John A. Philbrick & Bros. v. Ignatz Florio Co-Operative Ass'n

Scott, J.: 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 of chapter 418 of the Laws of 1897, now section 17 of chapter 33 of the Consolidated Laws of 1909, which reads 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 action, 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 continuing such lien, and such lien shall be redocketed as of 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 to 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 [615] 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 Juné 29, 1909. If the lien was a valid and subsisting lien upon the- property at the time of the foreclosure sale it became transferred to and a lien upon the surplus moneys at that date, but if it had ceased to be a valid lien upon thé property at the time of the 'sale, there was nothing to transfer to the fund. (Nutt v. Cuming, 155 N. Y. 309.) The sale in the present case took place more than a year after the lien was filed, and as no order was obtained, extending it and no action begun to foreclose it, and the lienors were not made parties defendant in an action to enforce another mechanic’s lien, it lapsed and ceased to be a lien on the property before the sale took place unless it was kept alive by the commencement of this present action. The language of the statute is : “ If a lienor is made a party defendant in an action to enforce (mother 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 was section 3402 of the Code of Civil Procedure. , So, also, by section 2 of the Lien Law it is provided that “ The term 6 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), upon which the court below relied. That case, however, is clearly distinguishable, That also was an action to [616] 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 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.” (Laws of 1882, chap. 410, § 1813, as amd. by Laws of 1883, chap. 276.) 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 mechanics’ liens. In so holding special stress was laid upon the use of the word “any,” and it was clearly pointed out that the words “any other,”' were broader and more comprehensive than the word “other,” which is usually held to apply to things of a similar nature to those already described. (People v. Richards, 108 N. Y. 137, 150.) In the present statute we have the word “ another,” which is equivalent to “ other.” Furthermore it was quite immaterial in Danziger v.. Simonson whether or not a mortgage was ihcluded in the words “ any other lien ” as used in the statute, for in any case the defendant had lost his lien, because he had failed to file a notice of pendency of the action. It follows that the order appealed from must be reversed,' with ten dollars costs and disbursements to the appellants and the motion to confirm the report granted, with costs to the TwelftKWard Bank of the City of Hew York and John J. Dowling payable out of the fund. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with costs to appellants payable out of the fund.