McAllister v. Case — 24 N.Y. St. Rep. 52

Majority

p. 52

William McAllister, Pl’ff, v. Joseph S. Case and Herman Rudolf, App’lts. The Hopkins and Dickinson Manufacturing Company, Resp’t, v. William D. Peck, Resp’t, et al, Def’ts.

(New York Common Pleas,

General Term,

Filed June 3. 1889.)

Headnote

1. Mechanics’ Liens—All lienors need not commence separate ACTIONS.

Under the provisions of section six of the mechanics’ lien act of 1885, it it is not necessary for all lienors to commence separate actions to preserve their liens. A person who has been made a party defendant in an action to enforce another’s lien, is by this statute re.ieved from the necessity of . bringing a separate suit in order to keep his lien alive.

S. Same—Notice oe pendency oe action—Separate notices need not BE PILED.

Nor is it necessary that each of the defendant claimants should file separate notices of the pendency of the action, but it is sufficient^ if the plaintiff in the suit file one notice of the pendency of such action, includ

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ing all the names o£ the defendants in said action to save the rights of the defendants therein as lienors, respectively.

3. Same—Single lis pendens sufficient—Consolidation act of 1883, AS AMENDED BY § 17 CHAP. 376, LAWS 1883.

The case of Dansinger v Simonson (53 Supr Ct, 158), is not applicable. That decision was made under the consolidation act of 1883, as amended by section 15, chapter 376 of Laws of 1883, which provided that where a claimant was made defendant in any such action, he should file a notice, of pendency of such action to preserve his lien; but the act of 1885 omitted that provision, so that now a single lis pendens filed by the plaintiff is adequate to preserve the liens of all the parties.

John Hahn, Jr., for appl’t, Herman Eudolf; George A. Strong, for resp’t, The Hopkins and Dickinson Manufacturing Company; Frederick M. Littlefield, for resp’t, Wm. D. Peck.

This action was' brought by plaintiff to foreclose a mechanic’s lien and he made the defendant Eudolf, the defendant, The Hopkins and Dickinson Manufacturing Company, and other parties, as subsequent lienors. The trial was before a referee who found in favor of plaintiff’s lien, and also that such subsequent liens had been duly filed. Said referee, however, further decided with regard to the lien of said Eudolf, that, as he had not commenced an action, or filed a Us pendens, within a year from the filing of this lien, the same became inoperative as far as securing any claim in rem. He therefore, in his report, disallows the right of said Eudolf to payment out of the fund, and promotes to his place a subsequent lienor. From the judgment confirming said report, this appeal is taken.

There was but a single question discussed on the argument and that seems to be the only one involved. It was conceded by all that under the language of section 6 of the mechanic’s lien act of 1885, it is not necessary for all lienors to commence separate actions, but it was contended on behalf of respondent, that it is incumbent upon them to file separate notices of pendency of action. To so hold, would be to interject something which certainly is not in the language of the statute, and which does not follow from any necessary or fair interpretation thereof. The provision is qustion is that no lien shall bind the property fora longer period than one year after the filing of notice of the lien, unless within that time an action is commenced to enforce the same, and a notice of the pendency of such action is filed with the county clerk.

“And when a claimant is made a party defendant to ‘ any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant, who is a claimant within the provisions of this ’ act.”

A person who has been made a party defendant in an action to enforce another’s lien, is by this statute relieved

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from the necessity of bringing a seperate suit in order to keep his own lien alive, and it is required only that a notice of the pendency “ of such action ” be filed. A notice of pendency of action was filed by plaintiff in the case at bar, and the same was sufficient to save Rudolf’s rights as a lienor. Much reliance was placed by respondents on the case of Danzinger v. Simonson, 53 Superior Court, 158, but such decision is clearly inapplicable. It was made under the consolidation act of 1882, as amended by chapter 276 of the Laws of 1883. As so amended, section 17, chapter 276, Laws of 1883, the mechanic’s hen law, contained the following clause:

“And where a claimant is made a party defendant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed by him, or in his behalf.”

In the face of this express language it was just as clearly the duty of a court to require a .separate Us pendens from each defendant, as it is our duty, considering the significant absence of any such provision in the act of 1885, to hold that a single lis pendens filed by the plaintiff is adequate to preserve the liens of all parties.

Many suggestions were made as to probable inconveniences to conveyancers and perils to the public if appellant’s view were allowed to prevail. I think the magnitude and importance of these considerations were over-estimated in the pardonable zeal of counsel. But, in any event, such arguments must be addressed to the legislature and" not to the court. We find before us a simple statute which requires no further interpretation than its plain reading, and counsel for respondent is in effect asking us to restore by judicial legislation the provision of a former act which the legislature omitted from the present law.

The judgment appealed from must be modified so as to provide for the payment of Rudolf’s, out of the fund, lien in the order of the priority of its filing, and, as so modified, said judgment must be affirmed.

Allen and Bookstaver, JJ., concur.