
    MARRYATT v. RILEY.
    
      City Court of Brooklyn; Special Term,
    November, 1876.
    Again, General Term,
    April, 1877.
    Mechanics’ Lien.—Costs.
    Under the Kings and Queens counties mechanics’ lien law (L. 1862, p. 947, c. 478) a lien may be filed after the decease of the owner, who is also the one employing the contractor, and who dies after the commencement but before the completion of the work.
    An action to foreclose a mechanics’ lien is an action in rem.
    
    The provisions of 2 B. 8. p. 109, § 53 (3 R. S. 6th ed. p. 119), —which prohibit the bringing of any suits .against heirs or devisees of real estate in order to charge them with the debts of the testator or intestate within three years after the granting of letters testamentary or of administration,—and p. 116, § 18, subdiv. 1 (3 B. 3. 6th ed. p. 125),—which provides for payment of debts of decedents at any time after six months from granting of Said letters,—do not apply to mechanics’ liens.
    In a proceeding for foreclosure of a mechanics’ lien (under the Kings and Queens counties act, L. 1862, p. 950, c. 478, § 6), costs are in the discretion of the court.
    
    
      Where the foreclosure is against an executor or administrator, and the claim has not been unreasonably resisted or neglected, the court may properly refuse costs.
    Disbursements, however, may be allowed in such a case.
    I. November, 1876. Foreclosure of a mechanics’ lien.
    This action was brought by Frederick Marryatt and William Nelson, against Christiana Riley, wife of John Riley, Sophia Palmer, widow and administratrix of John Palmer, deceased.
    The plaintiffs rendered work and labor, and furnished materials on and about the erecting of a house on a lot of land owned by one John Palmer. ‘ The contract was entered into between plaintiffs and said John Palmer in February, 1876. John Palmer died in March, 1876, seized of the premises in question, and leaving his widow, Sophia Palmer, and Christiana Riley, a daughter his only hems at law.
    Mrs. Palmer was appointed administratrix in March, 1876. The contract was not completed till about May 1,1876, and on May 12,1876, the notice of lien was filed against the above named defendants, and also the said John Palmer.
    The complaint alleged that the work and materials were done and furnished in pursuance of a contract with said John Palmer and the defendants above named, but the evidence showed that the contract was made with John Palmer alone, and that the only connection which the defendants had therewith, was, after the death of John Palmer, to request the plaintiffs to go on and complete th'e contract.
    It appeared from the evidence that the whole contract price was $525, upon which there was paid by John Palmer in his life time, $300, leaving due on the contract $225, to which is to be added an item of extra work, 79 cents, making the total amount due, $225.79. It also appeared that work to the amount of about $150. was done after the death of Mr. Palmer.
    
      Rufus L. Scott, for the plaintiffs.
    
      James J. Rogers, for the defendants.
    McCue, J. [After stating the facts]—The lien law has not in express terms made provision where the owner has died before the completion of the contract and before the filing of the notice of lien, and we have not been able to find any reported cases which can be invoked as authority on this precise point. We are left, therefore, to dispose of the case in such manner as will give effect to the plain intent and scope of the lien law, which was intended, as its title indicates, for the better security of mechanics, laborers and others.
    The death of John Palmer did not release the plaintiffs from the obligations which they assumed when they entered into the contract, and they were bound to go on and perform the contract notwithstanding the death of one of the parties. And it follows that if they fulfill the contract on their part, they are entitled to all the privileges and securities which attached to the contract at the time they entered into it. The lien law then in force, and in view of which we have the right to presume the contract was entered into by all the parties, gave the plaintiffs the right to secure payment for their labor and materials by filing a notice of lien as prescribed in section 3 of the act. This notice conld not be filed until the contract had been performed, but could be filed at any time thereafter and within three months of the time of completion. So that from the time the contract was made and the performance of it was entered upon, the corresponding rights and privileges of the parties were fixed, and we do not think that the death of one of the parties can in any way change them.
    It follows, therefore, that the plaintiffs had a right to file this notice of lien.
    It is insisted, however, that the defendants were not parties to the contract, and that the action cannot lie against them, and also, that the action is in violation of the statute which prohibits the bringing of any suits against the heirs or devisees of real estate, in order to charge them with the debts of the testator or intestate, within three years from the granting of letters testamentary or of administration (See 3 R. S. 6th ed. p. 119).
    It is also urged that the plaintiffs must first seek payment out of the general estate of the deceased; and that to hold otherwise is in effect to give the plaintiffs a preference over other creditors of the deceased (3 R. S. 6th ed. p. 125. § 18, subdiv. 1).
    To this it may be answered:
    1st. No personal claim is made against the defendants. The proceeding is in rem.
    
    2nd. The provisions of the Revised Statutes above referred to, cannot be held to apply to the case under examination.
    The right to the lien was coextensive with the contract itself, requiring only that the conditions should be thereafter fulfilled which the law pointed out, viz., the completion of the work, and the filing of the notice within three months thereafter. After which the effect of the lien, to the extent of the right, title and interest of the' owner, was as. perfect as though the owner had, contemporaneously with the execution of the contract, executed a formal instrument to secure the money which was to grow due on the contract. In other words, the law has provided in this class of contracts a special security by way of lien upon the real estate improved, to the extent of securing the mechanic the value of his labor and materials.
    It is true that as between the heirs at law and next of kin, the personal estate is the primary fund for the payment of all debts • not' secured by mortgage, and it may well be that on the settlement of the estate, the heir at law will have a right to claim to be re-imbursed whatever amount she may be compelled to pay in order to relieve her inheritance from this lien. But this rule cannot operate to the extent of depriving the plaintiffs of the benefit of the law, which gave them security in a certain event, for the amount which they might expend in the improvement of the real estate in question.
    This doctrine is, I think, plainly recognized in Taylor v. Taylor (3 Bradford's Surrogate Reports, 54), referred to by defendant’s counsel. It does not appear when the liens were filed in the case cited; but it is a fair presumption that they were not filed until after the death of the intestate, because the report shows that at the time of his death, the intestate had made two payments only on the house, leaving a large payment unpaid, and which, by the terms of the contract, was not due until the house was fully completed. The contract was made in January, and the intestate died in the March following, thus giving rise, I think, to the inference, that at the time of his death the contract was not complete, and therefore the contractor could not have been in a position to file a notice of lien.
    
      Referring to the fact that the amounts due on the contract had been paid out of the proceeds of the sale of the real estate, the surrogate says : "They were paid out of the land sold in the first instance as a matter of necessity, for being liens, a good title could not be given to the purchaser without paying them.” The surrogate then discusses the ultimate fund out of which these debts were to be discharged, and concluding that the builder, although he had a lien upon the land, had also a right of action against the administratrix, concludes that ultimately the personal estate was bound to discharge these liabilities.
    But whether these liens were filed before or after the death of the intestate, would not, in my view of the law, make any difference. The special law which governs this class of contracts, gives a right to the lien for all moneys which grow due under the contract; and to hold that the death of one of the parties deprives the other of his security, is to introduce an element of insecurity totally inconsistent with the avowed intent of the law.
    I am of opinion, therefore, that the plaintiffs are entitled to enforce their lien and to have the usual decree in such cases, with costs. The decree may provide, if the defendant Riley elect, that the administratrix pay her out of the personal estate of the .intestate, whatever sums the said Riley may be compelled to pay to discharge the lien, and to defray the costs and expenses of this action as the same may be taxed and allowed to the plaintiffs.
    II. April, 1877. Appeal from order denying costs.
    The foregoing decision was afterwards modified as to costs upon a motion for an extra allowance. The motion was in the nature of an appeal from the taxation.
    
      Mr. Justice McCtns, before whom the motion was heard, delivered the following opinion:
    “The mechanics’ lien act provides that costs shall be allowed by the statutes in civil actions (Laws 1873, ch. 478, § 6).
    “ The Code gives costs in an action defended by an executor or administrator as in an action against a person defending in his own right; the costs are chargeable only upon the estate or fund unless the court shall direct the same to be paid personally by the defendant for mismanagement or bad faith in such defense. This section is not to be construed to allow suits against executor or administrator where they are now exempted by sec. 41, tit. 3, ch. 2 of the Revised Statutes.
    
    “Section 41, above referred to, declares that costs cannot be collected against executor or administrator to be levied on their property or of the property of the deceased, unless it appears that the demand has been presented within the time provided by law (six months) and payment has been unreasonably resisted or neglected, or there has been a refusal to refer; in which case the court may award costs against the property of the deceased, having reference to the facts as they appeared in the trial.
    “The contract was made in February, 1876. The owner died in March following, and the defendant Sophia Palmer was appointed administratrix in the same month; contract was completed about May 1, 1876, and on the 13th of the same month the lien was filed. This action was commenced on or about May 39, 1876.
    “The inventory of the decedent’s estate was filed on May 8, 1876, and as it therein appears the .personal estate amounted to $505.14; deducting therefrom the amount set apart by the statute for the widow, the net personal estate reached the sum of $355.14.
    “In. view thus of all the facts and circumstances of the case, I do not think that it can be said that the payment of the plaintiffs’ claim was unreasonably resisted or neglected; but it is a proper case for the exercise of the discretion vested in the court to deny the usual taxable costs. The plaintiffs, however, should have their proper disbursements.
    “ The decision heretofore made by me in respect to costs to be modified accordingly, and judgment should be entered only for the amount of the principal, interest and disbursements.”
    From this decision the plaintiffs appealed.
    
      Rufus L. Scott, for appellants.
    I. This case was disposed of as though it were against an executrix, without passing judgment as to the right of costs, independent of that fact; whereas the defendant Riley incurred costs in her individual capacity.
    II. The costs could not in any event be charged to the estate (Hallam v. Weed, 24 Barb. 546).
    III. The plaintiffs are entitled to costs as a matter of course (Code, § 304 ; Trust v. Pierson, 1 Hilt. 292 ; Kneeland's Lien Law, 82).
    IV. It is held that mortgages are excluded from the application of section 304 by the language of section 308, which implies the reverse as to lien suits (Gallagher v. Egan, 2 Sandf. 742).
    
      James J. Rogers, for respondents.
    
      
       See the Kings and Queens county act quoted'in the opinion.
      The provision for costs in the general act (L. 1873, p. 748, c. 489, § 18, amending L. 1854, p. 1090, c. 402, § 16) is as follows : “ Costs and disbursements shall be allowed to either party upon the principles and by the same rules in such actions as are now allowed by law in actions for relief arising on contract, and shall be included in the judgment recovered therein, and the expenses incurred in serving said notice by publication, may be allowed in justices’ courts, and added to the amount of costs now allowed in said courts. When the action is brought in the supreme court or in a county court, 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.”
      The Rensselaer county act (1 L. 1866, p. 15, c. 778 of 1865, § 15) prendes that, “ Costs and disbursements shall be allowed to either party upon the principles and by the same rules in such proceedings as they are now allowed by law in actions on contract, and shall be included in the judgment recovered; and the expenses incurred in serving said summons upon the owner by publication shall be allowed by the justice, or in the said justices’ court, and added to the amount of costs now allowed in justices’ courts.”
      The provisions on the subject in the Buffalo act (2 L. 1871, p. 1981,- c. 872, §§ 7 and 9), are that upon default of the owner, the clerk of the court may assess the amount due, and “judgment shall' be entered, establishing the amount of said lien, with the costs, and execution shall issue thereupon, ” and that on appeals in actions to enforce liens “shall be thereafter heard, governed and determined, upon the same principles and by the same rules, that appeals in said actions are now heard, governed and determined, with like costs and disbursements, and judgment thereon enforced in the same manner as judgments on appeals are now enforced and collected.”
      The New York city act (L. 1875, pp. 438, 439, 6. 379, §§ 13 and 19) in section 18, after providing that the owner may offer to pay a certain amount into court, &e., is as follows: “In case the offer be not accepted within ten days, and the plaintiff fails to recover any more favorable judgment against the property, he shall pay all costs in the action incurred by the owner from the time of the offer.”
      The following is section 19 of this act : “Costs in all actions under this act, except as provided in section thirteen, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or defendants, or any or either of them, as may be just.”
    
   Reynolds, J.

In this case the question arises whether, under the act passed April 24, 1862, providing for mechanics’ liens in Kings and Queens counties, the prevailing party, in an action brought to foreclose a lien, is entitled to costs as a matter of course.

Subdivision 4 of section 2 of said act provides, in broad and comprehensive terms, that the pleadings and practice in such actions shall be the same as in civil actions ; that costs shall be taxed and recovered pursuant to the “law, rules and practice in-such civil actions and that “such action shall be governed, and the judgment thereon enforced, in the same manner as upon issues joined and judgments rendered in all other such civil actions aforesaid;” and in section 6 it is more explicitly provided that “ costs shall be allowed npon the same principles and by the same rules in the action as they are now allowed by statute in civil actions aforesaid, and shall form a part of the judgment, except in cases where the amount of recovery is less than fifty dollars, no more costs than damages shall be allowed to the party recovering such judgment.”'

It is claimed that the language of the section last quoted imperatively requires the allowance of costs to the successful party. I do not so understand it. I think the plain intention was to put these actions upon the same ground as to costs, as if they had been embraced -by the Code. Costs in these actions are to be allowed “ upon the same principles ” as in other cases. Turning to the Code on the subject of costs, we find that in certain specified classes of actions, costs shall be given or withheld, according to the rules which are prescribed by section 306. In other actions costs may be allowed or not, in the discretion of the court.” Actions for the foreclosure of mechanics’ liens, are plainly not among the classes mentioned in section 304, and come within the designation, “other cases.” I tlrmk it follows that the allowance of costs, in an action under this statute, is in the discretion of the court. Any other construction of the statute would apply different “principles and rules” from those which govern other civil actions, and which would have governed this, if it had been in existence at the time of the adoption of the Code. The legislature, on the other hand, seem to have meant to place it on the same footing as if it had been originally embraced in that system. This conclusion is strengthened by reference' to section 13 of the act, which provides that the contractor or sub-contractor may be sued with the owner, and in case of recovery against the contractor or sub-contractor, in addition to judgment against the owner, the court may award costs against such of the parties as shall be just. The reasons given by the court in this case for the refusal of costs to the plaintiff, seem to have been sufficient, and we do not feel called npon to interfere with that disposition of the matter.

The order should be affirmed.

Neilsoh, Ch. J., concurred.  