 
 legal title of the realty ; or, as has been said, the language 
 is broad enough "to embrace an equitable as well as a 
 legal title ;" and " this construction is necessary to give 
 effect to the intention of the legislature." (Belmont vs. 
 Smith, 1 Duer's R., 675.) 
 
 The case where the application of this principle is 
 most likely to arise, and which will fully illustrate the 
 
THE NEW-YORK LIEN LAW. | 101 
 
 working of the law in this particular, is the case t>f lots 
 sold on a building contract, or a contract by which' the 
 vendor agrees at a future time to convey, and in the 
 meanwhile puts the vendee in possession and authorizes 
 him to erect buildings. Here, as it is evident that the 
 vendor of the lots is not the party benefited by the 
 buildings, and as it would be unjust to compel him to 
 contribute his premises to pay for the buildings which 
 another person has erected for his own benefit, the courts, 
 in construing the statutes, have held that the latter, or 
 vendee, is the owner, in contemplation of law. 
 
 This doctrine may now be considered as settled 
 beyond a doubt. It was early decided by the common 
 pleas, in the case of Loonie vs. Hogan, under the act of 
 1844 ; which act is, in this particular, similar to that of 
 1851 ; and that decision was affirmed by the court of 
 appeals in April, 1854. The general term of the supe- 
 rior court has also examined the question, in the case 
 before cited, in which it was involved, and has come 
 to the same conclusion. With respect to the supreme 
 court, the learned reporter of the common pleas is 
 somewhat in error in stating that that court held differ- 
 ently in the case of McDermot vs. Palmer (1 E. D. S. K,., 
 n. a, p. 652). The facts of that case hardly warrant such 
 a conclusion ; and the implied opinion of the court seems 
 to have agreed with that of the common pleas. The 
 facts were, that there was a contract for the erection of 
 the buildings in a certain manner and for a certain price ; 
 and at the foot of it was attached a memorandum or 
 agreement, that when the several obligations of the par- 
 ties should be fulfilled the owners would convey at a 
 stated price. Upon these facts, the court very properly 
 
102 MECHANICS' LIEN LAWS. 
 
 held, that notwithstanding the builders had a right to 
 enforce a conveyance after the obligations were fulfilled, 
 yet still there was a distinct building contract. In other 
 words, the court considered the building erected for the 
 owner of the premises, to be sold by him when finished. 
 And this is evident enough, if the reader will consider 
 this contract to convey as made with some other person 
 than the builder ; in which view, it is evident that the 
 buildings were erected by the owner, and for his own 
 benefit ; and that the builder occupied the position of 
 any third party, agreeing to purchase when the owner 
 should have them completed. The intent of the supreme 
 court to place their decision upon this ground, indicates an 
 acquiescence in the doctrine advanced by the other courts; 
 and so far from being at variance with it, would be an 
 authority to show merely that while the rule exists, cases 
 may arise somewhat resembling the cases which it gov- 
 erns, but still not falling within its purview. It is, per- 
 haps, unfortunate that when this case was before the 
 court of appeals that tribunal did not express an 
 opinion upon this point ; but as the reversal was upon 
 other grounds, without any allusion being made to this, I 
 am inclined to think that the opinion of the court coincided 
 pro tanto with that of the court below ; and this belief is 
 further sanctioned by the fact that the point upon which 
 the reversal rested was not only not taken when the case 
 was before the supreme court by the appellant's counsel, 
 but was conceded by him to be with the respondent. The 
 court of appeals would hardly have sought for an entirely 
 new ground on which to rest its judgment if the judges 
 had not agreed to the opinion of the court below. 
 
THE NEW-YOKK LIEN LAW. 103 
 
 2. As regards ordinary legal and equitable owners, it 
 is observed that the lien must be acquired while they 
 are actually the owners, and that the ordinary presump- 
 tions of law do not in this particular aid the claimant. 
 Thus, where the owner (holding the fee) deeded the pro- 
 perty before the lien was filed, and the deed was delivered 
 but not recorded before the filing, it was held to be fatal 
 to the claimant. In the case where this point was deter- 
 mined (Quirnby vs. Sloan, general term, July 28, 1855), 
 the court say, per "Woodruff, J. : " Unless we are satis- 
 fied that the views we have heretofore entertained of 
 the proper construction of the law under which this 
 proceeding was taken, and of the nature of the proceed- 
 ing itself, are wholly erroneous, and most of the deci- 
 sions we have made since the law was enacted are wrong, 
 we cannot sustain this judgment." " The fact that the 
 deed was not recorded until two hours afterwards does 
 not alter the case. The plaintiffs acquired no lien while 
 the owners had any right, title or interest. That had 
 passed to the grantees and passed effectually, whether 
 the deed was recorded or not." As it has been held that 
 the absence of ownership in the defendant is a good de- 
 fence, entitling him to a judgment and costs (Dixon vs. 
 LaFarge, id., 732), the inquiry as to the ownership ac- 
 quires a two fold importance, and at the time of filing the 
 lien should not be left as a matter for future investigation. 
 
 These owners will generally be the owner of the fee, 
 of an estate for years, of an estate at will or of an estate 
 for a single year, which, under our statute, differs some- 
 what from an estate for years. In all of these cases 
 there must be an actual legal estate, of which the defend- 
 ant must be either the legal or equitable owner. Whether 
 
104 MECHANICS' LIEN LAWS. 
 
 a mere equity (by which is meant not an estate in pro- 
 perty, but some interest growing out of it,) can be bound 
 by a lien, will be discussed subsequently in this inquiry. 
 (p. Ill, post.) To the above might probably be added 
 tenants in dower, and by the curtesy and in general, any 
 person who contracting and holding himself out as 
 owner, has any equitable or legal rights in the property 
 itself, or in any portion of it. In the case of joint own- 
 ers the share of the contracting one would be bound, 
 and in the case of tenants in common, the estate of the 
 contracting tenant. I do not know that an estate en 
 praesenti would be deemed necessary ; as, for example, it 
 has been held that a parol lease is valid though com- 
 mencing at a future period. ( Young vs. Bake, 1 Seld., 
 463.) And here it would probably be held that the 
 tenant's interest would pass when his estate should com- 
 mence. The case of a person holding under a contract 
 is in point here ; for there the equitable owner has but 
 the right to be invested (and generally at some future 
 time) with the legal estate. 
 
 But a case might arise in which it would be doubt- 
 ful whether the landlord or tenant should be deemed 
 the owner, as where the tenant repairs a building of 
 which the landlord is to receive the chief advantage. 
 It would be difficult to determine, in such a case, whether 
 the landlord does not employ the tenant as a contractor 
 to execute certain work, the rent or reduction of rent 
 being the contract price ; or whether the tenant, reaping 
 for the period of his tenancy the advantages of the 
 work, should not be considered as the owner whose 
 estate should be liable; or whether both the landlord 
 and the tenant should not be deemed owners, and the 
 
THE NEW-YORK LIEN LAW. 105 
 
 separate estate of each lbe bound. It would seem here 
 that the attendant circumstances might authorize either 
 rule. In case the repairs were of such a nature or made 
 at such a time that the landlord would ex necessitate derive 
 the whole benefit, it would seem that he should be deemed 
 the owner; while if they were, of so temporary a kind 
 as to be solely for the benefit of the tenant, then they 
 should be secured only by his estate ; and again, should 
 they be of such a kind as to be beneficial to both landlord 
 and tenant, then the estates of both might be deemed 
 liable. But a safer and simpler rule would probably be 
 to say, that he should be deemed the owner on whom 
 the expense of the repairs or erection was to fall. In 
 case the repairs were made gratuitously by the, tenant, 
 they should of course not be a charge upon the land- 
 lord ; and again, in case the tenant merely acted as the 
 agent of the landlord in having them made, they of 
 course should not fall upon him ; and in case, again, they 
 were to be made by either, and the expense to be met 
 jointly, then of course they should fall upon both, and 
 hence on the. estates of both. The great difficulty 
 here would be in discriminating between the two, so 
 as to determine who is the party really to bear the 
 expense. And here, again, where the landlord was ad- 
 judged to be the owner, the measure of the relief would 
 sometimes flow back to the extent of the tenant's estate ; 
 for the landlord, agreeing to pay not in money but in the 
 occupation of the premises (that is, giving the occupation 
 for so much money and so much repairs), could not be 
 made liable beyond the terms of his agreement. If then 
 a landlord should be adjudged the owner, a tenant the 
 contractor, and the payment under the contract be the 
 
106 MECHANICS' LIEN LAWS. 
 
 occupation of the premises, in what way could the relief 
 be granted ? The landlord's estate would be liable ; but 
 the measure of the landlord's liability would be the ex- 
 tent of another party's estate. Could the tenant be 
 ejected in virtue of the proceedings against the landlord 
 (even if he were made a party), in order that the 
 claimant might have the benefit of the occupation ? or 
 would it be said by the courts that such cases depend 
 too much on subtilties and refinements, and are be- 
 yond the scope and intention of the law ? or would it 
 be held, that for the purpose of preventing all evasions 
 under the law, the form of the remuneration to be given 
 by the owner might be disregarded, and he be held liable 
 for its real value in money ? 
 
 3. With respect to owners who are femes covert, it 
 would seem that their separate estate, which is held 
 under the acts of 1848 and 1849, cannot be bound by a 
 lien. The reason of this is that, as we have seen (p. 84, 
 ante), the lien depends upon the owner's contract; and a 
 married woman cannot bind herself by contract, the 
 law allowing her only to take, grant, and devise property 
 as though she were a feme sole. This point has been 
 frequently adjudged, as respects general contracts. 
 {Lovett vs. Robinson, 7 How., 105; /SwitzerYS. Valentine, 
 10 id., 109.) The question came before the common 
 pleas in the case of Hawptman vs. Catlin (1 E. D; Smith, 
 p. 729), in which a contract had been made by the hus- 
 band (as was claimed) as agent of the wife. The Hen 
 was filed against both, as persons against whom the claim 
 was made, and against the wife as sole owner. The pro- 
 ceedings were against the wife, and it was alleged in the 
 complaint that the premises were her " separate estate 
 
THE NEW-YOKK LIEN LAW. 107 
 
 and property ;" and that the building was " erected by 
 her or for her use and benefit, with her permission, at 
 her request and with her consent and approbation." 
 
 This case might consequently have presented the 
 question fairly, and we might have had the opinion of 
 the court upon it fully expressed ; but, unfortunately, the 
 point was not taken by the defendant's attorney, and we 
 can only gather the law from the opinions. Mr. J. 
 "Woodruff says : " I do not perceive how Mrs. Catlin, a 
 feme covert, is liable at all in this proceeding. She could 
 not contract at all for the erection of the building ; and 
 I am by no means satisfied that she could, by any con- 
 tract, subject the building to a hen except by a pledge 
 of some sort (by mortgage or otherwise) in writing, duly 
 acknowledged." Mr. J. Ingraham, concurring, says: 
 "I concur in the impropriety of a report against the 
 wife. The notice of lien is against the wife as owner, 
 upon a contract made with John M. Catlin. If he made 
 the contract, then his interest in the land is all that is 
 liable. If the contract was made with Mrs. Catlin, by 
 her agent, John M. Catlin, it should have been so stated 
 in the notice creating the lien. Whether a married 
 woman could make such a contract would still remain to 
 be decided." Mr. J. Daly, dissenting, says : " There may 
 be a question as to the right to include the wife as a 
 defendant in this action, and bind her property by a hen 
 founded upon a contract made by her husband. But 
 the objection was not raised by the answer or made 
 before the referee." 
 
 4. With respect to owners who are minors, no case 
 has yet been decided, though more than one will prob- 
 ably soon be before the court. The cases here referred 
 
108 MECHANICS' LIEN LAWS. 
 
 to, are those where the minor has been in the possession 
 of the premises and has contracted without the inter- 
 vention of a guardian, and where it was believed that 
 he was of full age. In the absence of any decision, it is 
 suggested that the right of acquiring a hen would de- 
 pend upon the right of recovering in an action. If this 
 be correctly assumed, it would seem that the law will 
 not be available to parties who have thus dealt; for 
 although an infant is liable in tort for goods fraudulently 
 obtained ( Wallace vs. Morse, 5 Hill, 391), for the reason, 
 that when goods are obtained by fraud the title does 
 not pass unless the plaintiff elect to consider it changed 
 {Gary vs. Hotaling, 1 Hill, 311 ; Olmsted vs. Hotaling, 
 id., 317), yet it has been held that an infant is not liable 
 even for money borrowed, to be laid out in necessaries 
 {Randall vs. Sweet, 1 Den., 460), nor for a note given 
 while carrying on a trade. ( Van Winkle vs. Ketcham, 3 
 Cai. E,., 323.) It is true that an infant cannot disaffirm 
 an executed contract and recover back the money he has 
 paid without restoring the other party the entire consid- 
 eration given by him. {Bartholomew vs. Fennemore, 17 
 Barb., 428.) Yet this doctrine has not been applied to 
 executory contracts {Mason vs. Denison, 1 5 Wend., 64) ; 
 and " there is no case where it has been held that an 
 executory contract by an infant, not being for necessa- 
 ries, is obligatory upon him." ( Whitemarsh vs. Hall, 3 
 Den., 375.) 
 
 5. With respect to those who are owners in some 
 representative capacity, either of a deceased owner, as 
 executors and heirs, or of a living owner, as trustees and 
 assignees, the inquiry divides itself into the effect of a 
 transfer before the lien is acquired, and a transfer subse- 
 
THE NEW-YOEK LIEN LAW. 109 
 
 quently. But by these terms, " executor, heir," &c, is not 
 meant those executors or heirs who have contracted for 
 the erection of the building, and are themselves the 
 contracting owners, but to those who have acquired their 
 title subsequent to the performance of the labor for 
 which the lien is filed. With respect to the former, it 
 may here, however, be observed, that the validity of the 
 lien would depend upon their right to bind the property. 
 In other words, where a judgment could be procured in 
 an ordinary action against the trustee, as such, the trust 
 estate would be bound by a lien. 
 
 But in those cases where, the .premises have passed 
 from the contracting owner, different questions arise. 
 Where the grantees are good faith purchasers, it is 
 evident, first, that no lien can be acquired subequent 
 to the conveyance; and second, that any conveyance 
 subsequent to the filing of the lien would be subject to 
 it. In this case the claimant would, of course, proceed 
 against the original owner, and the premises would be 
 sold as though no conveyance had taken place. But 
 with respect to those cases where the property had de- 
 scended to an heir, or been devised to an executor, it 
 might be argued that a lien might be acquired after the 
 owner's death ; or where it had been acquired previously, 
 that it might be closed. 
 
 Several of these questions have been determined. It 
 was settled in the case of Quimby vs. Sloan (vide p. 99, 
 ante), that a conveyance to assignees for the benefit of 
 creditors is fatal to a subsequently acquired lien. The 
 decision, indeed, intimates that " doubtless a fraudulent 
 conveyance, made with intent to defeat the recovery of 
 the claims, would be set aside by an action pboseouted 
 
110 MECHANICS' LIEN" LAWS. 
 
 foe that purpose ;" but this per se also intimates, that 
 a fraudulent conveyance would have to be set aside by 
 an action prosecuted for that purpose. 
 
 It was settled by the case of Crystal vs. fflannetty 
 (decided by the general term, July, 1855), that the death 
 of the owner was also fatal to a subsequently acquired 
 lien. The court (per Ingraham, First J.,) says : " If no 
 lien has been created prior to the death of the owner, 
 and the title has passed to another, whether by purchase, 
 devise, or otherwise, no lien can be acquired against such 
 subsequent owner by proceedings founded on claims 
 arising under a contract with the deceased owner." 
 
 The same case also intimates the opinion of the court 
 upon another point ; and that is, where the lien has been 
 acquired before the death of the owner, the proceedings 
 to foreclose may be instituted against the party who has 
 acquired the legal title, either as heir or trustee. " There 
 may be (says the same judge,) cases where such a pro- 
 ceeding can be instituted against executors; such, for 
 instance, as that of a devise by the testator of his real 
 estate to his executors ; but without title to the property 
 of the testator, on which the lien exists, no such proceed- 
 ing can be maintained against the executor of the owner." 
 The obvious soundness of this opinion, and the obvious 
 necessity of the right to foreclose a security, which 
 is granted and established by law, and the necessity 
 of the parties interested in the property, being consid- 
 ered as the proper defendants in such proceedings, will, 
 I think, warrant the practitioner in so proceeding with 
 as much safety as though the point had been actually 
 determined by the court. 
 
THE NEW-YOKK LIEN LAW. HI 
 
 The conclusions to be drawn from these decisions are : 
 First, that no lien can be acquired after the property has 
 passed from the contracting owner, whether it be by 
 death, by a conveyance to bona fide purchasers, to assign- 
 ees, or even by a fraudulent conveyance, made to defeat 
 the hen. Second, that in case of a fraudulent conveyance, 
 made with this intent, the courts would doubtless inter- 
 pose to save the lien by setting aside the conveyance. 
 Third, that a lien, acquired before the death of an owner, 
 can be foreclosed after his death by proceedings institu- 
 ted in the usual manner against the parties in whom the 
 title has vested, and not against the personal representa- 
 tives of the deceased owner. 
 
 6. "With respect to those who, instead of holding 
 legally or equitably some legal estate in the property, 
 have but a mere equity growing out of it, a question 
 arises whether such can be considered owners under the 
 act. And this topic does not come within the compass 
 of the inquiry, as to who is the owner in the contempla- 
 tion of the law ; for there, we were inquiring which of 
 certain persons, having undoubted and sufficient estates, 
 should be selected as the responsible one within the 
 meaning of this act ; while here, we are not selecting 
 from among sufficient estates, but inquiring whether a 
 certain estate is sufficient to be the basis for a lien. 
 This cannot be definitely stated, and in the only case in 
 which it has arisen the judges themselves have been in 
 doubt. Says Woodruff, J., in Quimly vs. Sloan (cited 
 p. 99, ante) : " Had it appeared that there was a reser- 
 vation in the deed, under which the grantors had a 
 remaining equitable interest which could be bound by 
 the statute, possibly it might be secured in this mode ; but 
 
112 MECHANICS' LIEN LAWS. , 
 
 even that is questionable when the whole legal title is 
 gone." " I incline to the opinion that the terms ' right, 
 title and interest,' in the statute, mean legal right, title 
 and interest, and not a mere equity." This is all that can 
 be offered to the practitioner concerning this point; and 
 as it depends altogether upon the opinion which the 
 courts may hold regarding a few words of the statute, 
 it will be of no service should an opinion be expressed 
 here. 
 
 II. In regard to the extent of the liability of those 
 against whom liens are acquired, and the extent and 
 quality of the estates or interests which may be bound; 
 or, more briefly, in regard to the extent of the lien. 
 
 This extent of the lien is limited in two ways : First, 
 as appears upon the face of the statute by the extent of 
 the owner's estate or interest at the time the hen is filed ; 
 and second, by the liability of the owner upon his con- 
 tract. In regard to the latter limitation, great doubts 
 at first existed as to the extent of the hen. It was be- 
 lieved by many that the owner would be subject to sub- 
 contractors to the amount of his contract, notwithstand- 
 ing he might have once paid that sum to the contractor. 
 Indeed, this was held by the marine court in several 
 cases, and until the common pleas had established the 
 contrary doctrine. The question was fully discussed in 
 the leading case of Doughty vs. Devlin (1 E. D. Smith, 
 625), and several minor points were there settled, which 
 have been frequently since affirmed. It is, therefore, to 
 be understood as undoubted law, first, that the owner is 
 not liable for any greater amount than is due upon his 
 contract at the time the lien is filed ; and this is to be 
 understood as applying to both the liens of contractors 
 
THE NEW-YORK LIEN LAW. 113 
 
 and sub-contractors. In the case referred to, we have 
 upon this the following opinion : 
 
 " The foregoing are some of the considerations which 
 have led me to the conclusion that the contract of the 
 owner is conclusive as to the amount which he can be 
 compelled to pay, if he has observed good faith and per- 
 formed his contract according to its terms ; and therefore 
 that he cannot be compelled to pay, in any event, more 
 than the contract price. 
 
 " I regard this proposition as lying at the foundation 
 of the whole proceeding, and as declaratory of and con- 
 trolling the rights of the parties ; and, therefore, in apply- 
 ing the subsequent provisions of the statute, which are 
 merely designed to secure and enforce those rights, we are 
 to keep the provisions of this first section always in view, 
 and mould or adapt the remedy, so far as it is intrusted 
 to us, so as to effectuate the object, and, if possible, har- 
 monize the whole." (Doughty vs. Devlin, id., p. 639.) 
 
 This has been affirmed in every case in which the ques- 
 tion has arisen, and in whatever form it may have been 
 •presented. (Vide Cronh vs. WhittaJcer, id., p. 647 ; 
 Kennedy vs. Paine, 651 ; Sullivan vs. Brewster, 681 ; 
 Allen vs. Carman, 692 ; Spauluing vs. King, 717; Dixon 
 vs. La Farge, 792 ; Pendlebury vs. Meade, 726.) 
 
 It follows, as a sequence of this proposition and as a 
 portion of this principle, that the owner not only cannot 
 be compelled to pay a greater sum than he is required 
 to by his contract, but that he cannot be compelled to 
 pay at different times, or in a different manner ; and this 
 has been also settled by the same case, as appears from 
 the following extract from the opinion of the court : 
 8 
 
114 MECHANICS' LIEN LAWS. 
 
 " But it is insisted that although it may be that prior 
 payments, made in conformity with the contract, in good 
 faith, before notice of claim is filed, are to be allowed to 
 the owner in making up the aggregate which he may he 
 obliged to pay, still, the party filing the lien is not 
 obliged to wait for his money until the payments become 
 due according to the owner's contract. 
 
 " That is, when his work is done and he has filed his 
 notice of claim, he can immediately proceed to foreclose 
 the lien and compel payment, without regard to the 
 terms of the owner's contract for the erection of his 
 house. 
 
 " To assent to this, would be in effect to deny all that 
 has been said above upon the construction of the first 
 section of the act." (Doughty vs. Devlin, id., 639.) 
 
 And this has been affirmed in several cases. {Qrorik 
 vs. Whittaker, 648 ; Spaulding vs. King, 717 ; Sullivan 
 vs. Brewster, 681 ; Miller vs. Moore, T39.) 1 
 
 Further than this, it is necessary that the work per- 
 formed or materials furnished should be performed or 
 furnished in pursuance of the owner's contract, rendering 
 it necessary that there has been a compliance on the part 
 of the contractor, as regards the manner in which he has 
 complied with the terms of the contract. The reason 
 and the reasonableness of this is clearly and ably stated 
 in the same case by the same learned judge : 
 
 " And I may add, that it is no violent or unfair pre- 
 sumption, that when an owner has contracted with ano- 
 ther to build a house, all sub-contractors and others, fur- 
 nishing labor and materials to the contractor, do so with 
 
 'As to the effect of payments made before they become due by the terms of 
 the contract (vide p. 116, pott). 
 
THE NEW-YORK LIEN LAW. 115 
 
 reference to such contract, in subordination to its pro- 
 visions and to the rights of the respective parties thereto, 
 so far as they act in any reliance upon the owner or his 
 house as a security under this law." (Doughty vs. Dev- 
 lin, p. 641.) 
 
 But to what extent a variance between the contract and 
 the contractor's performance under it may be allowed, 
 is, perhaps, not clearly understood. In Dixon vs. La 
 Farge, the court say that the claimant (being a sub-con- 
 tractor,) must show a contract betweeu the owner and 
 contractor, and a performance by the contractor, so far 
 as would prima facie entitle him to recover. 1 And this 
 is, undoubtedly, the true and only rule ; for, as was said 
 in Sullivan vs. Brewster, by the First Judge, " the ope- 
 ration of the lien law is to transfer to the sub-contractor 
 so much of the contractor's claim against the owner as 
 would be sufficient to pay the debt of the contractor to 
 his sub-contractor." And it would necessarily follow that 
 if the contractor had so far departed from the contract 
 as not to be entitled to recover under it, neither he nor 
 those claiming through him, viz., the sub-contractors, 
 could maintain their liens against the owner." 
 
 But in addition to these restrictions, the owner is 
 entitled to one other ; and this is, that even if money is 
 
 1 The dicta in Doughty vs. Devlin (id., p. 632,) must be considered as modified 
 by the decision in Hauptman vs. Halsey and Dixon vs. La Farge, 
 
 ' It is probable that the opinion of Chief Justice Savage, in Saswell vs. Good- 
 child (12 Wend., 873), may mislead many persons in regard to this point. The 
 Chief Justice there says: "Suppose that the work was done upon an extra job 
 upon the same house, does that deprive the laborer of his hire ? The statute was 
 intended to secure to the laboring man the reward for his labor ; all that he is 
 concerned to know is, that the house is ' erected under a contract in writing be- 
 tween the owner and builder.' Is every man who draws a cart load of mate- 
 rials, or carries a hod of mortar, to look into the contract and examine its details 
 
116 MECHANICS' LIEN LAWS. 
 
 due under the contract, which has not been paid over 
 and there are prior liens upon the property, the owner 
 is entitled to have them taken into account : "If," says 
 Mr. J. Daly, " there are prior liens sufficient to absorb 
 the funds remaining in the hands of the owner, it is a 
 good defence to that suit. It was a defence under the 
 former lien law, and must equally be a defence under the 
 present act" (Lehretter vs. ITqfman, id., 664) ; and the 
 justice of such a rule is apparent. It does not, however, 
 follow, that the claimant is absolutely bound by the 
 prior liens ; for he may impeach them, as we have hereto- 
 fore seen (p. 38). 
 
 Simple as the principle is which governs the extent ot 
 the owner's liability, one question may arise which I am 
 constrained to think has not been so certainly deter- 
 mined as many practitioners suppose. The question is, 
 whether an owner can avail himself of payments made 
 before they become due by the terms of the contract, in 
 a case where the sub-contractor is the plaintiff, and his 
 lien, filed before the payments become due, was still filed 
 after they had been made. 
 
 In Doughty vs. Devlin the question did not necessarily 
 arise ; yet in the general consideration of the principle 
 which might have been involved, Mr. J. Woodruff comes, 
 among others, to this conclusion : " That the owner can- 
 to see whether the house is being built in all particulars according to the con- 
 tract?" 
 
 Now the learned judge was here examining the point whether, under the act 
 of 1830 (which required that there should be a written contract), a lien could be 
 sustained for services not falling within the scope of the written contract; but 
 the learned judge did not intend to say that the sub-contractor could recover 
 where the contractor could not ; for he expressly says : " Nor is there any hard- 
 ship in the case; the laborer is not entitled to pay unless there is money in the 
 hands of the owner due to the contractor, under the contract, at the time when the 
 notice is given.'' 
 
THE NEW-YOKK LIEN LAW. 117 
 
 not be compelled to pay (including all voluntary pay- 
 ments, made in good faith, according to the terms oe 
 the contract, before the notice of claim is filed,) any 
 greater amount than the contract price." Whether in 
 this sentence the word " voluntary," refers to payments 
 made in advance of the terms of the contract, or merely 
 to payments made without being _ compelled by an 
 action, does not appear from the report of the case ; the 
 words "in good faith," would apply to the former ; the 
 words " according to the terms of his contract," would 
 indicate the latter. 
 
 In McBride vs. Crawford (id., 661), -where the ques- 
 tion we are considering was also not involved, Mr. J. 
 Daly says : " We held in Doughty vs. Devlin, that the 
 owner was to be allowed for all payments made by him 
 in good faith to the contractor before he had notice of 
 the lien." In Gronk vs. Whittaker (id., 648), where the 
 question was again not involved, Mr. J. Woodruff says : 
 " We have there (in Doughty vs. Devlin) decided that, 
 payments made in good faith by the owner, according to 
 the terms of his contract for the building, before the 
 ■ notice of claim is filed, are to be allowed to him as a 
 defence in proceedings taken under the Mechanics' Lien 
 Law of 1851." Perhaps from these decisions, it may be 
 gathered, that though the point was not actually decided, 
 because not actually involved, yet that the opinion of 
 the judges is clearly expressed. But in Miller vs. Moore 
 (which is the last published case upon the lien law), no 
 such decided, or, indeed, expressed opinion is referred 
 to by the court ; and, on the contrary, the court seem to 
 decline passing upon the point : " Whether (says Mr. J. 
 Woodruff,) in a proceeding in favor of a laborer, mate- 
 
118 MECHANICS' LIEN LAWS. 
 
 rial-man, or sub-contractor, the owner may set up as a 
 defence a set-off or counter claim against the contractor 
 in his own favor, or payments made by the owner to the 
 contractor, before they became due by the teems of 
 the contract, it is not necessary to say. No such fact 
 appears in this case; and the question appertains not to 
 the validity but to the construction of the act. If it ap- 
 peared that such payment was made with intent thereby 
 to defraud the laborers or material-men and defeat the 
 beneficial designs of the act, doubtless such payments 
 would be deemed a fraud upon the law and no defence. 
 But I have no doubt that a payment, made before the 
 act took effect, though made before it became due, 
 and a set-off then existing, are both available to the 
 owner." 
 
 If, now, we should turn back to the broad principle 
 laid down in Doughty vs. Devlin (id., p. 641), that "all 
 sub-contractors and others furnishing labor and ma- 
 terials to the contractor, do so with reference to such 
 contract, in subordination to its provisions and to the 
 rights of the respective parties thereto, so far as they 
 act in any reliance upon the owner or his house as a 
 security," might it not be asked whether, "if they labor 
 or furnish materials, in any sense, upon the credit of the 
 owner or his house," the owner should not be equally 
 bound "by the credit which the terms of the contract 
 offer for their reliance" ? l 
 
 The estate bound by the lien, that is to say, the inte- 
 rest in the premises which the claimant may acquire and 
 
 1 It is proper to add, that the question in Doughty vs. Devlin, was whether 
 payments, payable by the terms of the contract, in advance, would he a defence, 
 and that the question discussed in the text, though alluded to, has never been 
 decided. 
 
THE NEW-YORK LIEN LAW. 119 
 
 sell, is the whole of the "right, title and interest" which 
 the owner possessed at the time the lien was filed. (§ 1, 
 Laws 1851 ; Doughty vs. Devlin, 1 E. D. Smith, 625.) 
 
 It therefore follows that (as we have seen p. 103 ante,) 
 no lien can be acquired on the estate the owner held 
 prior to the filing ; and, also (as no provision is made 
 for the estate which he may subsequently acquire), that 
 the lien will not extend to that estate which he may have 
 after the filing. But this latter remark is not to be 
 understood as meaning that the claimant, or more cor- 
 rectly the purchaser under the lien judgment, cannot, 
 acquire any estate which the owner had the right of 
 acquiring at the time the lien was filed; nor that an 
 estate growing out of the right, title or interest which 
 existed at the time of filing the lien, could not be sold 
 under the judgment, but simply that an entirely new 
 and distinctly acquired estate cannot be thus reached. 
 For example, should a tenant for years after the lieu is 
 filed, purchase the fee, this new estate, not growing out 
 of the existing one, could not be reached ; and should it 
 be said that the lesser had merged in the greater, and 
 that the two estates could not separately exist in the 
 same person, it may be answered that any facts concern- 
 ing the title, subsequent to the filing of the lien, would, 
 clearly be irrelevant ; or again, in case the lien was filed 
 against an equitable owner, who subsequently acquired 
 the legal estate ; here, inasmuch as the claimant could not 
 a second time acquire the legal estate, nor be compelled 
 to lose his rightfully acquired interest, because the owner 
 had done what otherwise he might himself have done, it 
 would, of necessity, follow that the new title to the 
 original estate must enure to the benefit of the lien 
 holder. 
 
120 MECHANICS' LIEN LAWS. 
 
 The right, title and interest of the owner, clearly car- 
 ries with them the right of acquiring any further title 
 to the same estate, or perhaps any further estate which 
 the owner had the right of acquiring. Thus it would 
 be folly for the courts to say, that where the equitable 
 owner had the right, under a contract,, of compelling a 
 conveyance of the fee, the purchaser, under a judgment 
 sale, would not acquire the same right of securing the 
 legal title, or that if a lien can be acquired against the 
 owner of a vested remainder, that the expiring of the 
 intermediate estate would destroy the lien. 
 
 It also follows, from this principle, that the estate is 
 to be taken, subject to all the prior incumbrances 
 existing ©n the property at the time of the filing; for 
 the vested rights of such parties could not be divested 
 by the lien ; and the right, title and interest of the owner 
 are of course to be bound, but not to be enlarged by 
 the proceeding. (Cronk vs. Whittaker, 1 E. D. Smith, 
 649 ; Kaylor vs. O'Connor, id. 672 ; Chamberlain vs. 
 O'Connor, id, 665, § 4, Act 1855.) 
 . But it does not follow, as has been said, that the pre- 
 mises must be taken, subject to the prior liens and in- 
 cumbrances absolutely ; for the claimant, may, by making 
 those who are before him, in point of time, parties, and 
 showing that though they are preferred on this account 
 ceteris paribus, yet that he is entitled to be first paid, 
 by reason of some superior equity. This superior equity, 
 the court has intimated may exist in the case of a sub- 
 contractor, whose rights would be preferred in equity 
 over those of the contractor, who is indebted to him ; 
 but this has already been examined. (Vide, p. 40, ante) 
 
THE NEW-YORK LIEN LAW. 121 
 
 Fourth. Of the owner's privileges and defences ; and 
 these may be comprised in the right of: I. Discharging 
 the premises from the effect of the lien ; II. Compelling 
 the claimant to commence his foreclosure ; III. Joining 
 the contractor as a defendant (and herein as of the effect 
 of omitting to do so) ; IV. Recoupment, set-off, and com- 
 pelling other parties to interplead. 
 
 I. Should the owner, for any reason, wish to have the 
 lien removed from the premises, as in case of a sale or 
 mortgage, this can be done by paying into the clerk's 
 hands a sufficient sum to satisfy the lien. The claimant 
 then looks to this fund instead of the property, as his 
 security. As to the manner in which this may be done, 
 the reader is referred to a previous page (p. 75, ante). 
 No other effect is caused by this act, than the simple 
 transfer of the lien from one security to another, and 
 (as we have seen,) the owner will remain personally 
 liable for any excess which may be recovered for costs, 
 and (it is presumed,) for interest. (Vide, p. 60, ante!) 
 
 II. The owner may compel the claimant to commence 
 his foreclosure within the period of thirty days. But 
 as to the manner in which this is done, and as to the 
 effect which it may work on the owner, the reader is 
 referred to pp. 25 and 94, ante. 
 
 III. The owner may, by a simple motion, join the 
 contractor as a defendant. (Vide p. 41, ante!) There 
 are few steps which may require more serious attention 
 from the owner's attorney than this, and I propose, there- 
 fore, to examine here the necessity and effect of doing so. 
 
 In Collins vs. Ellis (21 Wend., 397), it was held 
 by the supreme court, in an action under the laws of 
 1830 and 1831, that the contractor could not be a 
 
122 MECHANICS' LIEN LAWS. , 
 
 witness against the owner for the purpose of showing the 
 owner indebted to himself under the contract. The 
 ground upon which this was placed appears to have been 
 that the contractor, under those laws, was with respect 
 to the action against the owner, a privy of the plaintiff, 
 and would therefore " after a trial on the merits," be." as 
 completely cut off by the event as he would by the trial 
 of a suit upon a debt regularly 'assigned and guaranteed 
 by him," and " the record would therefore be evidence 
 against him." To the same effect are the cases of Minor 
 vs. Hoyt (4 Hill, 193), and Monteaih vs. Evans (3 Sandf. 
 S. C. R, 65). 
 
 These cases were thus decided for the reason that 
 the contractor having had notice of the lien, and an 
 opportunity of defending as against his sub-contractor, 
 and having failed to pay the amount due the sub-con- 
 tractor, after the preliminary proceedings against him- 
 self, had thereby, as it were, suffered an assignment to 
 be worked by the operation of law to the sub-contractor 
 of the funds in the hands of the owner. It has been 
 laid down by Coke, and has been deemed established 
 since his time, that there are four kinds of privity, the 
 first of which comprises " privies in estate, as between 
 the donor and donee, lessor and lessee, which privity is 
 ever immediate." (Co. Litt., 271, a.) By Jacob's privies 
 are very loosely and inaccurately defined to be (Law 
 Die, term Privies), " those who are partakers or have 
 an interest in any action or thing, or any relation to 
 another." In Bouvier (Law Die, term Privy), privity 
 is much more accurately defined as " the mutual or suc- 
 cessive relationship to the rights of property." But an 
 interest in the same thing is not of itself sufficient to 
 
THE NEW-YOEK LIEN LAW. 123 
 
 constitute privity. Hence it is laid down by Coke (Co. 
 Litt., 268, a), that " there is no privity in case of rent 
 charge." Hence it was held in Ellicott vs. Mosier (3 
 Seld., 206), that judgment against the occupant in eject- 
 ment for dower will not bind the owner ; and in Fer- 
 guson vs. Roome (1 Bradfd's Sur. C. E., 10), that there 
 is no privity between the executor and the heir, and in 
 Wright vs. Douglass, (10 Barb., 107), that there is no 
 privity between the purchaser at a sheriff's sale of real 
 estate and the grantee of the judgment debtor, as re- 
 gards the same property, and in the case of Foster vs. 
 The Earl of Derby (1 Adol. & Ellis, p. 790), that there 
 is no privity where the one party does not hold under and 
 acquire subsequently to the verdict sought to be used ; 
 and in the cases of Wood vs. Davis (7 Cranch, 271), 
 and Davis vs. Wood (1 Whea., p. 6), that there is no 
 privity between a slaveholder and the mother of the 
 slave. Now in none of these cases (and they embrace 
 nearly if not quite every form in which, with a mutual 
 interest in the same thing, privity does not exist), is the 
 case of the contractor and sub-contractor included. We 
 find, on the contrary, that the interest of the one is 
 acquired directly from the other, and that there is that 
 " successive relationship" which constitutes the very 
 essence of privity. 
 
 A judgment against a party is a judgment against his 
 privies, and hence would be as conclusive against the 
 contractor as the sub-contractor. And it would fol- 
 low that the owner having once contested the ques- 
 tion, would be prohibited from any further suit by the 
 contractor. (Reeve's Hist. Con. Law, vol. 3, p. 363 ; 
 Co. Litt., 352, a; Outram vs. Morewood, 3 East, 253; 
 
124 MECHANICS' LIEN LA.WS. 
 
 Burt vs. Sterribergh, 4 Cow., 562 ; Calkins vs. Allerton, 
 3 Barb., 173; Young vs. Bummell, 2 Hill, 480.) 
 
 To the lien law of 1851, none of the preceding reason- 
 ing is applicable. From the filing of the. lien by a sub- 
 contractor, to the entry of judgment against the owner, 
 there is no statutory reason for the : contractor being 
 notified of a single fact. Yet the money in the owner's 
 hands, which is the subject of the controversy, is not Ms, 
 but the contractors, who is alone allowed to remain in 
 ignorance of the proceeding. Now, from this one of 
 two things is evident ; either the owner may be compel- 
 led to pay a claim which he will be obliged a second 
 .time; to pay (the proceeding being no estoppel, as 
 regards the contractor), or else the contractor may be 
 bound by a proceeding to which he was a total stranger, 
 and be, contrary to the great personal safeguard of the 
 constitution, " deprived of property, without due process 
 of law." 
 
 To avoid these evils, the one of which might have 
 required that the law should " be deemed a nullity," as 
 "against natural right and justice" {Bradshaw vs. Rod- 
 ger s, 20 Johns,, 103) ; and the other of which might 
 have rendered it unconstitutional and void, the common 
 pleas boldly decided that " the court has power to add 
 parties, if their presence is necessary to do complete jus- 
 tice" (Sullivan vs. Decker, 1 E. D. Smith, 699); and 
 thereby established the principle that it was necessary 
 in all cases where the claimant was a sub-contr.actor, for 
 the owner, to have the contractor made a party, if he 
 wished to protect himself. 
 
 The amendments of 1855 contain two provisions 
 bearing upon the point ; one of these renders a certain, 
 
THE NEW-YOKK LIEN LAW. 125 
 
 what -was before considered by some, a doubtful power 
 in the court, viz., the power of making the contractor a 
 party defendant. Thus far the amendment strengthened 
 and confirmed the decision of the common pleas. But 
 there is another provision which may be thought to 
 override the rule laid down in Sullivan vs. Decker. 
 The fourth section provides that " the payment by the 
 owner of any valid lien, or of any judgment recovered 
 in pursuance of the said act, shall enure to him as a pay- 
 ment to the amount thereof to the contractor." 
 
 Did this provision stand alone in the act, it would 
 strongly indicate that the legislature intended to over- 
 rule the previous action of the court. But immediately 
 following it is the provision just alluded to, which 
 declares the right of the court to add the contractor as 
 a party. Now, the amendment does not say that the 
 payment of any lien shall enure to the owner, as a pay- 
 ment to the contractor, but any valid lien; and this 
 question of validity could only be determined in a suit 
 between the owner and contractor, for to any other suit 
 the contractor would be a stranger. In other words, if 
 an owner pays a lien without the permission of the con- 
 tractor, he pays at his peril. It cannot be supposed that 
 the legislature intended this protection, for the rights of 
 a contractor should exist in the case of a lien, and wholly 
 vanish when, without notice to him, the lien is turned 
 into a judgment. There would be neither reason nor 
 justice in, nor yet necessity for such a wide distinction, 
 and we are compelled to presume that the judgments 
 referred to are judgments rendered in those cases where 
 the contractor has had an opportunity of contesting the 
 validity of the lien. The more apparent must this 
 
126 MECHANICS' LIEN LAWS. 
 
 become, -when it is remembered that this amendatory act 
 was passed after the decision of the common pleas, in 
 Sullivan vs. Decker, was regarded as established law, 
 and that the legislature not only refrained from using 
 language which directly indicates an intention of annul- 
 ling the decision in that case, but have added a provision 
 intended to remove any doubts which may have existed 
 and to meet the very difficulty which that decision sug- 
 gests. It is, perhaps, needless to "add, that a contrary 
 construction may render the law unjust and void, as 
 regards owners, and unconstitutional as regards con- 
 tractors. 
 
 IV. The defences which an owner may avail himself 
 of, where the claimant is his own contractor, are in effect 
 all that he might in an ordinary action, but as there is 
 a peculiar and distinct relation existing in virtue of the 
 act between an owner and a sub-contractor, it will be 
 advisable to glance at the defences available to the 
 former in proceedings brought by the latter. 
 
 The legal reader is reminded of the difference between 
 set-off and recoupment, the former being a distinct claim 
 pleaded in defence by virtue of a statutory provision, 
 and the latter in the relation of a cross action for the 
 reduction of damages, susceptible of being the subject 
 of a 'separate action, but growing out of the subject mat- 
 ter of the action, and allowed in order to prevent unne- 
 cessary litigation. (Vide McAllister vs. Real, 4 Wend., 
 483 j 8 id., 109; Van 3pps vs. Harrison, 5 Hill, 63; 
 Allaire vs. Whitney, 1 Hill, 484 ; Batterman vs. Pierce, 
 3 Hill, 171; Nicliols vs. Dusenlury, 2 Comst, 283.) 
 The lien law, as we shall presently see, has some pro- 
 visions respecting set-off, but is silent as respects re- 
 
THE NEW-YORK LIEN LAW. 127 
 
 coupment. It was accordingly held in the case of 
 Qourdier vs. Thorp (1 E. D. Smith, 697), that recoup- 
 ment and set-off being so widely different in their 
 nature, it could not be supposed " that the legislature 
 intended to embrace both in the one well understood 
 term ' offset,' " The facts of the case were that the de- 
 fendants offered to show " that the work for which the 
 plaintiff had obtained a lien, was unskillfully performed." 
 On appeal to the common pleas this was held admissi- 
 ble, either for the purpose of showing that nothing was 
 due to the claimant, or that the owner was entitled to 
 recoup the damages arising from the imperfection of 
 the work. It is proper to add that in this case the 
 claimant was the contractor, but the reasoning of the 
 court leads to the conclusion that this defence would be 
 equally applicable against the sub-contractor, and this 
 opinion was expressed by Judge Woodruff, at special 
 term, in the case of Miller vs. Moore (id., p. 742). 
 
 The fifth section of the act, by implication, allows the 
 owner to avail himself of- an set-off, for it requires him 
 to serve a bill of particulars of any " offset" which may 
 be claimed to the amount claimed in the plaintiff's bill 
 of particulars to be due. The act does not specify 
 whether this offset is to be allowed when it is against 
 a different person than the claimant (the contractor), or 
 whether it is to be allowed only when against such dif- 
 ferent person, or whether it may be allowed against 
 either. In the first place it is worth inquiring what is 
 meant by the term " offset" in the act ? But this has been 
 answered by the court. " I am at a loss to see (says Judge 
 Ingraham in Owens vs. Ackerson, id., 691,) any valid 
 reason why, as between the contractor and owner, 
 
128 MECHANICS' LIEN LAWS. 
 
 any set-off is not allowable. There is nothing in the 
 statute which confines the set-off, there provided for, to 
 matters arising out of the same cohtjract. On the con- 
 trary, when it speaks of a bill of particulars of a set-off 
 to the plaintiff's claim, it must mean something else than 
 payments or deductions for deficiencies." 
 
 The question then arises, whether a set-off existing, 
 between the owner and contractor, and relating to mat- 
 ters entirely distinct from the contract, would be a 
 defence against a sub-contractor, when, on the owner's 
 contract (apart from the set-off), there are moneys due. 
 The point has not been decided. In Owens vs. Acker- 
 son, the contractor was the plaintiff; in Miller vs. 
 Moore, the opinion expressed referred to a set-off exist- 
 ing before the passage of the law ; and in Allan vs. Gar- 
 man, id., 693, the decision was simply that the crediting 
 the contractor the amount of his debt before the lien was 
 filed, "was equivalent to a payment." If we turn to 
 the decisions under the former law, we find that this 
 precise question has been before the courts, but that it 
 has been left in doubt. The supreme court, in Minor 
 vs. Hoyt, 4 Hill, 193, held that a prior debt was a good 
 set-off, as against a sub-contractor, even where it had not 
 been agreed that it should be taken as a payment upon 
 the contract ; and per Cowen, J., " we are also of the 
 opinion that the sum due for money lent from D. Hoyt, 
 the contractor, to the defendant below, was improperly 
 excluded. The assignee of a demand, takes subject to 
 every equitable defence existing against it while in the 
 hands of the assignor." * * * " A proceeding under the 
 statute certainly confers upon the mechanic or material 
 man no greater rights than those of an absolute assignee." 
 
THE NEW-YORK LIEN LAW. 129 
 
 * * * " The question would have been different, if the 
 set-off had been in fraud of the plaintiff's lien." 
 
 In Owens vs. Ackerson, Mr. Justice Ingraham says : 
 " Under the previous lien laws, a set-off of this nature 
 was always admitted, and even where the action was 
 between the laborer and the owner, any lonafide set-off 
 between the contractor and owner was held to be a good 
 defence to the laborer's claim ;" and the learned judge 
 then cites the case of Minor vs. Hoyt. However much 
 I may distrust my own judgment, when differing from 
 the opinions of so cautious and careful a jurist as Judge 
 Ingraham, I am constrained to say that the decisions 
 under the previous laws have not left the point in this 
 unquestioned condition. The case of Minor vs. Hoyt, 
 was carried from the supreme court to the court of 
 errors. The facts of the case were peculiar. The action 
 against the owner had been brought in the New-York 
 common pleas, under the act of 1830. On the trial, 
 that court allowed judgment in favor of the plaintiff (a 
 sub-contractor), when it appeared that there were no 
 moneys due to the contractor under the contract, but that 
 the contractor had a cause of action against the owner, by 
 reason of the owners having prevented him from pro- 
 ceeding with his work ; and out of these unliquidated and 
 unascertained damages, the common pleas held the 
 laborer might be paid. Besides this, there was a deci- 
 sion in the case, holding that the owner could not give 
 evidence concerning a set-off against the contractor. 
 Upon these facts, a majority of the court of errors 
 affirmed the judgment of the supreme court. The 
 opinion of Senator Lott (which was the only opinion 
 delivered in favor of affirmance), puts the decision 
 9 
 
130 MECHANICS' LIEN LAWS. 
 
 expressly upon the ground that there was nothing due 
 v/nder the contract; but in regard to the question of 
 set-off, the learned senator, disagreeing with the supreme 
 court, says : " The charge of the judge on the trial, in 
 reference to the due bill of Hoyt, for $78, and the note 
 of Pierson for $312, was, I think, correct. The mechanic 
 is entitled to a recovery of his debt, out of the moneys 
 due by the owner to his contractor, under the contract, 
 without reference to the general dealings between them. 
 The statute intended to provide a certain fund, out of 
 which the claims of the workmen should be paid, and 
 the moneys agreed to be paid to the contractor, are 
 made applicable to that object. That fund can only be 
 reduced by payments bona fide made. It is reasonable 
 to suppose, that every person doing work or furnishing 
 materials to a building, has reference to the price or sum 
 agreed to be paid to the contractor, and the times and 
 terms of payment; and it would defeat the object and 
 intention of the statute, to allow a general debt to be 
 set off against the amount payable under the contract. 
 The person holding the lien, cannot, I think, be con- 
 sidered as an assignee of the claim, subject to all the 
 equities between the parties." 
 
 "What renders this still more expressive, is the opinion 
 on the same point by one of the minority of the court, 
 being the only other opinion delivered. Says Senator 
 Sherman, " I think the supreme court erred, however, 
 in relation to the question of set-off." " Nothing short 
 of actual payments, made upon and expressly applicable 
 to the contract, can operate to deprive the party of his 
 statutory lien. This, it appears to me, is a construction 
 of the statute, due alike to the terms used in it, and the 
 manifest object of its framers. 8 
 
THE NEW-YORK LIEN LAW. 131 
 
 Now, when it is remembered that this opinion was the 
 only expressed opinion of the majority of the court, and 
 that the senators who voted for affirmance, gave no in- 
 timation of their differing from the learned senator, and 
 when it is remembered that four senators voted for the 
 reversal of the supreme court, and thereby the affirmance 
 of all the rulings of the common pleas, one of whom 
 delivered. an opinion coinciding on this point with that 
 of the other senator, it must certainly appear that 
 although it was not actually decided, the court of errors 
 were unanimous in regarding the decision of the supreme 
 court upon this point as erroneous ; and it is submitted, 
 that under the decision in James vs. Patten (2 Seld., p. 
 18), where the court of appeals hold that where two 
 questions are " considered and determined in the only 
 opinions read in the hearing of the members, the majority 
 must be deemed to acquiesce in the conclusions upon 
 those questions reached in those opinions, unless some 
 one dissents ;" and that, under the decision in Benjamin 
 vs. Benjamin (1 Seld., 383), where the same court, citing 
 the opinion of the court of errors, say: "The resolution 
 of the highest court of the state, in that instance, would 
 seem to be decisive of the rule on this subject ;" * this 
 opinion of the court of errors, though not absolutely 
 binding upon the court of appeals, will be treated by it 
 with very great respect. 2 
 
 1 Noble vs. Post, Administrators (25 Wend., 312,) like Minor vs. Boyt, was 
 affirmed by the court of errors, upon another ground than that assigned by the 
 supreme court. The only particular in which it differs from the latter case is, 
 that a resolution was passed expressive of the opinion of the court 
 
 ' It is to be remembred that this decision was upon a statute entirely different 
 in form from that of 1851, and agreeing with it only in the general object of afford- 
 ing substantial security to sub-contractors. 
 
132 MECHANICS' LIEN LAWS. 
 
 One more defence remains to be considered ; and it is 
 the right of the owner in a case where he admits' his 
 liability to the contractor, and has no object in contest- 
 ing the claims of other parties to compel them to inter- 
 plead, and in this way to evade the trouble of litigation. 
 It is probable that wherever an interpleader would be 
 allowed in an ordinary action, it would here. In a case 
 which came before the common pleas, on a motion for 
 injunction, the court, while denying the injunction, said 
 (per Mr. J. Daly) : "In certain cases it may be necessary 
 io institute a suit in this court in the nature of a bill of 
 interpleader, to adjust the rights of the respective claim- 
 ants." (Lehrett&r vs. Koffman, 1 E. D. Smith, 664.) 
 But in another case the grounds upon which this would be 
 allowed, are very clearly pointed out by the court. The 
 case came up on a motion to allow the defendant to pay 
 a certain sum of money into court, and have the other 
 claimants substituted in his stead as defendants. The 
 court say (per Ingraham, first J.) : " It is clear that the 
 defendant does not bring himself within the provisions 
 of the 122d section of the Code, to succeed on this 
 motion. The claim must be by different persons for the 
 same debt, and the amount of the debt must be settled, 
 so that the same can be paid into court. It has nowhere 
 been allowed for a party, who disputed the amount of 
 his liability, to substitute another person to bear the 
 expense of the litigation. If the amount is not beyond 
 dispute, no interpleader can be allowed. Here the 
 defendant not only claims for credits on account of pay- 
 ments, but deductions from the contract price for bad 
 work, for delay in finishing, and for unfinished work of 
 large amounts, and then offers to pay the balance into 
 
NEW-YORK LIEN LAW. 133 
 
 court." " It is enough for the purposes of the present 
 motion, to say that the case is not one for an interpleader ; 
 because the amount due from the defendant is unascer- 
 tained; because the defendant claims, himself, a deduc- 
 tion from the sum due to the contractor, and because 
 the claims of the several persons, filing the notices of 
 their demands, are not for the same debt. The 122d 
 section refered to, does not prevent the defendant from 
 commencing a suit for the purpose of an interpleader if 
 he see fit, although he would find the same difficulty in 
 his way there that exists on this motion." (Chamberlain 
 vs. (JConor, id., 665.) 
 
 If it is intended by the third ground, assigned in the 
 above decision, that a bill of interpleader will not He in 
 the case of an owner admitting a certain sum to be due, 
 which different sub-contractors or a contractor and a 
 sub-contractor, are endeavouring to acquire by liens, I 
 am compelled to think that the expression was hastily 
 used by the learned judge, and is not warranted by the 
 cases. The somewhat ambiguous term debt is indeed 
 used by most of the judges of this state in their decisions, 
 and by Mr. J. Story in his definition of interpleader 
 (Story's Eq. PL, chap. 6); but by it is not meant the 
 claim of the parties who are proceeding against the com- 
 plainant. A more proper term is the fund in the hands 
 of the complainant, and in a lien case the owner would 
 have a debt or fund (viz., the amount due the contractor), 
 which both the others would be seeking to obtain. 
 Whatever their claims might be founded upon, the debt 
 or fund would be the same. In Hogart vs. Outts (1 
 Craig & PhiL, 204), Lord Cottenham said : "The defini- 
 tion of interpleader is not and cannot now be disputed. 
 
134 MECHANICS' LIEN LAWS. 
 
 It is where the plaintiff says I have a fund in my posses- 
 sion, in which I claim no personal interest, and to which 
 you, the defendants, set up conflicting claims ; pay me 
 my costs and I will bring the fund into court, and you 
 shall contest it between yourselves." Mr. Justice Story^ 
 in speaking of it says (Story's Eq/ J., § 806) : " It is 
 properly applied to cases where two or more persons 
 severally claim the same thing under different titles or 
 in separate interests from another person." 
 
 The cases will also bear out this interpretation, and 
 show thai; the claims are not required to be for the whole 
 of the fund or for the same amount. Thus, in Angell vs. 
 Hadden (15 Ves., 244, and vide 16 id., 203), " where 
 there was an entire rent charge, which had been split 
 into several parts by the owner, and there were different 
 persons claiming the different parts, it was held that 
 the tenant might bring a bill of interpleader to compel 
 the parties to ascertain their shares respectively;" and 
 this is cited and approved by Judge Story. But a much 
 stronger case is that of Thompson vs. Effetts (1 Hopk. 
 R, 2Y2), in which a bill of interpleader was sustained 
 where the complainant had been taxed for the same 
 property in two places and for different amounts, and 
 this decision is cited by Chancellor Walworth, in the 
 case of the Mohawk and Hudson R. H. Go. vs. Clute 
 (4 Paige, 384), and approved, although the chancellor 
 seems to regard it as necessary that the claimant should 
 treat the larger tax as the fund and bring it into court. 
 
 In cases where the claimants insist that a larger sum 
 is due the contractor than the owner admits, he can 
 undoubtedly shelter himself (after issue has been joined) 
 under the provision of the Code relating to offer and 
 
THE NEW-YORK LIEN LAW. 135 
 
 compromise (§ 385) ; but where this amount is not dis- 
 puted, it would seem from the foregoing authorities that 
 he can undoubtedly resort to interpleader, " and (in the 
 language of Judge Story) unless under such circum- 
 stances courts of equity afford him protection, he will, 
 in almost every event, be a sufferer, however innocent 
 and honorable his own conduct may have been." ' 
 • 
 
 1 Since this work has been in the publisher's hands, a decision has been ren- 
 dered by the common pleas, which sustains the opinion expressed above. In 
 Egghston vs. Olark (Gen. Tm., Dec, 1855), the court held that an owner who 
 admits his indebtedness to his contractor, but defends for the purpose of having 
 a disputed account between the contractor and his sub-contractor determined, is 
 not liable for costs, even though he did not pay the money into court, and that 
 the court has power to relieve him from costs under the provisions of the act of 
 1855. 
 
 See this decision also in regard to the judgment directing the sale of the 
 premises, and the right of the claimant to an execution for a deficiency, referred 
 to, pp.71, 63, ante. 
 
136 MECHANICS' LIEN LAWS. 
 
 CHAPTER II. 
 
 THE LIEN LAW OF KINGS COUNTY. 
 
 The Lien Law of Kings county differs from that of New- 
 York, chiefly in regard to practice. I shall therefore 
 pursue the same order, "with respect to it that has here- 
 tofore been pursued, by stating the manner in which 
 liens are acquired and foreclosed, and then by pointing 
 out the differences relating to the rights of parties under 
 this and the previously considered statute. 
 
 SECTION I. 
 
 OF THE LIEN. 
 
 The lien is acquired by filing a notice with the clerk 
 of the county, and by serving a copy upon the owner 
 and contractor ; and in this the statute differs from that 
 of New-York, inasmuch as under this one the lien is not 
 docketed, while under the other a copy need not he 
 served. We will, First, examine the requisites of the 
 notice ; and Second, the manner of filing and of service. 
 
 First. Among the requisites of the lien notice, are 
 some expressly required by the statute, and others 
 
THE KINGS COUNTY LIEN LAW. 137 
 
 which reasonable caution will render advisable, if not 
 necessary. 
 
 L The name of the claimant and a certain description 
 of him should be inserted, as suggested before. (See p. 
 10, ante.) 
 
 II. The facts upon which the rights of the party are 
 based should be stated, and for these the reader is also 
 referred to a preceding page (p. 10, ante). 
 
 III. There should be a clear and unquestionable state- 
 ment as to theHime when the claim arose ; and this is 
 necessary, inasmuch as the notice must be filed with the 
 clerk, within one of two fixed periods thereafter; and it 
 may be questionable whether a lien is not void, which 
 requires to be holpen by facts " aliunde the record," in 
 order to show its regularity. These periods are fixed 
 by the fourth section of the act, and relate to two classes 
 of claimants. First, when the claim is for services, the 
 notice or lien must be filed with the clerk " before the 
 expiration of thirty days after the completion of the 
 work;" and second, when it is for materials, "within 
 sixty days after the materials are furnished or supplied." 
 The lien should, therefore, state distinctly the time when 
 the work was completed and materials furnished, or that 
 the one was completed or the other furnished within 
 thirty or sixty days (as the case may be), from the date, 
 care being taken to see that the date is the day of filing. 
 It may be as well remarked here as elsewhere, that 
 under the decisions previously cited (p. 89, ante), no 
 lien can be acquired after these periods respectively 
 have expired. Should the claim be of a mixed nature, 
 partly for work and partly for materials, it would evi- 
 dently be necessary to save that portion which relates 
 
138 MECHANICS' LIEN LAWS. 
 
 to the services, that it should he filed within the lesser 
 period, and should it not be, it would, pro fanto, be 
 regarded as a nullity. The statute does not uphold us 
 in believing that in such a case, either period is assigned. 
 The language is indefinite, but it undoubtedly means 
 that any lien for work must be filed within thirty days, 
 and any lien for materials within sixty ; and when this 
 is not done, no hen is created. 
 
 IV. The Hen must state "the amount of the claim;" 
 and this is made necessary by the very terms of the 
 statute. (§ 3). 
 
 V. It must set forth "the name of the person against 
 whom the claim is made ;" and this is also a statutory- 
 requisite. (Id.) Besides the name, it would be advisable 
 to add some short description of the person, such as his 
 residence and business. 
 
 VI. The lien must also set forth the name of the 
 owner of the building (id.), and if it can with certainty 
 be procured, it should likewise describe him, so that no 
 purchaser or incumbrancer could be misled as to his 
 identity. 
 
 VII. The statute also requires the lien shall set forth 
 briefly " the location " of the building ; " and if in a city 
 or village, the street on which it is situated, or by some 
 certain or known designation." In the case of city or 
 village property, this can always be done by stating the 
 side of the street on which the building fronts, and its 
 distance and direction from the nearest cross-street. In 
 the case of country property, it would be best to give 
 the most accurate description that could be procured, 
 and a reference to the most recent recorded conveyance 
 in which it is described. The courts would undoubtedly 
 
THE KINGS COUNTY LIEN LAW. 139 
 
 hold claimants to a reasonable certainty in their descrip- 
 tions, and to such particularity as would enable persons 
 acquainted with the locality to identify the premises. 
 
 VIII. Though not required by the statute, the lien 
 should be subscribed in the name of the claimant. 
 
 Second. The statute requires that the lien shall be 
 filed by the clerk, "in the same manner" "as a notice 
 of the pendency of an action affecting title to real pro- 
 perty." (§ 4.) The effect of a non-performance on the 
 part of the clerk, and his responsibility for the non-dis- 
 charge of his official duty, have been before discussed. 
 (Vide, p. 15, ante.) 
 
 The effect of this filing is merely to create the lien, 
 and to give " constructive notice to a purchaser or in- 
 cumbrancer." (Id.) But this is not sufficient to render 
 it operative, as against the contractor or the owner, for 
 the statute makes it expressly conditional that a copy 
 shall be served on the owner or contractor. (Id.) This 
 service may be made in several ways. 
 
 I. It may be served by delivering it to the owner or 
 contractor personally. And in regard to the person by 
 whom this may be done, and the proof of such service, 
 what has been said respecting the service of the notice 
 under the New- York law will be applicable, (pp. 23 
 and 24, ante.) 
 
 II. It may be "by leaving it at his residence, with a 
 person of suitable age and discretion ; and here it is to 
 be remarked that the affidavit of service, in addition to 
 being made by a proper person, had better show the 
 place of service, and that it is the residence of the owner 
 or contractor ; and also the apparent age and character 
 
140 MECHANICS' LIEN LAWS. 
 
 of the person with whom the copy was left, so that the 
 court can judge from the facts whether there has been a 
 proper compliance with the statute. 
 
 III. The copy may be served " by depositing it in 
 the post-office, directed to" the person to be served, " at 
 his usual place of residence, postage paid." As this pro- 
 vision is precisely similar to that of the statute of 1844, 
 relating to the foreclosure of mortgages, by advertise- 
 ments, the case of Stanton vs. Oline (1 Kernan, 196), is 
 in point, and establishes the right of thus serving an 
 owner or contractor, even when he resides in the same 
 place where the claimant resides, or the property is 
 situated. 
 
 In speaking of the proof in these cases, the word 
 " affidavit " has been used, and such mode of proof would 
 be regular, where judgment is taken on failure to answer ; 
 but should the service be put in issue in a contested 
 case, it must, of course, be proven like any other fact by 
 the evidence of witnesses. 
 
 This "notice and service," the statute provides, "shall 
 have the same effect as an injunction order, issued by 
 any judge or justice of any court of record," the more 
 precise meaning of which provision we will hereafter 
 endeavor to ascertain (p. 156). 
 
 When these steps have been taken, the claimant will 
 have created and acquired a lien "on the building," 
 " and upon the lot, piece or parcel of land on which the 
 same shall stand, to the extent of the right, title and 
 interest, at the time existing, of such owner," limited, as 
 in the case of the New-York law (vide, p. .112, ante), by 
 " the value of such labor and materials upon such house 
 or building, and appurtenances," and by the sum or 
 
THE KINGS COUNTY LIEN LAW. 141 
 
 amount which the owner " would otherwise be liable to 
 pay for such erection, alteration or repairs." 
 
 SECTION II. 
 
 OF THE OWNER'S PROCEEDINGS. 
 
 As this act allows the owner, at any time after the 
 filing, to take several steps, one of which will (if suc- 
 cessful) preclude the claimant from proceeding with his 
 foreclosure, it will be most convenient to consider these 
 before proceeding to the foreclosure. 
 
 First. The owner may compel the claimant to com- 
 mence his action to enforce the lien within thirty days 
 (§ 5). The form of this notice differs from that previ- 
 ously considered, in simply requiring the action to be 
 brought without specifying a day on which it must be 
 commenced (§ 5, § 6, subd. 4). If the claimant fail to 
 commence his action within the thirty days, the lien 
 will be discharged. Of the requisites of this notice 
 except as to the change above pointed out, and more 
 particularly in regard to the effect of it, the reader is 
 referred to pages 25 and 121, ante. 
 
 It is, however, necessary here to note that the con- 
 tractor has the same privilege of compelling the claimant 
 to proceed with his foreclosure, though whether with a 
 like effect, does not indeed appear (§ 5). The provision 
 relating to the discharge (§ 6, subd. 4,) only speaks of a 
 notice from the owner, and no decision has yet deter- 
 mined whether the lien may be thus discharged by a 
 notice from the contractor. In the absence of decisions. 
 
142 MECHANICS' LIEN LAWS. 
 
 I would suggest that the contractor's notice will not 
 discharge the lien as of record (and indeed there is no 
 reason that it should, as the contractor is not interested 
 in having the premises appear unincumbered), but that 
 the failure to commence within the proper time would, 
 if properly pleaded, be a complete bar to the claimant's 
 action. 
 
 And this privilege being allowed to the contractor, 
 introduces a question not free from doubt as to the effect 
 of it upon the claimant's substantial rights. "We have 
 seen that the claimant cannot commence until there are 
 payments due first to himself from the contractor, and 
 second to the contractor from the owner (ante, p. 92) ; 
 and we have also seen the effect which this notice from 
 the owner will produce upon the owner's terms of credit 
 (94) ; but the decisions of the New- York courts do not 
 meet the case of a notice from the contractor requiring 
 the claimant to commence before the owner's payments 
 have become due. The case of Miller vs. Moore (1 E. 
 D. Smith, 739), goes upon the principle that the owner 
 by giving notice waives his term of credit, and is 
 estopped from saying that nothing has yet become due. 
 It consequently does not apply to, cases such as we are 
 considering ; for the owner could not be estopped by the 
 act of another. What course will be pursued in such a 
 case remains to be seen ; but it would seem that the sug- 
 gestions in Doughty vs. Devlin, that the court, either 
 by interposing and staying proceedings or by moulding 
 the judgment so as to provide for future payments, 
 would, in order to secure the administering of substan- 
 tial justice, be both applicable and necessarily essential 
 here. 
 
THE KINGS COUNTY LIEN LAW. 143 
 
 Second. The owner may substitute, in the stead of 
 the premises (§6, subd. 2), " a sum of money equal to 
 the amount claimed." The manner of doing this, and 
 the effect with regard to the judgment, have been before 
 stated (pp. 75, 121, ante). 
 
 Third. The owner or contractor may also (§ 6, subd. 
 6,) discharge the lien, as against the premises, by "enter- 
 ing into an undertaking to the claimant, in double the 
 amount of the claim, with two good and sufficient sure- 
 ties, who shall be freeholders of said county, for the 
 payment to the claimant of any sum he may recover in 
 any action that may be brought to enforce the lien." 
 The sureties are required to "justify on notice" to the 
 claimant, who, it would seem, is not required to except 
 to them. The provisions in regard to bail, in personal 
 actions, would govern here as to the notice and justifica- 
 tion. The latter may be had " before a justice of the 
 supreme court, or the county judge, or a judge of any 
 court of record " in the county of Kings. The discharge 
 of the lien does not, however, take place merely on the 
 approval of the sureties, but the justice or judge approv- 
 ing them " shall order a discharge of said lien, and on 
 filing the same with the county clerk, he shall enter a 
 discharge of said lien, specifying that the same is done 
 by security," as provided, &c. 
 
 Fourth. The owner may, also, in cases where he does 
 not owe the contractor the amount claimed by the sub- 
 contractor, or where he does not owe any sum whatso- 
 ever, obtain a discharge of the lien by a species of sum- 
 mary proceedings peculiar to this act (§ 9). This. is 
 
144 MECHANICS' LIEN LAWS. 
 
 to be done by serving a notice (by either of the methods 
 before mentioned,) upon the sub-contractor, stating the 
 amount, if any sum, that is due from him to the con- 
 tractor. After this has been done, he must then apply 
 to a judge having jurisdiction of the case (who will be 
 the county judge, if the amount claimed is not more 
 than $100, and to a judge of the supreme court, or any 
 court of record, where the amount exceeds that sum,) 
 for " an order requiring the claimant to show cause at 
 some certain time and place " " why the lien should not 
 be discharged of record, and the property on which the 
 lien is claimed released therefrom.'' This order must 
 be served upon the claimant at least ten days before 
 the return day, and as the act does not specify the man- 
 ner of service in this particular, it had better be per- 
 sonal. The application may be made like ordinary 
 motions, upon affidavit or petition, and sufficient cause 
 must be shown before the order can be granted. What 
 this sufficient cause is has not yet been determined, and 
 in the absence of decisions by the courts, and explana- 
 tions by the statute, I would suggest that it must be the 
 facts authorizing the granting of the order, coupled with 
 others, addressed to the discretion of the court, and 
 showing that the ordinary method will work some injury 
 by the delay to the owner. 
 
 As the statute provides that on the return of this 
 order, "the same proceedings shall be had as on a motion 
 to dissolve an injunction order," we may infer that the 
 same rules and decisions applicable to the proofe in the 
 one case, will apply to the other. The owner must, 
 therefore, endeavor, in fully disclosing and proving his 
 case, to come within such rules and decisions, and to 
 
THE KINGS COUNTY LIEN LAW. 145 
 
 remember that lie will not be permitted to strengthen 
 his case subsequently. And it may here be added, that 
 the right of appeal is given from the decision of this 
 motion to discharge the lien, as in the case of the one to 
 dissolve an injunction. 
 
 The statute is silent as to the effect which this discharge 
 is to produce upon the rights of the claimant. It does 
 not state that he shall lose the benefit of his lien, for 
 so much as may be due from the owner, nor that the 
 owner shall pay into court the amount found to be due ; 
 nor yet that the claimant shall have any remedy to 
 Gompel the payment before or after the discharge. It 
 is evident that the statute of necessity must intend one 
 of these three effects, and by construction we must 
 determine which. Im regard to the first, there can be 
 but little doubt. By the first section, a lien is definitely 
 given to the claimant, and the limitations contained in 
 the second and eighth sections show that it extends to 
 cases where the owner's liability is less than the amount 
 of the claim. Besides which, this, the provision we are 
 considering, is obviously a mere remedy given for the 
 owner's convenience, and not an absurd exemption from 
 the ordinary effects of the statute. In regard to the 
 third of the above suppositions, viz., that a remedy, in 
 the nature of an execution, is intended by the statute, 
 it may be answered, that none is given, and that the 
 nature of the relief precludes the idea of a remedy being 
 given, before the determination of the motion, while a 
 remedy afterwards might be valueless and ineffective. 
 We may, therefore, conclude that the second construc- 
 tion is the necessary and better one. It is analogous to 
 the familiar doctrine of interpleader, and to the motion 
 10 
 
146 MECHANICS' LIEN LAWS. 
 
 allowed by the 122d section of. the Code. It seems 
 obviously to have been intended for an enlargement of 
 the rule of interpleader, and is not exempt from tie 
 rule, that he who seeks equity must do equity. It also 
 may be taken as another form and enlargement of the 
 provision, allowing a party to procure -the discharge of 
 the lien from the property, by paying the amount of the 
 claim into the clerk's office. I have, therefore, little 
 hesitation in saying that this relief must be looked upon 
 in one of these two lights, and that the court, before 
 granting the order, will require the owner to pay the 
 amount due the contractor into court (if it be taken as 
 a quasi bill of interpleader), or into the county clerk's 
 office (if it be taken as an addition to the 2d subdivision 
 of the 6th section), and that in either event the claimant 
 would be required to litigate the claim with the con- 
 tractor. (As to interpleader, vide 132, ante.) 
 
 SECTION III. 
 
 OF THE FORECLOSURE. 
 
 The foreclosure of the lien, under the Kings county 
 statute, is not by special proceedings created by the act, 
 but by an ordinary action. The seventh section of the 
 statute provides, that all actions brought for this pur- 
 pose " shall be governed and tried under the same rules 
 of law and evidence," as " actions arising on contract." 
 We will examine: First. The courts having jurisdiction 
 of lien cases under the statute ; Second. The time 
 within which the action must be brought ; Third. The 
 
THE KINGS COUNTY LIEN LAW. 147 
 
 necessary and proper parties ; Fourth. The requisites 
 of the summons and pleadings ; Fifth. The judgment 
 and execution. In regard to any other matters occurring 
 in a foreclosure suit, such as the evidence, the right of 
 redemption, &c, the reader is referred to what has been 
 said under the same subjects, when examining the New- 
 York law, which, except in the matters here treated of, 
 is essentially the same as this statute. 
 
 Fiest. The courts having jurisdiction of the lien cases 
 under the statute, are not designated by it. The con- 
 clusion, however, readily may be drawn, that those 
 courts which have jurisdiction of ordinary actions arising 
 on contract, will have jurisdiction of these actions, which 
 are " governed and tried under the same rules of law 
 and evidence." And this is also clearly shown by the 
 fifth section, which provides that the plaintiff's notice to 
 the county clerk, shall specify the court in which the 
 action has been brought ; " and if before a justice of the 
 peace, the name and residence of said justice." 
 
 "We must, therefore, also infer that in these courts the 
 same rules will prevail as with regard to other actions ; 
 as, for instance, that a justice's court will have no juris- 
 diction where the claim is more than one hundred dol- 
 lars, or that the plaintiff will not recover costs where 
 the recovery is less than fifty dollars. 
 
 The jurisdiction of a justice's court, where the title to 
 real property comes in question, and the power of such 
 courts to sell real estate, have been examined under the 
 New- York statute ; but under the statute we are now 
 considering, there is this important difference, namely, 
 that under the New-York law, the jurisdiction of certain 
 
148 MECHANICS' LIEN LAWS. 
 
 cases is granted exclusively to these courts, while under 
 the Kings county law there is no such restriction. But 
 at the same time the law does imply, by naming justices 
 of the peace, that these courts shall in some cases have 
 jurisdiction, and consequently power to afford relief. 
 From the fact, that on the one hand no greater jurisdic- 
 tion can be implied than the statute necessarily intends, 
 and on the other, that where a court has authority, to 
 adjudicate a right, it has power to grant a remedy, it 
 would seem to follow that those cases in which the title 
 to real property will come in question on the trial, 
 should (as with other actions), in these courts, be discon- 
 tinued and recommenced in the county court (Code, 
 § 55, &c.) ; while in those in which a judgment is recov- 
 ered against an owner, the estate or interest of the 
 owner can be sold, as under the New- York law. But 
 the former of these two conclusions is by no means satis- 
 factory, and the decision of a competent court will alone 
 remove the doubt. It may be observed that the opinion 
 in Lowb&r vs. Childs (p. 78, ante,) strengthens the other 
 ground, viz., that the legislature, by the act, increased 
 the jurisdiction ofjustice's courts as far as lien suits are 
 concerned. The provisions of section seven, may be con- 
 strued to require even a discontinuance of the action in 
 one court, and to confer the proper jurisdiction upon 
 another. 
 
 Second. The period within which an action must be 
 brought to foreclose a lien, is " three months after the 
 filing of the notice" creating it (§ 5) ; and in addition to 
 the commencement of the action, a notice must be given 
 to the county clerk within the same period, stating that 
 
THE KINGS COUNTY LIEN LAW. 149 
 
 legal steps have "been taken to enforce the lien. (§ 6, 
 subd. 3.) Another period, as we have seen, may super- 
 sede this one, should the owner or contractor take the 
 proper steps to compel the commencement of the action, 
 and in this case it must be commenced within thirty 
 days after the service of this notice. (§ 6, subd. 4.) 
 As to the rights of the claimant, where the credits he 
 has given extend beyond these periods, and the necessity 
 of moneys being due, both from the owner to the con- 
 tractor, and from the contractor to the claimant, at the 
 time the action is commenced (Vide, pp. 94, 121, 
 ante). 
 
 Third. The proper and necessary parties to a fore, 
 closure suit, are first (in any case), the owner or owners- 
 under the authority of whom the contractor has pro- 
 ceeded ; and second (in case the claimant is a sub-con- 
 tractor), the. contractor to whom the services were ren- 
 dered or materials furnished. Unlike the New-York 
 law, this act, I think, regards the contractor as a neces- 
 sary party. The principal reason why the court did 
 not hold that he was a necessary party, under the other 
 law, was, because there that statute expressly speaks of 
 the owner as the only party against whom the proceed- 
 ings to foreclose should be had. {Foster vs. Skidmore, 
 1 E. D. Smith's E.) But here the statute is silent as to 
 the parties against whom the action must be commenced, 
 while it requires under one section (§ 4), that the con- 
 tractor be treated in respect to the creation of the lien, 
 precisely like the owner (thereby also differing from the 
 New- York law) ; and under another (§ 8), speaks of the 
 judgment against the contractor in such a way as to 
 
150 MECHANICS' LIEN LAWS. 
 
 indicate that the owner cannot be compelled to pay until 
 this judgment has actually been recovered. 
 
 In case the owner has proceeded under the ninth sec- 
 tion, it is probable that the contractor alone will be a 
 necessary party, as the admission of the owner and the 
 payment of money into court would have been in the 
 position of a complainant in a bill of interpleader. 
 (Vide, ante, p. 133.) 
 
 In case other parties should become necessary to a 
 final determination of the action, there is no reason for 
 supposing that they cannot be brought in on motion, 
 as in all other actions. 
 
 Fourth. The action to foreclose being in all respects 
 similar to actions arising on contract (§ 1), is to he 
 commenced by the service of a summons. The relief 
 afforded by the lien law, as against the owner being 
 specific, the summons should be framed under the 2d 
 subdivision of the 129th section of the Code. As re- 
 gards service, proof of service, <fec, it is unnecessary to 
 speak here. It may be necessary, "however, to advise 
 that immediately after the service of the summons, and 
 certainly within the proper period, the notice required 
 by the third subdivision of the sixth section, be served 
 upon the county clerk, as previously suggested (p. 148, 
 ante). 
 
 The complaint should set forth all the material facts 
 necessary to sustain the claim, and these will generally 
 be found to be embraced in the following : 
 
 I. The contract, express or implied, under which the 
 work was performed or materials furnished. 
 
THE KINGS COUNTY LIEN LAW. 151 
 
 II. Averments showing a sufficient performance under 
 it ; the value of the materials or services, and that the 
 amount claimed is unpaid and due. 
 
 III. If the claimant is a sub-contractor, the fact that 
 the party to whom the services were rendered, or goods 
 sold, is the contractor of the owner (as to the necessity 
 of showing compliance with the owner's contract, see 
 post, p. 155). 
 
 IV. Averments showing that the owner is liable under 
 his contract to a sufficient amount, and that the same is 
 due (vide p. 155). 
 
 V. Averments showing that the services were per- 
 formed or materials furnished for building, altering or 
 repairing the house or other building, or its appurten- 
 ances. 
 
 VI. A description of the premises, which should both 
 conform to the description in the lien and be sufficiently 
 full and accurate to answer for the description in the 
 judgment. 
 
 VII. An averment that one of the defendants is the 
 owner of a legal estate, and the nature of his estate or 
 title, if certainly known, may be advisable, though not 
 necessary. 
 
 VIII. A statement. showing the filing of the lien, the 
 time it was filed, its present existence, and the service of 
 copies upon the owner and contractor. 
 
 IX. A demand for the relief sought, which will be 
 that the right, title and interest of the owner, existing 
 in the premises at the time the lien was filed, be sold,' 
 and the plaintiff from the proceeds, be paid the amount 
 of his claim, with interest and costs, and that the owner 
 be adjudged to pay such interest and costs, if the premises 
 
,152 MECHANICS' LIEN LAWS. 
 
 shall not sell for a sum sufficient, and also for judgment 
 against the contractor, to the amount of the claim, with 
 interest and costs. (Vide, p. 154, post, as to the extent 
 and nature of the relief given by the statute.) 
 
 "With respect to the owner's defences, two or three 
 suggestions may be of service to the practitioner, and 
 will be sufficient. 
 
 1. As this statute is silent regarding set-off, it will 
 stand upon precisely the same footing as the New-York 
 acts of 1830 and 1832, and hence we have the decision 
 of the supreme court, that a set-off (against the con- 
 tractor,) may be available to the owner in a suit by the 
 sub-contractor, and the opinion of the court of errors 
 that it cannot. (Vide, p. 129, mite.) 
 
 2. As this statute, in its general intent, does not differ 
 from the New-York law, we may conclude that the other 
 defences allowed under it, such as recoupment and inter- 
 pleader, will be allowed here. (Vide, p. 126, ante.) 
 
 3. As it has been, both under the present and former 
 New-York statutes, held that a plaintiff has only got to 
 make out a prima facie case, and is not, in his com- 
 plaint, obliged to negative a possible defence, it will be 
 advisable and probably necessary, under this statute, for 
 the defendant to set up, by answer, whatever defence or 
 defences he may have, and not to trust to the general 
 issue or to a defect in the plaintiff 's complaint as suffi- 
 cient. 
 
 As regards an affidavit of merits and the general 
 management of the suit, nothing more need be said than 
 that this is an ordinary suit, and is to be conducted in 
 the ordinary manner. 
 
THE KINGS COUNTY LIEN LAW. 153 
 
 Fifth. The judgment and execution necessarily will 
 differ somewhat from those in other actions. 
 
 I. The judgment will be of two kinds, viz: When 
 against the owner it will be, in form, a judgment against 
 the property, and when against the contractor, against 
 him personally. This necessarily follows from what has 
 been said (vide p. 63, ante), as to the first; and as to 
 last, the statute (which herein differs from the New- 
 York law,) speaks of a judgment " against the contract- 
 or," and it is difficult to understand what judgment could 
 be rendered against the contractor, save a personal one. 
 Should it be said that the judgment might be against 
 the moneys due to him upon the contract, the suggestion 
 would be answered by the statute, which, in the first 
 place, virtually makes the judgment against the owner 
 a judgment against such moneys ; and, in the second place, 
 contemplates a judgment against the contractor for a 
 larger amount than may happen to be recovered against 
 the owner, and indeed for the whole amount of the lien 
 (§ 8). Added to this is the fact that there is no reason 
 why this action, against the contractor, should not be 
 sufficient to settle all matters relating to the claim, and 
 to afford to the claimant all the relief that he could 
 obtain in any suit ; while the general principle that the 
 law abhors multiplicity of suits, would require, if possi- 
 ble, such a construction of this statute as would secure 
 this end. 
 
 II. It would follow, from this, that two forms of exe- 
 cution would be necessary. It is, indeed, true that the 
 law says that the judgment shall be "enforced in all 
 respects in the same manner as upon actions arising on 
 contract," but, as was said in Doughty vs. Devlin (IE. 
 
154 MECHANICS' LIEN LAWS. 
 
 D. Smith, 644) : " When the legislature, in the act in 
 question, have likened the proceedings herein to pro- 
 ceedings upon issues joined and judgments rendered in 
 other civil actions for the recovery of moneys, they must 
 be deemed to mean civil actions for the recovery of 
 moneys secured by liens upon property, in some sort 
 resembling the liens contemplated by this statute." We 
 may, therefore, infer that the law means the execution 
 shall conform to the" relief given, and this relief is not 
 always of the same nature. In the case of an owner the 
 execution, therefore, should direct a sale of his interest 
 in the property (vide ante, p. 71) ; and in the case of a 
 contractor it should be in the ordinary form. 
 
 SECTION IV. 
 
 OF THE NATURE AND EXTENT OE THE LIEN. 
 
 As has been said, the lien law of Kings county diners 
 but little, in its general scope and object from that of 
 New-York. But there are one or two points, besides 
 those already incidentally touched upon, regarding the 
 nature and extent of the relief afforded by a lien which 
 are not precisely the same, under both statutes, and 
 which are worthy of a brief examination. 
 
 First. The Kings county law does not require so 
 much of the claimant in not restricting him to a con- 
 formity with the terms of the owner's contract. By this 
 remark, it is not, however, to be understood that there 
 may be a departure from the terms of the contract, but 
 rather that the attitude which the claimant is allowed 
 
THE KINGS COUNTY LIEN LAW. 155 
 
 to assume, is more favorable to his own interests than 
 that of the claimant} under the previously considered 
 law. "We have seen that under that law any person 
 furnishing materials, <fec, to the contractor or owner, 
 might acquire a lien, provided the materials were fur- 
 nished or labor was performed, in conformity with the 
 terms of the owner's contract. We have also seen that 
 the onus of showing this conformity, rests upon the 
 claimant, even though he be a sub-contractor, and that 
 it may occasion him great inconvenience and may some- 
 times work him great injustice. Under the Kings 
 county law, there appears in the fundamental declaration 
 of the claimant's rights, a very marked difference. 
 Firstly, with respect to contractors, the statute declares 
 that "any person who, under the authority of the owner 
 or his agent," shall perform labor or furnish materials, 
 may create a lien ; and secondly, with respect to sub- 
 contractors, that " any person who, in pursuance of an 
 agreement with any contractor," shall, in like manner, 
 perform labor, &c, may create a lien. It must be 
 evident from this that the party showing that " under 
 the authority of the owner," or "in pursuance of an 
 agreement with any contractor," he performed labor or 
 furnished materials, would be rectus in curio, and would 
 have " followed the precise course pointed out by the 
 statute itself." (Foster vs. Sfoidmore, 1 E. D. Smith's K., 
 Y19.) It is true, that under the succeeding section of 
 the statute, the owner's liability is limited to the sum 
 which he would "otherwise be liable pay," and that, 
 therefore, if there should be so wide a variance from the 
 contract that the contractor would not recover in an 
 action at law, the owner would probably be held not 
 
156 MECHANICS' LIEN LAWS. 
 
 liable under a lien. Yet this does not require from the 
 claimant the burden of proof, nor does it hold the sub- 
 contractor to so rigid a compliance. The reasoning of 
 Chief Justice Savage$ in Haswell vs. Goodchttd (12 
 Wend., 373), would, in this particular, seem peculiarly 
 applicable to this statute. 
 
 Second. The Kings county law also contains a pecu- 
 liar provision which may afford, in some instances, addi- 
 tional security to the sub-contractor. This is that pro- 
 vision which declares that the service of a copy of the 
 lien upon the contractor and owner, "shall have the 
 same effect as an injunction order issued by any judge or 
 justice of any court of record in this state" (§ 4). As the 
 eighth section of the act requires that on the reco- 
 very of a judgment • against the contractor, the owner 
 shall pay the same out of any moneys that were " due 
 at the time of filing the lien, or that become due there- 
 after" this provision of the fourth section may be an 
 auxiliary and distinct remedy. Two questions, there- 
 fore, arise; first, as to the effect of an act done in viola- 
 tion of an injunction upon the rights of the parties; 
 and second, whether such a violation, under this statute, 
 could be deemed and be punishable as a contempt " of 
 any court of record in this state." In regard to the 
 first, it will be disposed of in the celebrated Broadway 
 railroad case, recently argued and soon to be decided by 
 the court of appeals; and in regard to the second, 
 nothing short of an actual decision could put so novel a 
 question at rest. It will,, therefore, be unnecessary to 
 discuss the one, and perhaps improper to speculate upon 
 the other. 
 
THE GENERAL LIEN LAW. 157 
 
 CHAPTER III. 
 
 THE GENERAL LIEN LAW. 
 
 What is termed the " general lien law " is the . act of 
 1844 (chap. 305), 1 which extends to the several cities of 
 the state, and to the villages of Syracuse, Geneva, Canan- 
 daigua, Oswego and Anburn. 
 
 Of those cities originally included in the act, it may 
 be observed that an amendment has been enacted in 
 respect to the city of Buffalo, while subsequent . statutes 
 relating to certain counties have annulled its operation 
 as regards others. 
 
 As there have been but few decisions bearing upon 
 this act, and as the previous chapters elucidate many of 
 its provisions, it will be sufficient to recapitulate, as briefly 
 as possible, the manner in which liens are acquired and 
 closed, and the differences between this and the previ- 
 ously examined laws. 
 
 Fiest. The lien is acquired (§ 2) by filing either 
 " specifications " " of the work contracted to be per- 
 formed or materials to be furnished," or else, if there be 
 a contract in writing, a copy thereof. The specifications 
 must state the price agreed to be paid, and must be (as 
 must the contract,) filed with the county clerk. The lien, 
 
 1 For this aet, see 2 Revised Statutes, 4th ecL, p. 140. 
 
158 MECHANICS' LIEN LAWS. 
 
 however, is not fully acquired by the mere filing (§ 3) 7 
 but it is also required that a notice of the filing must be 
 served personally on the owner or his agent. This notice 
 must be served (Id.) "within twenty days after the 
 making of such contract, or commencing the performance 
 of such labor or the furnishing of such materials." And 
 it is to be here observed that by section nine of the act, 
 it is provided that a sub-contractor shall have a lien for 
 only such materials as shall be fw-nished subsequently 
 to the proceedings prescribed by section two. 1 
 
 Beside the filing of the specifications or contract, and 
 the service of a notice thereof upon the owner, it is 
 necessary that the lien be docketed in a book,, called 
 " The Mechanics' and Laborers' Lien Docket," and this 
 is to be done by the clerk in a manner prescribed by 
 the statute (§ 2). 
 
 When so acquired, the lien continues in full force and 
 effect (unless otherwise discharged) for the space of one 
 year, (§ 3) ; and it is to be observed that it continues 
 for no longer period, and that neither the commencement 
 
 1 The meaning of the aet is hidden in vague language and erroneous punctua- 
 tion. The words " with the Original contractor, with such owner, , or his said 
 agent " (§ 9), might imply either that the agreement was with the original con- 
 tractor or with the owner. For some reason the words are placed in quotation 
 marks in the statute ; but for what reason is not clear, as they do not appear before 
 this section. In the published copies of the statute, the punctuation would lead 
 us to believe that the second preposition, " with," connected the preceding pro- 
 noun, "him," and the succeeding noun, "owner," and consequently that the 
 gection refers to both contractors and sub-con tractors. But the use of the words 
 " in pursuance of any agreement," being the same that are used in section one, 
 and which there relate to the sub-contractor, points to a different interpretation- 
 The next section also (expressly referring to the ninth,) uses this same language 
 and then provides that the person referred to shall deliver to the owner, "a 
 statement in writing, signed by himself and the mid contractor," or if not able 
 to produce this statement, " shall take the necessary proceedings against such 
 contractor to procure an accounting," thus showing that both sections relate to 
 sub-contractors. 
 
THE GENERAL LIEN LAW. 159 
 
 of proceedings to enforce it nor the recovery of a judg- 
 ment will prolong it beyond that period, except perhaps 
 in cases where the claimant is a sub-contractor. {Freeman 
 vs. Cram, 3 Comst., 305 ; and vide subd. 1,post.) 
 
 Second. The requisites of the specifications or con- 
 tract, appear to be incidentally prescribed by the second 
 section, as they must undoubtedly contain the necessary 
 information, upon which the clerk is to docket the lien. 
 There should be set forth: 1. The amount or price 
 agreed to be paid for the services or materials ; 2. The 
 name of the owner; 3. The names of the "contractors, 
 laborers or other persons claiming the lien f and 4. A 
 description of the lot or building. 
 
 In case the specifications are drawn up with a view 
 to filing, all this can be set forth in them ; but in case 
 an original contract should be filed, not sufficiently full 
 to inform the clerk of these essential facts, a notice 
 should be attached, directed to him, and containing the 
 necessary information. 
 
 The notice to be served upon the owner, is to be 
 served personally, and it must be served, either within 
 twenty days after the making of the contract, or else 
 within twenty days after the time of commencing the 
 performance of the work or the furnishing of the mate- 
 rials (§ 2). This notice should refer intelligibly to the 
 contract or specifications, and should show clearly and 
 correctly the filing and the time thereof. (Vide p. 158, 
 ante.) It should state the amount for which the speci- 
 fications or contract were filed, and should show that the 
 claimant is within the statute, either by showing that 
 the service is within the period allowed, after the making 
 
160 MECHANICS' LIEN LAWS. 
 
 of the contract, or after the pommencement of the 
 work (§ 2). 
 
 Thied. The lien, so created and acquired, may be 
 enforced or brought to a close by either the claimant 
 or the owner (§ 4). The manner in which this is done 
 is by the service of a notice similar to that allowed 
 under the New-York law (ante, p. 16). Under this 
 act the bill of particulars is not a part of the process, 
 for section five provides that it shall be served " within 
 ten days after the service" of the notice, and accompa- 
 nying it there must be a " notice to produce a bill of 
 particulars of any offset which may be claimed, to the 
 same within ten days thereafter." The bill of particu- 
 lars, it appears, is to be served by the claimant, whether 
 the proceeding is commenced by him or by the owner, 
 and the service of both the claimant's bill and of the 
 owner's, if he have a set-off, must be personal. As to 
 either party's prior proceedings being taken, as an ap- 
 pearance, where the party to be served has not given 
 his residence and cannot be found, see p. 24, ante. 
 
 The courts having jurisdiction of these cases, are first, 
 the county court of the county in which the premises 
 are situated, as successor to the common pleas, and second 
 any justices' court of the city or village (§ 4). The act 
 does not restrict this jurisdiction to any precise amount 
 as does the New-York act, but leaves the proceedings 
 to be governed and tried (§ 7), and the costs to be 
 allowed and recovered (§ 8,) in the same manner and 
 upon the same principles as ordinary actions of assumpsit. 
 It will, therefore, be readily concluded that a justices' 
 court would not have jurisdiction of a case in which the 
 
THE GENERAL LIEN LAW. 161 
 
 claim exceeded $100, and that though the county court 
 would have jurisdiction of the proceeding, yet costs would 
 be recovered against the claimant where his recovery was 
 less than $50. 
 
 Fotteth. In case of the default of the claimant, the 
 statute (§ 6) provides that " he shall forever lose the 
 benefit and be precluded of his said lien ;" and in case 
 of the default of the owner, his default may be entered 
 in the minutes or docket of the court before which the 
 notice was returnable. Should this court be a court of 
 record, a writ of inquiry issues ; and if a court not of 
 record, the amount is to be assessed by such court as 
 under the New-York law, to which the reader is referred. 
 
 It may, however, be necessary to add here that the 
 evidence necessary to authorize these proceedings would 
 be an attested copy of the specification or contract con- 
 stituting the lien, with the clerk's certificate of the filing 
 and docketing ; affidavits showing the service of the 
 notice of lien, the notice to close, and the bill of partic- 
 ulars upon the owner personally, and his default, after 
 being duly called. (Vide what, has been said under 
 New- York and Kings county statutes, under this head.) 
 
 Fifth. On the appearance of both parties, says the 
 statute (§ Y), " issue shall be joined upon the claims 
 made and notices of set-off served, and the same may 
 be noticed for trial and put upon the calendar of said 
 court by either party, and shall be governed, tried, and 
 the judgment therein enforced, in all respects in the 
 same manner as upon issues joined and judgments ren- 
 dered in actions of assumpsit in the said court ;" in all of 
 11 
 
162 MECHANICS' LIEN LAWS. 
 
 which provisions, it will be perceived that the statute 
 agrees almost literally with the New- York law. Al- 
 though I cannot find that any rule has been laid down 
 in any of the counties where the statute is operative, yet 
 it is probable that the rule adopted by the New-York 
 common pleas, from the convenience and certainty which 
 it affords, would be adopted. Whether the issues he so 
 framed by complaint and answer, or in any less formal 
 way, it behooves the pleader to see that the necessary 
 facts are set forth ; and for these he is referred to what 
 has been said of the complaint and answer under the 
 New- York and Kings county statutes, and to the 7th 
 subdivision of this chapter. It "may be remarked that 
 the analogy here is chiefly between this and the New- 
 York statutes, save with respect to the allegations and 
 proof of service of the notice of lien upon the owner, in 
 which this statute is, in substance, similar to the Kings 
 county act. 
 
 Sixth. When the complainant is a sub-contractor, 
 some further proceedings are necessary before he will be 
 entitled to relief. The tenth section of the act provides 
 that certain steps shall be taken to establish the con- 
 tractor's indebtedness to the claimant. This may be done 
 in two ways : First, by the claimant's delivering to the 
 owner, within thirty days after the labor has been per- 
 formed, &c, a statement in writing, signed by himself 
 and the contractor, specifying how much is due to him ; 
 and second, by his proceeding against the contractor, in 
 the same way that has already been pointed out for pro- 
 ceeding against the owner. This proceeding, the same 
 section provides, must be also commenced within the 
 
THE GENERAL LIEN LAW. 163 
 
 same period of thirty days, and must be prosecuted 
 'with effect, and without delay, to a final judgment;" 
 and a claimant's omission so to do, will defeat his lien. 
 
 The statute then proceeds to say that the amount of 
 any judgment so recovered against a contractor, or the 
 amount certified by the written statement of the claim- 
 ant and the contractor, shall be paid by the owner ; and 
 if not paid within ten days after being served with the 
 statement, or with a transcript of the judgment, as the 
 case may be, the county clerk — on having filed with him 
 a duplicate or attested copy of the statement, or a trans- 
 cript of the docket of judgment, and with either of these, 
 an affidavit of a demand on the owner, ten days previ- 
 ously, and of his having failed to pay the same — may 
 issue an execution against the owner ; " which execution 
 shall be subject, in all respects, to the jurisdiction and 
 control of the court of common pleas." 
 
 The question which arises from this provision is this : 
 Are proceedings against an owner, by a sub-contractor, 
 necessary or unnecessary ? 
 
 The statute obviously establishes one fact, viz., that 
 no execution can be issued until the amount due from the 
 contractor to the claimant is conclusively established ; 
 and in the absence of any general controlling principle, 
 it would seem that this execution might issue without its 
 being established that any sum is due from the owner to 
 the contractor. 
 
 But can this be the meaning of the statute ? From 
 what has been said respecting the construction of the 
 New-York law, under the heads of proper and necessary 
 parties, and of the owner's right to make the contractor 
 a party, it will be at once seen that this provision was 
 
164 MECHANICS' LIEN LAWS. 
 
 devised to save the contractor's rights. Now, if we turn 
 back to the preceding sections, we find that the fourth, in 
 its obscure and intricate language, allows of there being 
 a proceeding by a sub-contractor against an owner ; that 
 the fifth speaks of a bill of particulars being served only 
 on the owner, 'and that the sixth contemplates the claim- 
 ant's producing his claim when the owner has instituted 
 the proceedings ; and the owner making his appearance 
 when the proceedings have been instituted by a claim- 
 ant ; which claimant, according to the fourth section, 
 may be " any contractor or laborer, or any person fur- 
 nishing materials." We will also find by this same fourth 
 section, that this proceeding against the owner is the pre- 
 scribed method " to bring to a close such lien." For the 
 fourth section, to say that ' the proceeding against the 
 owner is the proper method of closing a lien, and for the 
 tenth section, to say that it is not, would be an absurdity. 
 We must, therefore, construe the tenth section so that it 
 will not conflict with the fourth. 
 
 The examination of a similar question under the New- 
 York statute, renders this comparatively easy. (Vide 
 under heads last cited.) Neither the owner nor the con- 
 tractor can be deprived of their rights without due pro- 
 cess of law, and this law gives a sufficient remedy against 
 both. We may, therefore, safely conclude that both 
 must be proceeded against. 
 
 A more doubtful question would be, in what manner 
 may this be done ? Or, in other words, must these pro- 
 ceedings be several, or may they be joint ? And if the 
 . former, must the recovery against the contractor be had 
 before that against the owner is commenced ? 
 
THE GENERAL LIEN LAW. 165 
 
 The decision in Sullivan vs. Decker (1 E. D. Smith's 
 -R, N. Y. common pleas, cited under previously cited 
 heads,) will dispose of almost every doubt. The court in 
 that case had no statutory authority for allowing any 
 proceedings against a contractor; yet it was decided, 
 upon the broad ground of principle, that the statute 
 conferred all necessary powers to secure justice to all 
 parties, and that the court could mould the remedy or 
 control the proceedings so as to secure these ends. Ap- 
 plying this decision, there would seem to be no reason 
 why these proceedings might not be either combined in 
 one, like any other equitable suit, or why should circum- 
 stances require it (the money not being due from the 
 owner,) the proceeding against the contractor might not 
 be first commenced, it being understood that in either 
 event the execution could not issue against the owner 
 until the conditions prescribed by the tenth section have 
 been complied with. 
 
 Seventh. The remedy given by this act consists of a 
 judgment and execution. Although the section creating 
 the security, termed a lien, is almost identical with the 
 corresponding section in the New- York statute, yet it 
 would seem that the relief given is essentially different. 
 There is also a difference between the relief given the 
 contractor and the sub-contractor, and we will examine 
 the former first. 
 
 I. The fourth section of the act provides that the 
 claimant may " enforce or bring to a close" the lien in 
 the manner therein provided. The sixth section pro- 
 vides in cases of the owner's default that judgment shall 
 be entered upon the damages assessed, and that execu- 
 
166 MECHANICS' LIEN LAWS. 
 
 tion shall issue "for the enforcement of the said claim, so 
 adjudicated and established, in the same manner as in 
 like cases upon judgments in such courts, in actions of 
 assumpsit." The seventh section provides that in cases 
 where issues has been joined, " the judgment thereon" 
 shall be " enforced, in all respects, in the same manner as 
 upon issues joined and judgments rendered in actions of 
 assumpsit." To these provisions may be added the one 
 contained in the third section, to the effect that the lien 
 shall continue one year. 
 
 Without discussing the questions to which these pro. 
 visions must give rise, it will be sufficient to state the 
 conclusions arrived at by the court of appeals. (Free- 
 man vs. Cram, 3 Com., 305.) These conclusions are sub- 
 stantially as follows : 
 
 1. Neither the pendency of proceedings to enforce the 
 lien, nor the recovery of a judgment within the year 
 during which § 3 provides the lien shall continue in 
 force, will prolong it beyond that period, nor will the 
 judgment " bind the real estate by relation from the time 
 of the docketing of the mechanics' lien, or the service of 
 notice thereof on the owner." 
 
 2. " The mechanics' lien and the lien of the judgment, 
 are different things, not connected with each other." 
 
 3. But " the mechanics' lien may be enforced by execu- 
 tion upon the judgment and sale within the year" after 
 its commencement, and " when the sale is within the 
 duration of the mechanics' lien, plaintiff may make title 
 under it, by extrinsic proof of its existence and duration." 
 
 4. " The lien of the judgment is general, and affects 
 all the defendants' real estate ; but from the time when 
 it is docketed only." It also " commences at the date of 
 
THE GENERAL LIEN LA.W. 167 
 
 its docket, and continues ten years against purchasers, 
 and longer against the defendant." 
 
 5. " The court is not required to adjudicate upon the 
 validity of the lien or the time of its commencement ;" 
 nor is the docket of the judgment required "to refer to 
 the time of the commencement of the mechanics' lien ;" 
 nor is the judgment record " evidence of the existence of 
 the mechanics' lien of the time of its commencement, or 
 of the quantity or description of the real estate which it 
 affects." 
 
 Of these conclusions, it is to be remarked that the first 
 alone was involved in the decision of the case, and that 
 the others are to be taken merely as an expression of the 
 views of the learned judge who delivered the opinion of 
 court. I am also constrained to remark, of the dictum 
 that " the judgment is to be rendered" " in all respects 
 like a judgment in an action of assumpsit," that it is 
 not warranted by the statute; for the statute avoids 
 defining the form or extent of the judgment, merely pro- 
 viding that in cases of the owner's default, "execution shall 
 issue," &c, as upon judgments in actions of assumpsit ; 
 and where issue has been joined, that the judgment shall 
 be " enforced, in all respects," as in actions of assumpsit ; 
 leaving it to be determined, when a proper case shall 
 present the question, whether the judgment is in form 
 and substance identical with the judgments given in 
 actions of assumpsit. 
 
 II. The relief afforded to the sub-contractor is more 
 ample than to the contractor. The provision relating 
 to such claimants, is contained in the tenth section ; and 
 in regard to that section, the court of appeals, in the case 
 referred to, has drawn this conclusion : " It provides 
 
168 MECHANICS' LIEN LAWS. 
 
 for the laborer, or material-man, who deals with the con- 
 tractor, and not the owner, and gives him an execution 
 ' as upon a judgment recovered on the day of the attach- 
 ing of such lien.' " 
 
 This judgment, allowed to the sub-contractor, in addi- 
 tion to its relating back, through the medium of the 
 execution, to the time the lien was created, seems also to 
 be in form and effect, a general judgment. As was 
 hinted at under the New-York law, it certainly seems 
 unreasonable that a sub-contractor, who is the quasi 
 assignee of the contractor, after having had a portion of 
 the contractor's claim transferred to him, by operation of 
 law, should not have as complete a remedy against the 
 owner as the contractor, to whose rights pro tanto he has 
 succeeded. Now the language of this statute does not 
 preclude this construction but rather implies it : 1. It 
 declares that the payment to the sub-contractor " shall 
 be deemed to be payment of such amount" upon the 
 contract (§ 10) ; 2. It requires that before the owner 
 shall be compelled to pay the amount due from the con- 
 tractor to the sub-contractor, it shall be definitely settled ; 
 3. It provides that the execution to be issued in favor of 
 the sub-contractor, and against the owner, " shall be in 
 form as upon a judgment recovered in assumpsit" (§ 10) ; 
 which execution was always in the general form, direct- 
 ing a satisfaction to be had out of the goods and chat- 
 tels, &c, of the defendant. 
 
 It is to be remembered that this execution is " subject, 
 in all respects, to the jurisdiction and control" of the 
 county court; which court may "make such order in 
 respect to the same as shall be just between the parties 
 according to their rights, as defined and regulated by 
 
THE GENERAL LIEN LAW. 169 
 
 this act" (§ 10). In other cases the court would, of course, 
 have the same power ; and with respect to the " docket 
 of liens and of judgments," the act of 1845 . (chap, 235, 
 2 K. S., 4th ed., p. 743,) makes them, likewise, subject 
 to the control of the county court. 
 
 Eighth. A lien can be discharged in three different 
 ways. 
 
 I. It may be discharged by a certificate of the claim- 
 ant, duly acknowledged, as under the New-York law 
 (§3). 
 
 II. It may be discharged by the default of the claim- 
 ant to appear when notified (§ 6) ; or by the recovery 
 of a judgment against the claimant. The statute does 
 not provide for this latter case ; but inasmuch as the lien, 
 in such cases, would be virtually at an end, it may be 
 presumed that the county court, under the authority 
 given by the act of 1845, would order the lien to be 
 discharged of record. 
 
 III. It will be discharged by lapse of time ; and this is 
 one year from the time when it was created and perfected 
 (§ 3). And it is to be again noted, that at the expira- 
 tion of this period the lien will expire, even though a suit 
 may be pending for its foreclosure ; and so it has been 
 decided by the highest court in the state. (Freeman vs. 
 Oram, 3 Corn's E., p. 305.) 
 
 Ninth. The extent of the owner's liability, as regards 
 a recovery, and as regards interest and costs, is substan- 
 tially the same as under the New- York law. There 
 remains, therefore, nothing to be said in regard to either 
 of these topics, unless it be that, as we have just seen, 
 
170 MECHANICS' LIEN LAWS. 
 
 the sub-contractor's remedy will extend to other property 
 than the property affected by the lien ; and that in the 
 opinion of the court of appeals the judgment will he 
 general, binding all the real property of the owner, and 
 will not relate back to the time the lien was created. 
 
 Tenth. The time within which liens may be acquired 
 and closed, differs essentially from that allowed by the 
 New-York law. 
 
 I. The lien must be created by both filing the con- 
 tract and serving the notice, as we have seen, within 
 twenty days after the making of the contract, or the 
 commencing of the performance of the work (§ 2). 
 
 II. When so created, the lien, as we have seen, if 
 acquired by a sub-contractor, must be proceeded upon 
 within thirty days after the completion of the work 
 
 (§10). 
 
 III. Though it continues for one year, the lien is not 
 prolonged by a suit being brought to foreclose it, nor by 
 a judgment being recovered. {Freeman vs. Cram, 3 
 Comst. R, 305.) 
 
 IV. Though the owner cannot shorten the period within 
 which a lien can be foreclosed, as under the New-York 
 law, he may himself commence proceedings (§ 4,) to 
 bring it to a close at any time "after such labor has 
 been performed or materials furnished." The effect of a 
 step of this kind upon any periods of credit to which he 
 would otherwise be entitled, would be the same as that 
 caused by the owner giving a notice to compel the fore- 
 closure under the New- York statute ; and has been there 
 discussed. 
 
THE GENERAL LIEN LAW. 171 
 
 I will here quote in full a very able opinion ; which, 
 although delivered on a case arising under the New- 
 York law, relates to this statute : 
 
 NEW-YORK COMMON PLEAS. ) 
 
 Special Term, April 19, 1855. j 
 
 Jaques, et al., vs. Caepenteb, et a!. 
 
 "Woodecjef, J. " It appears by the papers and admis- 
 sions submitted herein, that the parties named as defend- 
 ants above, did> in pursuance of the act, known as the 
 Mechanics' Lien Law, on the 29th September, 1854, file 
 with the county clerk a notice intended to create a lien 
 upon a building situated on Twenty-third street, in this 
 city, whereof one Peter Morris is the owner. Thereupon 
 Messrs. Jaques, et al., above named, as plaintiffs, served 
 upon the claimants (defendants above), a notice, requir- 
 ing them to appear in this court, and submit to an 
 accounting and settlement of the amount of their (the de- 
 fendants') claim, for the work, labor and materials alleged 
 to have been furnished, &c. The plaintifls are, it is ad- 
 mitted, the contractors with . the owner for the erection 
 of the building in question. 
 
 " Upon the appearance of the parties, the defendants 
 object to the right of the plaintifls to take any order in 
 the premises, and deny that this court have, in virtue of 
 this notice served on them, any jurisdiction to compel 
 any accounting, and especially that as their claim is a 
 lien upon the building, and the right, title and interest 
 of the owner therein, no order to bring the lien to a close 
 can be made in a proceeding to which he is not a party. 
 
 "The plaintifls, in support of this proceeding, rely upon, 
 the words of the 4th section of the act of 1851, which 
 
172 MECHANICS' LIEN LAWS. 
 
 provides that " Any contractor or laborer, or any person 
 furnishing materials, in pursuance of any contract made 
 by such contractor with such owner, or his said agent 
 therefor, may, after such labor has been performed, <fec, 
 enforce or bring to a close such lien, by serving, or caus- 
 ing a notice to be served personally on such owner or 
 his agent, contractor or laborer, or person furnishing 
 materials, requiring him to appear in, &c, and submit to 
 an accounting, &c, of the amount due, or claimed to be 
 due," Ac 
 
 "If there was nothing else in the act indicating the con- 
 trary, and provision had been made for the conduct of 
 the proceedings, and an appropriate order of the court, 
 settling the amount as between the contractor and claim- 
 ant, so as to render such settlement effectual, I should 
 think the confused language of the 4th section was used 
 with a view to enable a contractor whose moneys were 
 in a manner impounded in the owners' hands, to summon 
 the claimant to an accounting ; and an owner, also, to 
 summon a contractor or claimant to an accounting, as 
 well as to enable the claimant himself to institute a pro- 
 ceeding and obtain a judgment or decree for the satisfac- 
 tion of his lien ; and yet I can hardly see the propriety of 
 the words, " enforce or bring to a close the claimcmh 
 Men? if contesting and defeating it by a proceeding in 
 favor of the owner or contractor was intended to be em- 
 braced by the section. 
 
 " It is undoubtedly very desirable that a contractor 
 who has money due to him from the owner should, when 
 claims are filed which he deems unjust, or for which he 
 is not liable, have some means to compel an inquiry into 
 their validity and amount, and not be compelled to suffer 
 
THE GENERAL LIEN LAW. 173 
 
 his money to remain subject to the ultimate settlement 
 of the lien by a proceeding -which neither owner nor 
 claimant may choose to prosecute for many months ; and 
 if the sentence referred to does not authorize him to take 
 measures for that purpose under these provisions of the 
 act in question, I haye no doubt of his right to invoke 
 the jurisdiction of this court, as a court of equity, for that 
 purpose. 
 
 " Upon a comparison of the present with our former 
 lien laws (see Act of 1844, relating to the several cities 
 in the state, Session Laws, 1844, chap. 305, §§ 4, 5, 6, 
 10, Act of 1844, relating to the city of New- York, §§ 4, 
 5, 6, 10, Session Laws, 1844, chap. 220), it will be per- 
 ceived that these acts contemplated a proceeding on the 
 one hand, by the claimant, to enforce his lien, and on 
 the other hand, Iby the owner, to compel an adjustment 
 and settlement of the amount claimed. But even these 
 provisions, so far as contained in sections 4, 5 and 6, only 
 provided for the appearance of the owner to defend, on 
 penalty of judgment by default, and for the appearance 
 of the contractor, laborer or person furnishing the mate- 
 rials, on penalty of barring the benefit and being precluded 
 of his lien. These sections did not provide for any in- 
 quiry between the claimant and contractor merely. But 
 § 10 of the above acts does provide for that inquiry, and 
 requires the claimant to institute proceedings against the 
 contractor directly, to settle the amount due, whenever 
 the claimant is not himself the contractor but the person 
 performing labor, or furnishing materials, in pursuance 
 of an agreement made by him with the original con- 
 tractor. 
 
174 MECHANICS' LIEN LAWS. 
 
 " Now it is obvious, that in these acts the language of 
 the 4th section, from which the 4th section of our present 
 law was in part copied, although not very appropriate, 
 had significance, and could be applied to the various 
 steps in the proceedings which were to follow. 
 
 " In transcribing this 4th section into the law of 1851, 
 the provision that the owner may give the notice to ap- 
 pear is entirely omitted, and in lieu thereof a provision 
 is made in section 11, subd. 4, that he may require the 
 claimant to institute the proceedings, and in default 
 thereof the lien is to cease ; and in suffering the words to 
 remain, which seem at first reading to indicate that a 
 contractor may give the notice to a claimant to appear 
 and submit to an accounting, the legislature, or he who 
 prepared the act, seem to have overlooked the circum- 
 stance that no provision is made for any subsequent 
 steps to be taken between such contractor and claimant, 
 even if they do appear and account together ; and in case 
 they do not appear, no order can be made against either. 
 Indeed, the whole act read together, I think, clearly 
 shows that this section, as it stands in the present law 
 (in connection with the other sections of the act), con- 
 templates a proceeding to enforce the lien, to be instituted 
 by the claimant, to which the owner must be a party 
 defendant, and in which the extent of the lien, the amount 
 due from the owner, the particulars of his payments, are 
 to be inquired into, and judgment for the enforcement 
 of the lien against the property is to be rendered. 
 
 Thus the proceeding is called in section 4th, a proceed- 
 ing " to enforce or bring to a close such lien," not a pro- 
 ceeding " to avoid or discharge the lien," By section 5, 
 at the time, or within 15 days after the serving of the 
 
THE GENERAL LIEN LAW. 175 
 
 notice to appear, a bill of particulars of the claim shall 
 be served personally on such owner. Showing that he 
 is the party against whom the proceeding is to be taken. 
 And by section 7, in case the owner shall not.appear, a 
 writ of inquiry shall be issued to the sheriff to assess the 
 amount of the claim, and judgment shall thereupon be 
 entered by default. Under the former act it was pro- 
 vided, as before suggested, that when the owner gave 
 the notice (or, in the cases mentioned, the contractor 
 gave the notice), to the claimant, and the claimant did 
 not appear, he lost the benefit of his lien, and was pre- 
 cluded thereof. No such clause is contained in our present 
 act, nor is there anything to warrant any such order. 
 
 "It may, therefore (as a means of testing the right of 
 the contractor to summon the claimant to appear and 
 and account), be significantly asked : Suppose he dis- 
 regards the notice and does not appear, what steps can 
 be taken against him ? The act is silent. The former 
 provision, that under similar circumstances he should lose 
 the benefit of his lien, is repealed and not inserted in the 
 new law, and no authority is given to the court to make 
 any order on the subject, 
 
 " On the other hand, if the claimant does appear and 
 account, the court can render no judgment for the enforce- 
 ment of the lien ; the proceeding could not, in the lan- 
 guage, of the 11th section, be called an action for the 
 enforcement thereof; because he, against whom the lien 
 is to be enforced, if it is enforced at all, is a stranger to 
 the proceeding. 
 
 " Plainly, I think our present law contemplates two 
 modes of compelling inquiry and a settlement of the claim ; 
 the one by the claimant against those who are to be 
 
176 MECHANICS' LIEN LAWS. 
 
 affected by enforcing the lien ; the other by the owner, 
 who, by section 11, subdivision 4, may require the claim- 
 ant to take such proceedings within thirty days or be 
 barred of his lien. 
 
 " And although I think it very desirable that a contract- 
 or should have a summary mode of compelling the adjust- 
 ■ ment of a claim, which may operate very harshly, in pre- 
 venting his receiving from the owner what is due to him, 
 (which means the contractor had under the law of 1844, 
 as before suggested), I think that the present law has 
 made no provision for such a proceeding on his part ; and 
 therefore he is left to some remedy founded in the equi- 
 table jurisdiction of our courts, unless he is permitted, as 
 perhaps he may be upon some general principles, appli- 
 cable to the relation in which he stands to owner, to re- 
 quire Mm to give the notice provided for in § 11. 
 
 " My conclusion is, that the court have no jurisdiction, 
 in virtue of the notice served on the defendants, to make 
 any order in the premises other than to dismiss the 
 proceedings." 
 
 Eleventh. We have seen that under the New-York 
 law (head of express credits,) it may be doubtful whether 
 a contract could be sustained which attempted to place 
 the owner beyond the pale of that law. This statute, 
 however, expressly provides for and allows, such & step. 
 The 11th section declares "that any person may certify 
 to the owner or his agent, at any time previous to order- 
 ing the progress of the work, that such person will dis- 
 charge the owner or his agent from any liability as to 
 liens ;" and this certificate will be conclusive upon the 
 person giving it, "in barring him from the benefit of a 
 
THE GENERAL LIEN LAW. 177 
 
 lien." The certificate must be executed by the person 
 himself, and in the presence of a subscribing witness, to 
 be valid ; and this will sufficiently explain all that the 
 statute requires. 
 
 12 
 
178 MECHANICS' LIEN LAWS. 
 
 CHAPTER IV. 
 
 THE EICHMOND COUNTY ACT. 
 
 First. Although the extent of the lien and of the own- 
 er's liability is the same under this act' as under the 
 New- York and the general acts which we have previously 
 examined, there is an essentially different responsibility- 
 thrown upon the owner, and an essentially different plan 
 pursued as respects the creating and acquiring of liens. 
 The lien under the act we are now examining is not 
 created or acquired by any action of the claimant, be he 
 contractor or sub-contractor, but ipso facto attaches on 
 the performing of the labor or the furnishing of the 
 materials. The first sectfcm, in words, declares that a 
 party performing labor or furnishing materials under 
 conditions identical with those of the New-York law, 
 " shall have a lien ;" and the remaining sections, by not 
 indicating that any steps must be taken to acquire one, 
 render this construction conclusive. 
 
 Second. When thus acquired, the lien may be closed 
 in the same manner as a lien under the New- York law. 
 There must be a notice and bill of particulars (§4), 
 which must be in the same form and served in the same 
 manner. In case of the owner's default, an affidavit of 
 
 'Chap. 184 Laws 1846, amended by chap. 60, Laws 1850. Vide 2 Revised 
 Statutes, 4th ed., p. 748. 
 
THE RICHMOND COUNTY LIEN LAW. 179 
 
 the service of the notice must be filed, if the suit is in the 
 county court, with the county clerk, and if in a justices' 
 court, with the justice ; and thereupon a writ of inquiry 
 will issue, or the amount be assessed by the justice, as the 
 case may be (§ 6). Should the owner appear, issue is to be 
 joined upon the same papers; and the court would, prob- 
 ably resort, like the New-York common pleas, to written 
 pleadings for that purpose (§ 7). After issue, the pro v 
 ceedings are governed and tried by the same rules as 
 ordinary actions (§ 7) ; and costs are in like manner to 
 be recovered and to form a part of the judgment. The 
 statute also makes some provision with respect to evi- 
 dence (§ § 2, 3) ; at least so far as relates to the owner's 
 contract and the value of the labor or materials. And 
 here, with respect to sub-contractors, it may be observed 
 that they are not obliged to prove a performance of the 
 contractor sufficient to entitle him to recover, as under the 
 New-York law, but simply that the materials, <fec, " were 
 used by the said owner, or his agent, or the original con- 
 tractor" (§3). Whether (with this exception,) the re- 
 marks made under the New-York law, regarding evi- 
 dence, will be applicable to proceedings under this stat- 
 ute, or whether the evidence will relate merely to the 
 value of the labor or materials, will depend upon the 
 construction to be given this statute, which we will pre- 
 sently examine. 
 
 The courts having jurisdiction of these lien proceedings 
 are the county court and the justices' courts of the town 
 in which the building is situated (§ 4, as amended by the 
 act of 1850). A provision is added by the amendment 
 of 1850 that for this purpose the county court is to be 
 considered as always open. "We have seen {ante, p. 18,) 
 
180 MECHANICS' LIEN LAWS. 
 
 that under another statute it has been held that a notice 
 to appear before the clerk is bad. The notice should, 
 therefore, be to appear in court, though the issues would 
 really be joined before the clerk. 
 
 There is no limit imposed by the act with respect to 
 the amount for which these courts shall respectively have 
 jurisdiction. The ordinary rules will therefore prevail; 
 no costs being recovered in the former when the recovery 
 is less than fifty dollars, and the latter having no juris- 
 diction when the amount claimed exceeds one hundred. 
 
 Thied. We have seen that an entirely different rule 
 prevails under the New- York and general lien laws with 
 respect to the continuance of the lien and the nature of 
 the judgment (ante, p. 166). If the opinion in the case re- 
 ferred to under the latter statute is the true exposition of 
 that law, it may be a very difficult task to decide whether 
 this act will fall within the same rule of construction. 
 
 This act differs from the general law (so far as apper- 
 tains to this question,) in these particulars: Firstly, it 
 does not declare that a lien shall continue only one year, 
 as does the general act, but that in case certain steps 
 are not taken by the owner to compel a discharge, and 
 proceedings are not commenced by the claimant to 
 - enforce the lien, then it shall not " be barred until the 
 expiration of one year from the time of performing such 
 labor or furnishing Such material." (§11, as amended.) 
 Should the proper steps be taken by the owner, the lien 
 would sooner be disposed of; and should proceedings be 
 commenced by the claimant, there is no provision for its 
 its terminating at any time. It would therefore seem 
 that the judgment is not so wholly independent of the 
 
THE RICHMOND COUNTY LIEN LAW. 181 
 
 lien as under the other act ; and that the latter would 
 be terminated by either being discharged by or merged 
 in the judgment, as the judgment might be for or against 
 the owner. In the latter case it is not to be inferred 
 that the merger would destroy the lien, but that it would 
 continue until the judgment was satisfied. Secondly, 
 the original act of 1846, in giving the jurisdiction to 
 the common pleas, selected a court having no equitable 
 jurisdiction ; and in using the term " assumpsit," when 
 specifying the manner in which the judgment was to be 
 enforced, employed a term having a fixed and contracted 
 meaning, and applicable only to legal and not equitable 
 actions. In all this the act followed the general lien law. 
 But the act of 1850 changed this- by giving the jurisdic- 
 tion to a court having jurisdiction of actions in equity 
 as well as at law ; and further changed it by expressly 
 striking out in one section (§ 6), though not in the other 
 (§ 7), the words " in actions of assumpsit." -It may there- 
 fore be that the lien (as under the New-York law,) is 
 a statutory security, and the proceedings to enforce it a 
 suit to foreclose ; and that the court has power to mould 
 the remedy to meet the equities of the case. 
 
 Fourth. The leading difference between this law and 
 those previously examined, relates to the steps which the 
 owner may take, either to have the liens upon a building 
 closed and discharged, or to have the claims of different 
 claimants settled as among themselves. The manner in 
 which this may be done is by the owner giving public 
 notice "in the same manner as notice is required to be 
 given for the sale of real estate, by virtue of a writ of 
 fieri facias" requiring all* persons having claims "to 
 
182 MECHANICS' LIEN LAWS. 
 
 present the same, with vouchers in support thereof," to a 
 justice of the town in which the building is situated, on 
 or before a certain hour and day (§ 9). This hour and 
 day the statute provides must be "at least six weeks 
 from the first publication" of the notice; and the notice 
 also should be directed to all persons having claims 
 under any of the provisions of this act against the 
 building or appurtenances at the time of the date of the 
 notice. 
 
 The effect of failing to attend as thus required, will be 
 the loss of the hen (id.). Should, however, various claim- 
 ants appear, they are to be heard by the justice, and 
 the rights and priorities of their claims determined ; 
 and when so heard and determined, they are to be taken 
 as established, (§ 10.) 
 
 This does not appear distinctly in the section prescrib- 
 ing the proceeding, but may be gathered from it and the 
 succeeding section. It would be difficult to perceive 
 the object of summoning parties before a justice, unless 
 some judicial action was to follow. Further than this, 
 the next section (§ 10) indicates what the law supposes 
 will be done in stating the purpose to which it may he 
 applied; for it" is provided that whenever an owner. is 
 proceeded against " by a contractor," he may give the 
 notice prescribed in the ninth section, and " present as a 
 set-off all claims and liens thereupon presented and esta- 
 blished? (§ 10.) 
 
 It would seem that this finding of the justice is final, 
 for no provision is made for an appeal or re-hearing ; and 
 a very important application is made of the proceeding 
 in another manner. It is apparent from the fact that 
 any claimant may commence*£roceedings after his claim 
 
THE RICHMOND COUNTY LIEN LAW. 183 
 
 is due, that such proceedings might be commenced be- 
 fore the owner had called in the various claims existing 
 against his property ; and in this case (as the owner is 
 only liable to the amount of his contract,) it would be 
 impossible to say whether other or older claimants would 
 not have superior rights, and sufficient to absorb all the 
 funds in the owner's hands. To meet this case, the sta- 
 tute provides that when an owner is proceeded against 
 " by a contractor," " the magistrate or court before whom 
 such proceedings shall be commenced, shall, upon the re- 
 quest of such owner or his agent, grant a stay of proceed- 
 ings sufficient to enable him to give such notice and call 
 in such claims ; which claims shall thereupon be audited 
 by such magistrate or court." After this has been 
 done, the owner may "present as a set-off all claims and 
 liens thereupon presented and established " (§ 10.) The 
 manner of presenting these " claims and liens" would be, 
 of course, by pleading them in the answer, if written 
 pleadings were resorted to, or otherwise, by framing an 
 issue under a bill of particulars. (§ 5.) 
 
 There may be a second method by which the owner 
 can compel the claimant to proceed within a limited 
 time. "Whether there is such a method is by no means 
 clear ; and the provisions within which it may or may 
 not exist, afford, perhaps, the most extraordinary instance 
 of legislative heedlessness with which any of the lien 
 statutes abound. The sixth section of the act provides 
 that in case the claimant does not appear, " as specified 
 in sections four and five," he shall lose his lien. The 
 fourth section, thus referred to, provides that " any con- 
 tractor or laborer, or any person furnishing materials? 
 may "enforce or bring to a close such lien," by serving a 
 
184 MECHANICS' LIEN LAWS. 
 
 notice upon the " owner or his agent, contractor or per- 
 son furnishing materials;" and the fifth section relates 
 merely to the accompanying hill of particulars. It is 
 evident that the sixth section refers to provisions in the 
 fourth that do not exist ; and that the fourth contains 
 language that is unintelligible. The explanation of these 
 ambiguities is this: The legislature took the fourth 
 section from the general act of 1844, but struck out the 
 words at its commencement, " any owner." Under this 
 section in the general act, as we have seen (p. 22 ante), 
 the right of giving this notice was reciprocal, and the sec- 
 tion itself intelligible ; while under the New- York law, 
 the section (altered as in this act,) does not empower 
 the owner to give the notice ; and some of the words 
 have to be rejected as meaningless. But the New- York 
 act contains no such provisions as does the sixth section 
 (vide opinion of Mr. J.Woodruff, p. 171 ante), which gives 
 a remedy to the owner, should he have the right to give 
 the notice prescribed by the preceding sections. Yet 
 what could have been the object of the legislature in 
 striking out the very and only words in the fourth sec- 
 tion which give the owner this right of serving the 
 notice ? Must not the intention of the legislature have 
 been to take away this right from the owner ; and was 
 it not an oversight in allowing the provision spoken of 
 to remain in the sixth section ? "Were this the whole of 
 the case, I should have little hesitation in thus con- 
 cluding ; but, unfortunately, the legislature added a new 
 section to this act, not contained in any other lien law 
 (§ 11) ; and this section, among other things, declares 
 that " in case the said owner or his agent shall neglect to 
 give the notice required by sections four and five, or the 
 
THE EICHMOND COUNTY LIEN LAW. 185 
 
 notice provided for by section nine," the lien should not 
 be barred for one year. To this last section we, however, 
 have an amendment which, possibly, is an implied legis- 
 lative construction of the other sections. The legisla- 
 ture of 1850 (Laws 1850, chap. 160,) apparently regard- 
 ing this language of the eleventh section as erroneous, 
 changed it so as to read : " In case the said notice, re- 
 quired by sections four and five, or the notice provided 
 for by section nine, shall not be given, no claim" shall be 
 barred, &c. ; the obvious meaning of which is, that if the 
 claimant does not proceed under the one section, or the 
 owner under the other, the lien will not be barred until 
 a year has elapsed. This amendment is, moreover, the 
 existing law ; and whatever may be held as regards its 
 being a legislative construction of the other sections, it 
 throws us back upon them to ascertain their meaning. 
 The practitioner will be better able to determine the 
 course he intends pursuing after perusing the able opin- 
 ion above cited. 
 
 Fifth. The period within which the claimant must 
 commence proceedings to enforce the lien is limited in 
 two, and perhaps in three, different ways. First. It must, 
 in any event, be commenced within one year " from the 
 time of performing such labor or. furnishing such mate- 
 rial," or the lien will be barred. (§11.) Second. If the 
 owner publishes a notice, the claimant may be compelled 
 to appear before a justice of the peace, and present what- 
 ever claim he may have had " at the time of the date of 
 said notice," with " vouchers in support thereof," or for- 
 ever lose the benefit, and be precluded of his said lien." 
 (§ 9.) Third. In case it should be held that under the 
 
186 MECHANICS' LIEN LAWS. 
 
 sixth, and fourth sections the owner has a right to com- 
 mence the proceedings to close the lien, as under the 
 general act (vide p. If 1 ante), then the claimant will be 
 obliged, within fifteen days after receiving the owner's 
 notice, to serve his bill of particulars (§ 5) ; and on a 
 day specified, not less than twenty days after the time of 
 service, to appear and join issue (§ 4), or " lose the 
 benefit and be precluded of his said lien. (§ 6.) 
 
THE ULSTER COUNTY LIEN LAW. 187 
 
 CHAPTEE V. 
 
 THE ULSTER COUNTY ACT. 
 
 The Ulster county act (chap. 169, Laws 1851; 2 Rev. 
 Stat., 4th ed., p. 745), originally applied to the counties 
 of "Westchester, Ulster and Putnam, but the other two 
 counties were subsequently brought within the provi- 
 sions of other statutes. "With a few exceptions it is 
 precisely similar to the Richmond county act. 
 
 Ftest. The courts having jurisdiction of lien fore- 
 closures are specified in the fourth section. It is there 
 declared that the notice commencing the foreclosure may 
 require the owner "to appear in the Supreme Court for 
 the district, in the county" in which the property is 
 situated. A case arose in consequence of this obscure 
 language (Dressel vs. French, *l How. Pr. P., 352), in 
 which the meaning of the statute was examined by Mr. 
 J. Harris, in the acute and diligent manner which has 
 so frequently characterised his examinations of obscure 
 questions, under our recent codes and statutes. The 
 conclusion there arrived at, is, that " It is impossible to 
 give any effect, or assign any meaning to the words * for 
 the district,' " and a comparison with the New- York act 
 shows that this expression, " answers to 'the justices' court 
 of the judicial district ' of the other act," the one act 
 having been evidently transcribed, in some particulars, 
 from the other, and, in this one, the words referred to 
 having been erroneously retained. 
 
188 MECHANICS' LIEN LAWS. 
 
 A corresponding change also occurs in the seventh sec- 
 tion, to the effect that after issue joined, the cause may- 
 be noticed for and put upon the calendar of "any 
 circuit court in said county." By this language the 
 statute intends those actions of which the supreme court 
 has jurisdiction, and though, most singularly, the intro- 
 duction of the word " circuit " does away with any rule 
 in regard to justices' courts, yet the fact of those courts 
 having sole jurisdiction of all cases in which the amount 
 claimed does not exceed $100 (Dressel vs. French), of 
 course precludes the idea that such are to be tried at a 
 circuit; and in the absence of express provisions this, of 
 itself, implies that they are to be tried like ordinary 
 cases, in justices' court. 
 
 Second. A slight change is made in regard to one 
 point of practice, which is, that this act, instead of pro- 
 viding, like the amendment to the Richmond county law, 
 that an affidavit shall be filed on the default of the owner, 
 follows the original form of that law, and states that " his 
 default shall be entered in a book, to be kept for that pur- 
 pose, by the clerk," " or upon the docket of said justices' 
 court" (§ 6). An affidavit of the service of the notice 
 upon the owner, or some proof to that effect, would un- 
 doubtedly be necessary, although not made so, in terms, 
 by the statute. 
 
 Third. The act differs somewhat from the Richmond 
 county act, in regard to the language, from which- the 
 intent of the legislature, as regards the nature of the 
 judgment, must be inferred. The sixth section, after fol- 
 lowing the same section in the other act, changes the 
 
THE ULSTER COUNTY LIEN LAW. 189 
 
 language from "as in cases upon judgments in such 
 courts," by adding " in civil actions." This is not, how- 
 ever, material. But, in the succeeding section, we find 
 the words, "judgments rendered inactions wising on 
 money demands upon contract in said county" substituted 
 for "judgments rendered in actions of assumpsit in the 
 said court? This latter change may make a difference 
 between the judgments allowed under the two acts, in 
 case the courts should ever hold that the word " assump- 
 sit " controls the construction to be given to the act (vide 
 general and Richmond county acts). 
 
 Fourth. "With respect to the right of an owner to 
 commence the foreclosure proceedings, there is also a 
 slight change ; inasmuch as the eleventh section preserves 
 the form of the Richmond county law, as originally 
 passed, and provides that " in case the said owner, or 
 his agent, shall neglect to give the notice required by 
 sections four or five," &g., the Hen shall not be barred 
 until the expiration of one year. What has been said 
 under the previous statute will sufficiently explain this. 
 
 The learned judge, in the case before referred to, 
 points out another error. The fourth section, in speak- 
 ing of the hour and the day upon which the claimant's 
 notice must require the owner to appear, puts them in 
 the alternative, this being another mistake in changing 
 the word on to the word oe. 
 
190 MECHANICS' LIEN LAWS. 
 
 CHAPTER VI. . 
 
 THE ACT RELATING TO THE COUNTIES OF RENSSELAER 
 AND CHEMUNG. 
 
 This act (chap. 384, Laws 1852, p. 611, as amended by 
 chap. 413, Laws 1853, vide App.,) originally applied, in 
 addition to Eensselaer and Chemung, to Westchester, 
 Putnam, Dutchess, Rockland, and the town of New- 
 burgh, in the county of Orange ; but these other counties 
 have since been included in the law of 1854. 
 
 First. The extent of the lien and of the owner's lia 
 bility, and the circumstances and conditions under which 
 a claimant may acquire a lien are identical with those of 
 the New- York law. There must be a contract easting 
 between either the owner and the claimant, or between 
 the owner and the person with whom the claimant dealt; 
 and the labor must be performed, or the materials fur- 
 nished, " by virtue of" or in w conformity with the terms 
 of such contract." As under the New-York law, the 
 labor, &c, may be performed on the house or its appurte- 
 nances ; and the lien will bind " the right, title and inte- 
 rest, at the time existing," of the owner. The extent of 
 the owner's liability is, in the same manner as*under the 
 statute" referred to, limited by the amount of the " price 
 stipulated and agreed to be paid therefor, in and by such 
 
KENSSELAER AND CHEMUNG LIEN LAWS. 191 
 
 contract ;" except in cases of collusion between the owner 
 and contractor, or where the former has made payments 
 to the latter in advance of the terms of his contract, 
 which will operate to the injury of the contractor. (§ 3.) 
 A reference to the New-York law will show that all of 
 these limitations and conditions, except, perhaps the last, 
 are almost identical with the express provisions of that 
 statute, or with the constructive conditions and limita- 
 tions which the courts have imposed in administering it. 
 As they have been discussed at length in that examina- 
 tion, it is unnecessary to repeat the discussion here. 
 With respect to the extent of the remedy the nature and 
 effect of the judgment, and the continuance of the lien, 
 there may be an essential difference between these acts, 
 which we will presently inquire into. 
 
 Second. Although, like the Richmond county act, this 
 statute speaks (§ 1,) of the person furnishing materials, 
 &c, having a lien, the lien is not thus given ipso facto, 
 but must be acquired by filing and docketing a notice 
 with the town elerk of the town in which the building 
 is situated. As the provisions of the section respecting 
 this notice are identical with those of the New-York 
 law,- the reader is again referred to the examination of 
 that statute. 
 
 It must, however, be remembered that this statute 
 essentially differs from the New- York act, with respect 
 to a pre-requisite imposed on sub-contractors. It is 
 required by the second section that a sub-contractor, who 
 either performs labor or furnishes materials, must serve 
 upon the owner or his agent " a specification, in writing, 
 of the amount of labor performed or materials furnished 
 
192 MECHANICS' LIEN LAWS. 
 
 by him, together with the price or prices agreed to be 
 paid therefor ;" and this specification must be served 
 " within twenty days after the performance of such labor, 
 or within three months after the delivery of any of such 
 materials? or no lien will " attach to said building or lot." 
 
 This specification should probably be addressed with a 
 notice to the owner, and should set forth the items with 
 as much particularity as an ordinary bill of particulars ; 
 and as regards its contents, the statute (§ 2), very clearly 
 and fully points out all that it need contain. 
 
 The service of this specification, under the original act 
 of 1852, was required to be personal upon the owner, or 
 his agent, in all cases ; but by the amendatory act of 
 1853, it is further provided that if the " owner or agent 
 is not residing in the county " in which the labor was 
 performed, &c, " then such specification may be served 
 by mailing the same directed to the nearest post-ofiice 
 of such owner or agent." 
 
 As this service is a pre-requisite to the regularity of 
 the lien, in cases where the claimants are sub-contractors, 
 it may be necessary to produce proof that the condition 
 has been complied with ; and as to the proof in some 
 cases, and the allegations and evidence in others, the 
 reader is referred to what has been said of proof of ser- 
 vice of a copy of the lien under the Kings county act. 1 
 
 Third. The manner in which a lien under this statute 
 is enforced, is precisely similar to that under the New- 
 
 1 Should the doctrine of Mr. J. Eugglea, in Fretmam vs. Oram (8 Comst., 805), 
 that " the court is not required to adjudicate upon the validity of the lien," be 
 held to be applicable to this statute, no proof of this service would probably be 
 required ; but should the doctrine of the 'S. V. Common Pleas, that the lien is the 
 foundation of all subsequent proceedings, prevail, then what has been said above 
 would seem the safer course to be pursued, if not the only and necessary one. 
 
RENSSELAER AND CHEMUNG LIEN LAW. 193 
 
 York law, and the circumstances and conditions under 
 which the proceeding may be commenced, are also the 
 same (§ 5). So also in regard to the default of the owner 
 (§ 8), the joining of issue (§ 9), the proceedings before 
 trial, and the trial (§ 9), the evidence (§ 4), 1 and 
 the costs (§ 10), the practice previously explained will 
 apply. The only points of difference worth noticing are 
 that in case of the owner's failure to appear in the supreme 
 court, his default is to be " entered in a book to be kept 
 for that purpose by the clerk " of the county, and that 
 no general rules have yet been laid down requiring the 
 issues to be framed by complaint and answer. The 
 courts having jurisdiction are the supreme court, where 
 the amount of the lien exceeds one hundred dollars, or a 
 justices' court of the town in which the building is situ- 
 ated, when the amount is one hundred dollars or under. 
 This act uses the same language with respect to the 
 former of these courts ("for the district in the county") 
 which we have already seen was erroneously transcribed 
 into the Ulster county statute ; but as this section seems 
 to have been copied from that act, the explanation there 
 cited of Mr. Justice Harris, will suffice. 
 
 Fourth. The judgment which is intended by this 
 statute will probably cause the courts great trouble, and 
 give rise to many doubts before it is definitely settled 
 in what form it is to be rendered. Assuming the view 
 taken by the N. Y. common pleas, under the New-York 
 law as sound, and the view taken by Mr. J. Ruggles, in 
 Freeman vs. Cram, (3 Comst, 305), under the act 
 of 1844, as also sound, it is almost impossible to deter- 
 
 ' Vide p. 48, ante; but also fourth subdivision of thia chapter, 
 
 13 
 
194 MECHANICS' LIEN LAWS. 
 
 mine to which of the two classes the judgment, under this 
 statute, would belong. Firstly, this statute does not 
 declare that the judgment shall relate back to the 
 liem; secondly, it does not require that the docket of 
 judgment shall refer to the lien ; thirdly, the language 
 giving the lien, and providing the remedy, is almost 
 identical in both acts, this one merely changing the 
 word "assumpsit" to "money demands upon contracts;" 
 and fourthly, it does not require, like the New-York law 
 (§ 9) that " a transcript of every judgment headed 
 ' lien docket ' shall be furnished " to the successful 
 party, for the purpose of being noted in the lien docket, 
 nor, in express words, that the lien shall continue, 
 "•until judgment rendered." (§ 12.) But while this 
 may appear conclusive upon the one hand, upon the 
 other it appears, firstly, that the lien does not certainly 
 cease in all cases, as under the act of 1844 (§ 3), at the 
 expiration of one year ; but probably (as we shall pres- 
 ently see), continues until proceedings commenced within 
 a proper time are terminated (§ 13) ; secondly, although 
 there is no express provision that the judgment shall 
 refer to the lien, yet this is partially implied, partly by 
 the provision that the lien docket shall contain a column 
 in which shall be noted " what proceedings have been 
 had," and partly by the fact that no method is indicated 
 (when the owner has taken no affirmative action), for 
 the discharge of the lien, unless it be by noting under 
 the head, either the failure to commence within the 
 proper time, or the result of an action ; thirdly, though 
 the language relating to the remedy is merely changed, 
 as above indicated, yet the jurisdiction under this sta- 
 tute is given to a court having power to act in equity 
 
RENSSELAER AND CHEMUNG LIEN LAW. 195 
 
 as well as in law, while the language itself, "actions 
 arising on money demands upon contracts," is broad 
 enough, under our present system, to include purely 
 equitable actions. The contracted powers of the courts 
 having jurisdiction, under the act of 1844, and the re- 
 stricted and established meaning of the word assumpsit, 
 might, ex necessitate, have required, for that statute, the 
 construction given to it by the judge wha delivered the 
 opinion of the court of appeals, while no such necessity 
 will compel a similar construction of this act. 
 
 Should the practitioner adopt the latter view, he is 
 referred, with regard to the form of the judgment and 
 execution, the right of redemption, the claim for defi- 
 ciency by a contractor, &c, to what has been said under 
 the New- York law. • Should he adopt the former view, 
 the ordinary practice will, of course, be his guide. 
 
 Fifth. The periods v within which liens may be acquired 
 and closed, and the proceedings which the owner may 
 take in regard to the same, remain to be spoken of. 
 
 The time for acquiring alien is "within six months 
 after the performance of said labor or the furnishing of 
 such materials" (§ 7) ; and as the language is precisely 
 like that of the New-York law, the very full examination 
 there had, will suffice for this inquiry. 
 
 In regard to the time within which a lien must be 
 closed, and the steps which the owner may take, either to 
 compel a foreclosure, or a settlement before a justice, or 
 to himself commence the proceedings to close, this statute 
 follows that of Richmond county, using the precise lan- 
 guage of that act, as originally passed, with one alter- 
 ation, which relates both to the time within which a 
 
196 MECHANICS' LIEN LAWS. 
 
 lien will be barred, and to the owner's right of institu- 
 ting the proceedings to close the lien. By referring to 
 the subdivisions 4 and 5, of the chapter on the law of 
 Richmond county, it will be seen that the act of 1846, 
 in its eleventh section, by using the words, "in case the 
 said owner or his agent shall neglect to give the notice 
 required in sections four and five," referred to a provision 
 which really did not exist in those sections, viz., a pro- 
 vision allowing the owner to commence proceedings 
 as under the general law. The act of 1850 amended this 
 section by making it refer to the notice which the con- 
 tractor might give under §§ 4, 5, or to the notice 
 which the owner might give under § 9 ; thus making it 
 consistent, though leaving the sixth in its original am- 
 biguous form. The Ulster county act of 1851, followed 
 that of Richmond county, in its original form, without 
 any variation. The act we are now considering, without 
 adopting the improvement of the act of 1850, or following 
 the original enactment of 1846, makes a most extraor- 
 dinary alteration by striking out of the latter the only 
 intelligible provision it contained. The thirteenth sec- 
 tion (which corresponds with the eleventh of the Rich- 
 mond county act,) enacts, that "in case the said owner 
 or his agent shall neglect to give the notice required in 
 sections five and six," (which correspond to sections four 
 and five in the other act,) "no claim or lien" "shall be 
 barred until the expiration of one year," &c. ; the section 
 wholly omitting any reference to the only proceedings 
 which, in terms, the statute allows the owner to institute, 
 and which are (§11,) the same that are allowed by the 
 Richmond county act. (§ 9 of that act.) 
 
RENSSELAER AND CHEMUNG LIEN LAW. 197 
 
 The only deductions that can be drawn from this 
 omission, in order to give the section any meaning what- 
 ever, is, that the legislature understood the fifth and sixth 
 sections to give the owner the right of commencing the 
 proceedings, notwithstanding he is not mentioned, or 
 alluded to as an actor, in those sections. 
 
 It also follows that this section, as it stands, is in con- 
 flict with the eleventh — that one providing that if the 
 claimant fails to present his claim, after six weeks' pub- 
 lic notice, he " shall forever lose the benefit, &c, and be 
 precluded of said lien ;" and this one, declaring that if 
 the owner does give an entirely distinct and different 
 notice, the lien shall not be barred until the expiration 
 of one year from the time of performing the labor or 
 furnishing the materials. 
 
 It is also to be noted, that although the language of 
 the two acts, in regard to the time within which proceed- 
 ings must be commenced, is the same, yet the effect is in 
 a manner different. Both place the time within the 
 year " from the time of performing such labor or furnish- 
 ing such materials;" but under the Richmond county 
 statute the lien commenced with the performing of the 
 work, &c. ; while under this one it may not have com- 
 menced until six months afterwards. (§ 7.) 
 
198 MECHANICS' LIEN LAWS. 
 
 CHAPTEK VII. 
 
 THE ACT RELATING TO THE COUNTIES OF WESTCHESTER, 
 ONEIDA, CORTLAND, BROOME, PUTNAM, ROCKLAND, 
 ORLEANS, NIAGARA, LIVINGSTON, OTSEGO, LEWIS, 
 ORANGE AND DUTCHESS. 
 
 Of the counties included within the provisions of this 
 law (Chap. 402, Laws 1854, p. 1086 ; App.), there are 
 several which had been included under former statutes. 
 Of these, the counties of Westchester and Putnam may 
 be noticed as having been peculiarly favored by a vari- 
 ety of lien laws, they having been first included in 
 the law of 1851 ; thfcn taken from the operation of that 
 statute and placed under that of 1852 (which was also 
 amended by the act of 1853), to be finally transferred 
 to the statute we are now considering. The counties of 
 Dutchess and Kockland were also included in the act 
 of 1852 ; and the town of iNewburgh was in like 
 manner subject to its provisions, although the repealing 
 clause in the twenty-fourth section of this act, has, 
 undoubtedly, repealed so much of the former law. 
 
 As this act is much more comprehensive in its provi- 
 sions than any of the other statutes, it will be advisable 
 to examine it more in detail than some of those referred 
 to. 
 
 Fiest. A lien may be acquired by any person who 
 performs "any labor in erecting, altering or repairing 
 any house, building, or the appurtenances to any house 
 
THE WESTCHESTER, &c, LIEN LAW. 199 
 
 or building, in either of the counties mentioned in the 
 title of this act," but not by any person " who shall fur- 
 nish any materials therefor," unless he is a " resident of 
 either of said counties " (§ 1). And that this singular 
 provision was really intended by the legislature, is ren- 
 dered certain by the further provisions of the fifth section, 
 which declares that " any person performing labor, and 
 every resident oi said counties furnishing materials" shall 
 produce certain evidence upon the trial. As the statute 
 does not limit the right of acquiring a lien to the resi- 
 dents of those counties respectively, it would seem that a 
 person residing in any one of them could, for materials fur- 
 nished, acquire a lien in any other ; while persons residing 
 equally near, but not within the favored territory, would 
 be unable to avail themselves of this statutory security. 
 Neither is this lien limited, as under all the other 
 statutes, to contractors and their sub-contractors ; but on 
 the contrary it is allowed by § 1 to any person perform- 
 ing labor or furnishing materials. And that this is the 
 real meaning of the statute is also made apparent by its 
 subsequent provisions. Thus, the second section refers 
 to contractors, sub-contractors, the assignee of a con- 
 tractor and the person furnishing materials, &c, " upon 
 the credit of any sub-contractor? Thus, tpo, the fifth 
 section requires " any person," &c, to prove that the 
 labor or materials " was performed or used " by the 
 "owner, or his agent, original contractor or assignee," 
 while the eighth section provides that a bill of particu- 
 lars is to be served, setting forth the amount claimed by 
 the claimant to be due from the owner, his contractor 
 or sub-contractor. We may therefore conclude that any 
 person may acquire a lien, so long as his work was 
 
200 MECHANICS' LIEN LAWS. 
 
 performed or materials used upon the "building, by either 
 the owner, or by his agent, his contractor, or the assignee 
 of his contractor (§ 5) ; and provided that if the claim 
 be for materials the claimant is a resident of one of the 
 counties named in the act. 
 
 Second. The lien is acquired by a notice to he filed and 
 docketed with the town clerk of the town in which the 
 property is situated, and with respect to the contents of 
 this notice it will be sufficient to refer to the same notice 
 under the New-York law, as the two statutes (excepting 
 as regards the period for acquiring the lien), are, in this 
 particular, precisely alike. The notice, under this law, ' 
 should, however, show the residence of the material 
 man, as none but residents are entitled to a lien for 
 materials. But this we have already examined. As 
 this act does not require the labor to be performed or 
 the materials to be furnished by virtue of a contract 
 with the owner (§ 1), but simply that the one be per- 
 formed for, or the other be used by, the owner, his 
 agent, his contractor, or the assignee of his contractor 
 (§ 5), the notice should conform to these alterations. 
 
 The lien docket and the clerk's duties are also identi- 
 cal with those prescribed by the New-York law ; and, 
 excepting that the officer here acting is the town clerk, 
 and a slight change in the heading of the columns of 
 the docket, there is no difference between the officers or 
 the dockets. (§ 4.) 
 
 This statute seems to have been drawn after a careful 
 examination of all the others, and with (for the most 
 part) a clear idea of their minor errors and defects. 
 When examining the New-York law an inquiry was 
 
THE WESTCHESTER, &c, LIEN LAW. 201 
 
 necessary as to the time at which the six months allowed 
 by it for acquiring a lien commenced running. This 
 statute saves us that task,- and removes any doubts that 
 otherwise might remain. It is provided (§ 4,) that 
 " within thirty days after the performance and comple- 
 tion of such labor, or the final furnishing of such mate- 
 rials," the lien must be acquired — terms too clear to be 
 misunderstood. 
 
 Thied. When thus acquired, the lien may be closed at 
 any time within one year (§20), provided the money has 
 become due to the claimant, under his agreement with 
 the owner, contractor or sub-contractor. The statute 
 indeed makes no provision of this kind, and even says 
 that "after" the materials have been furnished, &c, and 
 the lien acquired, the action may be commenced ; but 
 the examination of a similar question, by the New- York 
 common pleas (vide ante), most conclusively shows 
 that the legislature never intended that a party 
 should recover money before it became due by the 
 terms of his contract ; and in these, as in other actions, 
 the cause of action must be perfected before suit brought. 
 
 It would not, however, seem so clear, that the same 
 rule should prevail in regard to the owner, where a sub- 
 contractor is the claimant. This statute, by omitting 
 the very decided language (§ 1,) of the New-York act, 
 that the labor must be performed, &c, " by virtue of 
 any contract with the owner," or " in conformity with 
 the terms of such contract," and by allowing the lien to 
 be acquired by *' any person who shall hereafter per- 
 form any labor," and by "every resident of either of 
 said counties" " who shall furnish any materials," coupled 
 
202 MECHANICS' LIEN LAWS. 
 
 •with the absolute right of foreclosing it as soon as ob- 
 tained, would indicate that it does not pay the same 
 regard to the owner's rights that the New- York law does, 
 or that, at any rate, it does not consider the sub-con- 
 tractor as privy to the terms of his contract, or acting 
 in conformity with its conditions. It may be a difficult 
 point for the courts to decide whether they must or 
 must not disregard the owner's contract, in such cases ; 
 but should it be held that it is not to be disregarded, it 
 is still probable that the sub-contractor might commence 
 his suit before the owner's payments became due, while 
 the court would exercise its equitable powers to prevent 
 injustice being done. (Vide p. 92, ante.) 
 
 It may be of service to the practitioner to call his 
 attention here to the fact that a notice to the clerk, 
 stating that the action has been commenced, may, in 
 some cases, be necessary to preserve the lien, and pre- 
 vent third parties from setting up equities, which might 
 otherwise accrue. (Vide infra.) 
 
 The manner of commencing the foreclosure suit is by 
 serving upon the owner a notice and bill of particulars ; 
 the former of which takes the place of , a summons and 
 complaint. (§§ 6, 1.) It. must be entitled like an ordi- 
 nary complaint, so as to show the court the county and 
 the parties; and must state "the facts constituting the 
 clainAand the amount thereof ; and must require the 
 " owner to appear in person or by attorney, within thirty 
 days" after the service of such notice upon him, " and 
 answer the same and serve a copy of such answer, toge- 
 ther with a notice of any set-off that he may have, on 
 the claimant or his attorney ; or in default thereof, that 
 the claimant will take judgment against the said owner 
 
THE WESTCHESTER,. &c, LIEN LAW. 203 
 
 for the amount claimed to be due for the labor performed 
 or the materials furnished, with interest thereon and 
 costs." To this notice, and virtually forming a part of 
 the process and pleadings, is added a bill of particulars, 
 which must be served at the same time with the notice ; 
 and must be verified by the oath of the claimant or his 
 attorney. (§ 10.) 
 
 As this notice forms the whole of the plaintiff's plead- 
 ings, and as the statute provides that it shall contain 
 a statement of "the facts constituting the claim," it is 
 important that it should be correctly prepared. Although 
 termed a notice,' the fact that the defendant must answer 
 it (§ 13), shows that the facts it alleges must be so fully 
 stated as to enable the defendant to understand the entire 
 nature of the plaintiff's case ; and to prepare and present 
 (if he have one,) an entire defence The safest and simp- 
 lest way of reaching these ends will be to treat the notice 
 as a complaint, in which the notification to appear and 
 answer, as prescribed by the act, takes the place of the 
 ordinary summons. From this, it will be inferred, that, 
 some facts must be alleged not expressly enumerated in 
 the statute ; and, in addition to this, we have already seen 
 that under the New- York law it has been held that some 
 such additional facts must be alleged, even in the notice 
 prescribed by that statute. (Vide p. 18, ante.) For then 
 the practitioner may recur to what has been said (vide p. 
 33, ante,) respecting the pleadings, taking care to'change 
 the statement so that the facts he alleges shall bring the 
 plaintiff's case within the corresponding requirements of 
 this law. 
 
 The service of the notice and bill of particulars must 
 be personal " on the owner of the property or his agent," 
 
204 MECHANICS' LIEN LAWS. 
 
 unless, by reason of his " absence from the state, or being 
 concealed therein," this cannot be done; and in such 
 case, the "service may be made by leaving a copy of such 
 notice at the last place of residence of said owner, and 
 publishing a copy thereof for three weeks successively, 
 in a newspaper published in the county where the prop- 
 erty is situated." (§ 9.) The act does not intimate that 
 any order for publication is necessary, nor does it specify 
 how often per week the notice must be published. In 
 the absence of an express provision, it would seem that 
 a single publication each week would sufficiently comply 
 with the requirements of the act. In cases where 
 service by publication must be resorted to, it will be 
 advisable for the attorney, in draughting his notice, to 
 compress it as much as possiible, avoiding the usual for- 
 malities of a complaint, and stating the facts in the 
 fewest possible words. Should the party appear and 
 endeavor to take advantage of any ambiguity, there is 
 no doubt but that the court would have power to allow 
 the plaintiff to amend (vide p. 44, ante), and the cir- 
 cumstances would strongly recommend him to the 
 equitable powers of the court. 
 
 The service of the notice, when served by publication, 
 by this method will be considered as made at the time 
 of the first publication of the notice. (§ 9.) In regard 
 to the proof of service, three things will have to be pro- 
 ven : First, that the defendant was absent from the state, 
 or concealed therein, with intent to avoid the service. 
 Second, that a copy of the notice and bill of particulars 
 were left prior to the first publication of the notice^ at 
 the last place of residence of the defendant, properly 
 directed, &c. Third, that the notice was published in 
 a proper paper, and at stated times. 
 
THE WESTCHESTER, &c, LIEN LAW. 205 
 
 It remains only to add that the publication of the 
 bill of particulars is specially dispensed with by the 
 statute (§ 10) ; and that the expenses of publication are 
 recoverable, as a part of the disbursements, whether the 
 proceedings be in a court of record or before a justice 
 of the peace. (§16.) 
 
 When the action is brought in a justices' court, the 
 manner of proceeding and form of the notice differ some- 
 what from those prescribed in courts of record. (§ 8.) 
 The notice should be properly entitled, should contain 
 a statement of the facts (as before indicated), and the 
 amount of the claim, and should require the owner " to 
 appear before said justice, in person or by attorney, at 
 a time certain, not less than thirty days after such service, 
 and answer the same; or, in default thereof, that the 
 claimant will take judgment against such owner for the 
 amount so claimed to be due, with interest thereon, and 
 costs." For further particulars in regard to both the 
 notice and the proceedings in justices' courts, the reader 
 is referred to the eighth, eleventh and twelfth sections 
 of the act, which very clearly and explicitly point out 
 the whole of the steps necessary to be taken. 
 
 Eeturning to cases in courts of record, we find (§ 7,) 
 that " within thirty days after the service of the notice 
 and bill of particulars, the defendant shall personally 
 serve the claimant, or his attorney, with a copy of his 
 answer and notice of set-off" (both of which, I presume, 
 are to be incorporated in one instrument) ; and also, a 
 bill of particulars of his set-off (§ 13,) " annexed to said 
 answer." The object of making this service personal is 
 not apparent, nor does there appear to be any reason for 
 such a departure from the ordinary practice. Should 
 
206 MECHANICS' LIEN LAWS. 
 
 the defendant be unable to find the plaintiff, or his attor- 
 ney, after due diligence, the court would probably be 
 authorized in granting some relief, either by staying the 
 plaintiff's proceedings, or by allowing the defendant to 
 come in and answer. 
 
 The answer, being a pleading in an action, would, of 
 course, fall within the ordinary rules of pleading, both as 
 to the issues it might raise and the counter claims it might 
 present. There is one requisite, however, which the stat- 
 ute in all cases demands ; and that is that the answer 
 and notice of set-off be " duly verified by the oath of , the 
 owner, his agent or contractor, to t the effect that the 
 same is, in all respects, true." The language of the act 
 is not very clear ; but I infer that the notice of set-off is 
 a part of the pleading, and that the verification relates 
 to both it and the allegations raising an issue. Such, at 
 any rate, would be a safe and unobjectionable course to 
 pursue. 
 
 Having thus seen how the action is to be commenced, 
 it remains, under this branch of the subject, to inquire, 
 in case of the owner's failure to answer, how it would 
 be proceeded with, or, in case of issue being joined, how 
 it would be conducted. 
 
 In case the owner does not appear and answer, the 
 claimant, on filing with the county clerk " an affidavit 
 of the service of such notice and bill of particulars, and 
 the failure of the owner of the property to appear" as 
 required by the notice, the amount of the claim may be 
 assessed by the clerk. "When so assessed "judgment 
 shall be entered upon the said assessment, establishing 
 the amount of said lien, with the costs." (§ 11.) Be- 
 side this evidence, however, it would be necessary (as 
 
THE WESTCHESTER, &o., LIEN LAW. 207 
 
 we have seen under the New- York law,) to file, as a part 
 of the judgment record, some proof of the lien, as it 
 forms the basis of the action. This proof would consist 
 of a copy, duly certified by the town clerk, the certificate 
 also showing the time and fact of filing. The assess- 
 ment would also require proof, as there is no provision 
 in the act 'authorizing the clerk to enter judgment on 
 the notice alone, even though it is verified; and this 
 assessment by the clerk, as it takes the place of the 
 assessment by a sheriff's jury, or a referee, as is required 
 under all the other lien laws, would probably be governed 
 by the same rules, . and not by § 246 of the Code. In 
 addition to this, the fifth section requires that " at the 
 assessment of damages " the plaintiff must " produce evi- 
 dence to establish the value of such labor or materials." 
 One other and very important fact, the same section also 
 requires must be proved, which is, that the labor was 
 performed, or materials were used " by the said owner, 
 or his agent, original contractor, or assignee of such con- 
 tractor, in the erection, altering or repairing" of the 
 house or its appurtenances. 
 
 When the action is at issue, it proceeds like an ordinary 
 case, and is governed by the same rules. (§ 14.) With 
 respect to "costs, the fifteenth and sixteenth sections, with 
 what has been said in the 1st chapter, will render the 
 subject sufficiently clear. The most important point 
 which can occupy the attention of the attorney, after 
 issue, will be the evidence necessary to sustain the action 
 upon the trial ; and for this he may consult the opinions 
 cited under the head of trial and evidence, in the chap- 
 ter on the New- York law, modifying the views there ex- 
 pressed by the provisions of the first and fifth sections 
 of this act. 
 
208 MECHANICS' LIEN LAWS. 
 
 The courts having jurisdiction of these actions are the 
 supreme court, the county court, and the justices' courts 
 of the town in which the property is situated. (§§ 6 and 
 8.) The jurisdiction of the first two is limited to cases 
 where "the amount exceeds fifty dollars" (§ 6), by which 
 is intended the amount of the lien. The jurisdiction of 
 the last is limited to cases where " the amount of the 
 lien claimed is for one hundred dollars or under." (§ 8.) 
 
 In addition to the above limitation upon the county 
 court, it may be questionable whether that court must 
 not also have jurisdiction of the person of the defendant, 
 to be acquired by personal service within the coiwti/, or 
 by publication, in the prescribed cases. The statute 
 (§ 6), indeed, says, that the* claimant " may bring an 
 action " in either; and that if the " owner shall not ap- 
 pear, as required in and by the notice given in pursu- 
 ance " of the sixth section, the claimant will be entitled 
 to judgment (§ 11) ; but this may still refer to those 
 cases in which the county court has acquired jurisdiction 
 of the person, by service, within the limits to which its 
 jurisdiction is ordinarily restricted, an inference strength- 
 ened by the provision relating to justices' courts (§ 8) ; 
 and the fact that no such provision is made for the county 
 court, while the claimant has still a full and perfect reme- 
 dy left to him by bringing his action in the supreme court. 
 
 In the case of justices' courts, their jurisdiction (the 
 notice being, in effect, process,) is greatly enlarged by it 
 being expressly provided (§ 8,) that the notice may be 
 served " anywhere within this state." The plaintiff will 
 therefore be held to a personal service, unless in the 
 cases prescribed, and the defendant who may be served 
 out of the county cannot raise that fact as an objection. 
 
THE WESTCHESTER, &c, LIEN LAW. 209 
 
 Fotteth. The remedy given by this statute consists of 
 a judgment and execution. (§§ 11, 14 and 12.) There is 
 no reason for supposing that it will be governed by the 
 rules discussed under the general act> or that it will not 
 be subject to the same equitable power on the part of 
 the court, as that prescribed by the New- York law. 
 The acts resemble each other in too many particulars to 
 admit of another construction. The docket refers to 
 the subsequent proceedings (§ 4) ; a transcript of the 
 judgment, headed " lien docket," is to be furnished to. 
 the successful party; -judgment is to be entered, in cases 
 of default upon the assessment, but "establishing the 
 amount " of the lien, and, in contpsted cases, it is to be 
 enforced, as in cases of default (§ 14) ; the court has an 
 equitable power in contemplation of the legislature, it 
 being provided that the costs shall be deducted from the 
 contractor's funds, "unless otherwise directed by the court" 
 (§ 15) ; the priority of Hens, " created and established" 
 depends upon the time of filing (§ 22) ; a judgment 
 against the claimant is a discharge of the lien (§§ Vl 
 and 23, subd. 3) ; and finally, the right, title and interest 
 which the owner had, at the time of filing the lien, is to 
 be sold. (§§ 11 and 14.) Some of these provisions go 
 further than those of the New- York law, and much more 
 clearly show the applicability of the doctrine of the 
 court of common pleas to this than even to the other sta- 
 tute. One point of difference may be observed, which 
 this statute allows, viz, a transcript maybe docketed in any 
 county with the same effect as in an ordinary judgment 
 at law (§ 11) \ and when a judgment is docketed within 
 one year after the creation of the lien, it is " a lien upon 
 the real property of the person against whom it is 
 14 
 
210 MECHANICS' LIEN LAWS. 
 
 obtained " (§ 20). Thus it would seem that a personal 
 liability is created in favor of the sub-contractor, and 
 also that the full amount of the judgment may be dock- 
 eted in the first instance. A perusal of what is said 
 regarding this topic, in the chapter on the New- York 
 law, will render it more clear than any further" remarks 
 here could do. The provision in the twentieth section, 
 that the hen shall continue one year, unless sooner dis- 
 charged, when taken with the other provisions of the 
 act, can only mean that it will continue for that period, 
 should no action be brought to foreclose it. To save his 
 rights, and prevent the equities of third persons from 
 arising, the plaintiff should, within the year, see that an 
 entry is made in the lien docket to the effect that pro- 
 ceedings are pending to foreclose. 
 
 Fifth. Appeals are allowed by this act, but as they 
 do not differ, in any particular, from those allowed in 
 ordinary actions, it is unnecessary to do more than to 
 notice the existence of such a provision. (§ 21). 
 
 Sixth. Two proceedings may be resorted to by the 
 owner to compel the closing of the lien, or the settlement of 
 claimant's rights, as among themselves. First, the owner 
 may (§§ 18 and 19,) resort to the publication of a notice, 
 similar to that allowed under the Richmond county act, 
 There is no difference in this between the two statutes. 
 (Vide p. 181, ante.) Second, he may give a notice 
 (§ 23, subd. 4,). to the claimant, requiring him to com- 
 mence an action, within twenty days after its service, 
 for the foreclosure of the lien; and in case*>f the claim- 
 ant's failure to comply, the lien may be discharged. The 
 
THE WESTCHESTER, &c, LIEN LAW. 211 
 
 form and maimer of giving this notice differ somewhat 
 from that of the New-York law, but the effect, both as 
 regards plaintiff and defendant, will be the- same. (Vide 
 pp. 25, 94, ante.') 
 
 Seventh. The lien may be discharged in several dif- 
 ferent ways. 
 
 I. It may be discharged by lapse of time. (§ 20.) 
 But though the provision referred to declares that it 
 shall continue one year, and though, under a similar 
 provision of another law (vide p. 166, ante), the court 
 of appeals has decided that the lien will expire absolutely 
 at the end of the year, and that neither the pendency of 
 a suit to foreclose will prolong it, nor a judgment subse- 
 quently recovered will relate back to it; the various 
 other provisions of this act, as the docket (§ 4), the 
 docketing of a transcript (§ 1Y), and, particularly, the 
 sale of the interest bound by the lien (§ 11), clearly 
 show that such was not the intention of the legislature 
 in this enactment. Taking all the provisions of the 
 statute and construing them together, it is evident that 
 the only interpretation that can be put upon the words,, 
 "shall continue until the expiration of one year" is that 
 the lien must continue for at least one year (if not sooner 
 discharged), while it may be, and is continued an indefi- 
 nite length of time, should a proper action be brought 
 to close it. As before suggested, a notice should be filed 
 with the town clerk, to prevent good faith purchasers or 
 encumbrancers from raising a question as to rights they 
 may'have acquired. 
 
 II. The Ken may not be discharged of record, but a 
 claimant may "forever lose the benefit and be precluded 
 
212 MECHANICS' LIEN LAWS. 
 
 of" it by failing to appear before the justice, as required 
 by the eighteenth section. 
 
 III. The lien may be discharged by the voluntary act 
 of the claimant (§ 23, subd. 1.) ; and for the requisites 
 and form of the certificate the reader is referred to a 
 previous page. (Vide p. 75, ante.) 
 
 IV. The lien may be transferred from the land to 
 " a sum of money equal to double the amount claimed " 
 (id., subd. 2). The different phraseology of this act 
 leads me to believe that, unlike the New-York law, this 
 substitution is only contemplated in cases where a suit 
 has been brought. " By depositing with the justice or 
 clerk of the courts," must mean the court in which a suit 
 is pending, and until suit brought it would be impos- 
 sible to determine the justice or court ; while the law 
 does not imply that it is discretionary with the owner 
 to select, by using the language " any justice," or by 
 selecting the town or county clerk as the officer to receive 
 the money. This act, in requiring double the amount, 
 removes some of the doubts that exist in regard to the 
 corresponding provision of the New-York law, though 
 the practice would differ but little. (Vide p. 54, ante.) 
 
 V. The lien may be discharged by an entry in 
 the lien docket that the proceedings of the claimant 
 have been dismissed, or a judgment has been rendered 
 against him (§ 23, subd. 3). The authority for the 
 town clerk to discharge the lien would be a certified 
 copy of the order dismissing the proceedings, or a tran- 
 script of the judgment (§ 17). This differs from the 
 New- York law, in allowing the lien to be discharged by 
 a dismissal of the proceedings (vide p. 7lj ante); but 
 
THE WESTCHESTER, &c, LIEN LAW. 213 
 
 as under that law a discharge would be final, and a lien 
 once discharged could not be revived. (Vide p. 69, ante.) 
 IV. The lien may also be discharged in cases where 
 the owner has taken the proper steps to compel an action 
 which the claimant has neglected to bring (§ 23, subd. 
 4). This may be done by filing with the town clerk an 
 affidavit showing the service of the proper notice, and 
 the failure of the claimant to commence his action. The 
 affidavit of service had better conform to the require- 
 ments of the rule in regard to the service of a summons, 
 and be made by some other person than the claimant. 
 
214 MECHANICS' LIEN LAWS. 
 
 CHAPTEE VIII. 
 
 THE ACTS RELATING TO THE CITY OF BUFFALO. 
 
 The acts relating to the city of Buffalo are, the general 
 lien law of 1844, and an amendatory act passed in 1851. 1 
 The amendment relates to but a single section ; and had 
 it not been for interrupting our examination of the 
 general law, might have been noticed under the former 
 chapter. 
 
 It will be observed, that under that act, the claimant 
 was obliged to file his contract, or specifications, either 
 within twenty days after the making of the contract or 
 the commencement of the labor or the furnishing of the 
 materials (§ 2) ; and that the lien would take effect from 
 the filing of the contract and serving of the notice (§ 3) ; 
 while the sub-contractor would have a lien for only the 
 labor and materials subsequently performed or furnished. 
 The amendment alters this in both particulars. It is 
 provided that the specifications and statements (which, it 
 is presumed, includes the written contract, in cases where 
 there is one), and the notice thereof, may be filed and 
 served as required by the second section, " at any time 
 prior to thirty days" after either the labor is performed or 
 the materials are furnished, or the erecting, alteration or 
 repairs of the building "shall be completed." The 
 
 1 Chap. 305, Laws 1844; 2 Revised Statutes, 4th ed., p. 740, and chap. 517, 
 Laws 1851., id., p. 745. 
 
THE BUFFALO CITY LIEN LAW. 215 
 
 period for acquring a lien is, therefore, enlarged and 
 entirely altered. 
 
 Further than this (viz., to a " house or other building,") 
 the amendment does not apply ; and it would seem that a 
 lien for work done upon the appurtenances must be 
 secured within the period assigned by the original act, 
 The language of the later act certainly does not include 
 appurtenances, nor is the term necessarily implied. 
 
 It is also provided that the lien, thus acquired, may 
 be for labor and materials, " whether furnished before 
 or after such filing and service." In this the amend- 
 ment differs from all the other acts, inasmuch as some 
 aEow a hen for work which has been performed (as the 
 New-York law), and some for work which is to be (as 
 the general act) ; while this one makes the lien both pro- 
 spective and retroactive in its operation. 
 
 As this general language, giving the right to acquire 
 a lien to this extent, might, in the case of a sub-contractor 
 work serious injury to the owner, a restrictive clause is 
 added, stating that the amendment shall not be construed 
 to create a lien in favor of a sub-contractor, beyond the 
 amount due from the owner to the contractor, with the 
 proviso that the owner's payments to the contractor 
 shall have been in good faith, and before the service of 
 the notice. 
 
APPENDIX. 
 
 NEW-YORK STATUTES. 
 
 Chap. 513. Laws 1851. 
 
 An Act for the better security of mechanics and others, 
 erecting buildings and furnishing materials therefor, in 
 the city and county of New- York. 
 
 Passed July 11, 1851. 
 
 Section 1. Any person who shall hereafter, by virtue 
 of any contract with the owner thereof, or his agent, or 
 any person who, in pursuance of an agreement with any 
 such contractor, shall, in conformity with the terms of 
 such contract, perform any labor, or furnish materials in 
 building, altering or repairing any house or other build- 
 ing, or appurtenances to any house or other building, in 
 the city and county of New- York, shall, upon filing the 
 notice prescribed in the sixth section hereof, have a lien 
 for the value of such labor and materials upon such 
 house or building and appurtenances, and upon the lot 
 of land upon which the same stand, to the extent of the 
 right, title and interest at that time existing, of such 
 owner, in the manner and to the extent hereinafter pro- 
 
21 8 APPENDIX. 
 
 vided ; but such owner shall not be obliged to pay for 
 or on account of such house, other building or appur- 
 tenances, in consideration of all the liens authorized by 
 this act to be created, any greater sum or amount than 
 the price stipulated and agreed to be paid therefor, in 
 and by such contract. 
 
 § 2. Any person furnishing such materials, or perform- 
 ing such labor, in pursuance of a written contract with 
 such owner, or his agent, shall produce such contract, or 
 the best evidence thereof in his possession, the validity 
 of which shall be established in evidence before the 
 court in which he may bring his suit to recover the value 
 of his lien, and shall recover no more than the price 
 stipulated to be paid- to him in such contract. 
 
 § 3. Any person performing such labor or furnishing 
 such materials, without a written contract with such 
 owner or his agent, shall produce evidence, as mentioned 
 in the preceding section, to establish the yalue of such 
 labor or materials ; and that the same were used by the 
 said owner or his agent, or the original contractor, in the 
 erection, alteration or repairing of such building. 
 
 § 4. Any contractor or laborer, or any person furnish- 
 ing materials, in pursuance of any contract made by 
 such contractor with such owner or his said agent, there- 
 for, may, after such labor has been performed or mate- 
 rials furnished, enforce or bring to a close suph lien by 
 serving, or causing a notice to be served personally, on 
 such owner or his agent, contractor or laborer, or person 
 furnishing materials, requiring him to appear in the 
 court of common pleas ; or provided the amount claimed 
 do not exceed one hundred dollars, in a justices' court 
 of the judicial district in which such building is situated, 
 
APPENDIX. 219 
 
 or in the marine court of said city and county of New- 
 York, either in person or by attorney, at a time certain, 
 upon some day to be specified in such notice, not less 
 than twenty days from the service thereof, and submit 
 to an accounting and settlement in such court of the 
 amount due or claimed to be due for the labor thus per- 
 formed or the materials thus furnished. 
 
 § 5. At the time, or within fifteen days after the ser- 
 vice of such notice, a bill of particulars of the amount 
 claimed to be due shall be served personally on such 
 owner or his legal representatives; and also a bill of 
 particulars of any offset which may be claimed to the 
 same shall be served in like manner upon the laborer, 
 contractor, or person furnishing materials, as the case 
 may be. 
 
 § 6. Within six months after the performance of such 
 labor or the furnishing of such materials, the contractor, 
 sub-contractor, laborer, or person furnishing materials, 
 shall serve a notice in writing upon the county clerk, 
 specifying the amount of the claim and the person 
 against whom the claim is made, the name of the owner 
 of the building, and the situation of the building, by its 
 street and number, if the number be known. The 
 county clerk shall enter the particulars of such notice in 
 a book to be kept in his office, to be called " the lien 
 docket," which shall be suitably ruled in columns, 
 headed " claimants," " against whom claimed," " owners," 
 "building," " amount claimed," and " date of notice, hour, 
 minute," "what proceedings have been had." The names 
 of owners and persons against whom the claim is made 
 to be inserted in alphabetical order. A fee of ten cents 
 shall be paid to the county clerk on filing such lien, of 
 
220 APPENDIX. 
 
 which fees, an account shall be rendered to the board of 
 supervisors, as provided by law with regard to other fees. 
 
 § 7. In case said owner shall not appear at the time 
 and place specified in the notice given in pursuance of 
 the requirements of sections four and five, then, on filing 
 with the county clerk, or with the clerk of the marine 
 court, or with the justice, an afiadavit.of the service of such 
 notice, and of the default of the owner to appear, a writ 
 of inquiry may be issued to the sheriff of said city and 
 county to assess the amount of such claim, or the amount 
 of such claim may be assessed by the court of common 
 pleas, justices' court or the marine court, as the case may 
 be ; and upon the return of the writ of inquiry, or the 
 assessment by the court, judgment shall be entered upon 
 the same and execution shall issue for the enforcement 
 of said claim, so adjudicated and established, in the same 
 manner as in cases upon other judgments in such courts. 
 
 § 8. On the appearance of both parties, in pursuance 
 of the above requirement, issue shall be joined upon the 
 claims made, and notice of set-off served, and the same may 
 be noticed for trial and put upon the calendar of said court 
 by either party, and shall be governed, tried,' and the 
 judgment thereon enforced, in all respects, in the same 
 manner as upon issues joined and judgments rendered 
 in all other civil actions for the recovery of moneys in 
 said court. 
 
 § 9. A transcript of every judgment rendered headed 
 "lien docket," shall be furnished by the clerk of the 
 court, or the justice, to the successful party, who may file 
 
 1 The case is to be tried, however, like a suit in equity, viz., by the court 
 In the common pleas the fourth Thursday is set apart for such cases. This note 
 should have been printed at page 48, ante, but escaped my attention until after 
 that portion of the work had passed through the printer's hands. 
 
APPENDIX. 221 
 
 the same with the county clerk, whose duty it shall be 
 to enter the name of the court and the amount of the 
 judgment, or, where judgment is against the claimant, 
 the word "discharged," under the last head in his docket. 
 
 § 10. Costs shall be allowed upon the same principles 
 and by the same rules in such proceeding as they are 
 now allowed by statute in civil actions for the recovery 
 of money, and shall form a part of the judgment reco- 
 vered in the same. 
 
 § 11. The lien may be discharged as follows : 
 
 1. By filing a certificate of the claimant, or his success- 
 ors in interest, acknowledged or proved iu the same 
 manner as the satisfaction of a mortgage, stating that 
 the lien is discharged ; or 
 
 2. By the deposit with the clerk of a sum of money 
 equal to the amount claimed ; which money shall there- 
 upon be held subject to the lien ; or 
 
 3. By an entry of the clerk, made in the book of liens, 
 after one year has elapsed since the filing of the claim, 
 stating that no notice has been given to him of legal 
 steps to enforce the lien ; or 
 
 4. By an affidavit of service of a notice from the owner 
 to the claimant, requiring him to commence an action 
 for the enforcement of his lien, on or before a certain 
 hour or day specified in said notice, and the lapse of 
 thirty days thereafter, without any affidavit from the 
 claimant being filed of the service of the notice required 
 in section four ; 
 
 5. By satisfaction of the lien upon an action for the 
 enforcement thereof. 
 
 § 12. Every lien created under the first section of this 
 act shall continue until the expiration of one year from 
 
222 APPENDIX. 
 
 the creation thereof, and until judgment rendered in any 
 proceedings for the enforcement thereof. 
 
 § 13. The act entitled " An act for the better security, 
 of mechanics and others erecting buildings in the city 
 and county of New-York," passed April 20, 1830, and 
 the act entitled "An act for the better security of 
 mechanics and others erecting buildings and furnishing 
 materials therefor, in the city and county of New-York," 
 passed April 29, 1844, are hereby repealed. 
 
 Chap. 404. Laws 1855. 
 An Act to amend an act entitled " An act for the better- 
 security of mechanics and others erecting buildings and 
 furnishing materials therefor, in the city and county of 
 New-York," passed July 11, 1851. 
 
 Passed April 13, 1855. 
 Section 1. Whenever judgment shall be rendered in 
 favor of the claimant, in any proceeding commenced 
 under the act hereby amended, such judgment shall direct 
 the sale of the interest of the owner in the land and 
 premises upon which the lien exists, to the extent of the 
 right of such owner, at the time of the filing of the notice 
 of lien, in pursuance of said act, and that the proceeds of 
 such sale shall be applied to the payment of the costs of 
 the proceeding, and of the amount found to be due to 
 such claimant, and that the residue of such proceeds be 
 paid to the clerk of the city and county of New- York, to 
 abide the further order of the court. 
 
APPENDIX. 223 
 
 § 2. The owner may apply to the court of common 
 pleas for the city and county of New-York, for an order 
 directing the clerk to pay him the proceeds of such sale 
 so paid to the said clerk, upon producing the certificate 
 of the clerk of the city and county of New- York, that 
 there are no liens docketed in his office against or affect- 
 ing the said premises, which have been filed under the 
 said act. 
 
 § 3. If it shall appear that there are other liens on 
 file with the clerk of the city and county of New- York, 
 affecting the said premises, notice of such application 
 shall be given to the claimants respectively, filing the 
 notices creating such liens, and thereupon the said court 
 shall distribute such proceeds among the parties entitled 
 thereto, according to their respective rights and priori- 
 ties, and may order a reference to take proofs in rela- 
 tion to such rights and priorities. 
 
 § 4. In all sales under judgments to be rendered in 
 these proceedings, the interest of the owner shall be sold, 
 subject to all prior liens existing thereon, unless the 
 claimants under such liens shall be made parties to the 
 proceedings, in which case the court shall settle the rights 
 of the respective claimants, and the payment by the 
 owner of any valid lien, or of any judgment recovered 
 in pursuance of the said act shall enure to him as a pay- 
 ment to the amount thereof to the contractor. 
 
 § 5. -When the proceedings are commenced by a per- 
 son having a claim against a contractor with the owner, 
 such contractor may be made a defendant with such 
 owner, and judgment may be rendered against the con- 
 tractor for the amount which shall be found owing by 
 him, in addition to the judgment hereinbefore provided 
 
224 APPENDIX. 
 
 for against such owner, and the court may award costs 
 against such of the parties as shall be just. 
 
 § 6. Whenever the owner or other person who shall 
 be notified by the claimant to. appear in the court of 
 common pleas, and submit to an accounting, in pursuance 
 of the provision of the act hereby amended, shall not 
 appear, the court shall order a writ of inquiry to issue, 
 or appoint a referee to have the damages assessed therein, 
 and the subsequent proceedings thereon shall be con- 
 ducted as in other actions pending in the said court. In 
 the marine and district courts, the amount shall be ascer- 
 tained by the court. 
 
 § 7. The notice to create a lien shall be verified before 
 filing, in the same manner as a pleading' is now required 
 to be verified by the Code of Procedure. 
 
 Chap. 330. Laws 1830. 
 
 An Act for the better security of mechanics and others erect- 
 ing buildings in the city and county of New- York. 
 
 Passed, April 20, 1830. 
 
 Section 1. Every mechanic, workman or other per- 
 son, doing or performing any work towards the erecting, 
 construction or finishing of any building in the city of 
 New-York, erected under a contract in writing, between 
 the owner and builder, or other person, whether such 
 work shall be performed as journeyman, laborer, cart- 
 man, sub-contractor, or otherwise, and whose demands 
 
APPENDIX. 225 
 
 for work and labor, done and performed towards the 
 erection of such building, has not been paid and satis- 
 fied, may deliver to the owner of such building an attested 
 account of the amount and value of the work and labor 
 thus performed and remaining unpaid; and thereupon 
 such owner shall retain out of his subsequent payments 
 to the contractor, the amount of such work and labor, 
 for the benefit of the person so performing the same. 
 
 § 2. Whenever any account of labor performed on a 
 building erected under a contract in writing, as aforesaid, 
 shall be placed in the hands of the owner of such build- 
 ing, or his authorized agent, it shall be the duty of such 
 owner or agent to furnish his contractor with a copy of 
 such papers, in order that if there shall be any disagree- 
 ment between such contractor and his creditor they may 
 by amicable adjustment between themselves, or by arbi- 
 tration, ascertain the true sum due ; and if the contractor 
 shall not, within ten days after the receipt of such papers, 
 give the owner written notice that he intends to dispute 
 the claim, or if, in ten days after giving such notice, he 
 shall refuse or neglect to have the matter adjusted, as 
 aforesaid, he shall be considered as assenting to the de- 
 mand, and the owner shall pay the same when it becomes 
 due. 
 
 § 3. If any such contractor shall dispute the claim of 
 his journeyman, or other person, for work and labor 
 performed, as aforesaid, and if the matter cannot be 
 adjusted amicably between themselves, it shall be sub- 
 mitted, on the agreement of the parties, to the arbitrament 
 of three disinterested persons, one to be chosen by each 
 of the parties, and one by the two thus chosen ; and the 
 15 
 
226 APPENDIX. 
 
 decision in writing of such three persons, or any two of 
 them, shall.be final and conclusive in the case submitted. 
 
 § 4. When the amount due shall be adjusted and 
 ascertained, as above provided, and if the contractor shall 
 not, within ten days after it is so adjusted and ascer- 
 tained, pay the sum due to his creditor, with the costs 
 incurred, the owner shall pay the same out of the fund, 
 as above provided ; and which amount due may be 
 recovered from the said owner by the creditor of the 
 said contractor, in an action for money had and received 
 to the use of said creditor, and to the extent in value of 
 any balance due by the owner to his contractor, under 
 the contract with him at the time of the notice first 
 given, as aforesaid, or subsequently accruing to such 
 contractor under the same, if such amount shall be less 
 than the sum due from the said contractor to his cred- 
 itor. 
 
 § 5. If, by collusion or otherwise, the owner of any 
 building erected by contract in writing, as aforesaid, 
 shall pay to his contractor any money in advance of the 
 sum due on said contract; and if the amount still due 
 the contractor, after such payment has been made, shall 
 be insufficient to satisfy the demand made in conformity 
 with the provisions of this act, for work and labor done 
 and peformed, the owner shall be liable to the amount 
 that would have been due at the time of his receiving 
 the account of such work, in the same manner as if no 
 such payment had been made. 
 
APPENDIX. 227 
 
 Chap. 120. Laws 1832. 
 
 An Act to amend " An act for the better security of me- 
 chanics and others erecting buildings in the city and 
 county of New- York." 
 
 Passed April 13", 1832. 
 
 Section 1. All the pro visions of the act hereby amended, 
 shall apply to the materials furnished and used in the per- 
 formance of any work by every mechanic and workman 
 towards the erection or finish of any building in the city 
 of New-York, which shall be erected under the provisions 
 of said act, as well as to the work done and performed 
 towards such erection or finish by such mechanic or 
 workman ; and the same proceedings shall be had on the 
 account, duly attested, of such mechanic or workman, 
 for work and materials furnished, and the same liabili- 
 ties incurred by and enforced against the contractor or 
 owner of such building, or other person, as those pro- 
 vided by the act hereby amended, for work and labor 
 performed. 
 
 § 2. The provisions of the said act shall also apply to 
 verbal or parol contracts or agreements, as well as to 
 contracts in writing. 
 
228 APPENDIX. 
 
 KINGS COUNTY STATUTE. 
 
 Chap. 335. Laws 1853. 
 
 An Act for the better security of mechanics and others 
 erecting buildings, performing work, or furnishing ma- 
 terials therefor, in the county of Kings. 
 
 Passed June 8, 1853. 
 
 Section 1. Any person who, under the authority of the 
 owner or his agent, or any person who, in pursuance of 
 an agreement with any contractor, shall perform any 
 labor or furnish materials for building, altering or repair- 
 ing any house or other building, in the county of Kings, 
 may create a lien on the building for the value of such 
 labor and materials upon such house or building and 
 appurtenances, and upon the lot, piece or parcel of land 
 on which the same shall stand, to the extent of the right, 
 title and interest at the time existing of such owner. 
 
 § 2. Such owner shall not be obliged to pay for or on 
 account of such house, building or appurtenances, in 
 consideration of all the liens authorized by this act, any 
 greater sum or amount which * such owner would other- 
 wise be liable to pay for such erection, alteration or 
 repair, except in the case hereinafter provided. 
 
 § 3. In order to create such lien, a notice must be filed 
 with the clerk of the county of Kings, setting forth, 
 briefly, the following particulars : 
 
 The amount of the claim, the name of the person 
 against whom the claim is made, the owner of the build- 
 ing and the location thereof; and if in a city or village, 
 
 1 So in the original. - 
 
APPENDIX. 229 
 
 the street on which it is situated, or by some certain or 
 known designation. 
 
 § 4. The clerk shall file said notice in the same manner, 
 and it shall have the same effect as a notice of the pen- 
 dancy of an action affecting title to real property ; and 
 .from the time of filing the claimant shall have a lien on 
 the land and building; and such filing shall be construct- 
 ive notice to a purchaser or encumbrances ' of the pro- 
 perty affected thereby ; but such notice must be filed 
 with the clerk of said county, before the expiration of 
 thirty days after the completion of the work, or within 
 sixty days after the materials are furnished or supplied ; 
 and a copy of said notice shall be served on said owner, 
 or said contractor, by delivering the same to him person- 
 ally, or by leaving it at his residence, with a person of 
 suitable age and discretion ; or by depositing it in the 
 post-ofiice, directed to him or them, at his or their usual 
 place of residence, postage paid ; which said notice and 
 service shall have the same effect as an injunction order, 
 issued by any judge or justice of any court of record in 
 this state. 
 
 § 5. The claimant shall bring an action to enforce said 
 lien against such owner or contractor within three 
 months after the filing of the notice required by the 
 third section of this act, or within thirty days after a 
 notice shall be served on such claimant, requiring him to 
 bring such action by the owner or contractor; and 
 when action brought, ' notice thereof shall be filed with 
 the county clerk, specifying the court wherein it has been 
 commenced ; and if before a justice of the peace, the 
 
 1 So in the original. 
 
230 APPENDIX. 
 
 » 
 
 name and residence of said justice, and said clerk shall 
 enter the same, in connection with the notice of lien. 
 
 § 6. Any lien created under this act shall be brought 
 to a close, or may be discharged, as follows : 
 
 1. By filing a certificate of the claimant or his assignee, 
 acknowleged or proved in the same manner as the satis- 
 faction of a mortgage, stating that the amount of said 
 hen is paid or discharged ; or 
 
 2. By the deposit with the clerk of a sum of money 
 equal to the amount claimed, which money shall there- 
 upon be held subject to the lien ; or 
 
 3. By an entry of the clerk, made after the lapse of 
 three months since the filing of the claim, stating that no 
 notice has been given to him of legal steps to enforce 
 the lien ; or 
 
 4. By a notice from the owner to the claimant, requi- 
 ring him to commence an action for the enforcement of 
 his Hen, and the lapse of thirty days thereafter, without 
 the commencement of such action ; or 
 
 5. By a satisfaction of the lien upon an action for the 
 enforcement thereof. 
 
 § 6 l By the owner or contractor entering into an 
 undertaking to the claimant, in double the amount of 
 the claim, with two good and sufficient sureties, who 
 shall be freeholders of said county, for the payment to 
 the claimant of any sum he may recover in any action 
 that may be brought to enforce the Hen created under 
 this act; which sureties shaU justify, on notice, to said 
 claimant, as bail in personal actions before a justice of 
 the supreme court, or the county judge, or a judge of 
 
 1 So in the original. 
 
APPENDIX. 231 
 
 any court of record in said county ; and on such justice 
 or judge approving of such sureties he shall order a dis- 
 charge of said Hen; and on filing the same with the 
 county clerk he shall enter a discharge of said hen speci- 
 fying that the same is done by security, as herein men- 
 tioned. 
 
 § 1. All actions brought to enforce a lien, under this 
 act, shall be governed and tried under the same rules of 
 law and evidence, and the judgment thereon enforced in 
 all respects in the same manner as upon actions arising 
 on contract. 
 
 § 8. On the recovery of a judgment by any claimant 
 j»gainst the contractor, the owner shall pay the same out 
 of any moneys in his hands that was * due at the time 
 of filing the lien, or that became due thereafter ; or, if 
 the amount shall net be sufficient fully to satisfy said 
 lien, then such owner shall pay the amount so in his 
 hands. 
 
 § 9. In cases where any person, other than the con- 
 tractor, shall desire to create a lien, under the provisions 
 of this act, and the owner or his agent shall serve a notice 
 on the claimant, in the manner herein described for the 
 service of notices, stating therein that he does not owe 
 the contractor the amount claimed, and specifying the 
 amount due by him, if any, to such contractor, such 
 owner may apply to the' county judge, in cases where 
 the amount claimed shall not exceed one hundred dollars ; 
 or, where it exceeds that amount, to a justice of the su- 
 preme court, or any judge of any court of record in said 
 icounty, who on sufficient cause shown by affidavit or 
 
 3 So in the original. 
 
232 APPENDIX. 
 
 petition, shall grant an order requiring the claimant to 
 show cause at some certain time and place, to be named 
 in such order, why the lien should not be discharged of 
 record, and the property on which the lien is claimed 
 released therefrom ; that a copy of such order and the 
 papers on which the same was granted shall be served 
 on the claimant, at least ten days before the return 
 thereof; that on the return of said order the same pro- 
 ceedings shall be had as on a motion to dissolve an in- 
 junction order, issued in any action pending in a court 
 of record, and the decision thereon be subject to appeal in 
 like manner ; and where the proceedings shall be before 
 the county judge an appeal shall be had to a justice of 
 the supreme court, and be heard at special term. 
 
 STATUTE FOE RENSSELAER AND CHE- 
 MUNG COUNTIES. 
 
 Chap. 384. Laws 1852. 
 
 An Act for the better security of mechanics and others 
 erecting buildings and furnishing materials therefor, in 
 the counties of Westchester, Putnam, Dutchess, Rens- 
 selaer, Rockland, Chemung; and the town of Newburgh, 
 in the county of Orange. 
 
 Passed April 16, 1852. 
 
 Section 1. Any person who shall hereafter, by virtue of 
 any contract with the owner thereof, or his agent, or any 
 person, who, in pursuance of an agreement with any such 
 
APPENDIX. 283 
 
 contractor, shall, in conformity with the terms of said 
 contract, perform any labor or furnish materials in build- 
 ing, altering or repairing any house or other building, or 
 appurtenances to any house or other building, in the 
 counties of "Westchester, Dutchess, Putnam, Kensselaer, 
 Kockland ' and Ghemung, and the town of Newburgh, 
 in the county of Orange, shall have a lien for the value 
 of such labor and materials upon such house or building 
 and appurtenances, and upon the lot of land on which 
 the same shall stand, to the extent of the right, title and 
 interest, at the time existing, of such owner, in the man- 
 ner and to the extent hereinafter provided ; but such 
 owner shall not be obliged to pay for or on account of 
 such house, building or appurtenances, in consideration 
 of all the liens authorized by this act to be created, any 
 greater sum or amount than the price stipulated and 
 agreed to be paid therefor, in and by such contract, ex- 
 cept in the case hereinafter provided. 
 
 § 2." Any person who, in pursuance of an agreement 
 with such contractor, shall, in conformity with the terms 
 of said contract, perform any labor or furnish any mate- 
 rials, as aforesaid, may serve a specification, in writing, 
 of the amount of labor performed or materials furnished 
 by him, together with the price or prices agreed to be 
 paid therefor, personally on said owner, or his agent, 
 within twenty days after the performance of such labor, 
 or within three months after the delivery of any of such 
 materials, and no lien for labor performed or materials 
 
 1 Westchester, Putnam, Rockland, Dutchess and Orange come under Chap. 
 403, Laws 1854, and this act is not applicable to them, nor to the town of New- 
 burgh. 
 
 "As amended by Chap. 418, Laws 1853. 
 
234 APPENDIX. 
 
 furnished, in. pursuance of any agreement with said con- 
 tractor, shall attach to said building or lot, unless said 
 specification be served as aforesaid : Provided that if any 
 such owner or agent is not residing in the county in which 
 such labor is performed or materials used, then such 
 specification may be served by mailing the same directed 
 to the nearest post-oflice of such owner or agent. 
 
 § 3. If, by collusion, or otherwise, the owner of any 
 building, erected by contract, as aforesaid, shall pay to 
 his contractor any money in advance of the sum due on 
 said contract, and if the amount still due the contractor, 
 after such payment has been made, shall be insufficient 
 to satisfy the demands made, in conformity with the pro- 
 visions of this act, for labor performed or materials fur- 
 nished, the owner shall be liable to the amount that 
 would have been due at the time of the service of the 
 specification mentioned in the preceding section of this 
 act, in the same manner as if no such payment had been 
 made. 
 
 § 4. Any person furnishing such materials, or perform- 
 ing such labor, in pursuance of a contract with said, 
 owner or his agent, shall, if said contract be in writing, 
 produce it, or the best evidence thereof in his possession, 
 the validity of which shall be established before the 
 court in which he may bring his, suit to recover the 
 value of his lien ; and if the contract be not in writing, 
 he shall produce evidence to establish the value of such 
 labor or materials, and that the same has been performed 
 or furnished according to the provisions of the contract 
 made with such owner or his agent, in the erection, alter- 
 ation or repairing of such building. 
 
APPENDIX. 235 
 
 §5. Any contractor or laborer, or any person fur- 
 nishing materials, in pursuance of any contract made by 
 such contractor, with such owner or his said agent there- 
 for, may, after such labor has been performed, or mate- 
 rials furnished, enforce or bring to a close such lien 
 by serving a notice personally on such owner or his 
 agent, requiring him to appear in the supreme court for 
 the district in the county * — when the amount of the 
 lien claimed exceeds one hundred dollars, or in a jus- 
 tices' court of the town when the amount of the lien 
 claimed is for one hundred dollars or under — in which 
 such building may be situated, either in person or by 
 attorney, at a time certain, or some day to be specified 
 in such notice, not less than twenty days from the ser- 
 vice thereof, and submit to an accounting and settlement 
 in such court of the amount due, or claimed to be due, 
 for the labor thus performed, or the materials thus fur- 
 nished. / 
 
 § 6. At the time, or within fifteen days after service 
 of such notice, a bill of particulars of the amount claimed 
 to be due, shall be served personally on such owner ; and 
 also a bill of particulars of any. offset Which may be 
 claimed to the same, shall be served in like manner upon 
 the laborer^ contractor, or person furnishing materials, 
 as the case may be. 
 
 § *T, "Within six months after the performance of said 
 labor, or the furnishing of such materials, the contractor, 
 sub-contractor, laborer, or person furnishing materials, 
 shall serve a notice in writing upon the town clerk of 
 the town in which said house or building is. situated, 
 
 1 See ante, chapter V., aB to this error. 
 
236 APPENDIX. 
 
 specifying the amount of the claim, and the person 
 against whom the claim is made, the name of the owner 
 of the building ; and if a village or city, the situation 
 of the building, by street and number, if the number be 
 known. The town clerk shall enter .the particulars of 
 such notice in a book to be procured by him, and paid 
 for as a town charge, to be kept in his office, to be called 
 "the lien docket," which shall be suitably ruled in columns > 
 headed " claimants," " against whom claimed," " owners," 
 " building," "amount claimed," and "date of notice, hour, 
 minute," " what proceedings have been had." The names 
 of persons and owners against whom the claims are made, 
 shall be' inserted in alphabetical order. A fee of ten 
 cents shall be paid to the town clerk for filing such lien. 
 § 8. In case such contractor, laborer, or person fur- 
 nishing materials, shall not appear and produce his claim, 
 as specified in sections five and six, he shall forever lose 
 the benefit and be precluded of his said lien ; and in 
 case such owner shall not appear, in pursuance of the 
 requirements of the said sections, at the time and place 
 specified in such notice, then his default shall be entered 
 in a book, to be kept for that purpose by the clerk of 
 said county, or upon the docket of the said justices' court ; 
 and thereupon a writ of inquiry and inquisition may 
 issue to the sheriff of said county, to be executed; or the 
 amount of such claim shall be assessed by the said jus- 
 tices' court, as the case may be ; and judgment shall be 
 entered upon the same, and execution shall issue for the 
 enforcement of said claim, so adjudicated and. established, 
 in the same manner as in cases upon judgments in such 
 courts, in civil actions. 
 
APPENDIX. 237 
 
 § 9. * On the appearance of both parties, in pursu- 
 ance of the above requirement, issue shall be joined 
 upon the claims made and notice of set-off served ; and 
 the same shall be governed, tried, and the judgment 
 therein enforced, in all respects, in the same manner as 
 upon issues joined and judgments rendered in actions 
 arising on money demands upon contracts in said county. 
 
 § 10. Costs shall be allowed on the same principles and 
 by the same rules in such proceedings as they are now 
 allowed by statute in an action on a money demand on 
 contract, and shall form a part of the judgment in the 
 same. 
 
 § 11. Such owner, or his agent, may at any time give 
 public notice, in the same manner as notice is required 
 to be given for the sale of real estate, by virtue of an 
 execution to all persons having claims under any of the 
 provisions of this act, against any such building or 
 appurtenances, at the time of the date of such notice, to 
 present the same, with vouchers in support thereof, to 
 any justice of the peace in the town where such build- 
 ing is situated, on or before a certain hour and day, to 
 be specified in said notice, and to be at least six weeks 
 from the first publication thereof; and in case of failure 
 of such persons to present their claims, as required by 
 said notice, each and every such person, so failing, shall 
 forever lose the benefit and be precluded of said lien. 
 
 § 12. Whenever such owner, or his agent, shall be pro- 
 ceeded against by a contractor, pursuant to the provisions 
 of the fifth section of this act, it shall be lawful for him 
 to give the notice prescribed in the eleventh section 
 hereof, and present as a set-off all claims and liens there- 
 
 1 As amended by chap. 413, Laws 1853. 
 
238 APPENDIX. 
 
 -upon presented and established; and the magistrate or 
 court before whom such proceedings shall be commenced, 
 shall, upon the request of such owner, or his agent, 
 grant a stay of proceedings, sufficient to enable him to 
 give such notice and call in such claims ; which claims 
 shall thereupon be audited by such magistrate or court. 
 
 § 13. In case the said owner or his agent shall neglect 
 to give the notice required in sections five and six, no 
 claim or lien against such building or appurtenances 
 shall be barred until the expiration of one year from the 
 time of performing such labor or furnishing such materials. 
 
 § 14. The act, entitled " an act for the better security 
 of mechanics and others erecting buildings and furnish- 
 ing materials therefor," <fec, passed April 14,1851, so far 
 as it relates to the counties of Westchester, Rensselaer 
 and Putnam, is hereby repealed. 
 
 STATUTE FOR WESTCHESTER AND 
 OTHER COUNTIES. 
 
 Chap. 402. Laws 1854. 
 
 An Act for the better security of mechanics and others erect- 
 ing buildings, in the counties of Westchester, Oneida, 
 Cortland, Broome, Putnam, Rockland, Orleans, Niagara, 
 Livingston, Otsego, Lewis, Orange and Dutchess. 
 
 Passed April 17, 1854. 
 
 Section 1. Any person who shall hereafter perform 
 any labor in erecting, altering or repairing any house, 
 building, or the appurtenances to any house or building, 
 
APPENDIX. 239 
 
 in either of the counties mentioned in the title of this 
 act, and every resident of either of said counties of West- 
 chester,. Oneida, Cortland, Broome, Putnam, Rockland, 
 Orleans, Niagara, Livingston, Otsego, Lewis, Orange and 
 Dutchess, who shall furnish any materials therefor, shall 
 on filing with the town clerk of the town in which the 
 property is situated, the notice prescribed by the fourth 
 section of this act, have a lien for the value of such labor 
 and materials, upon such house or building and appur- 
 tenances, and upon the lot, parcel or farm of land upon 
 which the same shall stand, to the extent of the right, 
 title and interest of the owner of the property existing 
 at the time of filing the said notice. 
 
 § 2. Whenever the labor performed and materials 
 furnished shall be upon the credit of any contractor, who 
 shall have made a contract therefor with the owner of 
 the property, or upon the credit of any sub-contractor, 
 or the assignee of any contractor, the provisions of this 
 act shall not oblige the owner of the property to pay for, 
 or on account of any labor performed or materials fur- 
 nished for such house, building or appurtenances, any 
 greater sum or amount than the price stipulated and 
 agreed to be paid therefor, in and by said contract, ex- 
 cept as in the next section provided. 
 
 § 3. If the owner of any building altered or repaired 
 by contract shall pay to any person any money on such 
 contract by collusion, for the purpose of avoiding the 
 provisions of this act, or before the right of any claimant 
 to file a notice of lien has expired, or in advance of the 
 terms of any contract, and the amount still due the con- 
 tractor, or his assignee, after such payment has been 
 made, shall be insufficient to satisfy the demands made, 
 
240 APPENDIX. 
 
 in conformity to the provisions of this act, the owner 
 shall be liable to the amount that would hare been due 
 and owing to said contractor, or his assignee, at the time 
 of the filing of the notice mentioned in the first section 
 of this act, in the same manner as if no such payment 
 had been made! 
 
 § 4. Within thirty days after the performance and 
 completion of such labor, or the final furnishing of such 
 materials, the contractor, sub-contractor, laborer or per- 
 sons furnishing materials, shall serve a notice, in writing, 
 upon the town clerk of the town where the property is 
 located, specifying the amount of the claim and the per- 
 son against whom the claim is made,' the name of the 
 owner of the building, and, if in a city or village, the 
 situation of the building, by street and number, if the 
 street be known. 
 
 The town clerk shall enter the particalars of such 
 notice in a book to be kept in his office, to be called the 
 " Lien Docket," which shall be suitably ruled in columns 
 headed "claimants," "against whom claimed," "owners," 
 " buildings," " amount claimed," and the date of the filing 
 of the notice, hour and minute, what proceedings have 
 been had. The names of the owners, and persons against 
 whom the claims are made, shall be entered in said book, 
 in alphabetical order. A fee of ten cents shall be paid 
 to i said clerk, on filing such hen, and no lien shall attach 
 to said land, buildings or appurtenances, unless such notice 
 be served and filed by said clerk ; and said notice, when 
 so filed, shall thereafter operate as an incumbrance upon 
 said property. 
 
 § 5. Any person performing labor, and every resident 
 of said counties furnishing materials, in availing himself 
 
APPENDIX. 241 
 
 of the provisions of this act, shall, upon the trial, or at 
 the assessment of damages, produce evidence to establish 
 the value of such labor or materials, and that the same 
 was performed or used by the said owner, or his agent, 
 original contractor, or assignee of such contractor, in the 
 erection, altering or repairing of such house, building or 
 appurtenances. 
 
 § 6. Any contractor, sub-contractor or laborer, per- 
 forming any work, or assignee thereof, and any resident 
 of said county l furnishing any materials, as above pro- 
 vided, may, after such labor has been performed or 
 materials furnished, and the service of the notice required 
 by the first section of this act, bring an action in the 
 supreme court in the county in which the property is 
 situated, or in the county court of said county, when 
 the amount exceeds fifty dollars, to enforce said lien ; 
 which said action shall be commenced by serving a notice 
 containing a statement of the facts constituting the claim 
 and the amount thereof, on the owner of the property or 
 his agent, requiring the said owner to appear in person, 
 or by attorney, within thirty days after such service, and 
 answer the same, and serve a copy of such answer, to- 
 gether with a notice of any set-off that he may have on 
 the claimant or his attorney ; or, in default thereof, that 
 the claimant will take judgment, against the said owner 
 for the amount claimed to be due for the labor performed 
 or the materials furnished, with interest thereon and 
 costs ; and for the purpose of more effectually transact- 
 ing the business contemplated by this act, said supreme 
 court and county court shall be deemed to be always 
 open. 
 
 1 So in the act. 
 
 16 
 
242 APPENDIX. 
 
 § 1. "Within thirty days after the service of said notice 
 and bill of particulars the defendant shall personally 
 serve the claimant or his attorney with a copy of his 
 answer and notice of set-off, if any he has, duly verified 
 by the oath of the owner, his agent or contractor, to the 
 effect that the same is in all respects true, or his default 
 may be entered, and judgment taken and enforced, as 
 hereinafter provided. 
 
 § 8. When the amount of the lien claimed is for one 
 hundred dollars or under, the claimant may commence 
 such action in a justices' court of the town in which the 
 building is located, by serving a notice upon the owner 
 or his agent anywhere within this state, requiring such 
 owner to appear before a justice of the town in which 
 the property is situated ; which said notice shall contain 
 a statement of the facts constituting the claim and the 
 amount thereof, and shall" require such owner to appera 
 before said justice, in person or by attorney, at a time 
 certain, not less than thirty days after such service, and 
 answer the same; or, in default thereof, that the claimant 
 will take judgment against such owner for the amount 
 so claimed to be due, with interest thereon and costs. 
 
 § 9. In case the said notice cannot be served person- 
 ally on such owner or his agent, by reason of absence 
 from, the state, or being concealed therein, then such 
 service may be made by leaving a copy of such notice 
 at the last place of residence of said owner, and publish- 
 ing a "copy thereof for three weeks successively in a 
 newspaper published in the county where the property 
 is situated ; and in case of the service of such notice by 
 publication, then the said thirty days shall commence to 
 run from the date of the first publication of said notice. 
 
APPENDIX. 243 
 
 § 10. At the time of the service of said notice, as 
 hereinbefore directed, a bill of particulars of the amount 
 claimed to be due from such owner, his contractor or 
 sub-contractor, verified by the oath of the claimant or 
 his attorney, to the effect that the same is true, shall be 
 served, as aforesaid, upon such owner or his agent ; ex- 
 cept, however, that such bill of particulars need not be 
 published with such notice. 
 
 § 11. In case said owner shall not appear, as required 
 in and by the notice given in pursuance of the sixth and 
 eighth sections of this act, then on filing with the county 
 clerk when the action to enforce the claim is brought 
 to ' the supreme court, or county court, or with the jus- 
 tice, when the action is before said justice, on affidavit 
 of the service of such notice and bill of particulars, and 
 the failure of the owner of the property to appear, as 
 therein required, the amount of such claim may be as- 
 sessed by the said county clerk, or by the court or justice, 
 as the case may be, and upon the assessment of damages, 
 as aforesaid, judgment shall be entered upon the said 
 assessment establishing the amount of said lien, with the 
 costs; and execution shall thereupon issue for the collection 
 and enforcement of said claim so adjudicated and estab- 
 lished, in the same manner as executions upon other 
 judgments in said courts in actions arising on contract, 
 for the recovery of money only, except that the execu- 
 tion shall direct the officer to sell the right, title and 
 interest which the owner had in the premises, at the 
 time of filing the notice prescribed by the first section of 
 this act. 
 
 1 So in original. 
 
244 APPENDIX. 
 
 § 12. On the appearance of both parties" before the 
 justice, the owner shall put in an answer in writing, duly 
 verified, with a bill of particulars of his set-off (if any,) 
 annexed, and the issue formed by the service of the 
 notice and bill of particulars, on the part of the claim- 
 ant, and the answer and bill of particulars of set-off, on the 
 part of the owner, shall be tried and governed by the same 
 rules as other issues in justices' courts; and the judg- 
 ment therein shall be enforced, if for the claimant, as 
 provided by the eleventh section of this act; and if for 
 the owner, as in other actions arising on contract. 
 
 § 13. When the* action is brought in the supreme 
 court, or in the county court, the issue shall be formed 
 by the service of the notice and the bill of particulars, 
 on the part of the claimant, as hereinbefore directed, 
 and the owner's answer, duly verified, with a bill of par- 
 ticulars of set-off (if any,) annexed to said answer. 
 
 § 14. At any time after the issue shall be so joined in 
 the supreme court, or county court, and at least ten days 
 before the commencement of the court, l the same may 
 be noticed for trial and put upon the calendar of said 
 courts by either party furnishing the clerk of the court 
 with a notice of issue as now required in other actions ; 
 and the action thereafter shall be governed, 1 tried, in all 
 respects, as upon issues joined and judgment rendered 
 in other actions arising on money demands upon contracts 
 in said courts,; and the judgment thereupon shall be 
 enforced, if for the claimant, as provided by the elev- 
 enth section of this act ; and if for the owner, as in other 
 actions arising on contract. 
 
 1 So in the original. 
 
APPENDIX. 245 
 
 § 15. Whenever a judgment shall be rendered against 
 the owner, and in favor of any laborer or person fur- 
 nishing materials, and the owner has funds in his posses- 
 sion due to the contractor, the costs of the proceeding 
 shall be deducted from such funds, unless otherwise 
 directed by the court in which the action is brought. 
 
 ■ 16. Costs and disbursements shall be allowed to 
 either party, upon the principles and by the same rules 
 in such proceedings as they are now allowed by law in 
 actions arising on contract, and shall be included in the 
 judgments recovered in the same ; and the expenses 
 incurred in serving said notice upon the owner, by pub- 
 lication^ may be allowed in justices' courts and added to 
 the amount of costs now allowed in said courts. 
 
 § 17. A transcript of every judgment rendered under 
 this act, headed " lien docket," shall be furnished by the 
 clerk of the county where rendered, and docketed to 
 the successful party, who may file the same with the 
 county clerk of any other county ; and the same shall 
 thereafter be a lien on the real property in the county 
 where the same is filed and docketed of every person 
 against whom the same is rendered, in like manner and 
 to the same extent as in other actions for the recovery 
 of money arising on contract. Where the judgment is 
 against the claims, 1 and * the town clerk shall enter the 
 word "discharged," under the last head in his lien docket, 
 on receiving a transcript from the county clerk or jus- 
 tice, that judgment has been rendered against the 
 claimant. 
 
 ' So in the original. 
 
246 APPENDIX. 
 
 § 18. Such owner, or his agent, may at any time give 
 public notice, in the same manner as notice is required 
 to be given for the sale of real estate, by virtue of an 
 execution, to all persons having claims, under any of the 
 provisions of this act, against such building, land or 
 appurtenances, at the time of the date of publishing 
 such notice, to present the same, with vouchers in support 
 thereof, to any justice of the peace in the town where such 
 building is situated, on or before a certain hour or day, 
 to be specified in said notice, and to be at least six weeks 
 from the first publication ; and in case of the failure of 
 such persons to present their claims, as required in and 
 by said notice, each and every person so failing, shall 
 forever lose the benefit and be precluded of the said lien. 
 
 § 19. Whenever such owner, or his agent, shall be 
 proceeded against by a contractor, pursuant to the 
 provisions of this act, it shall be lawful for him to give 
 the notice prescribed by the proceeding section, and 
 present as a set-off all claims and liens thereupon pre- 
 sented and established ; and the justice before whom, or 
 a judge of the court in which the proceedings shall be 
 commenced, may, upon the request of the owner or his 
 agent, grant a stay of proceedings sufficient to enable 
 the owner to give such notice and call in all such claims ; 
 which said claims, if established and allowed by the 
 justice, or court, shall be a set-off to such contractor's 
 claim, to the amouut so allowed. 
 
 § 20. Every lien, created under the provisions of this 
 act, shall continue until the expiration of one year, 
 unless sooner discharged by the court, or some legal act 
 of the claimant in the proceedings ; but when a judg- 
 ment is rendered therein, and docketed with the county 
 
APPENDIX. 247 
 
 clerk, -within said year, it shall be a lien upon the real 
 property of the person against whom it is obtained, to 
 the extent that other judgments are now made a lien 
 thereon. 
 
 § 21. After a judgment shall have been rendered, in 
 pursuance of the provisions of this act, either party may 
 appeal , therefrom, in the same manner, and within the 
 time appeals may now be taken in actions for the reco- 
 very of money arising on contract ; and said appeal shall 
 be thereafter heard, governed and determined upon the 
 same principles and by the same rules that appeals in 
 said actions are now heard, governed and determined, 
 with like costs and disbursements ; and the judgment 
 thereon enforced in the same manner as judgments on 
 appeals are now enforced and collected. 
 
 § 22. The liens created and established by virtue of 
 the provisions of this act, shall be paid and settled accord- 
 ing to the priority of the notice filed with the town clerk, 
 as directed by the fourth section hereof. 
 
 § 23. All liens created by this act may be discharged 
 as follows : 
 
 1. By filing with the town clerk a certificate of the 
 claimant, or his successors in interest, acknowledged or 
 proved in the same manner as a conveyance of real estate, 
 stating that the lien has been paid or discharged ; or 
 
 2. By depositing with the justice, or clerk of the 
 courts, a sum of money equal to double the amount 
 claimed ; which money shall be thereupon held subject 
 to the determination of the lien ; or 
 
 3. By an entry of the town clerk, made in the book 
 of liens, that the proceedings on the part of the. claim. 
 
848 APPENDIX. 
 
 ant have been dismissed by the court in which it is * 
 brought, or a judgment rendered against the said claim- 
 ant; or 
 
 4. By an affidavit of the service of a notice from the 
 owner, or his agent, attorney, contractor, or sub-con- 
 tractor, to the claimant, requiring such claimant to com- 
 mence an action for the enforcement of said lien within 
 twenty days after service of said notice ; and the failure 
 of said claimant to commence an action as aforesaid. 
 
 § 24. All acts heretofore passed for the better security 
 of mechanics and others erecting buildings and furnish- 
 ing materials, in either of the above counties, are hereby 
 repealed ; but this act shall not be so construed as to 
 effect, enlarge, invalidate, or defeat any lien, or right to 
 a lien, now existing, or any proceeding to enforce such 
 liens now pending, by virtue of any of the provisions of 
 the acts hereby repealed. 
 
 * 
 
 1 So in the original. 
 
FORMS. 
 
 NEW-YORK LAW. 
 
 No. 1. — Lien. 
 MECHANICS' LiEN. 
 
 JOHN DOE, Claimant, J 
 
 ««• r Notice of Lien. 
 
 RICHARD ROE, Owner. I 
 
 To Richard B. Connolly, Clerk of the County of New-York: 
 
 Sir : Notice is hereby given that I, John Doe, of the city 
 of New-York, merchant, have a claim amounting to the sum 
 of two hundred dollars; against John Jackson, contractor, 
 for material, to wit : Large quantities of lime furnished to 
 and used by the said contractor, within six months pre- 
 ceding the date of this notice, in pursuance of an agreement 
 with him, and in conformity with the terms of a contract 
 between Richard Roe, the owner, and the said contractor, 
 in the erecting of the building, and appurtenances hereinafter 
 described ; and that the said Richard Roe is, as this claimant is 
 informed and believes, the owner of said building ; and that 
 said building is situated in the fifth ward of the city of New- 
 York, on the westerly side of Broadway; being that 
 certain four story brick building, beginning one hun- 
 dred and twenty-five feet north of Read-street, and run- 
 
250 APPENDIX— FORMS. 
 
 ning thence twenty-five feet northerly, along Broadway, 
 the street number thereof being unknown. 
 
 And that I, the said John Doe, have and claim a lien on 
 said building and appurtenances, and upon the lot upon 
 which said building stands, pursuant to an act of the legisla- 
 ture of the State of New-York, entitled an "Act for the 
 better security of mechanics and others erecting buildings 
 and providing materials therefor, in the city and county of 
 New- York," passed July 11, 1851. 
 
 Dated New-Yokk, December 10, 1855. 
 
 JOHN DOE, Claimant. 
 
 A. & B., 
 * 
 
 Attorneys for Claimant, 
 
 237 Broadway, New-York. 
 
 [Add ordinary verification.] 
 
 No. 2. — Notice Requiring Claimant to Commence 
 Proceedings, Affidavit, <&c. 
 
 JOHN" DOE, Claimant, 
 
 VI. 
 
 RICHARD ROE, Owner. 
 
 \ 
 
 Sir : You are hereby notified and required to commence 
 an action for the enforcement of a certain Mechanics' Lien, 
 filed in the office of the clerk of the city and county of New- 
 York, the 10th day of December, 1855, against the under- 
 signed, as owner, and one John Jackson, as the person 
 against whom the claim is made; the amount claimed 
 being two hundred dollars, and the premises affected, being 
 (set out some description, as in notice of lien), on or before 
 twelve o'clock, noon, of the 12th day of December instant. 
 
 RICHARD ROE, Owner. 
 
 New- York, December 11, 1855. 
 To John Doe, Claimant. 
 
APPENDIX— FORMS. 251 
 
 City and County of New-York, ss : 
 
 Thomas Arnby, of said city, being duly sworn, doth depose 
 and say : That on the 11th day of December instant, he served 
 personally upon John Doe, the claimant mentioned in the 
 foregoing notice, a copy of the same, at his residence, No. 
 Broadway, in said city; and that he left such copy with 
 said John Doe, as well as delivered it to him ; and that he 
 knew the person so served to be the person mentioned and 
 described in said notice, as owner therein. 
 
 Sworn before me, this 
 11th day of Dec, 1855 
 
 :l 
 
 To Richard B. Connelly, Clerk, fyc. 
 
 Sir : Please to take notice that the foregoing is an affida- 
 vit of a notice, requiring John Doe, the claimant in a certain 
 lien, filed in your office December 10, 1855, against Richard 
 Roe, owner, and John Jackson, the person against whom 
 the claim is made, for $200, to commence an action for the 
 enforcement of the same ; and that you are hereby requested 
 to file such affidavit and notice. 
 
 Respectfully, &c, 
 
 RICHARD ROE, Owner. 
 
 No. 3. — Notice to close Lien. 
 
 COURT OF COMMON PLEAS, 
 
 For the City and County of New-York. 
 
 JOHN DOE, Claimant, ) 
 
 against > Notice to Close Lien. 
 
 RICHARD ROE, Owner. V 
 
 To Richard Roe. 
 
 The owner of the building situated in the fifth ward of the 
 city of New- York, on the westerly side of Broadway, being 
 
252 APPENDIX— FORMS. 
 
 that certain four story brick building beginning one hundred 
 and twenty-five feet north of Read-street, and running thence 
 twenty-five feet northerly along Broadway. 
 
 You will please to take Notice, that the subscriber 
 having on the tenth day of December, 1855, filed with the 
 clerk of the city and county of New- York, the notice required 
 by law to effect a lien on the building, appurtenances and 
 premises above mentioned, for the sum of two hundred dol- 
 lars, against John Jackson as the person against whom the 
 claim is made, and you, the said defendant, as owner; and 
 the said sum having become due and payable, you are hereby 
 required to appear in the above named court of common 
 pleas, at a special term thereof, to be held at the city hall in 
 said city, either in person or by attorney, on the tenth day 
 of January next, at ten o'clock in the forenoon of that, day, 
 and submit to an accounting and settlement in said court of 
 the amount claimed to be due, to wit : The said sum of $200, 
 mentioned in said notice filed as aforesaid, for and on account 
 of material, to wit : large quantities of lime, furnished to and 
 used by the said contractor, in pursuance of an agreement 
 with him, and in conformity with the terms of a contract 
 between said contractor and you, the said defendant, for the 
 erecting of the building and appurtenances aforesaid, the 
 same being more fully set forth in the bill of particulars 
 annexed. [To be served.] 
 
 JOHN DOE, 
 
 Claimant. 
 
 Dated New-Yobk, Dec. 12, 1855. 
 
 A. & B., 
 
 Attorneys for Claimant, 
 
 237 Broadway, New-York. 
 
APPENDIX— FORMS. 253 
 
 No. 4. — Claimants Bill of Particulars. 
 A Bill of Particulars of the amount claimed to be due 
 from John Jackson, contractor, to John Doe, claimant, for 
 and on account of building materials furnished and used in 
 the erecting of a certain building owned by Richard Eoe, 
 the defendant in the annexed notice, and situated in the fifth 
 ward of the city of New- York, on the westerly side of Broad- 
 way, being more fully described in the said notice. 
 
 Mr. John Jackson, 
 
 To John Doe, Dr. 
 
 [Endorsed :] 
 
 To Eichard Roe, Defendant. 
 
 Sir : — Please to take notice that the within is a copy of 
 
 the bill of particulars of the claimant in these proceedings. 
 
 Respectfully, 
 
 A. & B., 
 
 Claimant's AtCys. 
 New-York, Dec. 12, 1855. 
 
 No. 5. ^—'Owner's Bill of Particulars of set-off '. 
 
 A bill of particulars of the set-off claimed by Richard Roe, 
 the owner, against the claim or lien of John Doe, the claim- 
 ant, the said lien having been filed in the office of the clerk 
 of the city and county of New-York, the tenth day of De- 
 cember, 1855, in which the said Richard Roe is named as owner, 
 and one John Jackson as the person against whom the claim 
 is made, the amount claimed being two hundred dollars and 
 the premises affected being in the fifth ward of the said city, 
 on the westerly side of Broadway, beginning one hundred and 
 
254 APPENDIX— FORMS. 
 
 twenty-five feet north of Read-street, and running thence 
 northerly along Broadway twenty-five feet. The set-off here- 
 by claimed is for moneys loaned the said John Doe, by the said 
 owner, at the times and to the amounts hereinafter set forth. 
 [Set out items.] 
 
 To John Doe, claimant. 
 
 Sir : — Please to take notice that the foregoing is a copy 
 of the bill of particulars of the owner in these proceedings. 
 
 Respectfully, &c, 
 
 C. & D., Def'ts Att'ys. 
 
 No. 6. — Order for joining issue on appearance of the 
 
 Defendant. 
 
 At a special term of this court, held at the city of 
 New-York, the 10th day of December, 1855. 
 Present. — Hon. Daniel B. Ingraham, First Judge. 
 
 [Title of suit.] 
 
 I 
 
 On filing the notice of the plaintiff to the defendant to ap- 
 pear and submit to an accounting of the amount due under 
 a certain lien, filed the 1st day of October, 1855, against the 
 said defendant as owner, and John Jackson as contractor, 
 in which there is claimed to be due, the sum of $ ; aifd 
 on filing the bill of particulars of the said plaintiff, and the 
 bill of particulars of the offset claimed by the said defendant ; 
 and on the appearance of both the said parties, for the 
 purpose of joining issue, and after hearing A. B., Esq., for 
 the plaintiff, and C. D., Esq., for the defendant : 
 
 Ordered, that the issues herein, between the said parties, 
 be joined by the plaintiff serving upon C. D., Esq., the attor- 
 ney of the said defendant, a eopy of his complaint, within 
 
APPENDIX— FORMS. 255 
 
 ten days from the entry of this order, and that the defendant 
 serve a copy of his answer on A. B.,- Esq., the attorney of 
 the said plaintiff, within twenty days after the service of such 
 complaint. 
 
 No. 7. — Complaint of Sub-Contractor, against Otbner, 
 Contractor and Holder of Fraudulent Lien. 
 
 [Title of suit.] I 
 
 The above named plaintiff, in pursuance of an order of 
 this court, made the day of , 1856, against 
 
 the above named defendants, complains : 
 
 That this plaintiff, in and during the month of October, 
 1855, sold and delivered to the said defendant, John Jack- 
 son, in pursuance of an agreement between this plaintiff and 
 such defendant, certain building material, consisting of large 
 quantities of lime, of the value of two hundred dollars ($200), 
 the same being more fully set forth in the bill of particulars 
 in these proceedings. That such sum became payable, pur- 
 suant to such agreement, on the 1st day of November, 1855, 
 but that the said defendant neglected and refused to pay the 
 said sum, and that the same is still wholly due and owing to 
 this plaintiff. 
 
 That such materials were furnished and used in the erect- 
 ing of the building and appurtenances, upon the premises 
 hereinafter described, and by virtue of and in conformity 
 with the terms of a contract between the said defendant, 
 John Jackson, and the said defendant, Richard Roe, for the 
 erecting of the building aforesaid. 
 
 That by the terms of such contract, certain moneys were 
 to become due to the said Jackson, as soon as the walls of 
 the said building should be erected ; and that on or about 
 the 10th day of December, 1855, such walls were completed, 
 
256 APPENDIX— FORMS 
 
 and that thereby the said moneys became due ; and that at 
 the time of the commencement of these proceedings, to wit, 
 on the 12th day of December, 1855,' there was due, under 
 said contract from said defendant Eoe, to said Jackson, a 
 large sum of money, and more than sufficient to satisfy and 
 discharge the said lien. 
 
 That the said premises consist of 
 All that certain lot, &c. [Set out description.] 
 That the said defendant, Richard Roe, was, on the 10th 
 day of December, 1855, and at the time of the filing of the 
 said lien, the true and lawful owner of the building and of 
 the premises aforesaid. 
 
 That on the said 10th day of December, 1855, this plain- 
 tiff duly filed with the clerk of the city and county of New- 
 York, a notice of lien, duly verified, for the materials, and 
 of the amount aforesaid ; and upon the said building and 
 premises, this plaintiff being therein described as claimant., 
 the said defendant, Roe, as owner, and the said defendant, 
 Jackson, as the person against whom the claim is made, and 
 that thereby this plaintiff acquired a good and lawful lien 
 upon the said building and premises, for the said sum of 
 two hundred dollars, and for the costs and damages which 
 have since accrued, and which may hereafter accrue under 
 and in pursuance of an act of the legislature of the State of 
 New- York, entitled " An act for the better security of 
 mechanics and others erecting buildings, and providing 
 materials therefor, in the city and county of New-York," 
 passed July 11, 1851. 
 
 And this plaintiff further shows to this honorable court, 
 that on the 1st day of December, 1855, the said defendant, 
 James Johnson, conspiring with the said before named 
 defendants, for the purpose of defrauding this plaintiff, filed 
 a certain notice of lien against the said Roe, as owner ; and 
 the said Jackson, as person against whom the claim is made, 
 upon the said building and premises, and for the sum of $3,000; 
 
APPENDIX— FORMS. 257 
 
 and this plaintiff further shows, that neither the said sum 
 nor any sum whatsoever was, or at any time will be owing 
 to said defendant, Johnson, as in said notice of lien pre- 
 tended ; and that the said Johnson has been fully paid for 
 all labor, he has performed or caused to be performed upon 
 the said building and appurtenances ; and that he has 
 no legal or just claim whatsoever against the said defendant, 
 Roe, or against any other person, for any labor performed 01 
 materials furnished, in or about the erecting, repairing or alter- 
 ing of the building or appurtenances aforesaid ; and that the 
 said lien, if allowed to stand, would wholly absorb all the funds 
 due or to become due from the said Roe to the said Jackson, 
 and would wholly defeat the claim and lien of this plaintiff; 
 and that the said lien was obtained through the fraudulent 
 collusion of the said defendants, as aforesaid, and with the 
 intent and for the purpose of defrauding the just and lawful 
 claim of this plaintiff. 
 
 Wherefore, this plaintiff prays this honorable court, that 
 a decree be granted, directing the sale of all the right, title, 
 and interest which the said defendant, Richard Roe, had in 
 and to the said building, appurtenances and lot, at the time 
 of the acquiring the said lien, on the 10th day of December 
 inst., 1855 ; and that out of the proceeds thereof, this plaintiff 
 be paid the amount of said lien, together with the interest 
 thereon from the time of the commencement of this action, 
 and the costs and disbursement of this action ; and that a 
 judgment be entered against the said defendant, John Jack- 
 son, for the same ; and that the lien filed the 1st day of 
 December, 1855, by the defendant, James Johnson, be ad- 
 judged fraudulent and void, and that the same be set aside ; 
 and that the said defendant, James Johnson, be adjudged to 
 pay the costs and disbursements of this action, and for such 
 other and further relief as to this court may seem meet. 
 
 A. & B., 
 
 Tiffs Attys. 
 17 
 
258 APPENDIX— FOEMS. 
 
 No. 8. — Complaint of Contractor against Owner. 
 
 [Title of suit.] 
 
 The above named plaintiff, in pursuance of an order of 
 this court, made on the day of 1856, against 
 
 the above named defendant, complains : 
 
 That this plaintiff in and during the month of October, 
 1855, sold and delivered to the said defendant, by virtue of 
 a contract with the said defendant, certain building material, 
 consisting of large quantities of lime of the value of two 
 hundred dollars ($200), the same being more fully set forth 
 in the bill of particulars in these proceedings. That by the 
 terms of such contract and sale the said sum became due 
 and payable upon the 1st day of November, 1855, but that 
 the said defendant neglected and refused to pay the said 
 sum, and that the same is still due and owing to this plaintiff. 
 
 That such materials were furnished and used in the erect- 
 ing of the building and appurtenances upon the premises 
 hereinafter described. 
 
 That such premises consist of 
 
 All that certain lot, &c. [Give description.] 
 
 That the said defendant was, on the 10th day of December 
 and at the time of the filing of said lien, the true and lawful 
 owner of the building and of the premises aforesaid. 
 
 That on the said 10th day of December, 1855, this plaintiff 
 duly filed, with the clerk of the city and county of New- 
 York, a' notice of lien duly verified for the material and 
 of the amount aforesaid, and upon the said building and 
 premises this plaintiff being therein described as claimant, 
 and the said defendant as owner and as person against»whom 
 the claim is made, and that thereby this plaintiff acquired a 
 good and lawful lien upon the said building and premises 
 for the said sum of two hundred dollars, and for the costs 
 
APPENDIX— FORMS. 259 
 
 and damages which have since accrued or which may here- 
 after accrue under and in pursuance of an act of the legis- 
 lature of the State of New-York, entitled "An act for the 
 better security of mechanics and others erecting buildings 
 and providing materials therefor in the city and county of 
 New-York," passed July 11, 1851. 
 
 Wherefore this plaintiff prays this honorable court that a 
 decree be granted directing the sale of all the right, title 
 and interest which the said defendant had in and to the said 
 building, appurtenances and lot at the time of the acquiring 
 of the said lien, and that out of the proceeds thereof this 
 plaintiff be paid the amount of said lien, together with the 
 interest thereon from the time of the commencement of this 
 action and the costs and disbursements of this action ; and 
 that if the proceeds of the said sale shall not be sufficient to 
 discharge the same, that this plaintiff have leave to docket a 
 transcript of judgment against said defendant for such sum 
 or balance as may remain due, and for such other or further 
 
 relief as to this court may seem meet. 
 
 A. & B., 
 
 Plfs Attys. 
 
 No. 9. — Order that Writ of Inquiry issue. 
 
 At a Special Term, &c. 
 
 On proof of the filing of the mechanics' lien in the office 
 of the clerk of the city and county of New-York, on the tenth 
 day of December, 1855, for the sum of $200, by the plaintiff 
 John Doe, as claimant, against the defendant Richard Roe, 
 as owner, and John Jackson, as party against whom the 
 claim is made, and on the notice to close lien and the bill of 
 particulars of the plaintiff's claim, and proof of personal 
 service thereof, on the defendant, upon the 11th day of Decem- 
 ber, 1855, and on proof of the failure of the said defendant 
 
260 APPENDIX— FORMS. 
 
 to appear in this court this day of January, 1856, pur- 
 
 suant to said notice, after being duly called. 
 
 On motion of E. F., Esq., of counsel for the said plaintiff, 
 it is ordered that a writ of inquiry issue to the sheriff of the 
 city and county of New-York, to assess the amount of the 
 plaintiff's claim upon such mechanics' lien, as set forth in 
 said notice and bill of particulars, and that all further direc- 
 tions in this action be reserved until the return of such writ. 
 
 No. 10. — Writ of Inquiry. 
 
 The People of the State of New-York, to the Sheriff of the city and 
 
 county of New-Yor1c, Greeting: 
 
 Whereas, Richard Eoe was lately required to appear in the 
 court of common pleas, for the city and county of New-York 
 on the twentieth day of January, 1856, at 10 o'clock in the 
 forenoon of that day, by a notice and bill of particulars, in 
 the words and figures following, to wit : 
 
 [Set out notice and bill,] 
 
 And, whereas, the said Richard Roe failed to appear, as so 
 required, and, whereas it is unknown to our judges of our 
 said court what is the amount due to the said John- Doe, for 
 and on account of the matters and things mentioned and re- 
 ferred to in the said notice and bill of particulars. 
 
 Therefore we command you that by the oaths of twelve 
 good and lawful men of your bailiwick, you diligently inquire 
 into and assess the amount of the claim of the said John Doe, 
 against the said Richard Roe, for and on account of the mat- 
 ters and things so mentioned and referred to, and that you 
 send to our said court, before one of our judges thereof, at 
 the city hall, in the city of New-York, on the day of 
 
 February next, the inquisition which you shall thereupon, 
 take, under your hand and seal, and the hands and seals 
 
APPENDIX— FOEMS. 261 
 
 of those by whose oaths you shall take such inquisition, 
 together with this writ. 
 
 Witness, 
 
 DANIEL T. INGRAHAM, 
 
 First Judge of our said court. 
 At the city of New-York, this day of January, 1856. 
 
 Benjamin H. Jabvis, Clerk. 
 
 No. 11. — Inquisition. 
 
 [Title of suit.] 
 
 An inquisition taken in the city of New- York, this 
 day of February, 1856, before James C. Willett, sheriff of the 
 city and county of New- York, by virtue of the writ of inquiry 
 to me directed, and to this inquisition annexed, by the oaths 
 of twelve good and lawful men of the said county, who, upon 
 their oaths, say, that there is due to the said plaintiff in said 
 writ named, and for the matters and things therein set forth, 
 the sum. of two hundred dollars principal, and the sum of 
 one dollar and fifty cents interest, amounting in the whole 
 to the sum of two hundred and one dollars and fifty cents, 
 besides his costs to be taxed. 
 
 In witness whereof, as well I, the said sheriff, as the 
 jurors aforesaid, our hands and seals to this inquisition 
 have severally set, the day and year aforesaid. 
 
262 APPENDIX— FORMS. 
 
 No.' 12. — Judgment, on faikire of the owner to appear. 
 At a Special Term, &c, 
 
 [Title of suit.] > 
 
 A mechanics' lien having been acquired by the above- 
 named plaintiff, as claimant, against the abovenamed defend- 
 ant, as owner, on the 10th day of December, 1855, for the 
 sum of $200, in the manner provided by law, upon the pre- 
 mises hereinafter described. And the said defendant having 
 failed to appear at a special term of this court, held on the 
 day as required by the notice to enforce such 
 
 lien, duly served on the said defendant, pn the day 
 of . And an order having been made on the said 
 
 day of , that a writ of inquiry issue to the sheriff 
 
 of the city and county of New-York to assess the amount of 
 the said plaintiff's claim upon such mechanic's lien. And 
 the said sheriff having, on the day of , in the 
 
 manner prescribed by law, and by the oaths of twelve good 
 and lawful men assessed the amount thereof, and having found 
 the same to be the sum of $200, as appears by the inquisition 
 duly returned. 
 
 Now, on motion of A. & B., the attorneys of the said plain- 
 tiff, it is ordered, adjudged and decreed that judgment be 
 recovered herein for the said sum of $200 damages, and for 
 the further sum of $ , costs. And that the right, title and 
 interest of the said Richard Roe, in the land and premises 
 upon which the said lien exists, to wit : 
 
 All that certain lot, &c, to the extent of the right, title 
 and interest of said Richard Roe, at the time of the filing of 
 the said notice of lien aforesaid, to wit: on the 10th day of 
 December, 1855, be sold at public auction, in the manner 
 prescribed by law for the sale of real property by the said 
 sheriff, and that the said sheriff be and he hereby is directed to 
 
APPENDIX— FORMS. 263 
 
 apply the proceeds of such sale to the payment of the costs 
 in these proceedings, and to the payment of the amount 
 herein found to be due to the said plaintiff, upon the said 
 mechanic's lien ; and that he be further directed, that if there 
 shall remain in his hands any residue of such proceeds, he 
 shall thereupon pay the same to the clerk of the city and 
 county of New-York, to abide the further order of this 
 court. 
 
 No. 13. — Discharge of Lien. 
 I, John Doe, of the city of New- York, claimant in a cer- 
 tain mechanic's lien, filed in the office of the clerk of the 
 city of New- York, on the 10th day of December, 1855, in 
 which Richard Roe is named as owner, and John Jackson as 
 person against whom the claim is made, the same being for 
 materials furnished and used in the erecting of the building 
 and appurtenances, situate upon the [as in lien] and amount- 
 ing to the sum of two hundred dollars, is paid, satisfied and 
 discharged. 
 
 In witness whereof, at the said city of New- York, and 
 on this 12th day of December, 1855, I have hereunto 
 set my hand. 
 In presence of 
 
 [Usual acknowledgment, as upon the satisfaction of a 
 mortgage.] 
 
264 APPENDIX— FORMS. 
 
 KINGS COUNTY ACT. 
 
 No. 1. — Sub-contractor's Lien. 
 MECHANIC'S LIEN. 
 
 JOHN DOE, Clamant, 
 
 against. 
 
 RICHARD ROE, Owner, and 
 
 JOHN JACKSON, Contractor. 
 
 To , Clerk of Kings County. 
 
 Sir : Notice is hereby given that I, John Doe, of the city 
 of Brooklyn, merchant, have a claim, amounting to the sum 
 of two hundred dollars, against John Jackson of said city, 
 builder and contractor, for materials, to wit : large quantities 
 of lumber, furnished to and used by the said contractor, in 
 pursuance of an agreement with him, and within sixty days 
 immediately preceding the date and. filing of this notice, and 
 between the first day of October, and the 10th day of Novem- 
 ber, 1855, [or, for labor performed, in pursuance of an 
 agreement with him, the said work having been completed 
 within thirty days immediately preceding the date and filing 
 of this notice, to wit., on the first day of December inst.] 
 in the erecting of the building and appurtenances hereinafter 
 described. And that the said John Jackson is the contractor 
 of the owner for and in regard to the erecting of the building 
 hereinafter described, and that Eichard Roe, commission 
 merchant, of the city of New-York, is the owner of the said 
 building and appurtenances, and the lot and premises upon 
 which the same are situated, which said premises are known 
 and described as follows : 
 
 All [set out brief description, vide p. 138, ante]. 
 
APPENDIX— FORMS. . 265 
 
 * 
 
 And that I, the said John Doe, hereby have a lien upon 
 the said building and appurtenances, and upon the said pre- 
 mises, to the amount aforesaid, and to the extent of the right, 
 title and interest of the said owner therein, at the time of 
 the filing of this notice, pursuant to and by virtue of an act 
 of the legislature of the State of New-York, entitled an "act, 
 &c. 
 
 No. 2. — Contractor's Lien. 
 
 [As in No. 1, ante.'] 
 
 Notice is hereby given, that I, John Doe, of the city of 
 Brooklyn, builder, have a claim against Richard Roe, of the 
 city of New- York, merchant, amounting to the sum of two 
 hundred dollars, for materials, to wit., large quantities of 
 lime and brick, furnished and used under and by virtue of 
 the authority of the said Richard Roe, and within sixty days 
 [thirty days, in case the claim is for work, as in No. 1,] 
 immediately preceding the date and filing of this notice, and 
 between the first day of October and the tenth day of No- 
 vember, 1855, in the erecting of the building and appurte- 
 nances, hereinafter described ; and that the said Richard Roe 
 is the owner, &c. [as in No. 1.] 
 
 No. 3. — Owner's Notice to Commence Foreclosv/re. 
 
 To John Doe, Claimant. 
 
 Sir : You are hereby notified and required to commence 
 an action for the enforcement of a certain mechanics' lien, 
 filed the day of , in the office of the clerk of 
 
 Kings county, for the sum of $ , the same being claimed 
 to be due for carpenter's work, performed in the erecting of 
 
266 APPENDIX— FORMS. 
 
 a certain building, known as (give description contained in 
 the lien), one John Jackson being therein named as con- 
 tractor, and the undersigned as owner; and that if you fail 
 to commence such action within thirty days after the service 
 of this notice, the said lien will be discharged. 
 
 RICHARD ROE, Owner. 
 A. B., Attorney, 
 
 No. -street, Brooklyn. 
 
 No. 4. — Owner's Undertaking. 
 
 [As in No. 1, ante.] 
 
 Whereas, a mechanics' lien was filed in the office of the 
 clerk of Kings county, the day of , in which the 
 
 undersigned, Richard Roe, is named as owner, John Jackson, 
 of the city of Brooklyn, as contractor, and John Doe, as 
 claimant, for the sum of $200, and affecting the premises 
 and the building thereon, known as (description). And the 
 said Richard Roe being desirous of having the said lien 
 removed from and discharged as against said premises, pur- 
 suant to the provisions of the sixth subdivision of the sixth 
 section of chapter 335 of the Laws of the State of New-York, 
 enacted during the year 1853. 
 
 Now, therefore, we, Richard Roe, of , the owner 
 
 aforesaid, and C. D., of , and E. F., 
 
 of , sureties, in consideration of the 
 
 premises, and of one dollar to us in hand paid, do undertake 
 and agree that the said Richard Roe, shall and will pay to 
 the said John Doe, claimant, as aforesaid, any sum which 
 the said John Doe may recover in any action which may be 
 brought to enforce the said mechanics' lien ; provided the 
 same shall not exceed the sum of $400, for which payment, 
 
APPENDIX— FORMS. 267 
 
 well and truly to be made, we bind ourselves jointly and 
 
 severally. 
 Dated this day of 
 
 [l. s.] 
 [l. s.] 
 [i/. s.] 
 
 [Acknowledgment and notice of justification in ordinary 
 form.] 
 
 No. 5. — Owner's Notice of Amount Due. 
 
 [As in No. 1, ante.'] 
 
 Sib : Please to take notice that I, Richard Roe, of the city 
 of Brooklyn, the owner named in a certain mechanics' lien, 
 filed in the office of the clerk of Kings county, the day 
 of , against me, as owner, and John Jackson, as 
 
 contractor, affecting the building and premises known as 
 (description of in lien), in which the sum of $200 is claimed 
 to be due, do not owe the said contractor the amount 
 claimed as aforesaid ; and that the sum of $150 and no more 
 is due from me to such contractor, and that I am willing to 
 deposit the said sum with the said clerk, to abide the event 
 of any suit which may be brought upon said lien against said 
 contractor, upon your delivering to me a discharge duly 
 executed and acknowledged, of said lien. 
 
 No. 6.— Complaint against Owner and Contractor. 
 
 Title of suit. 
 
 The above named plaintiff" against the above named 
 defendants, for complaint herein, shews to the court. 
 
268 APPENDIX— FORMS. 
 
 That on the 8th day of September, 1855, a contract or an 
 agreement was duly made between this plaintiff and the said 
 defendant, Jackson, whereby this plaintiff agreed to furnish, 
 and the said defendant to purchase a large quantity of build- 
 ing materials, consisting of ten thousand feet of pine lumber, 
 of the value and at the price of $20 per thousand feet, 
 amounting in all to the sum of $200. 
 
 That in pursuance of said contract or agreement^ this 
 plaintiff furnished to said defendant the said lumber, at 
 various times, between^the 1st day of October, and the 10th 
 day of November, 1855, all of which was used in the erect- 
 ing of the buildings hereinafter mentioned, and was of the 
 value aforesaid. 
 
 That by the terms of the said agreement, the said defend- 
 ant agreed to pay for the said lumber, on the 1st day of 
 December, 1855, but that the said defendant wholly neglected 
 and refused to pay for the same on the said day, and has 
 since wholly neglected and refused so to pay, and that the 
 said sum of $200 is still due and owing to the plaintiff 
 therefor, together with the interest thereon from the said 
 1st day of December, 1855. 
 
 That the premises aforesaid are known and described as 
 follows, to wit : 
 
 That the said defendant, Richard Roe, was, on the said 8th 
 day of September, and was, on the 10th day of December, 
 1855, and at the time of the. filing of the lien hereinafter 
 mentioned, the owner of the said premises, and seized of an 
 estate in fee simple therein. 
 
 That the said defendant, Jackson, was, at the times afore- 
 said, the contractor of and with the said defendant Roe, for 
 the erecting of the building aforesaid. 
 
 That on the 10th day of December, 1855, this plaintiff 
 duly filed a lien, under and in pursuance of chapter 335 of 
 
APPENDIX— FORMS. 269 
 
 the Laws of 1853, against the said defendants, as owner and 
 contractor respectively, and upon the premises aforesaid, for 
 the amount aforesaid ; and that there was, at the time of the 
 filing of the lien aforesaid, and that there has since become 
 due, from the said Roe to said Jackson, under their said 
 contract, more than sufficient moneys to pay and discharge the 
 said lien of this plaintiffs, and that this action is brought 
 on and upon and for the purpose of closing said lien ; and 
 that the said lien, and the claim on which the same is founded, 
 have never been paid or discharged. 
 
 Wherefore this plaintiff demands judgment against the 
 said defendant, John Jackson, for the said sum of two hun- 
 dred dollars, with interest from the said 1st day of December, 
 1855, and for the costs and disbursements of this action ; and 
 this plaintiff also prays that a decree be granted, requiring 
 the said defendant, Richard Roe, to pay and discharge the 
 said judgment, so soon as the same shall be recovered, and 
 directing the sale of all the right, title and interest which 
 such defendant had in and to the said building and appur- 
 tenances, and the said premises at the time of acquiring the 
 said lien, on the 10th day of December, 1855 ; and that out 
 of the proceeds thereof this plaintiff be paid the amount of 
 said lien, together with the interest thereon from the time 
 of the acquiring of the said lien, and the costs and disburse- 
 ments of this action ; and also directing that if the said pro- 
 ceeds shall not be sufficient to discharge the same, that 
 judgment be entered against such defendant, personally, for 
 the interests and costs which may accrue subsequent to the 
 commencement of this action ; and that this plaintiff be 
 allowed to docket a transcript for such deficiency against 
 said defendant, to the. amount of such interest and costs, and 
 for such other and further relief as to the court shall seem 
 meet. 
 
270 APPENDIX— FORMS. 
 
 In regard to the order to show cause, and the order to dis- 
 charge the lien, referred to, (p. 144, ante,) the practice is not 
 sufficiently settled to admit of a form being given. The form 
 of the judgment against an owner and contractor is suffi- 
 ciently indicated in the prayer of the complaint (above), and 
 the execution will be in the ordinary form, except that it 
 will direct the sale of the right, title and interest of the owner 
 in the property, at the time of the creation of the lien, instead 
 of being against his property generally. 
 
INDEX. 
 
 Administrators (see Lien). 
 
 Affidavit merits, 48 
 
 Amendments, 44 
 
 Amendments of lien (see Lien). 
 Answer (see Pleadings). 
 
 Appeals, 70 
 
 Appearance, 18 
 
 Appurtenances, 98, 99 
 
 Assignees (see Lien). 
 
 Bill particulars (see Foreclosure). 
 
 Claimants (see Lien). 
 
 Clerk, action against, 15 
 
 Complaint (see Pleadings). 
 
 Compromise, offer to, 134 
 
 Contract, •. 83 
 
 Contractor (see Sub-contractor, and Owner). 
 
 Costs, when owner liable for, 135 note, 53, 56 
 
 whether owner personally liable, 56 
 
 principle of the law, 56-58 
 
 when owner defends at contractor's request 135 note, 59 
 
 when the bond has been discharged, 54 
 
 not recoverable till foreclosure, 60 
 
 amount of, 60 
 
 Credits, 94-96 
 
 Courts having jurisdiction, 17 
 
 Curtesy, 104 
 
 Decree, form of, : 69, 71 
 
 Default of owner, proceedings thereon, 29, 30 
 
272 INDEX. 
 
 pagb. 
 
 Defences, interpleading 135 note, 132 
 
 recoupment, 126, 127 
 
 set-off, when allowed, 127 
 
 whether as against sub-contractor, 128 
 
 under previous laws,.. 129-131 
 
 Demurrer (see Pleadings). 
 
 Discharge of lien, 75, 76 
 
 Description of premises, 19, 33 
 
 Docketing (see Lien). 
 
 Dower, ' 10* 
 
 Estates bound by lien (see Lien). 
 
 Evidence, on owner's default, 30 
 
 on trial, where no defence, ■ 48 
 
 in contested cases, 49 
 
 of existence of lien, 49 
 
 of claim, 50 
 
 of ownership, ' 50 
 
 of moneys being due, . — 50 
 
 need only show prima facie case, 52 
 
 quantum meruit, quantum valebant, to be proven, 52 
 
 Execution, supplanted by decree 135 note, 69 
 
 form of, if it exists, 71 
 
 redemption under, 66-68 
 
 in Marine and Justices' courts, 79 
 
 Executors (see Lien). 
 
 Femes covert, 84, 106 
 
 Foreclosure, nature of, 15 
 
 time within which to be commenced 16, 91 
 
 notice to commence (see Process). 
 
 moneys to be due, 17, 92, 93j 94 
 
 conditions for, 92 
 
 compelling (see Owner's proceedings). 
 
 credit by claimant, and waiver 94, 96 
 
 Forfeiture by contractor, 96 
 
 Infants (see Minors). 
 
 Inquisition (see Trial). 
 
 Interest, 59, 60 
 
 Interpleading, 132 
 
 Issues, joinder of, 30 
 
 form of (see Pleadings). 
 
 Judgment, nature and extent of, 61-65 
 
INDEX. 273 
 
 PASS. 
 
 Judgment, not a judgment at law, 62, 64 
 
 docketing for deficiency, 63 
 
 full determination of all matters in controversy, 64 
 
 form of, generally, 64 
 
 when a discharge of lien, 65, 69, 71, 76 
 
 when a lien merged in, 65 
 
 judgment non suit, effect of, 69 
 
 interlocutory in certain cases, 93 
 
 against contractor, 38 
 
 payment of, hy owner, 125 
 
 when money suhstituted 135 note, 56 
 
 order dismissing not a, 71 
 
 execution supplanted by . : 135 note, 69, 70 
 
 redemption under sale, 65-68 
 
 Justices' courts (see Marine court). 
 
 Landlord and tenant, 104 
 
 Lien, nature of, 15, 81, 82 
 
 lis pendens as regards other parties, 39 
 
 proceedings to acquire, 9 
 
 notice of, c 10 
 
 requisites of notice, 10-14 
 
 not aided by amendment, 15 
 
 when contract with agent, 11 
 
 description of owner, 13 
 
 description of premises, 13 
 
 filing, 14 
 
 docketing, y 14 
 
 whether for different claims, 11 
 
 proceedings to keep alive, 24 
 
 when may be acquired, 87 
 
 when money not due, 92 
 
 contract, foundation of, 83 
 
 subsequent to act 1851, 87 
 
 credit given by claimant, effect of, 95 
 
 by whom acquired, 81 
 
 contractor and sub-contractor, 81-83 
 
 ' minors and femes covert, : 84 
 
 contractor of sub-contractor,. 1 85 
 
 assignees, heirs, executors, 86, 108, 109 
 
 time for acquiring, 89 
 
 time for foreclosing (see Foreclosure). 
 
 18 
 
274 INDEX. 
 
 PAGE. 
 
 Lien, for what materials, &c, allowed, ' 99 
 
 where materials must be used, 97 
 
 what estates bound by, 103 to 111, 119, 120 
 
 on appurtenances, •. 98 
 
 on money when substituted, 135 note, 56, 121 
 
 prior liens, effect of, 116, 120 
 
 prior payments, effect of, 116-118 
 
 assignment of lien, 86 
 
 when a bar to other proceedings, 88, 89 
 
 remedy on (see Foreclosure), 
 discharge of (see Discharge). 
 
 Lis pendens, lien in nature of, 39 
 
 Marine court, 76 
 
 jurisdiction of, 77 
 
 proceedings in, . . '. 77 
 
 powers, 78 
 
 judgment, 79 
 
 Married women (see Femes covert). 
 
 Minors, 84, 107 
 
 Notice of lien (see Lien). 
 
 to close (see Process). 
 
 to compel foreclosure (see Owner's proceedings). 
 
 Owner, description of (see Lien). 
 
 who is owner, 100 
 
 at time of filing, 103 
 
 death of, 110 
 
 rights' and liabilities of, 112, 115, 121 
 
 may have prior liens deducted, 116 
 
 right to set-off, 129-131 
 
 may recoup, , 126, 127 
 
 payments made before due, 116 
 
 payment of judgment against contractor, 125 
 
 cannot commence foreclosure, 21, 171 
 
 (see Owner's proceedings), 
 (see Defences). 
 
 Owner's proceedings, may compel foreclosure, 25, 121 
 
 effect of, 25, 94 
 
 form of notice, 27 
 
 bill particulars of set-off, 28 
 
 may join contractor as party, , 37 
 
 effect of not doing so, 121, 124 
 
INDEX. 275 
 
 PAOH. 
 
 Owner's proceedings, may join prior incumbrancers, 37-40 
 
 motion to join, .41 
 
 delay in moring, 44 
 
 cannot commence foreclosure, 21, 171 
 
 Parties, necessary, 35-37 
 
 proper, 37_40 
 
 contractor may or may not be, 37 
 
 if not joined, effect, 89 
 
 incumbrancers, 37, 38, 40 
 
 not joined after filing lien, '. 39 
 
 sub-contractors may be joined as, 41 
 
 by motion, 41 
 
 time for moving, 41-43 
 
 effect of delay, 44 
 
 Payments, 113, 114 
 
 Pleadings, issues framed by, written, 31 
 
 how ordered, 31 
 
 as to fact or law, 32 
 
 time for service of, 31 
 
 complaint, 33 
 
 answer, . 33 
 
 reply, 32 
 
 demurrer, 33 
 
 verification of pleading, 33 
 
 Practice after issue, note to Act in App., 45, 48 
 
 Process, notice to commence, 16 
 
 bill particulars part of, 16 
 
 form of notice, 16, 17, 18 
 
 requisites of, 19 
 
 where returnable, 18 
 
 when, 18 
 
 service of, 20, 23 
 
 upon whom, 21 
 
 proof of, 23 
 
 Privity, 122 
 
 Recoupment (see Defences). 
 
 Kedemption, 65, 71 
 
 Reference (see Trial). 
 
 Set-off (see Defences). 
 
 Sub-contractor, rights of, 81, 83 
 
 difference between present and previous statutes, with regard to, 82 
 
276 INDEX. 
 
 PASS. 
 
 Sub-contractor, subject to owner's contract, 113, 114 
 
 to what extent a variance overlooked, 115 
 
 set-off against contractor, whether allowed against sub-con- 
 tractor, 128, 129 
 
 right to foreclose, 92 
 
 foreclosure under mistake, 94 
 
 express credit, effect of, as to foreclosure, 96 
 
 express credit, effect of, as to lien, 95 
 
 equity of superior to contractors, 40 
 
 contractor of sub-contractor, 85 
 
 Substituting money for land, 121 
 
 Surplus funds, 72-74 
 
 Trial, where held, note to Act 1851, App. 220 
 
 reference, 46 
 
 sheriff's jury, 46, 47 
 
 Variance from contract, 113-115 
 
 Verification, of lien, 14 
 
 of pleadings, 33 
 
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 ry Reports more than are contained in any other Digest, yet such is the condensation of the mat- 
 ter that it will he less bulky than any other j while it exhibits more cleanly and distinctly than 
 any other that has appeared, and as fully as any lawyer could deBire, every decision contained in 
 the 121 volumes digested. This is accomplished by avoiding the repetition of whole pages of the 
 same identical matter, which so disfigures the other Digests^ and so vexes the reader; and by 
 omitting the verbose statements of the facts of the case, when such statements rather obsoure than, 
 illustrate the point or principle decided. 
 
 The following notice of this work is from the Commercial Advertiser— ■written by a gentleman of 
 the profession fully qualified to judge of its merits, both actual and comparative : 
 
 " "we announced the appearance of this new Digest a few days since, but had not then given it 
 such an examination as warranted us in speaking advisedly of its contents. The profession'have 
 been impatiently waiting for its publication, confident that the author would not jeopard his high 
 reputation in the production of an inferior work. It is the only Digest which comprises all the 
 decisions, both at Law and in Equity, of the several Courts in this State. In respect to the 121 
 volumes of the Reports now published, it occupies the same relation, which Johnson's Digest did 
 twenty-six years ago, to the thirty-six volumes then, extant,' and it is in no respect inferior to that 
 able work. A critical examination of its contents, and a practical use of the work, enable us to 
 say that in many particulars it is far superior to most of its predecessors, and cannot fail to meet 
 the just expectations of the legal profession. 
 
 ■" Its merits consist in its admirable and lucid arrangement, in its condensation and freedom 
 from unnecessary repetition, in the skill and judgment with which the 'very pith and marrow* 
 of the decision is extracted, and in the terse and perspicuous style in which each principle is sta- 
 ted. 
 
 " Some may think the preparation of a Digest to "be of easy accomplishment by any Tyro in the 
 profession, and so it would if nothing were used but the scissors and the Reporter's notes. But 
 ■one compiled from a careful and original examination of the cases, giving the substance of the ca- 
 ses, giving the substance of the decision in a compact form, perspicuously arranged, is a work 
 that requires for its successful achievement a rare combination of talents, and no ordinary share 
 of legal skill and acumen. 
 
 " For such undertaking the author of the present Digest is peculiarly qualified.' With a mind 
 acute, logical and decidedly analytical, he dissects each case into its elementary parts, detects the 
 nicest shades of distinction, and discriminates between the extraneous remarks, and obitu dicta too 
 often indulged in t>y some of our Judges, and the exact principle involved in the decision. To 
 these qualifications he adds the patient industry so necessary to arrange and distribute, under ap- 
 propriate heads, the numerous and multiform adjudications of our various CourtB for more than 
 half a century. 
 
 " "We intended to notice some of the Titles and their subdivisions which more particularly exhi- 
 bit the admirable arrangement, and illustrate the excellence of the work, but our remarks are al- 
 ready sufficiently extended. The members of the Bar will purchase it and. know how to appre- 
 ciate its merits. It is an honest and successful effort to contribute something of value to the liter- 
 
 tu re of a useful and honorable profession. — Albany State Register. 
 
 The following iB a list of the volumes containing the decisions of this work in a Digest : — 
 
 Jonson's Cases 3 vols. 
 
 Johnson's Supreme Court Reports.... 20 
 
 Johnson's Chancery Report 7 
 
 Caine's Reports 3 
 
 Caine's Cases in Error 2 
 
 Cowen's Reports. '...'.." 9 
 
 Wendell's Reports 26 
 
 Hill's Reports.' 7 
 
 Denio's Reports 5 
 
 Barbour's Supreme Court Reports.... 8 
 Barbour's Chancery Reports 3 
 
 Hopkin's Chancery Reports 1 vols 
 
 Paige's Chancery Reports 11 
 
 Sandford's Superior Court Reports .... 3 
 Comstock's Court" of Appeals Reports. 4 
 
 Hall's Superior Court Reports 2 
 
 Clarke's' vice Chancery Reports 1 
 
 Hoffman's Vice Chancery Reports.... 1 
 Sandford's Vioe Chancery Reports .... 4 
 Bradford's Surrogate Report 1 
 
 121 
 
 DUER'S REPORTS of New York Superior Court, vol. 2— (Vol. 3, 
 nearly ready.) 
 
 HAYDEN'S NEW YORK JUSTICE.— The Law and Practice of Jus- 
 tices of the Peace, in their Miscellaneous Duties and Jurisdiction, 
 with 200 Forms. By Hon. Chester Hayden. 
 
 This work is appropriated to the miscellaneous duties of a Justice ov the Peace ; and seeks 
 to commend itself to that class of magistrates in particular, and in general to'all who desire an ac- 
 quaintance ""it* 1 their own relations, as individuals and citizens of the town in which they reside 
 with those statuatory provisisns which prescribe and regulate the duties and powers of Justices ; 
 *rad the rights and privileges of citizens and town officers, as connected with those powers and du- 
 ties. This branch of the law addresses itself most immediately to the interests and immunities of 
 every citizen, in matters which are of daily occurrence in his town and neighborhood ; and there- 
 fore, should be understood by all. 
 
 On these subjects, the work is believed to contain all that is essential for the guidance of the 
 magistrate, and for the inquiring, as far at least, as authority is furnished by Statute law, and le- 
 gal deoisions. And it is not its least point of value, that it contains over two hundred practicalforms 
 under the Code, carefully adapted to the present state of the law, and to every exigency that can 
 ariBe m that department of a Justice's duty, to which they relate. ' l 
 
 PAIGE'S CHANCERY REPORTS, yol.,$|. This volume com- 
 
 pletes Paige's Chancery Reports. ' ; " 
 
LAW CATALOGUE. 3 
 
 LAW'S UNITED STATES COURTS.— The Jurisdiction and Pow- 
 ers of the United States Courts, and the Rules of Practice of the 
 Supreme Court of the U. S., and of the Circuit and District Courts 
 in Equity and Admiralty, with notes and references; and an Ap- 
 pendix, containing the Orders of the High Court of Chancery of 
 England in force in 1842, and the new Orders of the same Court 
 of 1855, and the Times and Places of holding the United States 
 Courts. 845 pages. 
 The following letters relating 1 to this work, received from good 
 
 judges will best show it character and importance: — 
 
 I have examined the -work with a great deal of care. It is a very useful one well arranged and 
 well executed, and was much needed in the profession. For I have often had occasion to witness 
 the embarrassment and difficulties experienced by professional gentlemen, accustomed to prac- 
 tice in the State Courts, from the want of some work giving them a condensed and clear view of 
 the jurisdiction and practice of the Courts of the United States. Your book will remove that 
 difficulty snd cannot fail to be well received. — Letter from the Hon. Roger B. 2aney, Chief Justice of 
 the Supreme Court of the United States. 
 
 Having looked through your work, we are of the opinion that it will be found a valuable com- 
 pilation of the subjects embraced. It includes and arranges under appropriate heads the practice 
 of the Courts of the United States, and other matters, connected with the practice, which cannot 
 be fonnd in no other work ; and we cannot doubt that it wiU be a useful appendage to the library 
 of every lawyer. — Letter from Hon. J. McLean, Robert C. Grier % John Catron, and John McKinley, jJsbo- 
 exate Justices of the Supreme Court of the United States. 
 
 I have received your volume under the Rules and Practice of the Courts of the United States. 
 I thank you for, it, and I am pleased that your attention has been called to the subject. Such a 
 work was much wanted. I do not doubt but that it will attract the notice of our professional 
 brethren UBefully to them and gratifying to yourself. — Letter from Hon. James Wayne, one of the •As- 
 sociate Justices of the Supreme Court of the United States. 
 
 Your work on the jurisdiction and the Rules of Practice of the United States Courts has been 
 received and examined. I will know the labor and care which you have bestowed on its prepara- 
 tion, to make it accurate and useful to the profession. My examination of it authorizes 
 me to express the opinion that your efforts have been crowned with success. As the line of 
 jurisdiction between the National and State Courts is thereby clearly defined, and the rules of prac- 
 tice in the Federal Courts carefuUy compiled, it will prove equally useful to the practicioner in 
 each. Such a work has long been needed. I cheerfully recommend it to the attention of my pro- 
 feBBlonal brethren.— Letter from Vie Hon, R. H. GilUt, late Solicitor of the Treasury of the United 
 States* 
 
 Please accept my thanks for your excellent Treatise on the jurisdiction and Powers of the Uuited 
 States Courts. I find on perusing it, that you have made a careful examination of the of acts of 
 Congress and decisions of the United States Courts relating to the topics embraced in the works 
 and the .'compilation appears to me exceedingly accurate and comprehensive enough to answer 
 the purposes you had in view. It -cannot fail to be acceptable and important to the profession, 
 placing within their ready command the principles and.rules of practice governing those Courts, 
 and with which few of the Bar can make themselves familiar without embarrassing researches, 
 to be made at the time the knowledge is. called for^— Letter from Hon, R. S. Betts, Z7. S. Judge for 
 the Southern District of New York. 
 
 Your very excellent work is worthy of the attention of each member of the profession and 
 should be found in every law library. — Hon, Jlndrew J. Judson, United States Judge for the District of 
 Connecticut. 
 
 I have examined, with considerable attention your book on the "Jurisdiction and powers of the 
 United States Courts," and am satisfied it is a work of great convenience to the profession. It 
 brings together, and arranges approriately, materials hitherto widely scattered, and will frequent- 
 ly save the practicioner the very great labor of searching through the various Circuit Court, and 
 other Reports, as well as Rules and ActB of Congress, "The book will be found almost indispens- 
 able to thoee practicing or preparing to practice in United Spates Courts, and frequently con- 
 venient for reference to those whose practice is confinecl to the State Courts, — Hon. Amasa J. Par- 
 ker, one of the Justices of the Supreme Covrt of New York. 
 
 I have looked over with some care your work on the Jurisdiction, Powers, Practice, &c, of the 
 Courts of the United States. It contains a very large amount of useful matter never before brought 
 together, and the want of some such comprehensive and compendious guide is the principal reason 
 why a great majority of American Lawyers have not even attempted anything like acquaintance 
 with the laws of the United States Qovernment, and the mo.de of administering them. It cannot 
 fail to be a very useful book to the profession in any part of the Union, — J2. C. Benedict, Esq,, au- 
 thor of Benedict's admiralty Practice. 
 
 I had the gratification, yesterday, of receiving from you a copy qf your work on the Jurisdiction, 
 Practice, &c. of the United States Courts, and return you my thanks for a gift which will afford a 
 valuable accession to my law library. I ha,ve already examined the work with Borne attention, and 
 am well satisfied that it will prove of great aid to practitioners in the Federal Courts. — Hon. J*, 
 B. Gilchrist, U. S. District Judge for South Carolina. 
 
 It is printed on good paper, and the mechanical part, as well as every other part, appears to he 
 well and accurately executed. A work of the kind was much heeded by the profession ; and con- 
 sidering the nature and fullness of the compilation, and the judicious order and arrangement of 
 the different subjects, }t must form a convenient and useful bqok of reference, and prove a. v fchia- 
 fole acquisition both to the bench and bar --Hon. Samuel Prentice, U. S. District Judge for Verman^ 
 
 It is a book much needed by the profession. The plan of the work cannot be too highly recom- 
 mended. It brings together so as to be seen at a single glance, not the speculation of a theoretical 
 thinker merely, but the precise language employed by the National Legislature, and the exact in? 
 
4 W. C. LITTLE & CO.'S LAW CATALOGUE. 
 
 terpretation of that language in the very words of judicial decisions. The Rules of our Courts 
 and the Orders of the English Chancery, for a valuable appendix. To that portion of the pro- 
 fession who have not at command large libraries, the work is invaluable, and to those who have it 
 Tfill be exceedingly useful, as a means of saving that research and labor, which you have already 
 bestowed on the subject, and the results of which are so perspicuously presented in this volume. — 
 Hon. Ogden Hoffman, of Jtfew Yvrk,foi-merly United States District Attorney. 
 
 I take pleasure in making my acknowledgments to you for the very acceptable present of a copy 
 of the Jurisdiction and Power of the United States Courts. From the. examination I have been 
 able to give it, I am persuaded that it cannot fail to be of great value not only to myself, but also 
 to the American bar generally, to who'se business and practice it is well suited. — Hon. C. Nicoll, 
 U. S. District Judge jar Georgia. 
 
 From a hasty glance at its arrangement and contents, I think it must prove highly useful to the 
 profession. — Hon. Benjamin F. Butter formerly Attorney- General of the United States. 
 
 Knowing from a painful experience of three years, the confused condition in which the Acts of 
 Congress are now to be found, not only in relation to subjects of your special investigation but to 
 many, if not most other subjects of Federal Jurisdiction, I looked over your book with much in- 
 terest. As to its exact accuracy I have not yet had time to form an opinion, but of its usefulness 
 and convenience, I have no doubt whatever. The bringing together of various Statutes of the 
 United States in relation to cognate subjeets, with a clear and copious index to the whole, and ap- 
 pending thereto the orders of the English High Court of Chancery; entitle yet: to the thanks and 
 patronage of the bar.— Hon. J. Prescott Hall, United States Attorney for the Southern District of 
 New York. 
 
 Yourfavor of April reached me, with a copy of your very valuable work o^ the Jurisdiction 
 and Powers of the United States Courts, &c. On looking over the work, I find it filled with the 
 most valuable matter, and such as may be useful in the highest degree to every practicing lawyer 
 particular in the great commercial cities, — Hon. Tliomas «A Durant, late United States Attorney for 
 Louisiana. 
 
 I am fully of the opinion, that it is precisely such a work as has been long wanted, and that it 
 will prove to be not merely a convenient but a necessary book of reference for ine practitioner in 
 the Federal Courts. Hargeant's Constitutional Law, published in 1822, is the only book within my 
 knowledge, in any way similar to this, and had that been attempted on the same plan with yours 
 the same progress made in judicial proceedings with the last thirty years has developed Buch an ad- 
 ditional amount of material, of which you have availed yourself, that this work, even in that case 
 must be vastly more valuable. I have no doubt 'it will be found a useful and important addition to 
 the ' Law Library. — Hon. ' Matthew Harvey, United States District Judge for New Hampshire. 
 
 .RULES OF THE COURTS.— Amendments to New York Code, 
 Terms and Circuits, and other Law Pamphlets, published from time 
 to time, as the wants of the Profession seem to require. 
 
 SANDFORD'S REPORTS of the New York Superior Court, 5 vols. 
 
 SELDEN'S REPORTS of New York Court of Appeals, 4 vols., be- 
 ing continuation of Comstock's Reports. (Vol. 5 nearly ready.) 
 
 SESSION LAWS OF NEW YORK, from 1818 to 1855, both inclu- 
 sive, 
 
 VAN SANTVOORD'S PLEADING, under the Codes.— A Treatise 
 on the Principles of Pleading in Civil Actions, under the new Code 
 of Procedure, in one vol., octavo. By George Van Santvoord, 
 Counsellor at Law. 
 
 WHITTAKER'S NEW YORK PRACTICE, under the Code, new 
 • edition. Practice and Pleadings under the Codes, original and 
 amended, with an Appendix of Forms — with additions, embodying 
 in the text the whole of the changes effected by the Revised Rules. 
 This work contains as complete an epitome of the practice, as 
 settled upon that revision, as can be given either now or at any fu- 
 ture period, until further action of the Legislature, or ot che Judi- 
 ciary. 
 
 To Henry Whtttakek, Esq " 
 
 My Dear Sir— I am unexpected compelled to be absent from the United States for a couple of 
 months^ which I the more regret as 1 it prevents me from taking an active part in the publication and 
 circulation of your new book of practioe under the present Code. Having examined ii thoroughly, 
 whilst it was in the progress, ot completion, I can speak underetandingly of its merits. It is much 
 needed at present, and will, I feel sanguine, answer all the purposes for which it was intended. I 
 shall most cheerfully recommend It to all my personal friends at the Bar. Truly yours, 
 
 _ N. DANE ELLINGWOOD 
 
 Having examined Mr. Whittaker's manuscript, I concur in Mr. Ellingwood's 'opinion of its 
 merits, and oordially recommend it to the profession. ROBERT J. DILLON 
 
 I have examined 336 pages of Mr. Whittaker's new hook of Practice under the Code, and I very 
 cheerfully give it my cordial approval, and strongly recommend it to members of t! = Profession 
 throughout the State, as an excellent and thorough guide through the complexities of the new sys- 
 tem. Mr, w. had his omeff with me for. some time, andl can speak knowingly of his excellent 
 and extensive knowledge of the general principles of law, and of the accuracy andprecision of his 
 mind. I have not a doubt of the excellence and eudcess of the work. J. W. GERARD. 
 
W.C. LITTLE k GO'S LAW CATALOGUE. 
 
 Abbott on Shipping, new edition. 
 
 Abridgment of American Reports, 
 by Wheeler, 8 vols. 
 
 Adams on Ejectment, new edition, 
 by Tillinghast. 
 
 Addison on Contract. 
 
 Admiralty Decisions, 2 vols. 
 
 Admiralty Leading Cases. 
 
 Alabama Reports. 
 
 Allen on Sheriff. 
 
 Ambler's Reports. 
 
 American Constitutions, new edi- 
 tion, enlarged. 
 
 American Jurist. 
 
 American Leading Cases, new edi- 
 tion, 2 vols, 
 
 American Railroad Cases, 2 vols. 
 
 Andrews' Reports. 
 
 Angell and Ames on Corporations, 
 new edition. 
 
 Angell on Limitations. 
 
 Angell cu Highways. 
 
 Angell on Fire Insurance. 
 
 Angell on Adverse Enjoyment. 
 
 Angell on Com'n Carriers, new ed. 
 
 Angell on Life Insurance. 
 
 Angell on Tide Waters. 
 
 Angell on Water Courses, new ed. 
 
 Anthon's Analysis of Blackstone. 
 
 Archbold's Civil Pleading. 
 
 Archbold's Criminal Pleading and 
 Evidence. 
 
 Archbold's Forms and Entries. 
 
 Archbold's Practice of tlis Court 
 of King's Bench, 2 v., new ed. 
 
 Archibald's Landlord and Tenant. 
 Archibald's Law of Nisi Prius. 
 Arkansas Reports. 
 Arnold on Insurance, 2 vols. 
 Atkyn's Reports, 3 v., by Sanders 
 Attorney's Companion. 
 Azuni's Maritime Law, 2 vols. 
 
 B. 
 
 Backus' Digest of Laws relating to 
 Sheriff, 2 vols. 
 
 Bacon's Abridgment, new edition, 
 by Bouvier, 10 vols. 
 
 Baldwin's Circuit Court Reports, 
 (con. of Washington.) 
 
 Ballentine on Stat, of Limitations, 
 with notes, &c, by Tillinghast. 
 
 Barbour & Harrington's Equity Di- 
 gest, (Eng. &' Am. Cases,) 4 v. 
 1836. 
 
 Barbour on Set Off. 
 
 Barbour's Chancery Practice, 2v. 
 
 Barbour's Criminal Law, 2d ed. 
 
 Barbour's N. Y. Sup. Court Repts. 
 
 Barnewall & Alderson's Repts. 4 v. 
 
 Barr's Penn. Reports, 10 vols. 
 
 Barton on Equity. 
 
 Bayley on ^ills of Exchange. 
 
 Bay's South Carolina Reports. 
 
 Beames' Ne Exeat Regno. 
 
 Beames' Pleas in Equity. 
 
 Beawes' Lex Mercatoria, 2 vols. 
 
 Beccaria on Crimes. 
 
 Beck's Medical Jurisprudence, 
 10th edition, 2 vols. 
 
 Beebee's Questions adapted toGra- 
 ham's Practice. 
 
 Bee's S. C. Admiralty Reports. 
 
 Belt's Supplement to Vesey Sen- 
 ior's Chancery Reports. 
 
 Benecke & Stevens on Insurance, 
 by Phillips. 
 
 Bigelow's Digest of Mass. Reports. 
 
 Bingham on Infancy and Cover- 
 ture, new edition. 
 
 Bihney's Pennsylvania Reports. 
 
 Bishop on Marriage and' Divorce. 
 
 Bishop's Treat, on Criminal Law. 
 
 Bissitt on Partnership, Am. Notes, 
 
 Blackburn on the Contract of 
 Sale. 
 
6 
 
 W. C. LITTLE & CO.'S 
 
 Blackstone's Commentaries, 2 v., 
 
 by Chitty. 
 Blackstone's Commentaries, 4 v; 
 
 by Wendell. 
 Blackstone's (Henry) Repts., 2 v. 
 Blackstone's (Sir Wm.) Repts, 2 v. 
 Blake's Chancery Practice. 
 Blunt's Commercial Digest. 
 Boote's Suite at Law. 
 Booth on Real Actions. 
 Brown on Frauds. 
 Bishop on Criminal Law. 
 Bosanquet & Puller's Repts., 5 t. 
 Bouvier's Institues, 4 vols. 
 Bouvier's Law Dictionary, new 
 edition, greatly enlarged, 2 rols. 
 Bradford's Surrogate Reports. 
 Brakenridge on Trusts & Trustees. 
 Branch's Principia. 
 Bridgman's Equity Digest, 4 v. 
 Bright's Husband and Wife, 2 v. 
 British Crown Cases Reserved. 
 Brockenbrough's Reports, (Chief 
 Justice Marshall's Decisions, 
 2v.) 
 Broom's Legal Maxims, new ed. 
 Broom's Parties to Actions. 
 Brown's Cases in Parliament, 8 v- 
 Brown's Chancery Reports. 
 Brown's Civil & Admiralty Law, 
 
 3 v. 
 Butler & Heard's Criminal Law. 
 Buller's Nisi Prius. 
 Bunbury's Reports. 
 Burge on Law of Suretyship. 
 Burlamaqui's Natural and Politic 
 
 Law, 2 vols., new edition. 
 Burns' Justice, 4 vols. 
 Burrell on Fraudulent Assign- 
 ments. 
 Burrell's Law Dictionary, 2 vols. 
 Burrell's Practice, 3 vols. 
 Burrow's Reports, 5 vols. 
 Burr's Trial, 2 vols. 
 Butler's Horae Juridicse. 
 Bynkershock's Law of War, by 
 
 Duponceau. 
 Byle's on Bills and Promissory 
 Notes. 
 
 C 
 
 Caine's Cases in Error, 2 v. in 1. 
 Caine's N. Y. Term Beports, 3 v. 
 
 Caldwell on Arbitration. 
 
 Campbell's Nisi Prius Reports, 
 4 v. 
 
 Cases is Chancery. 
 
 Cases Temp Talbot. 
 
 Chamber's Landlord and Tenant. 
 
 Chipman on Government. 
 
 Chitty on Bills of Exchange, &c. 
 
 Chitty on Contracts. 
 
 Chitty's Criminal Law. 3 v.new ed. 
 
 Chitty's Eq. Digest, new ed. 4 v. 
 
 Chitty's Gen'l Practice, 4 vols. 
 
 Chitty's Medical Jurisprudence. 
 
 Chitty's Pleadings, 3 vols. 
 
 City Hall Recorder, 6 vols, in 3. 
 
 Clancy's Rights of Mar'd Women. 
 
 Clerk's Ass't.,new ed., enlarged. 
 
 Clinton's Digest of New York Law 
 and Equity Reports, 3 v. 
 
 Code Napoleon Translated. 
 
 Coke Abridged by Dunlap. 
 
 Coke's Reports, 7 vols. 
 
 Coke upon Rittleton, 3 v. by 
 Thomas. 
 
 Colman and Caines' N. Y. Cases. 
 
 Collyer on Partnership, new edi- 
 tion, by Perkins. 
 
 Commercial code of France. 
 
 Comstock's Reports of New York 
 Court of Appeals, 4 vols. 
 
 Comyn on Contracts. 
 
 Comyn's Digest by Hammond, 8 v. 
 
 Comyn's Reports. 
 
 Condensed U. States Reports, 6 v. 
 
 Conkling's Admiralty Jurisdiction 
 and Practice. 
 
 Conklin's Practice of the U. S. 
 Courts. 
 
 Conklin's Treatise. 
 
 Connecticut Reports, 20 vols. 
 
 Cooper's Chancery Cases. 
 
 Cooper's Equity Pleading. 
 
 Cooper's Institutes of Justinian. 
 
 Cooper's (Judge,) Opinion — Ad- 
 miralty Cases. 
 
 Coote on Law of Mortgages. 
 Coventry and Hughes' Digest 2 v. 
 Cowen's Treatise. 
 Cowen's N. York Reports, (cont. 
 . of Johnson, 9 vols. 
 Cowper's Reports, 2 vols. 
 Coxe's Digest of U. States Reports. 
 Coxe's New Jersey Reports. 
 Crabb on Real Property. 
 
LAW CATALOGUE. 
 
 Crabb's History of the Eng. Law. 
 
 Crabbe's C. 0. U. States Reports. 
 
 Cranch's Reps., 9 v. (U. S. Sup. 
 Court.) * 
 
 Crompton, Merson & Roscoe's Ex- 
 chequer Reports, 2 vols. 
 
 Crown Cases Reserved, 6 v. 
 
 Cruise on Real Property new ed'n, 
 3 vols, by Prof. Greenleaf. 
 
 Curtis' Equity Precedents. 
 
 Curtis on Copy Right. 
 
 Curtis on the Law of Patents. 
 
 Cushing on the Roman Law. 
 
 Cushing's Massachusetts Reports. 
 
 D 
 
 Dallas' Reports, 4 vols. 
 
 Daniel's Chancery Practice. 
 
 Davies' Reports. 
 
 Day's Connecticut Reports. 
 
 Delaware Reports. 
 
 Delolme on the Eng. Constitution. 
 
 Denio's New York Reports, 5 v. 
 
 Digest of N. Y. Reports, 3 vols. 
 
 Doctor and Student, (Much all's 
 
 Dialonues.), 
 Doctrina Placitandi, or System of 
 
 Pleading. 
 Domat's Civil Law, 2 v., new ed. 
 Douglas' Reports, 2 vols. 
 Drake on the Law of Attachment. 
 'Duer on Insurance, 2 vols. 
 Duer's N.Y. Supreme Court Repts. 
 Dunlap's Admiralty Practice. 
 Dunlap's Paley's Agency. 
 Dunlop's Laws of Pennsylvania. 
 Duponceau on Judisdiction. 
 Durnfords and East's Reports, 8 v, 
 Dutton's Connecticut Digest. 
 Dyer's Reports, 3 vols. 
 
 Emerigon on Insurance. 
 English Admiralty Reports, 9 v. 
 English Chancery Reports, con'd. 
 English Common Law Reports. 
 English Ecclesiastical do. con'd. 
 English Exchequer Reports, 24 v. 
 English Law and Equity Reports. 
 English Railway Cases, 6 vols. 
 Equity Drafts., by Van Heythuy- 
 sen, with Notes by Hughes, 1832. 
 Espinasse on Penal Actions. 
 Espinasse's Nisi Prius, 2 vols. 
 Espinasse's Reports, 6 vols. 
 
 Fearne on Contingent Remainders, 
 
 Federalist. 
 
 Fell on Mercantile Guaranty. 
 
 Field's Analysis of .Blackstone. 
 
 Fitzherbert's Natura Brevium. 
 
 Flander's Law of Shipping. 
 
 Florida Reports. 
 
 Fonblanque's Equity, 2 v. new ed. 
 
 with notes by Lansing. 
 Foster's Crown Law. 
 Foster's New Hampshire Reports.- 
 Francis' Maxims in Eq. by Hening. 
 
 G 
 
 E 
 
 East's Crown Law, 2 vols. 
 East's Reports, by Day, 16 vols. 
 Eden on Injuctions. 
 Edward's Chancery Reports. 
 Edward's Juryman's Guide. 
 Edwards on Parties to Bills in 
 
 Chancery. 
 Edwards' on Justices' Courts. 
 Emerigon on Bottomry and Re 
 
 spondentia. 
 
 Gallison's Circuit Court Repts. 2v. 
 
 Georgia Reports. 
 
 Gilbert on Devises. 
 
 Gilbert on Ejectment. 
 
 Gilbert on Rents. 
 
 Gilbert's Cases in Law and Equity. 
 
 Gilbert's Common Pleas. 
 
 Gilbert's Distress and Replevin. 
 
 Gilbert's Evidence. 
 
 Gilpin's Repts. (Decisions of Judge 
 Hopkinson.) 
 
 Gordon's Digest of Laws of United 
 States, new edition. 
 
 Gordon's Digest of Revenue Laws. 
 
 Gould's Pleading, 2d edition. 
 
 Gow on Partnership. 
 
 Graham on New Trials. 
 
 Graham's Practice of Supreme 
 Court of New York. 
 
 Greenleaf 's Attorney's Forms. 
 
 Greenleaf on Evidence, 3 vols. 
 
 Greenleafs Cruise onReal Proper- 
 ty, 3 vols. 
 
8 
 
 W. 0. LITTLE & CO.'S 
 
 Gray's Massachusetts Reports. 
 Greenleaf's Overruled Cases. 
 Greenleafs Maine Reports, 9 v. 
 Gresley's Equity Evidence, Notes 
 
 by Calvert. 
 Griffith's Law Register, 2 vols. 
 Grim's Essay. 
 
 H 
 
 Hale's History of the Com'n; Law. 
 Hale's Pleas of the Crown, 2 v. 
 Hall on Maritime Loans. 
 Hall's Admiralty Practice. 
 *Hall's Reports of the Superior 
 
 Court of New York, 2 vols. 
 Halsted's Digest of N. J. Reports. 
 Halsted's New Jersey Repts., 7 v. 
 Hammond on Parties to Action. 
 Hammond's Treatise on Nisi Prius. 
 Hardre's Reports. 
 Hare on the Discovery of Evidence 
 
 by Bill and Answer in Eq., 1837. 
 Harrison's Chancery, 2 vols. 
 Harrison's Digest, 6 vols. 
 Harrison's Digested Index, 3 v. 
 Harris' Pennsylvania Reports. 5 v. 
 Hawkins''Pleas of the Crown, 2 v, 
 Hayden's N. Y. Justice, under the 
 
 Code. 
 Highmore on Lunacy. 
 Hilliard on Insurance. ' 
 Hilliard on Mortgages. 
 Hilliard on Real Property, 2 v. 
 Hilliard's Abridgment, 2 vols. 
 Hilliard's Law of Vendor's and 
 
 Purchasers. 
 Hill on Trustees. 
 Hill's New York Reports, 7 vols. 
 Hinde's Practice in Chancery. 
 Hobart's Reports by Williams. 
 Hoffman's Legal Study, 2 v., new 
 
 edition, enlarged. 
 Hoffman's Master in Chancery*. 
 Hoffman's N. York Chancery Prac- 
 tice, 2 vols. 
 Holt's Law of Libel. 
 Hopkin's Chancery Reports. 
 Hovenden on Frauds, 2 vols. 
 Hovenden's Supplement to Vesey 
 
 Junior, 2 vols. 
 Howard's. Practice Reports. 
 Howad's Sup. Court U. S. Repts 
 Howell's State Trials. 
 
 Hughes on Insurance. 
 
 I 
 
 Illinois Reports. 
 
 Index to English Com'n Law Reps. 
 
 Index to Eng. Exchequer Rept's. 
 
 Indiana Reports. 
 
 Ingersoll's Digest of Laws of IT. S. 
 
 Ingersoll's Translation of Rocus 
 
 on Insurance. 
 Iowa Reports. 
 
 Jacob & Walker's Chancery Repts. 
 Jacobsen's Sea Laws. 
 Jacob's Law Dictionary. 
 Jarman on Wills, 2 vols. 
 Jeremy's Equity Jurisdiction of 
 
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