AN ACT to amend the code of civil procedure, relating to the enforcement of mechanics' liens on real property and liens on vessels.

Became a law, May 13, 1897, with the approval of the Governor. Passed, a majority being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. The code of civil procedure is hereby amended by inserting in chapter twenty-two thereof, a new title to be known as title three, and to read as follows:

TITLE III.

PROCEEDINGS FOR THE ENFORCEMENT OF MECHANICS' LIENS ON REAL

PROPERTY.

Section 3398. Purpose of title; definitions.

3399. Enforcement of a mechanic's lien on real property.

3400. Enforcement of a lien under contracts for a public improve

ment.

3401. Action in a court of record; consolidation.

3402. Parties to action in a court of record.

3403. Equities of lienors to be determined.

3404. Action in a court not of record.

3405. When personal service can not be made.

3406. Proceedings on return of summons; judgment by defaults. 3407. Issue; how tried.

3408. Executions.

3409. Appeals from judgments in courts not of record.

3410. Transcripts of judgment in courts not of record.

3411. Cost and disbursements.

3412. Judgment in case of failure to establish lien.

3413. Offer to pay into court.

3414. Preference over contractors.

3415. Judgment may direct delivery of property in lieu of money.

3416. Judgment for deficiency.

3417. Discharge of mechanics' lien by order of court.

3418. Judgments in actions to foreclose liens on account of public

improvements.

3419. Judgment in action to foreclose a mechanic's lien on property

Section 3398. Purpose of title; definitions. This title is to be construed in connection with article one of the lien law, and provides proceedings for the enforcement of liens for labor performed and materials furnished in the improvement of real property, created by virtue of such article. The terms "real property," 99 66 lienor," owner," "improvement," "public improvement," "contractor," "sub-contractor," "material man" and "laborer," as used in this title, are defined by section one of such law. § 3399. Enforcement of a mechanic's lien on real property.—A_mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt.

§ 3400. Enforcement of a l'en under contract for a public improvement.A lien for labor done or materials furnished for a public improvement may be enforced against the funds of the municipal corporation for which such public improvement is constructed, to the extent prescribed in article one of the lien law, and against the contractor or sub-contractor liable for the debt, by a civil action, in the same court and in the same manner as a mechanic's lien on real property.

§ 3401. Action in a court of record; consolidation.-The provisions of this code, relating to actions for the foreclosure of a mortgage upon real property, and the sale and the distribution of the proceeds thereof apply to actions in a court of record, to enforce mechanics' liens on real property, except as otherwise provided in this title. If actions are brought by different lienors in a court of record, the court in which the first action was brought, may, upon its own motion, or upon the application of either party to either action, consolidate all of such actions.

§ 3402. Parties to an action in a court of record. In an action in a court of record the following are necessary parties defendant:

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, and

3. All persons appearing by the records in the office of the county clerk or register to be overseers of such property or any part thereof. Every defendant who is a lienor shall, by answer in the action, set forth his lien, or he will be deemed to have waived the same, unless the lien is admitted In the complaint, and not contested by another defendant. Two or more lienors having liens upon the same property or any part thereof, may join as plaintiffs.

§ 3403. Equities of lienors to be determined.-The court may adjust and determine the equities of all the parties to the action and the order of priority of different liens, and determine all issues raised by any defense or counterclaim in the action.

§ 3404. Action in a court not of record.-If an action to enforce a me

shall be commenced by the personal service upon the owner, anywhere within the state, of a summons and complaint verified in the same manner as a complaint in an action in a court of record. The complaint must set forth substantially the facts contained in the notice of lien, and the substance of the agreement under which the labor was performed or the materials were furnished. The form and contents of the summons shall be the same as provided by this code for the commencement of an action upon a contract in such court. The summons must be returnable not less than twelve nor more than twenty days after the date of the summons, or, if service is made by publication, after the day of the last publication of the summons. Service must be made at least eight days before the return day.

§ 3405. When personal service can not be made.-If personal service of the summons can not be made upon a defendant in an action in a court not of record, by reason of his absence from the state, or his concealment therein, such service may be made by leaving a copy thereof at his last place of residence and by publishing a copy of the summons once in each of three successive weeks in a newspaper in the city or county where the property is situated.

§ 3406. Proceedings on return of summons; judgment by default.-At the time and place specified in the summons for the return thereof, in a court not of record, issue must be joined, if both parties appear, by the defendant filing with the justice a verified answer, containing a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof; or any other matter constituting a defense to the lien or to the claim upon which it is founded. If the defendant fail to appear on the return-day, on proof by affidavit of the service of the summons and complaint, judgment may be rendered for the amount claimed, with costs.

§ 3407. Issue, how tried.-If issue is joined in such action in a court not of record, it must be tried in the same manner as other issues in such court, and judgment entered thereon, which shall be enforced, if for the plaintiff, in the manner provided in the following section. If for the defendant, in the same manner as in an action on contract in such court. § 3408. Executions.-Execution may be issued upon a judgment obtained in an action to enforce a mechanic's lien against real property in a court not of record, which shall direct the officer to sell the title and interest of the owner in the premises, upon which the lien set forth in the complaint existed at the time of filing the notice of lien.

§ 3409. Appeals from judgments in courts not of record.-An appeal may be taken from such judgment rendered in a court not of record, according to the provisions of this code regulating appeals from judgments in actions on contract in such courts.

§ 3410. Transcripts of judgment in courts not of record.-When a judgment is rendered in a court not of record, the justice or judge of the

of judgments therein, shall furnish the successful party a transcript thereof, which he may file with the clerk of the county with whom the notice of lien is filed. The filing of such transcript has the same effect as the filing of a transcript of any other judgment rendered in such courts.

§ 3411. Costs and disbursements.-If an action is brought to enforce a mechanic's lien against real property in a court of record, the costs and disbursements shall rest in the discretion of the court, and may be awarded to the prevailing party. The judgment rendered in such an action shall include the amount of such costs and specify to whom and by whom the costs are to be paid. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court. The expenses incurred in serving the summons by publication may be added to the amount of costs now allowed in such court.

§ 3412. Judgment in case of failure to establish lien.- If the 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.

§ 3413. Offer of payment.-At any time after an action is brought under the provisions of this title, the owner may make and file with the clerk with whom the notice of lien is filed, if in a court of record, and if in a court not of record, with the court, an offer to pay into court the sum of money stated therein, or to execute and deposit securities which he may describe, in discharge of the lien, and serve upon the plaintiff a copy of such offer. If a written acceptance of the offer is filed with such clerk, or court, within ten days after its service, and a copy of the acceptance is served upon the party making the offer, the court, upon proof of such offer and acceptance, may make an order, that on depositing with such clerk, or court, the sum so offered, or the securities described, the lien shall be discharged, and that the money or securities deposited shall take the place of the property upon which the lien existed, and shall be subject to the lien. If the offer is of money only, the court, on application and notice to the plaintiff may make such order, without the acceptance of the offer by the plaintiff. Money or securities deposited upon the acceptance of an offer pursuant to this section shall be held by the clerk or the court until the final determination of the action, including an appeal. § 3414. Preference over contractors.-When a laborer or a material man shall perform labor or furnish materials for an improvement of real property for which he is entitled to a mechanic's lien, the amount due to him shall be paid out of the proceeds of the sale of such property under any judgment rendered pursuant to this title, in the order of priority of his lien, before any part of such proceeds is paid to a contractor or subcontractor. If several notices of lien are filed for the same claim, as where the contractor has filed a notice of lien for the services of his workmen, and the workmen have also filed notices of lien, the judgment shall pro

entitled thereto in the order of priority. Payment voluntarily made upon any claim filed as a lien shall not impair or diminish the lien of any person except the person to whom the payment was made.

§ 3415. Judgment may direct delivery of property in lieu of money.-If the owner has agreed to deliver bills, notes, securities or other obligations or any other species of property, in payment of the debt upon which the lien is based, the judgment may direct that such substitute be delivered or deposited as the court may direct, and the property affected by the lien cannot be sold, by virtue of such judgment, except in default of the owner to so deliver or deposit within the time directed by the court.

§ 3416. Judgment for deficiency.-If upon the sale of the property under judgment in a court of record there is a deficiency of proceeds to pay the plaintiff's claim, judgment may be docketed for the deficiency against any person liable therefor, who shall be adjudged to pay the same in like manner and with like effect as in judgments for deficiency in foreclosure cases.

§ 3417. Discharge of mechanics' lien, by order of court.-A mechanic's lien on real property may be vacated and canceled by an order of a court of record. Before such order shall be granted a notice shall be served upon the lienor, either personally or by leaving it at his last-known place of residence, with a person of suitable age, with directions to deliver it to the lienor. Such notice shall require the lienor to commence an action to enforce the lien, within a time specified in the notice, not less than thirty days from the time of service, or show cause at a special term of a court of record, or at a county court, in a county in which the property is situated, at a time and place specified therein, why the notice of lien filed should not be vacated and canceled of record. Proof of such service and that the lienor has not commenced the action to foreclose such lien, as directed in the notice, shall be made by affidavit, at the time of applying for such order.

§ 3418. Judgments in actions to foreclose liens on account of public improvements.-If, in an action to enforce a lien on account of a public improvement, the court finds that the lien is established, it shall render judgment directing the municipal corporation to pay over to the lienors entitled thereto for work done or material furnished for such public improvement, and in such order of priority as the court may determine, to the extent of the sums found due the lienors from the contractors, so much of the funds or money which may be due from the state or municipal corporation to the contractor, as will satisfy such liens, with interest and costs, not exceeding the amount due to the contractor.

§ 3419. Judgment in actions to foreclose a mechanic's lien on property of a railroad corporation.-If the lien is for labor done or materials furnished for a railroad corporation, upon its land, or upon or for its track, rolling stock or the appurtenances of its railroad, the judgment shall not direct the sale of any of the real property described in the notice of the