McNally v. Rowan

Chester, J.: . The court at Special Term made the order appealed from "wholly on the authority of Lumbard v. Syracuse, B. & N. Y, R. R. Co. (62 N. Y. 290) which was an action to foreclose a mechanic’s lien-where an offer of judgment was made in substantially the same form as here and where the court held that “.when the defendant offered judgment for a specified sum it was necessarily and legally an offer that the lien might be enforced for that sum,” and that “ the claim and offer must be construed with-reference to each other,” and, therefore, gave the defendant costs accruing after the offer. If there had been no change in the law since that decision it would be controlling upon the determination of this appeal, but we think the Special Term overlooked the fact, that a substantial change was wrought in the statute since the decision of the Lumba/rd case. It is now provided by section 3412 of the Code of Civil Procedure, which section is contained in the title of such Code relating to pro [344] ceedings for the enforcement of mechanics’ liens on real property, that “ifzthe lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this title,. he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action.” This section is a substantial re-enactment of section 15 of chapter 342 of the Laws of 1885. The provision quoted appears to have been new in the act of 1885, for prior- to its enactment it was not permissible in an action to foreclose a mechanic’s lien to obtain a personal judgment, upon the claim, except' upon the establishment of the lien. (Weyer v. Beach,,79 N. Y. 409; Burroughs v. Tostevan, 75 id. 567.) It thus, appears that at the time of the decision of the Lumbard case, which was in 1875, the law was such that a personal judgment could'not be recovered except upon the establishment of the lien, and the offer of the judgment for a specific sum, made in that case, was properly construed as permitting a judgment for the establishment of the lien at that sum. Since the change in the law, however, by the statute referred to, a personal judgment may be obtained where the lien is not established and an offer of. judg-" ment for a sum of money only cannot properly be construed as authorizing a judgment for the establishment of the lien at the sum offered, and upon such an offer the plaintiff would not have been authorized to have entered a judgment for the foreclosure of the lien for the amount named in the offer or for a deficiency judgment in case the proceeds of sale were insufficient to pay such amount. Indeed, under section 738 of the Code of Civil Procedure, permitting the defendant, before trial, to “serve upon the plaintiff’s attorney a written offer to allow judgment to be taken against him, for a sum, or property, or to the effect, therein specified, with costs,” and permitting the clerk, upon the filing with him of a written acceptance of such offer, as provided by such section, to “ enter judgment accordingly,” it is plain that the clerk would have no authority in an action for a foreclosure of a mechanic’s lien, upon an offer simply for a money judgment, to enter judgment for a foreclosure and sale and for a deficiency, against the defendant, in case the proceeds of the sale were inadequate, for that would not be in accordance with the offer. The judgment obtained by the plaintiff was more favorable than [345] the judgment offered, and the plaintiff was, therefore, entitled to the costs allowed him by the referee regardless of the offer, and the taxation by the clerk was, therefore, correct and should not have been reversed. In the first department the question here presented has been determined in harmony with the conclusion here reached, in Kennedy v. McKone, No. 1 (10 App. Div. 88), as it also has in the second department in Rollins v. Barnes (23 id. 240). The order appealed from should be reversed, with ten dollars costs and disbursements. All concurred, except Houghton, J., dissenting. Order reversed, with ten dollars costs and disbursements.