Liens to

for one

year un

less within that time action is

⚫ed to en

force

§ 6. No lien provided for in this act shall bind the property therein bind only described, for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to enforce the same; and if the action is in a court of record, a notice of the pendency of such action is filed with the county clerk of the county commenc- in which such notice of lien is filed, containing the names of the parties to the action, the object of the action, and a description of the same, etc. premises affected thereby, and the time of filing the notice of lien. Or unless an order be made by a court of record continuing such lien, and a new docket be made stating such fact. And when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant, who is a claimant within the provisions of this act. The neglect to file the notice of pendency, provided for by this act, shall not abate any action which may be pending to enforce the lien, but such action may be prosecuted to judgment against the person or persons, firm or firms, corporation or association liable for the debt.

Claimant may enforce

action.

§ 7. Any claimant who has filed the notice of lien mentioned in the fourth section of this act, may enforce his claim against the property claim by therein mentioned, and against the person or persons, firm or firms, corporation or association, liable for the debt, by a civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a judgment in an action. founded upon a contract, for a sum equal to the amount of the lien. § 8. The manner and form of instituting and prosecuting any such of action, action to judgment, or an appeal from such judgment shall be the same evidence, as in actions for the foreclosure of mortgages upon real property, ex

Manner

and form

etc.

Action to foreclose

lien.

summons.

cept as herein otherwise provided. A certified copy of the notice of lien filed, as herein provided, shall be entitled to be read in evidence, with the same force and effect as if the original were provided, and such copy shall be prima facie evidence of the execution and filing of the original.

§ 9. An action to foreclose a lien, provided for in this act, may be brought in a court not of record, which would have jurisdiction to render a judgment in an action upon a contract for a sum equal to the amount of the lien, and shall be commenced by the personal service anywhere within this state, of a summons and a complaint verified according to the provisions of section five hundred and twenty-six of the Code of Civil Procedure, upon the owner or other person in interest as described heretofore in this act. The complaint must set forth substantially all the facts contained in the notice of lien filed with the clerk of the county as provided in section five of this act, and the substance of the contract. The form and contents of the summons shall be the same as prescribed by the Code of Civil Procedure for the commencement of an action in a court not of record. The summons must be returnable not less than twelve nor more than twenty days after the date when it is issued.

Service of § 10. When the summons in an action in a court not of record cannot be served personally on the owner or party in interest, by reason of absence from the state or concealment therein, such service may be made by leaving a copy of such summons at the last place of residence of such owner or person in interest, as aforesaid, and by publishing a copy of such summons for three weeks in succession in a newspaper published in the city or county where the property is situated. If the service of the summons is made by publication, the time when

said summons is returnable shall commence to run from the day of the last publication.

ings in
court on

summons.

§ 11. At the time and place specified in the summons for the return Proceedthereof, issue must be joined if both parties appear, by the owner or other person in interest filing with the justice an answer in writing return of verified as herein provided for verifying the complaint, and which may contain a general denial of each allegation of the complaint or a specific denial of one or more of the material allegations thereof; it may also set forth any legal or equitable defense or counter-claim to such complaint. If the owner or other party in interest fails to appear on the return day of the summons on proof by affidavit of the service of the summons and complaint, if personal service thereof be made, or if by publication or proof of the service of summons by advertisement, judgment may be entered for the amount claimed in the complaint with the costs; execution may thereupon be issued for the collection of said judgment and costs, the same as upon judgments in actions on contract in such courts, except that the execution shall direct the officer to sell the right, title and interest of the owner or other person in interest as aforesaid in the premises, upon which the claim set forth in the complaint was a lien at the time of filing the notice of lien prescribed in the fourth section of this act.

to be

tried.

§ 12. The issue joined as provided in the preceding section, must be Issue, how tried the same as other issues are tried in the respective courts in which the action is brought, and the judgment thereon be enforced; if for the claimant as provided in the preceding section, if for the owner or other person in interest it must be enforced the same as in actions arising on contracts in the respective courts.

§ 13. Appeals may be taken from such judgments rendered in courts Appeals. not of record, in the same manner and according to the same provisions provided by statute for appeals from judgments in actions in such courts arising on contract for the recovery of money only.

disburse

§ 14. Costs and disbursements, except in courts not of record, in Costs and which they shall be the same as allowed in civil actions in such courts, ments. shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defendants, or any or 43m 17. either of them as may be just and equitable except as provided in section nineteen of this act, and shall be included in the judgment recovered therein. The expenses incurred in serving the summons by publication may be allowed in courts not of record, and added to the amount of costs now allowed in said courts. When an action is brought in a court of record such direction shall be made in the discretion of the court, as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid.

establish

§ 15. Whenever in any action brought under the provisions of this If claimact, any claimant shall fail, for any reason, to establish a valid lien, he ant fail to may nevertheless recover therein judgment against the party or parties valid lien to the action for such sum or sums as may appear to be due to him, and which he might recover in an action upon a contract against the said amount party or parties.

he may
recover

due.

in other

§ 16. A transcript of every judgment rendered under and according Transto the provisions of this act headed "lien docket" shall be furnished cript of judgment, by the clerk of the county where rendered and docketed to the success-filing of, ful party who may file the same with the clerk of any other county, county, and if the judgment is for twenty-five dollars or upwards exclusive of etc. costs, the same shall thereafter be a lien on the real property in the

actions to

county where the same is filed and docketed of every person against whom the same is rendered, in like manner and to the same extent as in other actions for the recovery of money arising on contracts. When the action is tried and the judgment rendered in a court not of record, the justice of the court in which the action is tried, or other person authorized to furnish transcripts of judgments therein shall furnish the successful party a transcript thereof, who may file the same with the clerk of the county with whom the notice of lien is filed. The filing of such transcript shall have the same effect as the filing of transcripts of judgments rendered in such courts not of record. In all cases where the judgment is against the claimant or claimants the county clerk shall enter the word "discharged” under the last head in his lien docket. Parties to § 17. Any person or persons, firm or firms, corporation or association, foreclose filing a notice of lien, or the assignee of such person or persons, firm liens, etc. or firms, corporation or association, after the filing thereof, shall be the plaintiff in such action. The plaintiff must make the parties who have filed notice of liens against the property as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendant. And as to all persons, firms, corporations or associations against whom no personal claim is made the plaintiff may with the summons serve a notice stating briefly the object of the action, and that no personal claim is made against it or them. And all persons, firms, corporations or associations, who have filed notice of liens. under this act shall by answer in such action set forth the same, and the court in which the action is brought may settle and determine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims of all parties to the action and upon every counter-claim or set-off alleged therein, to the extent of their respective jurisdictions. The provisions in this section in regard to making parties who have filed notices of liens against the property as well as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendants shall not apply to proceedings to enforce liens instituted in courts not of record.

ants may

join in action.

All claim- § 18. Any persons, firms, corporations or associations claiming liens upon the same property may join in the same action, and when separate actions are commenced the court in which the first action was brought may, upon the application of the owner of the property, or of any part thereof, or of any party to either action, consolidate them. The provisions of this section shall not apply to actions commenced in courts not of record.

Offer to

pay amount

stated in

offer into

court, or

deposit

securities,

etc.

Sub-con

§ 19. At any time after an action is commenced, the owner or owners of the property affected, may, in writing, offer to pay into court any amount stated in the offer, or to execute and deposit any securities or papers which he may describe, in discharge of the lien or liens. If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that on executing and depositing with the clerk of the county the amount offered or the securities or papers described, the lien or liens be discharged and the moneys or securities deposited take the place of the property upon which such lien or liens was or were created, and shall be subject to the same. In case the offer shall not be accepted within ten days, and the plaintiff fails to recover any more favorable judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer.

§ 20. All persons, firms, corporations or associations entitled to liens, tractors. under the provisions of this act, except those who contracted with the

owner, shall be deemed sub-contractors, and the court in the judgment shall direct the amount due sub-contractors to be paid out of the proceeds of sales, before any part of such proceeds are paid to the contractor. In case of several buildings erected, altered or repaired under Priority. one contract and of conflicting liens, each lienor shall have priority upon the particular building or premises where his labor is performed or his material used. Persons standing in equal degree as co-laborers or various persons furnishing materials shall have priority according to the date of filing their liens. Where several notices of liens are filed for the same demand, as in case of a contractor including claims for workmen to whom he is indebted, and the lien by the workmen, the judgment shall provide for the proper payment, so that, under the liens filed, double payment shall not be required. And no payments voluntarily made upon any claim which has been filed as a lien shall impair the lien of any person except the lien of the person so paid to the amount of such payment.

§ 21. In every case in which different liens are asserted against Ibid. property, the court in the judgment must declare the priority of each lien, and the proceeds of the sale of the property must be applied to each lien in the order of its priority.

terms of

is to be

§ 22. Whenever, by the terms of his contract, the owner has stipu- When, by lated for the delivery of bills, notes or other obligations or securities, contract, or of any other species of property in lieu of money, the judgment may property direct that such substitute be delivered or deposited as the court may received direct, and the property affected by the liens can only be directed to in lieu of be sold in default of the owner to deliver said substitutes within judgment may disuch time as may be directed. rect deliv

money,

same, etc.

§ 23. Whenever, on the sale of property against which a notice of ery of lien is filed as provided in the fourth section of this act, there is a Judgment deficiency of proceeds, judgment may be docketed for the deficiency for def. against the persons, firms, corporations or associations named in the sale. judgment as personally liable therefor, and therein adjudged to pay the same in like manner and with like effect as in actions for the foreclosure of mortgages. The provisions of this section shall not apply to actions commenced in courts not of record.

§ 24. A lien may be discharged as follows:

Lien, how

1. By filing a certificate of the claimant or his successor in interest, discharg duly acknowledged or proved, stating that the lien is satisfied and may be discharged.

2. By depositing with the county clerk, if before the suit, of a sum of money equal to the amount claimed, with interest to the time of such deposit.

3. After the commencement of the action, by the deposit with the clerk of the county of such sum of money as in the judgment of the court, after due notice to all claimants or parties to the action, will be sufficient to pay any judgment which may be recovered against the property. In case the deposit of money is made with the county clerk as provided in subdivisions two and three of this section, the same shall be repaid by said clerk to the party making such deposit, or his assigns, upon the lien or liens being discharged by the claimants who have filed a notice or notices of lien or liens.

4. By the lapse of time. When one year has elapsed from the time of filing the notice of lien, and no action has been commenced either to enforce such claim or order of the court made continuing said lien, as provided in section six of this act.

5. By order of the court for neglect of the claimant to prosecute the Ibid.

Ibid.

Act, how

strued.

same, as hereinafter provided. The owner of the property or of any part thereof affected by any notice of lien filed under this act, or the person or persons, firms, corporations or associations against whom the claim is made, may, at any time after the filing of the notice of lien, serve a notice in writing upon the claimant or any one of several claimants united in interest, or by leaving such notice at his last known place of residence, with some person of suitable age, with direction to deliver the same, requiring said claimant to commence an action to enforce the claim within the time to be specified in the notice, which shall not be less than thirty days from the time of such service; or to show cause at a special term of any court of record, at which a motion might be made in an action to enforce the lien or at a county court of the county in which the property is situated, at a time to be specified in such notice, why the notice of lien filed should not be vacated and canceled of record. Thereupon, upon due proof of the service of said notice, and that no action has been commenced to enforce the claim, the court may make an order that the claim be vacated and canceled of record.

6. By the owner of the premises, person or persons, firm or firms, corporations or associations against whom or which the notice of lien is filed, executing with two or more sufficient sureties, who shall be freeholders, a bond to the clerk of the county where the premises are situated, in such sum as the court may direct, not less than the amount claimed in said notice, conditioned for the payment of any judgment which may be rendered against the property. The sureties on said bond must justify in at least double the sum named in said bond. A copy of said bond, with a notice that the sureties will justify before the court or a judge thereof, at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the court or a judge thereof.

§ 25. This act is hereby declared to be a remedial statute and is to to be con- be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien, or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same.

Laws re

pealed.

§ 26. Chapter one hundred and eighty-four of the laws of eighteen hundred and forty-six, chapter one hundred and sixty-nine of the laws of eighteen hundred and fifty-one, chapter three hundred and eightyfour of the laws of eighteen hundred and fifty-two, chapter four hundred and two of the laws of eighteen hundred and fifty-four, chapter six hundred and sixty-three of the laws of eighteen hundred and fiftyseven, chapter four hundred and seventy-eight of the laws of eighteen hundred and sixty-two, chapter five hundred of the laws of eighteen hundred and sixty-three, chapter three hundred and sixty-six of the laws of eighteen hundred and sixty-four, chapter seven hundred and seventy-eight of the laws of eighteen hundred and sixty-five, chapter five hundred and fifty-eight of the laws of eighteen hundred and sixtynine, chapter one hundred and ninety-four of the laws of eighteen hundred and seventy, chapter four hundred and eighty-nine of the laws of eighteen hundred and seventy-three, chapter five hundred. and fifty-one of the laws of eighteen hundred and seventy-four, chapter three hundred and seventy-nine of the laws of eighteen hundred and seventy-five, chapters one hundred and forty-three and four hundred and eighty-six of the laws of eighteen hundred and eighty,