
    BRINCKERHOFF against THE BOARD OF EDUCATION.
    
      New York Common Pleas ; General Term,
    
    
      June, 1869.
    Mechanics’ Lien.—Remedy against Municipal Corporation.—Exemption op Public Property prom Execution.—Board op Education.
    The fair construction of the mechanics’ lien law (Latos of 1851, ch. 513; 1855, ch. 404), allows the security contemplated by the law to be obtained, if the land and building could be sold to enforce a judgment in an ordinary civil action, but not otherwise.
    
      The act does not give a lien upon the property of a city corporation, devoted to public use, such as school buildings under the control of the Board of Education.
    The authorities establish the doctrine that, under an execution upon a judgment against a municipal corporation, the property of the corporation not devoted to public use may be taken and sold to satisfy the judgment; that if there is no such property, the remedy is by mandamus to compel the payment of the judgment out of any money or fund under the corporate control, or to compel the raising of it by tax, when the corporation is clothed with the power to impose a tax; and if it should not be, that then the creditor of the municipal government is placed in the same condition as are the creditors of the State or of the United States;—they have no compulsory remedy.
    Property which is exempt from seizure and sale under an execution, upon grounds of public necessity, must for the same reason be equally exempt from the operation of the lien law, unless it appers by the law itself that property of this description was meant to be included.
    Appeal from a judgment.
    This was a proceeding taken by Richard D. Brinckerhoff, plaintiff and appellant, against the Board of Education for the city and county of New York, and the school officers of the nineteenth ward, impleaded with the Mayor, &c., and others.
    The action was brought to foreclose a lien which plaintiff alleged he had acquired upon a public school house of the city, by filing a notice for materials, under the mechanics’ lien law relative to the city of New York.
    The contract under which the plaintiff was employed by a contractor, William Coulter, stipulated that the contractor would not suffer any lien to be put on the premises; and that the last payment should not be made until a certificate of the county clerk that no liens had been filed should be produced.
    The referee to whom the cause was referred found, as a conclusion of law, that no valid lien could be put upon the building in favor of the contractor or sub-contractor, on the grounds that a fund had been raised by taxation, and that the.contractor had waived his right to the lien by agreeing to receive payments by drafts on that fund.
    From a judgment entered on the report of the referee, the plaintiff appealed.
    
      Benjamin O. Ditchings, for the plaintiff, appellant.—
    I. The referee’s conclusion of law was erroneous. The provision for payment by drafts on the city chamberlain, signed and countersigned, was merely to prevent frauds in payments from the treasury, and did not waive the lien. The lien law extends to school .buildings (McMahon v. School Officers, 12 Abb. Pr., 129).
    II. The provision in the contract precluding payments when any lien is put upon the buildings, cannot avail the defendants to avoid thevstatute.
    III. This is not such a claim as is within the act of 1860, requiring demands against the city to be presented to the comptroller. And if it were, the objection is waived by not moving to dismiss the proceedings (Russel v. Mayor, &c., 1 Daly, 262).
    
      A. R. Lawrence, Jr., for the Board of Education, respondents.
    I. The plaintiff cannot have judgment, because, by the terms of the contract, the defendants are not yet actually liable to the contractor (Cunningham v. Jones, 3 E. D. Smith, 651; Pendleburgh v. Mead, 1 Id., 728 ; Spaulding v. King, Id., 717; Doughty v. Devlin, Id., 626 ; Cronk v. Whittaker, Id., 647 ; Nolan v. Gardner, 4 Id., 727).
    II. The building, being public property, is not subject to the law (Darlington v. Mayor, &c., 31 N. Y., 164).
    
      III. The plaintiff cannot recover, because he did not present his claim to the comptroller according to the Laws of 1860, 645.
    IV. The provision in the agreement that the contractor was to receive payment in drafts signed and countersigned, and the raising of a fund by taxation for payment precludes an action (Baker v. City of Utica, 19 N. Y., 326).
    
    
      
       In Graff against Rosenbergd: (New York Common Pleas ; Special Term, August, 1869), it was Held, that one who is made a defendant in an action to foreclose a mechanics’ lieu in which all the equities of the parties might be passed upon, need not file a lien to protect a claim of his own on the same premises and arising out of the same transaction; and if he does, the two actions will not be consolidated, but the second may be dismissed on the motion of the owner.
      O’Donnell filed a lien against the defendant Rosenbergh, and commenced an action to foreclose the same, making Graff a party thereto, who had filed a lien previous to the commencement of the action. Graff, whose claim arose out of the same transaction, and was against the same property, commenced a second action in this court to foreclose his own lien.
      
        D. M. Porter, for the defendant Rosenbergh;—Moved to consolidate the two actions, on the ground that the causes of action might properly be joined in one; that the investigation of the one would involve that of the other, and the defense and the questions that would arise were substantially the same.
      
        Pianagan & Gross, for the plaintiff O’Donnell;-—Insisted that the rights of the parties could be determined in the action by O'Donnell.
      
        Comstock Brothers, for the defendant Graff.
      Brady, J.— The complaint and summons in this case are set aside and dismissed, but without prejudice to the plaintiff’s rights, he having been made a defendant in the action by O’Donnell. It is not necessary to consolídate these actions, inasmuch as all the equities of the parties are to be passed upon, and the plaintiff can be protected in the O’Donnell action as well as in this. Tie was made a defendant in that action, and therefore should not have commenced this; but the defendant (the owner), if he desired costs, should have moved earlier; his laches in that respect has increased the costs, and he cannot take advantage of his own wrong or delay.
      Ordered accordingly.
    
   By the Court. Daly, F. J.

I expressed the opinion in McMahon y. Tenth Ward School Officers, &c. (12 Abb. Pr., 129), that a party who performed work towards the erection of a public school house in the city of New York, had a lien upon the building, which could be enforced under the acts for the better security of mechanics and others erecting buildings, or furnishing materials therefor, in this city (Laws of 1851, ch. 513; Laws of 1855, ch. 404). But the point was not taken in the case, nor necessarily involved, as the judgment was reversable upon other grounds. Assuming that a lien could be acquired, in the notice of lien tiled in that case, the Board of School Officers, the Board of Education, the Mayor, Aldermen and Commonalty of the city were alleged to be the owners of the school house, and the notice to foreclose it was served upon each of these bodies. At the hearing the referee dismissed the complaint, upon the ground that the Mayor, Aldermen, &c., were the owners of the building ; that the contract was made with the Board of School Officers and with the Board of Education, who were not the owners nor the agents of the owner's, and that consequently there was no contract with the owner of the building, in pursuance of which the plaintiff, who was a sub-contractor, could acquire any lien. The point to be determined, therefore, was, assnming that a lien could be acquired, whether the referee was right in holding that the notice was defective in alleging that the Board of School Officers and the Board of Education were, in conjunction with the Mayor, Aldermen, &c., the owners. This, as the case came before us, was the only question presented, and, in conformity with a previous adjudication of this court, affirmed hy the court of appeals, in Loonie v. Hogan (9 N. Y. [5 Seld.], 440), to the effect that the one for whom the building is erected, and who is to pay for it, though he has not the legal title, but only an equitable interest in the land, is the owner, we held that these three bodies, having distributed between them all the rights and powers which the owners of such a building could possess, were, for the purposes of the lien law, to be deemed collectively the owners. I, individually, was of the opinion that they were within the equitable design of the lien law. My colleagues, Judges Beady and Hilton, gave no opinion; they simply concurred in reversing the judgment ; and my own opinion upon the point stated was expressed without the examination which I have given it now that it is distinctly raised, and must be passed upon. It is sufficient, therefore, to say that we are not, under the rule of stare decisis, precluded by anything decided in McMahon v. The School Officers, from considering and deciding whether, under the statute, a lien can be acquired for work done, or materials furnished towards the erection of a public school house, erected in accordance with the provisions of certain laws of the State relating to this city, and which is devoted by these laws to a public use (Laws of 1851, 749, §§ 28, 10, 25, 27; Laws of 1853, 635, §§ 14. 2, 11; Laws of 1854, 241, § 10).

Since the decision in the case of McMahon v. The School Officers, &c., the court of appeals, in Darlington v. Mayor, &c. (31 N. Y., 164), have considered the question how far a judgment against the city can be enforced by a levy upon and sale of property belonging to, or held in trust by it, as a municipal corporation. Chief Justice Denio, by whom the opinion of a majority of the court was delivered, held that a municipal, equally with a private corporation, may have its property taken in execution, if payment of a judgment is not otherwise made ; but he distinguishes as exempt from the exercise of this right, such estate, real or personal, as may by law, or by authorized acts of the City government, be devoted to public use, such as the public edifices, or their furniture, or ornaments, or the public parks, or grounds, or such as may be legally pledged for the payment of its debts. These, he holds, cannot be seized to satisfy a judgment, as these structures are public property devoted to specific public uses, in the same sense as similar structures are, in use by the State government; and,, though this is a distinction which appears to have been, taken for the first time, it is one that, when the purposes for which municipal corporations existing are created,, are considered, commends itself as founded in public-, necessity.

It is said, in Cuddon v. Eastwick (1 Salk., 193 ; Holt, 433 ; 6 Mod., 123), that a municipal corporation is properly an investing of the people of the place with the local government thereof. Chancellor Kent applies to such bodies the characteristic appellation of “local republics,” and says more particularly afterwards, “Theyare created by the government for particular purposes, as counties, cities, towns, and villages; they are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good, and such powers are subject to the control of the people of the-State” (2 Kent's Com., 304). To which it may be added, that they are allowed, as has been repeatedly said, to assume some of the duties of the State, and enjoy property and power for that purpose, as auxiliaries of the government and trustees for the people. (McKim v. Odo, 3 Bland Ch., 417; Angell & A. on Corp., Introduction, § 18 ; Darlington v. Mayor, etc).

Municipal corporations came into use in- England in the form of boroughs, through an arrangement by which certain managers of the local community undertook to pay the yearly rent or sum due to the superior or sovereign, in consideration of which they were permitted to levy the old duties, and were responsible for the funds committed to their care. This privilege of farming, their tolls or duties was afterwards confirmed to them "by acts of incorporation embracing other privileges, either gradually acquired or long enjoyed in places where the Romans had introduced the municipia, or cities enjoying the local right of self-government {Thompson's Essay on Municipal History, 10, 11, 12; Palgrave' s Anglo-Saxons, 6, 11; Millar’s English Government, 340 ; Angell & A. on Corp., §§ 16, 18, 21).

Having thus the right to collect duties, and being responsible for the funds coming into their hands, it came to be recognized, very naturally, that they might on the one hand, sue to enforce the payment of duties, and, on the other, be themselves sued to compel them to discharge the obligations they had assumed. As their municipal authority and. duties gradually increased, the power to bring actions, and their liability at the suit of others, was both increased and varied. Actions by and against them are to be found as early as the Year Books, and the power was generally conferred specifically in the acts of incorporation; but the works of authority are barren of exact information as to the manner in which judgments against them were enforced, which may have arisen from the fact that they rarely refused to pay a judgment when recovered against them, and were always able, from the nature of their powers, to procure the means to discharge it.

In Rex v. Gardiner {Cowp., 79), Justice Astow says: “ As to the remedy of levying a duty upon a corporation, the books all agree that it may be levied, but they differ as t© the mode.” But he was speaking only to the question whether a private corporation—that is, a college—could be rated for the support of the poor of a parish. It is probable that a municipal corporation might, as was held in the case of private and trading corporations, be compelled to appear, or obey decrees for the payment of money after execution issued by the common law process ■ of distringas, under which the lands and goods of the corporation could be distrained, and, in the event of non-compliance, sequestrated (Master and Wardens of the Company of Wax Chandlers, Skin., 27 ; Curson v. African Co., Id., 84 ; 1 Vern., 121; Harvey v. East India Co., 2 Id., 395 ; Precs. in Chy., 129 ; Hamborough Co. of Merchant Adventurers, Cases in Ch., 204).

The right, however, to recover a judgment against them, would necessarily carry with it the right to eniL.'ce the payment of it. But the mode of enforcing it, so far as I have been able to find, is by no means clearly indicated.

Rolle, Ch. J., in the case of the Town of Colchester, Styles, 267, says; “ If a sum of money be to be levied upon a corporation, it may be levied upon the mayor, or upon any person being a member of the corporation.” And in another case, in Styles, 366, the court ordered a distringas to levy a fine of twenty ponnds, imposed after indictment, upon the inhabitants of a parish, for not keeping a bridge in repair. But I do not find in the early abridgments of Fitzherbert, Brookes, or Sheppard, nor in that great repository of the common law adjudications, Vinef s Abridgment, nor in the English treatises which I have examined, anything to indicate that judgments against municipal corporations ever were, or could be enforced by the seizure and sale of buildings or other property of the corporation devoted to public objects, such as jails, poor houses, markets, court houses, and other structures necessary in the local government of the place, and indispensable to enable a municipal corporation to carry out the purpose for which it is created.

There are three cases of comparatively recent origin, all relating to the borough of Poole, a small seaport town in the south of England, in which, or in one of which, vthis right appears to have been recognized ; but the point was not involved, and it is apparent from the report of each case, that in no one of them was the question examined, or so deliberately considered or passed upon as to entitle it to the weight of an adjudication upon this point. This will appear from a very brief statement of these cases.

In the year 1837, the Mayor, Aldermen, and Burgesses of the Borough of Poole, "being indebted to their town clerk for his services, gave him their bond for £4,500 payable in installments. The first two installments remaining unpaid, he obtained a peremptory mandamus to compel the corporation to enforce payment out of the existing borough rates, or to collect another rate to pay the two installments, which the corporation having failed to do, he applied for an attachment, which was refused. It appears to have been conceded, from the report of the case, that a mandamus would lie to compel the corporation to levy a tax, if there were no other means of enforcing the payment of the debt; but the attachment was denied, because by the 5th and 6th of Wra. 4, ch. 76, the employees of a municipal corporation are to be paid out of the borough fund, and not out of that portion of it which consists of rates, while the mandamus obtained required the corporation to pay out of the existing or any future rates, thus specifying the means by which payment was to be obtained, and leaving the corporation no option to resort to any other, there being no allegation in the mandamus that the corporation had no other fund from which payment might be made (Regina v. Ledgard, 1 Adol. & El. N. S., 616).

The town clerk afterwards obtained a judgment against the corporation upon the bond, and sued out an elegit, or process under which the lands of the defendant in a judgment may be given into the possession of the plaintiff, and held until the judgment is satisfied out of the rents and profits of the land, or it is paid by the defendant, when the land is restored to him. He sought under the elegit to obtain possession of the town hall and markets, with the view, I suppose, of having the tolls of the latter applied to the payment of the judgment, but being unable to get possession, he brought ejectment. The corporation applied to defend, without confessing that they were in possession, upon the ground that their property, under the 5 th and 6th Wm. 4, ch. 76, was applicable to public purposes only, and could not be taken upon execution. The court refused the application, upon the ground that the corporation would not be prejudiced in such a defense, whether it was available or not, by admitting possession ; Lord Denham, O. J., declaring, however, that the court did not wish to be understood as giving any countenance to the supposition that the corporate property, although directed by the statute to be applied to public purposes, and not to the private benefit of the members of the corporation, was protected from the lawful claims of persons having demands upon the corporation (Doe ex dem. Parr v. Roe, 1 Adol. & El. N. S. 700).

This was expressing a very decided opinion upon the point, but it is apparent, as I have said, that the question was not examined or so deliberately considered as to give to the case much weight, especially when, as will be shown hereafter, there has been an express adjudication in this country to the contrary.

In 1843, the corporation leased their market house, with the customs and tolls, to one Whitt, for the period of three years, at an annual rent, subj ect to two mortgages, which had been given in 1822. The town clerk having sued out his elegit before the lease was given, called upon Whitt to pay rent to him or that he would turn him out, which Whitt did, and attorned to the town clerk without the privity of the corporation. The corporation having sued Whitt for the rent due upon the lease, he set up his eviction by the town clerk, and the possession of the town clerk upon his elegit; but the corporation recovered the rent,- the court holding that the right of immediate possession was in the mortgagees, and that the town clerk could not enter nor acquire any title under his elegit, the corporation having nothing to which the elegit could apply, except the legal right to the reversion, which was a very remote one, the mortgages being given for one thousand years (Mayor, &c. of Poole v. Whitt, 15 Mees. & W., 571).

In the last case, no question appears to have been raised, either by the counsel or the court, as to whether the town clerk would, or would not, have had the right to take possession of the market under an elegit, if there had been no mortgage—which is the only aspect in which the case has any bearing, and it is not to be regarded as of weight upon a point not inquired into, the more especially as it would seem from the decision of the cases, that the town clerk could be paid only out of the borough fund (Queen v. Ledgard, supra), and that his proper remedy was to compel it by mandamus (Queen v. Mayor of Stamford, 6 Adol. & El. N. S., 433; Jones v. Mayor, &c. of Carmarthen, 8 Mees. & W., 605; Tapping on Mandamus, 93; Wilcox on Municipal Corp., 356).

Chancellor Kent, in declaring that municipal corporations can sue and be sued, remarks that the judicial reports of this country abound with cases of suits against towns in their corporate capacity for debts and breaches of duty, for which they are responsible ; but he says nothing as to the mode in which judgments against them in such actions can be enforced (2 Kent, 275, 4 ed.); and the question is one upon which the authorities in this country are by no means agreed, for in some instances it has been held that their property cannot be taken on execution issued upon a judgment against them (Chicago v. Halsey, 25 Ill., 595); while in others it has been held that it can, or the right to take it has been impliedly recognized (Crafts v. Elliottville, 47 Me., 141; Darlington v. Mayor, supra).

In the first of these cases (Chicago y. Halsey, 25 III., 595), it was held by the supreme court of Illinois, that upon a judgment against a municipal corporation the corporate property cannot be seized and sold under execution ; that the proper remedy is a mandamus to compel a levy of taxes sufficient to enable the corporation to pay the judgiñent. The superior court of Chicago having refused to set aside an execution issued upon a judgment against the city, the supreme court of the titate, upon appeal, reversed the decision of the court below, and directed it to enter an order quashing the execution.

“ It is true,” says Beeese, J., “ that by the charter of the city it can sue and be sued, but it is not an inference that, if sued, and a judgment passes against it, an ordinary writ of fieri facias can issue under which its corporate property can be seized and sold. Nor is there any necessity for such a writ. On a debt being ascertained Tby judgment against a city, and a refusal to pay it, a mandamus can issue to compel payment, or to compel a levy of taxes sufficient to discharge the judgment ;” closing with the remark, “We decide this on principle.”

It may be collected, as the result of this examination, that, under an execution upon a judgment against a municipal corporation, the property of the corporation not devoted to public use, may be taken and sold to satisfy the judgment; that if there is no such property, the remedy is by mandamus, to compel the payment of the judgment out of any money or fund"under the corporate control, or to compel the raising of it by tax, when the corporation is clothed with the power to impose a tax ; and if it should not be, that then the creditor of the municipal government^ is placed in the same condition as are the creditors of the State, or of the United States.

Property which is exempt from seizure and sale under an execution, upon grounds of public necessity, must for the same reason, be equally exempt from the operation of the lien law, unless it appears by the law itself, that property of this description was meant to be included.

There is nothing in the lien law that would warrant this inference. A lien is given by the act for labor performed, or materials furnished on the building, altering, or repairing of any house or other building, upon the building and the lot of land upon which it stands, to the extent of the right, title, and interest of the owner at the time when notice of the claim was filed and served. The object of the act was to give mechanics and material-men a security for the ultimate enforcement of their claim, "by making it, from the time that notice of it as approved is given, a lien or incumbrance upon the property benefited. Where the lien thus attaches, either party may bring the claim to a final determination, and if anything is ascertained to be due to the claimant, judgment is entered for the amount of it, which judgment ínay be satisfied by the sale of all the right, title, and interest which the owner had to the property when the notice of the claim was filed and served.

When judgment is recovered in a court of record, it is a lien upon the real estate of the defendant, from the time when the lien is docketed ; and when recovered in courts not of record, it becomes a lien upon the filing of the judgment in the office of the county clerk. In these cases, it is enforced as a lien only from the time of the docketing of the judgment or the filing of the transcript; but the judgment obtained by foreclosure under the lien law may be enforced as a lien against the particular property from the time of the filing and "service of notice of the claim, and that constitutes the particular benefit which it was the design of the act to confer upon the laborer or material-man, and is the advantage which it gives him, over ordinary creditors, as a security for the payment of the judgment he may ultimately obtain. With this exception, the judgment he obtains is, by the express language of the act, “to be enforced in all respects in the same manner as judgment rendered in all other civil actions for the payment of moneys” {Laws qf 1851, 955, § 8). And if judgments recovered in other actions cannot be enforced against a certain kind of property, for the reason that it is exempt from1 seizure and sale upon grounds of public necessity, neither can a judgment under the lien law, which is a mere foreclosure of a security obtained by the filing and service of notice of a claim (Cronkright v. Thomson, 1 E. D. Smith, 661 ; Nott's New York Lien Law, 63). And no such security can be obtained upon property which, for reasons of public necessity, cannot be taken and sold to satisfy judgments obtained in ordinary civil actions.

I think the fair construction of the lien law is, that the security contemplated by the law niay be obtained upon the building upon which the labor was bestowed or materials furnished, and upon the lot of land upon ' which the building stands, if the land and building could be sold to enforce a judgment in an ordinary civil action, but not otherwise;—that we are not justified in holding that the legislature meant that this particular kind of creditor should have a lien upon public edifices and the right to sell them to satisfy his claim, unless the legislature has expressly said so. The reason which exempts such structures, upon the grounds of public necessity, applies as forcibly in his case, as in that of any other judgment creditor, and if all other judgment creditors are precluded from the exercise of such a right, he must be considered precluded also, in the absence of any provision that would warrant us in holding that the legislature designed that his case should be an exception to the operation of a general rule, having its foundation in public necessity.

The erecting' and maintaining of school houses in this city for public education, is imposed as a duty upon the city by statute. Their education, maintenance, and government is regulated by numerous statutory provisions. They are by law devoted to a public use, and therefore come within the operation of the rule above considered.

Brady, J., concurred.

Barrett, J., dissented.

Judgment affirmed.  