Moran v. Murray Hill Bank — 58 N.Y. Super. Ct. 199

Majority

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DENNIS W. MORAN, Respondent v. THE MURRAY HILL BANK, Impleaded, &c., Appellant.

Headnote

Assignment of building contract to secure loan and mechanics’ liens for work and materials on building, relations to each other.

One Duffy had a contract with the city of Now York, through the commissioners of the Eire Department, for the erection of a building for said department that ho fulfilled, and there became due to him for the same, the sum of $12,516.73. Before he completed the contract he obtained a loan from the appellant of $5,000, and, in consideration of such loan, assigned to the appellant the moneys due on the contract, to the amount of $6,000. One of the respondents, Lewis O. Tufts, had furnished work and materials for that building, to Duffy, and on or about the 14th day of December, 1886, and immediately after the assignment to the appellant, Duffy assigned unto the said Tufts the sum of $5,000 out of the final payment due or to become due to

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Duffy upon the contract. Subsequently, Dennis W. Moran, the plaintiff and respondent, and others of the respondents, including the said Tufts, who had furnished work and materials to Duffy for this building, respectively filed liens against this fund or the money from this contract, and several actions were commenced to foreclose these liens, which were finally consolidated into this action, which resulted in the said liens, excepting three, being allowed, and in precedence of appellant’s claim of $6,000 under and by virtue of the said assignment.

The appellant claimed on the trial, and on the appeal from the judgment below, a reversal as to so much of the judgment as favored the recognition and approval of any lien in favor of Tufts as against appellant’s claim on the money or fund, by virtue of the assignment, on the following grounds, (a) The defendant Tufts, by accepting the assignment from Duffy of all the moneys duo or to grow due from the city to him under his contract, thereby waived and lost all right to file and maintain, a lien. (5) Having accepted said assignment subject to a prior assignment to the appellant, Tufts is estopped from contesting the validity of the assignment to the appellant, (c) The lien of Tufts is a nullity because no action was ever commenced to enforce it and no Us pendens ever filed. It has expired by limitation, (d) Tufts should-have been compelled by the court below to elect one of the two remedies upon which he claimed. Held on appeal, on the first ground (a),'that the assignment was in effect of moneys due to Duffy after the discharge of all mechanic’s liens, such as would have been due to Duffy except for the liens; Duffy could not assign more than this. That Tufts’ lien right, was superior to his right acquired by the assignment, and the acceptance of the assignment cannot be assumed to have been a waiver of his lien. A lienor’s rights will not be considered waived unless the facts clearly indicate an intention to abandon them, and such an intention cannot be presumed from his acceptance of an assignment under the facts in this case, for it does not appear that the assignment was accepted as a payment of the indebtedness, and, unless it was so accepted, the debt remains, and the right of lien continues to exist as incidental thereto.

As to the question of estoppel claimed by appellant (6) Held, that it could only avail, if at all, in case the acceptance of the assignment constituted a waiver of the lien.

In regard to the lien of Tufts’ being a nullity (c) Held, that Tufts’ lien expired because of non-compliance with the statute in regard to the commencement of an action and filing of a Us pendens, etc. The exception to the finding of the referee, that Tufts set up his lien by answer in the McShane action in which a Us pendens was filed, is well taken, for the case is without evidence to support that finding.

As to the election of remedies (d), Tufts’ remedies were not inconsistent. He had a right to rely upon the lien, and assignment, but he Could

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have only one satisfaction. Judgment affirmed except that part which adjudges that Tufts had a valid lien on the fund superior to the appellant, and as to that part reversed.

Before Sedgwick, Ch. J., Truax and Dugro, JJ.

Decided May 5, 1890.

Appeal from judgment entered upon the report and findings of a referee.

Samuel Untermyer, for defendant—appellant, the Murray Hill Bank, argued:—

I. The claim of Tafts under his assignment and lien cannot be sustained. He waived his right to file a lien. His mechanic’s lien is void and his assignment subsequent to that of the appellant. He should have been compelled to elect whether he claimed upon the assignment or the mechanic’s lien. The judgment sustaining his recovery upon the assignment and lien cannot be sustained for the following reasons: (a) By accepting the assignment he waived and lost all right to file a mechanic’s lien. (b) Having accepted the assignment subject to a prior assignment to the bank, he is estopped from contesting the validity of the bank’s assignment, (c) No action having been commenced to enforce his lien and no Us pendens having been filed by him, his lien has expired by limitation. (d) Tufts should have been compelled to elect one of the two remedies upon which he claimed.

II. The defendant Tufts, by accepting the assignment from the contractor Duffy of all the moneys due or to grow due from the city to him, under his contract, thereby waived and lost all right to file a lien. The defendant Tufts not only admits" that at the time he filed the lien he held an assignment of all the moneys then due or which might thereafter be due from the city to the contractor, as security for the payment of his claim, but he affirmatively asserts in his answer in this case, and he insisted

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throughout upon the trial, that by virtue of this as ’ signment he was entitled to recover so much of the moneys in suit as might be necessary to pay his claim. This clearly presents the proposition: Can a party furnishing labor or material take all the rights and interests of his debtor in the property, and then, whilst those rights are in his hands, file a lien against them to the detriment of subsequent claimants ? An analogous case would be this: Suppose A, who is the owner of land, erects a building and employs B to furnish the material, and thereafter conveys the property to B to secure him for his claim. Can B, holding the title to that property, file a lien against it to the exclusion of other claimant's ? Such a result, would be monstrous, and if successful could'defeat any lienor. In the case of Tunninger v. Kofald, 7 Oregon, 228, it was held that “where a mechanic has a lien upon real property for material and labor furnished by him in érecting a building thereon he waives the same by taking a mortgage upon that property to secure the amount due him, for which he holds a lien.” It is elementary law that a lien may be waived by the express agreement of the parties, or a waiver may be inferred from the acts of the parties. The intent to waive may be shown by the taking of a security inconsistent with the lien. Burrows v. Baughman, 9 Mich. 213 ; Kinzey v. Thomas, 28 Ill. 502 ; Brady v. Anderson, 24 lb. 110; Grant v. Strong, 18 Wall. 623 ; Weaver v. Demuth, 40 N. J. L. 238 ; Tunninger v. Kofald, 7 Ore. 228 . In Grant v. Strong, 18 Wall. 623 , a builder took a real estate security for the payment of the work which he was to do, and it was held that he waived his right to the mechanic’s lien. Mr. Justice Miller in delivering the opinion of the court said: “In short we are of the opinion that these agreements (referring to the agreements to accept security on real estate) show an accept

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anee and reliance by Strong on another and very different security for the payment for his work, inconsistent with the idea of a mechanic’s lien, and that no such lien ever attached in the case.” In the case of Weaver v. Demuth, 40 N. J. L. 238 , the court said: “The decision of the question proposed may be rested on the case of Burrows v. Baughman, 9 Mich. 213 , which was the judgment of a court of well recognized authority. In a similar case it was there held that the statute creates no lien where the parties by their contract provide for a different security upon the same land for the same debt which the lien would not otherwise secure. The agreement for a particular kind of lien upon the same property, to which the mechanic’s lien would usually attach, must necessarily be exclusive of all other liens. Such must evidently be the purpose when the agreement is made, though they may not state it in express words, and such would be the construction which others, in dealing with the property, would ordinarily put upon it. In legal effect the contractor waives his lien to get another in different form. This he may do if he choose, for this is a statute designed for the benefit of individuals of a particular class, and not for general objects, hence its benefits may be waived.” Quick v. Corlies, 10 Vroom, 11 . What more conclusive evidence of the intent to waive the lien could there be than the taking by Tufts from Duffy of a security which would render it impossible'for Tufts ever to file a lien if he retained that security? Tufts accepted his assignment of the moneys due on the final payment, which, by the very terms of the contract was to be reserved for such mechanics and material men who should file valid liens. That indicated a clear intention upon his part to waive his right to file a notice of lien. When he filed his lien he did not even repudiate the assignment, and when he brought his action to

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enforce that lien he asserted in the same pleading by which he claimed a lien on this fund that he held an assignment of that fund. If this -is not an illustration of the taking of a security inconsistent with the filing of a lien, it will be quite impossible to furnish such an illustration. The lienor takes unto himself the thing which he might otherwise subject to his lien, and then files a lien against it whilst it is yet in his hands. Then he goes a step further and brings an action to foreclose his lien upon the fund, the title to which is in him. The referee was of the opinion that Tufts’ right to pursue as many concurrent remedies as he might have is well settled, and he cited the cases of Hall v. Pettigrove, 10 Hun, 607 , and Gambling v. Haight, 59 N. Y. 854 , to sustain his views. We submit that the referee erred in considering the remedy upon the assignment and that upon the lien concurrent remedies. They are absolutely inconsistent with each other. Assuming the assignments to be valid, as the referee has found them io be, and that Tufts claimed upon his assignment, there would be no fund against which the mechanic’s lien could be filed.' Then, again, the case of Hall v. Pettigrove, cited by the referee, is no authority for the proposition which he asserts, and has no application to the facts of the case at bar. That was a case decided by the general term of the Second Department, where a person had taken a mortgage upon certain lands to secure him for materials furnished upon the building and also filed a mechanic’s lien against the building to which the materials were furnished. The mortgage was not against the same property against which the lien was filed. The question was not raised in that case, nor was it argued whether the acceptance of a mortgage was a waiver of the lien; the point raised seemed to be that the mortgage should be regarded as a payment or as a security of a higher nature than the

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original contract debt and that it ought to be held to extinguish it, and the court declined to sustain that point. Nor is the case of Gambling v. Haight, in 59 N. Y. 354 , any authority for the proposition stated by the referee. That was an action upon a promissory note which was given to a sub-contractor as collateral security for the payment of work contracted to be done by him in the construction of a building. An action was pending for the foreclosure of a mechanic’s lien filed by the plaintiff for the' same claim against property, the title to which was in another party. It was held in that case that the action upon the note could be maintained, notwithstanding the fact that proceedings were pending for the foreclosure of the lien. There was no prior security given upon the same property against which the lien was filed, nor does it appear in the case whether the lien was filed before or after the acceptanee of the note, and the question was not raised whether the right to file a mechanic’s lien was waived. This is not a case of cumulative remedies, nor even of inconsistent remedies. It is a case in which the lienor has taken, unto himself the thing against which he might otherwise have a remedy. Upon the trial Tufts was frequently given an opportunity to waive his rights under the assignment and to claim upon the mechanic’s lien filed by him, but he insisted upon claiming under the assignment.

III. The defendant Tufts having accepted the assignment of the moneys due or to grow due from the city under this contract, subject to the claim of the Murray Hill Bank, under the assignment of tho same moneys which had previously been made to it, is thereby estopped from contesting the validity of the assignment to the bank. Hartley v. Harrison, 24 N. Y 170 ; Freeman v. Auld, 44 lb. 50. In the case of Freeman v. Auld (supra), the court said: “The premises were purchased 'by the defendant and con

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veyed to him, 1 subject’ nevertheless to certain mortgages now a lien on said premises. * * * * In receiving his conveyance upon these terms, the defendant admitted and agreed that this $4,000 mortgage was a lien upon the premises. He cannot now deny it.”

IV. The lien of Tufts is now a nullity, as no action was ever commenced-.to enforce it, and no Us pendens was ever filed. It has expired by limitation. The statute provides that an action must be commenced and a Us pendens filed within ninety days after the filing of the lien. Section 1817 of the Consolidation Act provides : “No lien provided for in this title shall be binding upon the property therein described, unless an action be commenced within ninety days from the filing of the same, and a notice of pendency of said action be filed with the comptroller.” Tufts is the'only party to the record who has failed' to file a notice of the pendency of an action, but he claims that as Moran andMcShane having commenced actions to which he is a party, the statute has been complied with as to him. He contends that a defendant can reap the benefit of the plaintiff’s proceedings. The appellant contends that each lienor must file a separate and independent Us pendens. Section 1836 of the Consolidation Act supports the appellant’s contention. It prescribes the method of discharging a lien. The statute says : “A lien may be discharged as follows : “1st. By filing a certificate of the claimant or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. 2d. By lapse of time, when ninety days have elapsed since the filing of the claim and no action shall have been commenced to enforce the claim. 3d. By the satis-' faction of any judgment that may be rendered in actions to foreclose said liens or claims.” The case of McDermot v. McDonald, 50 Super. Ct. 153, is relied upon by Tufts. The case at bar is distinguish

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able from the reported case, for there the defendant was made a party, by reason of his having filed a mechanic’s lien. When Moran filed his lis pendens, however, Tufts had nothing more than an assignment. He was not made a party to this action because of the fact that he had filed a mechanic’s lien, and therefore the notice filed by the plaintiff could not operate as a notice on behalf of Tufts, who, when it was filed, only held an assignment. Now it is true that section 1830 of the Consolidation Act provides that “ all parties who have filed claims under this title, may, by an answer in such action, set forth the same, and the court in which the action is brought, may decide as to the extent, justice and priority of the claims of all the parties to the action.” But that section does not relieve a person who has filed a claim from complying with the other mandatory provisions of the statute. A party who has filed a claim must, within ninety days in order to keep his lien alive, commence an action and file a Us pendens. The statute contemplates the commencement of independent actions by independent lienors, for by section 1833 of the Consolidation Act, it is provided “ that when, separate actions are commenced the court in which the first action was brought, may, upon the application of the city, consolidate them.” The failure to file the Us pendens comes under the same principle which was decided in the. case of Prior v. White, 32 Him 14. That was a case under the Law of 18G2, which contained a statement providing for the discharge of the lien, “ by an entry of the clerk 'made in the book of liens, after one year had elapsed since the filing of the claim, stating that no notice has been given to him of the lienor’s steps to enforce the lien.” It was held in that case that by the lapse of time the lien was discharged. The court followed the case of Mushlit v. Silverman, 50 N. Y. 360 . In that case the Court of Appeals said, “ when the Act declares, as it does,

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that a lien may be discharged in any one of several methods the happening of any of the events or the performance of any of the acts mentioned, operate per se as a discharge without the necessity of further acts by any person. The lién claimed by the plaintiff is a creature of-the statute and depends solely for its validity upon the Act creating it.” * * * * “ Such an act cannot be extended in its operation and effect beyond the fair and reasonable import of the words used, and the plaintiffs in their lien must bring themselves within its terms, and the lien must be shown not only to have been regular and valid in its inception, but to be a continuing and existing lien under the statute. This they have failed to do.” Then -again the later case of Danziger v. Simonson, in 53 Super. Ct. 158, is a substantial modification of the ruling in the case of McDermott v. McDonald. The question arose in that case whether it was necessary for a lienor, who filed a claim under a different act, but containing a similar provision in regard to the filing of a Us pendens to file a Us pendens in order to keep the lien alive. The lienor was a defendant in an action brought to forclose a mortgage. The referee in that case, Edward Patterson, Esq., held that it was absolutely necessary that a Us pendens should be filed. The referee said: “It appears affirmatively that neither of these defendants filed, a notice of Us p-endens within the ninety days required by the Mechanic’s Lien Law, and by the failure to do so they lost whatever rights in the mortgaged premises they might otherwise have acquired. Bones v. N. Y. Christian Home, 64 How. 509 . The filing of the lien and the subsequent filing within the statutory limitation of time of a notice of Us pendens were absolutely necessary to give the defendants above named a standing in court to litigate.” * * * This court at general term affirmed that judgment. It is true that section 1813 of the Consolidation Act,

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as amended by the Law of 1883; which was construed in the Danziger case, contained a provision directing a party defendant who desires to enforce his lien, to file a Us pendens. Section 1813 (as amended) reads: “ 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.” The court, however, was of the opinion and held, that regardless of that provision the ‘defendant lienor was compelled to file a Us pendens. The court said: “ Section 1813 of the Consolidation Act as amended in 1883, does not apply to a case of this kind, i. e., to an action for the foreclosure of a mortgage. But if a mortgage is to be regarded as an ‘ other lien’ within the meaning of the section, then the defendants should have filed notices of Us pendens, for that is expressly required to be done.”

V. Tufts should have been compelled to elect one of the two remdies upon which he claimed. The Murray Hill Bank was prejudiced and embarrassed at the trial by reason of the refusal of the referee to compel an election of remedies. It was impossible for the appellant to know upon which theory Tufts based his cause of action. The appellant was compelled .to contest the claim of Tufts without being apprized of the cause of action upon which he relied. When the complaint contains two causes of action, resting substantially upon the same facts, the plaintiff should be put to an election. Roberts v. Leslie, 14 J. & S. 76. In that case Judge Freedman said : “ Under the former practice the object of inserting two or more counts in one declaration, where there was in fact but one cause of action was to guard against an insufficient statement of the case, where a doubt existed as to the proper mode of declaring, and to provide, if possible, against a variance between the pleadings and the proof on the trial.

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The Code, by providing that amendments for the correction of the insufficient pleadings shall be liberally allowed, not only renders this practico unnecessary, but expressly requires the pleading of a cause of action to be reduced to a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. The plaintiff is no longer required to characterize his action by any particular appellation or averment. All he has to do is to set forth the facts upon which ho relies and let them speak for themselves, and this he is required to do without unnecessary repetition. The object is to secure singleness and unity in-the issue.” If the remedies are inconsistent, as we insist they were, there can be no question about the right to compel an election. Clapp v. Campbell, 124 Mass. 50 .

Austen G. Fox, for defendant-respondent Lewis C. Tufts, argued :—

I. The referee was right in' refusing to compel the respondent to elect whether he would claim under' his lien, or under his assignment. (1). The respondent had the right to have his claim considered and sustained, either upon his lien, or upon his assignment. Gambling v. Haight, 59 N. Y. 354 ; Hall v. Pettigrove, 10 Hun, 609 ; Munn v. Cook, Supreme, Court, G. T., January, 1890, MSS. Opinion. In the present case, the appellant, by its answer, prays the court “ that the lien and claims of all the parties to this action be ascertained and the priorities thereof determined.” Section 8 of the act (Laws 1878, ch. 315) requires the court so to do. Plainly, if the respondent Tufts was bound to elect in this action, whether he would pursue his rights under his lien, or under the assignment, it must be that, if he had begun a separate action on the assignment, and that action was proceeding when his action to enforce his lien came on

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for hearing, he would have been required to suspend the prosecution of one or the other of his two actions. That is, of course, only another mode of saying the same thing. By uniting two claims in one action,he enlarges no right and limits no right, unless the two claims cannot lawfully be united, and, in such case, the point must be raised by demurrer. The precise point has been determined. Gambling v. Haight, 59 N. Y. 354 . In that case the plaintiff was prosecuting an action on two promissory notes given for work. He was prosecuting also an action to enforce a mechanic’s lien for the same work. The court said: “ The primary obligation, founded upon the original agreement, including the statutory liability under the mechanic’s lien law, and the promissory notes of a third person collateral to it, may be enforced simultaneously, * * * but there can be but one satisfaction.” If the referee had found that the lien was defective, the primary obligation was still valid, and if there should remain a balance after the discharge of valid liens, then, and not till then, would the referee have to determine the question of priority of assignments between Tufts and the Murray Hill Bank. It is not a ease of inconsistent claims, but a case where a court must determine “ the liens and claims of all the parties,” and this the appellant came into court asking the court to do. In Munn v. Cook, supra, Supreme Court, G. T. January, 1890, MSS. Opinion, the plaintiff alleged certain agreements and a judgment of an English court. The court at special term held that the plaintiff could not rely on both, but the judgment was reversed. The court, per Daniels, J., said: “ All the evidence was legally and properly in the case. And she had the right to require its decision, not only upon the decree, but upon the agreements themselves. And if in the judgment of the court she failed in her position as to one, that failure

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did not prevent her from relying in support of her action upon the other.” (2). The acceptance by Tufts of the assignment in December, 1886, and of the note prior thereto, did not extinguish his right to file his lien in June, 1887. " Gambling v. Haight, (supra); Hall v. Pettigrove, (supra).

II. The defendant Tufts was not obliged to begin an action to foreclose his lien, nor file a notice of the pendency of this action. (1.) The question has been decided under the Act of 1878, by virtue of which the liens, now under consideration, were filed. 50 Super. Ct. 153, McDermott v. McDonald ; cited Danziger v. Simonson, N. Y. Law Journal, Dec. 23, 1889. Court of Appeals. (2.) Tufts was a party to the suits of Moran, Candee & Smith and Campbell, which were consolidated into this action by order dated May 25, 1887. He filed his notice of lien June 27, 1887, and answered July 3,1887. Tufts was also ’ a party to the McShane suit, the lis pendens in which was filed July 1, 1887 after Tufts had filed his notice of lien, he answered therein July 29, 1887 and by the order of reference herein the McShane suit was consolidated with this action on October 6, 1887. This action is the McShane action as much as it is the Moran. It was mere chance whether Moran, Candee & Smith, Campbell or McShane should be plaintiff in the consolidated action. (3.) The defendant Tufts proved and, at his request, the referee found as facts, that in all the actions which had been commenced by the different lienors, notice of the pendency of each action was duly filed. In the Moran action, the Us pendens was filed February 19, 1887; in the Campbell action, March 11, 1887 ; in the Candee & Smith action, March 15, 1887 in the consolidated action, on June 23,1887 and in the McShane action, on July 2, 1887 or five days after Tufts had filed his notice of lien. Thus, under McDermott v. McDonald, supra, the point would have had no pos

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sible ground—for this action is the McShane action as much as it is the Moran action.

III. —The lien of the respondent Tufts is valid. (1.) The referee has found in his favor on the facts. (2.) The respondent Tufts was not bound to set forth in his lien the fact that he had received an assignment and a note. Sec. 2 of the act (Laws 1878, ch. 315,) contains no requirement that the lienor shall make such a statement. The notice of liens sets forth “all just credits and offsets.”

IV. —The referee was right in holding that the valid liens were superior to the appellant’s assignment. (1.) The assignment is of no effect as against lienors. The assignment is of moneys “ out of the third payment of all moneys due or to grow due in and by virtue of a certain contract.” By that contract, the third payment is provided for as follows : “ And on the expiration of thirty days after the entire work shall be completed in conformity with this contract, and the said parties of the first part shall have accepted the same, they will pay to the party of the second part (Duffy) the remainder of the sum of thirty- six thousand seven hundred and twenty-nine dollars.” But the city did hot accept the same until June 16,1887. (2.) The provisions of the contract between Duffy and the city require that any sum remaining in the hands of the city shall be held until the liens created under the statute shall be discharged. (3.) The appellant’s assignment was subject to the provisions of their assignor’s contract with the city. Murphy v. Bowery Nat. Bank, 30 Hun, 40 . The “material men are entitled to protection over and above the assignees of the contractor.”

• Thomas C. Ennever, for defendant-respondent, William McShane & Co,

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Alexander Thain, for plaintiff-respondent Dennis W. Moran.

The appellant claims, with respect to so much of the judgment as favors Tufts, a reversal, for reasons stated by its counsel, as follows : (a) By accepting the assignment Tufts waived and lost all right to file a mechanic’s lien. (6) Having accepted the assignment subject to a prior assignment to the bank; he is estopped from contesting the validity of the bank’s assignment, (c) No action having been commence to enforce his lien and no lis pendens having been filed by him, his lien has expired by limitation, (d) Tufts should have been compelled to elect one of the two remedies upon which he claimed.

In support of reason “ a,” it is argued that the assignment conveyed to Tufts the very property he seeks to lien, and that to allow him after acceptance of the assignment a lien right, would be to permit him to lien his own property ; this position is not maintainable, as the monies liened and those assigned are not identical. The assignment was in effect of monies due to Duffy after the discharge of all liens. The monies liened were such as would have been due Duffy but for the liens. This distinction, arises through the existence of a provision in the contract that the City should deduct from the monies otherwise due under the agreement, the amount which might be allowed to lienors prior to the discharge of the notices of lien in one of the ways provided by law. Duffy could not assign more than he would be entitled to by virtue of his contract and its performance. Tufts’ lien right was superior to the right acquired by virtue of the assignment. The acceptance of the latter cannot, therefore, be fairly assumed to have been a waiver of the former. It simply gave Tufts’ ’ an opportunity to obtain his

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money, as against Duffy, without filing a lien and being under the necessity of foreclosure.

A lienor’s right will not be considered waived unless the facts clearly indicate an intention to abandon his rights, and such an intention is not to be presumed from the mere fact of an assignment such as is disclosed by the evidence. It does not appear that the assignment was accepted as a payment of the indebtedness, and unless it was a payment the debt remains and the right of lien still exists as incidental thereto.

As to reason “5,” it may be said the estoppel claimed could only avail, if at all, in case the acceptance of the assignment constituted a waiver of the lien.

The reason “c,” presents a more difficult question. It was the legislative intent that no lien should be binding unless an action was commenced by the lienor, as plaintiff, within ninety days from the filing of the lien, and a notice of pendency was filed; except in the cases referred to by the language “ But all parties who have filed claims under this title may by answer in such action set forth the same ” in section 1830, of the Consolidation Act, (McDermott v. McDonald, 50 Super. Ct. 153), and if in the action, in which a claim is set up by' answer, a proper notice of pendeney is filed by the plaintiff, the defendant need not file a similar notice. The defendant Tufts having filed no claim at or prior to the commencement of the Moran action, was not in that action one of those referred to by the words “ parties who have filed claims under this title.” These words apply only to parties who have filed claims and whom the plaintiff by section 1830 is obliged to make parties defendant. Tufts, therefore, had no right conferred by the statute to set up his lien in the Moran action. He should, to preserve his lien, have complied with section 1827, or answered in an

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action in which he was a necessary party defendant, as allowed to do by section 1830. The latter course he claims to have adopted, but the "claim is not well founded. . The referee finds that Tufts set up his lien by answer in the McShane action ; in this action a notice of pendency was filed, so that, if the finding is correct, the statute has been complied with, but an exception to the finding is well taken, for the case is without evidence warranting the conclusion.

(“cl”) Tufts’ remedies were not inconsistent. He had a right to rely upon the lien and assignment. He could, however, have had but- one satisfaction.

I find no error in the allowance of the claims of Moran and McShane.

The judgment should be affirmed, except that part of it which judges that Tufts had a valid lien on the fund superior to the claim of the appellant, and as to this part of the judgment it is reversed and a new trial ordered, with costs to abide the event. Costs of appeal to Moran, McShane, and Candee & Smith, to be paid by the appellant.

Truax, J., concurred.

Cases cited

Grant v. Strong 18 Wall. 623 SCOTUS p. 202
Gambling v. Haight 59 N. Y. 354 N.Y. 1874-12-22 p. 205, p. 210, p. 211
Hartley v. Harrison 24 N. Y 170 N.Y. p. 205
Mushlitt v.Silverman 50 N. Y. 360 N.Y. 1872-11-26 p. 207