Opinion
Argued January 12, 1875
Decided May term, 1875
John A. Godfrey for the appellant.
Thomas Cooper Campbell and Nathaniel C. Moak for the respondents.
So far as I deem it important, I will consider separately the grounds upon which the appellant seeks a reversal of the judgment.
(1.) It is claimed that plaintiff lost his right to enforce his lien by not commencing proceedings to foreclose the lien within ten days after filing it. The New York city lien law (chapter 500, § 4, Laws of 1863) provides that "any person or persons having filed a notice of lien, may, in ten days thereafter, institute a proceeding to enforce or foreclose the lien." It is claimed on the part of the appellant that the proceedings must be instituted within ten days, and that therefore this provision is a sort of statute of limitations. If this be the true construction, this is the shortest statute of limitations which has come under my notice. There can be no conceivable reason for requiring a lien to be enforced so expeditiously, and a construction so unreasonable should not be adopted unless the language used absolutely requires it. The interest of the lienor certainly does not require this short limitation, and the interests of the owner are fully protected by the right he has under the same section, if he desires to expedite the foreclosure of the lien, to institute the proceeding himself. I think, the true construction is, that the lienor must wait ten days after filing his lien before he can foreclose it, thus giving the owner time to become aware of it, investigate it and adjust it. The word "in" does not necessarily in the connection in which it is here used, mean "within" but it is used in the sense of after. A still further answer to this objection is that it was not taken in the answer, or at any stage of the trial; and there is no exception in the case which presents it for our consideration. If the objection had been taken in any form, the plaintiff might have shown that the appellant had in some way waived the earlier commencement of the proceeding, or that she was in some way estopped from taking the objection.
(2.) It is claimed that the notice of lien is defective. No such claim was made at the trial. The notice contains every thing required by section 6 of the act; but the claim is that it must contain the facts mentioned in section 1. The notice does not state that Coulter was a contractor with the owner for the erection of the buildings; nor does it state what precise relation he held to the owner or to the buildings. It is stated that the claim is against him for materials furnished toward the construction of the buildings. The notice should probably have contained an allegation that Coulter was a contractor with the owner. But the defect is not a fatal one. The complaint contains all the necessary allegations, and appellant went to trial upon them. Under sections 2 and 5, there is abundant authority for disregarding the defect or amending the proceeding if required.
(3.) It is further claimed that a personal judgment in favor of Noyes and Wines, against appellant, was not authorized. The claim of these respondents was for material furnished to the appellant directly upon the order of Coulter, acting as her agent, and hence a personal judgment against her was authorized under sections 5, 7 and 9 of the act, and it has been recently so held in the Court of Appeals. ( McGraw v. Godfrey, 56 N.Y., 610.) But there is no exception which enables the appellant to present this question. The referee ordered the personal judgment against the owner, and there was no exception. It was a conclusion of law by the referee that Noyes and Wines were entitled to a personal judgment, and if the appellant desired to review this conclusion she should have excepted to it. So far as appears from the record, she acquiesced in a personal judgment.
(4.) Section 11 of the statute provides that liens shall in all cases cease after one year, unless by order of court the lien is continued and a new docket made stating such fact. Plaintiff's lien was first filed August 31, 1869. The referee found that this lien was twice continued by order of the court. It was first renewed by order of the Court of Common Pleas, August 18, 1870, and no question was made at the trial that that continuance was regular. That was after the commencement of proceedings to foreclose. Another order of continuance was made August 3, 1871; as it is not printed in the case we must assume that it was regular. It appears to be regular from the statements contained in the case. Noyes and Wines filed their notice of lien August 13, 1869; and it was continued by an order granted at a Special Term of the Supreme Court, August 5, 1870. That order was probably granted before the proceedings to foreclose were commenced. It purports to be granted at a Special Term. At the time it was granted the lien was in no court. It had simply been filed in the county clerk's office. The statute provides that it may be continued by order of court — not some particular court. The order of any court having jurisdiction of these liens would undoubtedly be regular. These orders of continuance were all granted ex parte without notice to the owner. They are not for this reason void, even if irregular, and on that account liable to be set aside. The statute requires no notice to be given. The order creates no new liability; and hence no notice is necessary, unless the court to which an application for an order is made should require one to be given. ( Welch v. Mayor, etc., 19 Abb. Pr., 132.)
The lien of Noyes and Wines was not again continued, although the referee did not decide this case until January, 1872, The lien was therefore, probably lost during the pendency of the suit; but in such a case it has been held that the court having acquired jurisdiction could retain it, and render a personal judgment. ( McGraw v. Godfrey, supra.) All that was needed to give the court jurisdiction, was a lien at the time the action was commenced. Hence, notwithstanding the expiration of the lien, the court properly rendered a personal judgment against the appellant in favor of Noyes and Wines.
(5.) The referee found that at the time of filing the lien there was due from the owner to the contractor the sum of $2,500; and there was evidence which authorized him so to find. There is no exception which authorizes us to review this finding. The adjudication in the case of Coulter v. Morgan has no bearing in this case, as plaintiff was not a party to that case, and is in no way bound by the adjudication. The owner might have controverted the evidence of the plaintiff that there was so much due, and by showing that there was nothing due from her to Coulter for any reason at the time the notice of lien was filed, could have defeated his claim; but this she did not do successfully.
I therefore conclude that the facts proved and found warranted the judgment ordered by the referee, that no error was committed by him and that the judgment must be affirmed, with costs.
All concur.
Judgment affirmed.