Charles Schneider Co. v. Ætna Accident & Liability Co.

Scott, J.: The point involved is a very narrow one. The action is to foreclose a mechanic’s lien. Section 17 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) provides 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 * * * or unless an order he 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. * * The lien was filed April 1, 1913. The complaint alleges as follows as to its renewal: “XI. That heretofore and on the 31st day of March, 1914, by an order of this court, duly made, said lien was duly continued for a period of one year from the date of granting of said order, which order was duly entered on that day in the office of the Clerk of New York County and said Clerk being therein and thereby directed to redocket such lien as of the date of the granting of such order.” The point of the demurrer is that this paragraph does not, in terms, allege a redocketing, but merely the granting and entry of an order extending the lien. We think that the orders appealed from are too technical. The complaint alleges that the lien was “ duly continued,” and that the order continuing it was “duly entered” on March 31, 1914, in the office of the county clerk, and that he was therein and thereby directed to redocket it. This sufficiently [586] alleges the doing by plaintiff of all that it was required to do. The duty of redocketing rested upon the clerk and we are not to presume that he failed of his duty, and even if he had improperly omitted to redocket the-lien the lienor could not he made to suffer thereby. (Hurley v. Tucker, 128 App. Div. 580.) It may be that the plaintiff failed in some duty, such as paying the requisite fee, and thus prevented, the redocketing, but that does not appear on the face of the complaint, and if it be a fact it can be set up in the answer. This appears to have been what was done in Manton v. Brooklyn & Flatbush Realty Co. (160 App. Div. 783). At all events the point was not raised in that case by demurrer but upon the trial. The orders appealed from must he reversed, with ten dollars costs and disbursements to appellant, and the demurrers overruled, with ten dollars costs of each motion, with leave to defendants to withdraw the demurrers and to answer over within twenty days upon payment of all costs in the action. Ingeaham, P. J., Laughlin, Clabke and Dowling, JJ., concurred. Orders reversed, with ten dollars costs and disbursements, and motions denied, with ten dollars costs of each motion, with leave to defendants to withdraw demurrers and to answer on payment of costs.