John A. Philbrick & Bro. v. Ignatz Florio Co-op. Ass'n

This is an appeal from an order denying a motion to confirm a referee’s report in surplus money proceedings.

The contest is between lienors under a mechanic’s lien and the holder of a mortgage. Both were filed on the same day the lien anticipating the mortgage by a few minutes. The question is whether or not the lien was kept alive. The statute applicable is section 16, c. 418, Laws 1897, now; section 17, c. 33, Consolidated Laws 1909, which read as follows:

“No lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such ac-' tion, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of'the parties to the action, the object of the action, a brief description of the real property affected thereby, and the time of filing the notice of lien; or unless an order be granted within one year from the filing of such notice by a court of record, containing such lien, and such lien shall be redocketed as to the date of granting such order and a statement made that such lien is continued by virtue of such order. No lien shall be continued by such' order for more than one year from the granting thereof, but a new order and entry may be made in each successive year. If a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such defendant is- thereby continued. Such action shall be deemed an action to enforce the lien of such defendant lienor. The failure to file a notice of pendency of action shall not abate the action as tó any person liable for the payment of the debt specified in the notice of lien, and the action may be prosecuted to judgment against such person.”

The lien in question was filed on April 2, 1908; and it is conceded upon the record that no order was obtained extending it, and no action brought to foreclose it within a year after its filing, and no action brought to foreclose any other mechanic’s lien to which the holders of this lien were made parties defendant. The present action was to foreclose a mortgage, and the lienors were made parties defendant and duly appeared. The action was begun in August, 1908, a sale had on May 15, 1909, and the surplus moneys paid into court on June 29, 1909. If the lien was a valid and subsisting lien upon the property at

“If the lienor is made a party defendant in an action to enforce another lien * * * the lien of such defendant is thereby continued.”

It is undoubtedly true that in general mortgages, judgments, and the like are included within the term “lien,” but in the lien law they are uniformly differentiated from the particular class of liens provided for by that law. Thus, under section 44 of the present law, it is provided that among those to be made parties defendant in an action to foreclose a mechanic’s lien are:

“(1) All lienors having liens against the same property or any part thereof. (2) All other persons having subsequent liens or claims against the property by judgment, mortgage or otherwise.”

To the same effect were section 3402, Code Civ. Proc., and section 5 of the lien law of 1897. So also by section 2 of the lien law it is provided that:

“The term ‘lienor’ when used in this chapter means any person having a lien upon property by virtue of its provisions, and includes his successor in interest.”

We think that the clear meaning and intent of the statute is that the action to foreclose "another lien” which will keep alive a lien filed by a defendant to the action is an action for the foreclosure of a lien created by the lien law, and not an action to foreclose a mortgage, although that in a sense is a lien upon the property. In opposition to this view we are referred to Danziger v. Simonson, 116 N. Y. 329 , 22 N. E. 570 , upon which the court below relied. That case, however, is clearly distinguishable. That also was an action to foreclose a mortgage, and the lienor was made a party defendant. He interposed an answer asserting his lien and claiming priority even over the plaintiff. He had failed to keep his lien alive by commencing an action within the time prescribed by statute, but claimed that it had been continued by reason of the commencement of the action to foreclose the mortgage. The statute in force provided:

“And when a claimant is made a party defendant to an action brought to enforce any other lien, the notice of pendency of such action must be filed by him or in his behalf.” Chapter 410, Laws 1882, § 1813, as amended by chapter 276, Laws 1883.

The majority opinion discussed with some care the scope and meaning of the words “any other lien,” and held that it was broad enough to include liens by mortgage or judgment as well as mechanic’s liens.

It follows that the order appealed from must be reversed, with $10 costs and disbursements to the appellant, and the motion to confirm the report granted, with costs to the Twelfth, Ward Bank of the City of New York and John J. Dowling, payable out of the fund. All concur.