
    HECKMANN v. PINKNEY.
    
      N. Y. Common Pleas;
    
    
      General Term, March, 1879.
    Mechanics’ Lien.—Construction of Statutes.—Repeal by Implication.
    The 1ST. Y. mechanics’ lien law of 1875 repeals that of 1868.
    A statute providing a new method of pursuing a remedy, impliedly repeals the whole of a former act, although particular clauses of the former act would be susceptible of application in connection with the later.
    
    Appeal from a judgment entered upon the report of a referee.
    The action was brought by Charles Heckmann, as sub-contractor, against John Pinkney, as owner, and W. J. Gressner, as contractor, to foreclose a mechanics’ lien for §619.12 upon premises No. 72 Fifth avenue, in the city of New York.
    The contract between Pinkney and Gressner was entered into June 15,1876, to make certain alterations and additions .to said premises within two months. The contractor employed the plaintiff to do the carpenter and joiner work. On September 2, 1876, and before he had finished his job, the latter filed a notice of lien upon the premises for the amount then due him for work done up to that time, and on the same day notified Pinkney of it, and informed him that he intended to stop working. But Pinkney requested him to continue and finish his work, which he did, and then, on September 18, 1876, discharged the aforesaid lien and filed a new notice of a lien for the whole amount of his work. On December 1,1876, and within ninety days after the filing of the lien, he duly commenced this action to foreclose it.
    On April 28, 1877, the cause was referred to a referee to hear, try and determine all the issues. He found that the element of time in the contract was waived, and that there was a balance of $1,000 due the contractor, G-essner, from Pinkney, the owner, at the time of the completion of the work and the commencement of this action.
    He also found at the request of the defendant that the lien had not been by order of the court continued, and a new docket made stating such fact; but refused to find that the lien ceased one year after it was filed.
    The referee having decided in favor of the plaintiff, the defendant, Pinkney, appealed from the judgment entered upon his report.
    
      James Emott {John M. Pinkney, attorney), for defendant, appellant.
    A party claiming a lien must bring himself strictly within the terms of the lien law (Mushlitt v. Silverman, 50 N. Y. 360 ; Benton v. Wickwire, 54 Id. 226 ; Grant v. Vandercook, 57 Barb. 165). The unsigned contract should have been admitted in evidence (Dutch v. Mead, 36 Super. Ct. [4 J. & S.] 427 ; affi’d in Ct. of App., 10 Alb. L. J. 336). There was not substantial performance, nor a waivqr of the terms of the contract (Green v. Haines, 1 Hilt. 254 ; Stewart v. Kittellas, 36 N. Y. 388); and there should have been a tender of performance (Nelson v. Plimpton Fire Ins. Co., 55 N. Y. 480); a substantial compliance not sufficient (Tompkins v. Dudley, 25 N. Y. 272). The law of 1875 neither expressly nor by implication repeals section 11 of L. 1863 (People v. Palmer, 52 N. Y. 83 ; Mongeon v. People, 55 Id. 613 ; Hawkins v. Mayor, &c. of N. Y., 64 Id. 18 ; Matter of Evergreens, 47 Id. 216 ; Davis v. Fairbain, 3 How. Pr. 636 ; Vandenbergh v. Village of Greenbush, 66 N. Y. 1). If the law of 1875 is held to entirely repeal the law of 1863, no lien for the value of any work or materials furnished can now be acquired, as L. 1875, c. 379, § 1, gives a lien merely for “ the work or labor done or materials furnished,” and not for the value of the same, as do L. 1863, c. 500, § 1 ; L. 1851, c. 573, § 1; L. 1869, c. 558, § 1 ; L. 1844, c. 305, § 1 ; L. 1854, c. 402, § 1.
    
      Q. K. Corliss {Alfred Erbe, attorney), for plaintiff, respondent.
    Workmen or material-men must file their claim within thirty days after it accrued (Gates v. Buddensick, page 367 of this vol.). The owner’s liability to pay upon a contingency was fixed from the moment the contract was made (Knapp v. Anderson, 72 N. Y. 466, affi’g 7 Hun, 295). The act of 1875 is not an amendment of the prior act, but repealed it in tolo. It does not require any refiling or renewal of the lien (L. 1875, c. 397, § 8). There was a waiver of the contractor’s failure to complete the work according to the contract (Wheeler v. Schofield, 67 N. Y. 311, 314 ; Gallagher v. Nicholls, 60 Id. 438, 448; Sinclair v. Tallmadge, 35 Barb. 602, 606). Substantial performance is sufficient to sustain the lien (Glacius v. Black, 67 N. Y. 563, 566, 567). The claim for unliquidated damages is inadmissible (Schuyler v. Hayward, 67 N. Y. 253, 258). The findings of fact by the referee are con-elusive (Rogers v. Wheeler, 52 N. Y. 262, 268 ; Sinclair v. Tallmadge, 35 Barb. 603).
    
      
       See, on this subject, Garnett v. Bradley, 39 Law Times Rep. N. S. 260.
      In general, repeal by implication is not favored (People ex rel. Kingsland v. Palmer, 52 N. Y. 83; Whipple v. Christian, 15 Hun, 321).
      A new statute as to acts hereafter done is not necessarily a repeal of old as to penalties, &c., then incurred (Mongeon v. People, 55 N. Y. 613; affi’g but overruling 2 Supm. Ct. [T. & C.] 128. Compare Richardson v. Pulver, 63 Barb. 67).
      Special local legislation is not necessarily repealed by implication by a general law prescribing a different rule (People v. Quigg, 59 N. Y. 83; Matter of Commissioners of Central Park, 50 Id. 493; Village of Deposit v. Vaile, 5 Hun, 310).
      On the question whether one act repeals another by implication, the priority is determined not by time of enactment but by time of taking effect. If an act is passed, not to take effect immediately, and after it is passed, but before it takes effect, another and inconsistent act is passed to take effect immediately, the later is repealed when the earlier goes into effect (Beckwith v. Whalen, 65 N. Y. 322; rev’g 5 Lans. 378).
    
   Larremore, J.

It is conceded that the plaintiff’s lien of September 2, 1876, was not renewed by an order of the court within the time prescribed by section 11 of the act of 1863. The first and most important question, therefore, is the consideration of the effect of the act of May 17, 1875, as a repealing statute. It is entitled “An act to define and limit the liens of contractors and others upon real estate in the city and county of New York, and to provide for enforcement thereof.” Though not in express terms repealing any former acts, it saves and reserves all rights accruing under them prior to July 1, 1875. From that date, it would appear to have been the intention of the legislature that the act of May 17, 1875, should and would afford a complete remedy for the rights of lienors within the city and county of New York. It was held by this court at special term (Robinson, J.), (Diossy v. Martin, March 16, 1876 ; Burbridge v. Marcy, March 5, 1878), that, by the ordinary rules of construction, the act of 1875, which engrossed the whole subject of mechanics’ and material-men’s liens, previously the subjects of prior statutes (except as therein reserved), superseded all previous legislation on the subject.

A noticeable feature of the new act (§§ 1, 2) is that' the validity of the lien is made to depend upon the extent of the owner’s liability for payment at the time of the filing of the lien, without regard to the fact of an amount then actually due the contractor by the owner. Thus, the lien attaches when the liability exists, subject to the contingencies provided for between the owner and contractor. By section 5 of the act of 1875, sub-contractors must file their claims within thirty days after the same have accrued. If no amount was then due, but subsequently became due to the contractor, is it a fair inference that the legislature intended to invalidate all such claims ?

The renewal of the lien required by section 11 of the act of 1863 was for the purpose of giving constructive notice of the continuance of the lien. This object is effected under section 8 of the act of 1875, by the commencement of an action to foreclose the lien, filing notice of lis pendens and an entry on the lien docket within the time prescribed.

We assent to the general proposition, that a repeal of statutes by implication is not favored (Mitchell v. Halsey, 15 Wend. 241 ; Bowen v. Lease, 5 Hill, 221; People v. Deming, 1 Hilt. 271; Cohoes v. Moran, 25 How. Pr. 385). That where both statutes can stand, there is no repeal (People v. Palmer, 52 N. Y. 83), the subsequent statute only operating as a repeal to the extent that the two are repugnant (Mongeon v. People, 55 N. Y. 613 ; Werner v. German Savings Bank, 2 Daly, 406). But although the subsequent statute be not repugnant in all its provisions to the prior one, yet where it is manifest that the recent act was clearly intended to prescribe the only rule in cases for which it provides, it repeals the earlier act (Dexter & Limerick Plank Road Co. v. Allen, 16 Barb. 15 ; Potter's Dwarris on Statutes, 115, 154-6 ; Vattel's Maxims, No. 40). We think this principle applicable to the act of May 17, 1875 (L. 1875, c. 379). A careful examination of its twenty-two sections discloses the fact that it affords a complete remedy for the very class of cases embraced within the act of 1863 (L. 1863, c. 500). It enters more into details than the older act, and incorporates provisions to meet the various exigencies that may arise in the enforcement. Whatever doubt heretofore existed as to the form of pleading and judgment, is specifically provided for in the recent act. As it provides a remedy for the same cases, and in a more detailed and extensive manner than the act of 1863, the inference is fair that it was the intention of legislature to repeal the statute last mentioned. The act of 1875 says to the plaintiff: “Fulfill my requirements, and your lien shall be continued.” He does so, follows the latest authority, and is met by an exaction of a former statute, which the one he followed utterly ignored. A consistent construction of the act in question requires that it should be held to be a repealing statute.

[Remarks on a question-of facts are omitted.]

The exceptions should be overruled, and judgment of affirmance ordered.

Daly, Ch. J.

(Concurring.)—I think that the design of the act of 1875 was to provide a complete remedy for the enforcement of mechanics’ liens, and to supersede the pre-existing statutory provisions upon that subject. It is entitled An act to define and limit the liens of contractors and others, and as it is more extensive and complete in its details than all the preceding acts put together, it appears to me- that the design and the effect of it is to substitute for the previous legislation one general system. As it does not, however, in terms, repeal any of the existing acts, their provisions would necessarily continue in force, under a familiar rule in the construction of statutes, except where their provisions are repugnant, or where it is evident that they were intended to be abrogated by new and different provisions. The act of 1863 (§ 11) provided that the lien should cease after one year, unless by order of court it was continued, and a new docket made stating the fact. The act of 1875 provides (§ 8) that it shall cease in ninety days, unless an action is commenced within that time to enforce it, and a notice is filed with the county clerk of the pend-ency of the action. This is a much more stringent and effectual provision, and was, I think, evidently intended as a substitute for the former one. It provides for the bringing of an action and the termination of the lien in a much shorter time, unless a notice is filed of the pendency of such an action. There is no occasion for a new docket, for the filing of the lis pendens, which the county clerk, by the same section, is required to enter on the lien docket, is notice to all who may be affected by the lien, and a much more effectual notice than stating upon the docket before the expiration of a year that the lien is continued by order of the court. Within ninety days from the filing of the lien all are notified who consult the docket that an action is pending for the enforcement of the lien, and can ascertain upon due inquiry whether judgment has been rendered for the enforcement of it or against the claimant, or whether, by order of the court, the action has been discontinued. The act makes no provision for what is to be done where judgment is rendered in the action, either of discontinuance, or for or against the claimant. It seems to assume that the filing and docketing of notice of the pendency of the action furnishes the necessary means of inquiry, and therefore provides only for the discharge of the lien in the cases specified in section 18.

Order affirmed.

Daly, Oh. J., and Van Brunt, J., concurred in opinion of Larremore, J. 
      
       The principle was not so fully discussed as in the case of Heckman v. Pinkney, in the text.
     
      
       For an extreme case of the application of this rule, see Lefevre v. Lefevre, 59 N. Y. 434, rev’g in part 2 Sup'm Ct. (T. & C.) 330.
     