
    The Deane Steam Pump Company, Plaintiff, v. Nathan E. Clark, Appellant, Impleaded with Hobart D. Betts, as Assignee, etc., of The Armstrong & Bolton Company, Respondent, and Henry Oppenheimer, Defendant.
    
      Foreclosure of a mechanic?s lien —when an adjudication of an equitable lien and a personal judgment in favor of a defendant will not be sustained — when a personal judgment is recoverable under section 3412 of the Code of Civil P-ocedure.
    
    In an action to foreclose a mechanic’s lién, in. which none of the parties succeeds in establishing a valid lien, the court has no power, under section 3412 of the Code of Civil Procedure, to render a judgment establishing an equitable lien in favor of a defendant contractor for a part of his claim and to award him a personal judgment against the owner for the entire amount of his claim without decreeing the énforcement of the lien in the first instance where such defendant did not file a mechanic’s lien, nor demand in his answer a personal judgment against the owner.
    
      
      Quwre, whether under section 8412 of the Code of Civil Procedure the right to recover a personal judgment in an action to foreclose a mechanic’s lien, in the event of "the lien being declared void, is not limited to parties who have filed mechanics’ liens and demanded the enforcement thereof.
    Appeal by the defendant, Nathan E. Clark, from a judgment of the Supreme Court in favor of the defendant Hobart D. Betts, as assignee, etc., of The Armstrong & Bolton Company, entered in the office of the clerk of the county of New York on the 28th day of November, 1902, upon the decision of the court rendered after a trial at the New York Special Term, except in so far as said judgment dismisses the complaint against the defendant Clark and awards judgment in favor of the plaintiff against The .Armstrong & Bolton Company.
    
      Josiah Canter, for the appellant.
    
      George Whitefield Betts, Jr., for the respondent.
   Laughlin, J.:

This is an action, to foreclose a mechanic’s lien. The defendant Clark contracted with Foskett, Bishop & Co. to furnish and install a steam heating apparatus in apartment houses on premises owned by him. Pending performance of the contract it was assigned to the Armstrong & Bolton Company. The plaintiff, at the instancó and request of the Armstrong & Bolton Company, furnished and installed certain steam pumps in connection with the contract work and filed a lien therefor. The lien was acknowledged but not veri* fied and for this reason was adjudged to be void, but the plaintiff was awarded a personal judgment against the assignee of the contract and it has not appealed. The assignee of the contract made an assignment to one Ripley for the benefit of its creditors. He died and respondent Betts was appointed assignee in his place. The answer of the former assignee for the benefit of creditors, which was permitted to stand as the answer of his successor, alleged the per* formance of the contract work by the insolvent company and its assignor, except certain bronzing of radiators for which a reduction of $100 was agreed upon; that by the express terms of the contract the owner gave the contractor a lien upon the premises for the contract price of the work; that in connection with the work covered "by the contract certain extra work of the value of $1,114.90 was performed; that this extra work embraced the furnishing of an electric pump, being the pump mentioned in the complaint,” and after alleging part payment the prayer for relief was “ that it be adjudged that there is due to this defendant' from the' defendant Nathan E-: Clark ” the sum of $1,014.90 with interest from October 1, 1900,..and that the defendant have a lien therefor upon the prendases, or, in the alternative, that plaintiff’s lien be ascertained and enforced and from the proceeds of the sale the assignee be paid 4‘the amount of plaintiff’s claim.”

•' The answer of the appellant, the owner, alleges, among other things, payment in full; that the mateidals furnished were not of the character and quality agreed upon and not of the value charged and ■ paid for by him, but were of an inferior quality; that owing to the failure of the.insol vent company and its assignor to. perform the contract according to its terms he sustained damages in the sum of $1,000 and demands judgment that the complaint be dismissed ; that the lien filed by the plaintiff be discharged and canceled; .that he is hot indebted tó the assignee for the benefit of creditors and that it be adjudged “what, if any, amounts are due this defendant from the Foskett & Bishop Company or the defendant The Armstrong ■& Bolton Company, or the defendant David M. Ripley, as assignee for the benefit of creditors,” and that this defendant have judgment for such .'amount when the same is ascertained.

The judgment following the decision ' cancels the plaintiff’s lien and adjudges that the defendant Betts, as such assignee, lias a lien upon the premises by virtue of the contract for $104 and interest from the 1st day of October, 1900, for work, labor and services performed and materials furnished and that he may apply to the court for any further order for the enforcing of said lien,” with inter- ■ est and costs, as lie shall be hereafter advised,” and awards a personal judgment in favor' of Betts, as such assignee, against the appellant for the sum of $922.92, with interest thereon from the 1st day of October, 1900, and recites that this includes the amount ■ of said lien.

It thus appears that no valid mechanic’s lien was established in favor of any party and that the judgment establishes an equitable lien in favor of Betts, as assignee, for part of his claim and awards personal judgment for the entire amount of his claim against the owner without decreeing the enforcement of the lien in the first instance. This the appellant contends could not be done. The record does not disclose which of these answers was interposed first or whether the answer of either defendant was served upon the other. The decision and judgment were apparently made on the theory that the pumps furnished by the plaintiff were not covered by the contract, but constituted extra work and that the contract lien did not extend to the extra work performed by the contractor.

The vice-president and treasurer of the Armstrong & Bolton Company was sworn as a witness for the plaintiff,'and after proving the original contract which was received in evidence under the objection and exception of the owner, and testifying in substance that it did not embrace the wmrk for which the lien was filed, was asked what took place between him and the owner with reference to furnishing, pumps. This was objected to by counsel for the owner upon the ground that it was incompetent, irrelevant, immai ferial and “ on the ground the court has no jurisdiction under any such claim.” When" counsel for the assignee Betts, at the suggestion of the court, was proceeding to examine a witness for the purpose of establishing the facts interposed by the answer of his client, counsel for the appellant objected upon the ground, among others, that the court was without jurisdiction, inasmuch as no valid statutory lien had been filed; that the owner was not a party to the contract between the contractor and the plaintiff and, there being no valid lien, no judgment could be awarded against him and further, in substance, that no personal judgment against the appellant was demanded by the assignee for the benefit of creditors who confined his demand to a lien and judgment for the enforcement thereof. The court overruled the objections and counsel for the appellant excepted. The assignee for the benefit of creditors was then permitted to show the facts upon which he has recovered a personal judgment against the appellant. This, we think, was error. Except for the provisions of section 3412 of the Code of Civil Procedure a personal judgment for damages could not be recovered by ■either party against the other in an action to foreclose a mechanic’s lien unless a valid lien was established. ( Weyer v. Beach, 79 N. Y. 409 ; Burroughs v. Tostevan, 75 id. 567; McDonald v. Mayor, 58 App. Div. 75.) It has been recently held by this court that, by virtue of. the provisions of that section, a personal, judgment may be ■recovered, notwithstanding'that the lien may be declared void ; and ■we have suggested methods by which the constitutional rights of the .parties to a jury trial in that event may be preserved. (Hawkins v. Mapes-Reeve Construction Co., 82 App. Div. 72.) It may. be, however, that this right, to recover a personal judgment where the lien is void is limited to parties who have filed a mechanic’s lien and demanded enforcement thereof. This question, however, '.need not be- now decided. ■ Here not only has no mechanic’s lien been established by any party, but the assignee neither filed a mechanic’s lien nor demanded a personal judgment against the owner. The appellant seasonably raised the question by objecting, and as further appears by the record, drew the attention of the court to the Court of Appeals’ decision in Burroughs v. Tostevan (supra). It their appearing that there was no valid lien, this, objection ivas sufficient; especially in view of the failure of the assignee for the benefit of creditors to'demand a personal judgment, 'to preclude a- recovery of such- judgment against the owner. -The appellant clearly had the right, to a jury- trial of the issues upon which the personal judgment has: been rendered. The answer of the assigneé for the benefit of creditors, assuming it to have been served upon him, gave him nó notice that a personal judgment would be demanded; consequently ■we cannot infer any waiver of his right to a jury trial by his failure ■to move for the settlement of issues therefor, or to formally demand the same at the trial.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

O’Brien, Ingraham, McLaughlin and Hatch, JJ., concurred.

•Judgment, reversed, new trial ordered, costs to appellant to abide event.  