
    CARROLL against CAUGHLIN.
    
      New York Common Pleas; Special Term,
    
    
      November, 1869.
    Mechanics’ Lien.—Parties.
    Under the Mechanics’ Lien Law relative to buildings in the city of New York (Laws of 18G3, 859, ch. 500),.—which provides that an owner of property against which liens are filed may commence proceedings to have them foreclosed,—an owner may give the notice provided by the statute, and if a lienor served with such notice fails to file a statement of his claim within the time limited, the court may, upon the owner’s application, terminate the lien.
    Mechanics’ lien.
    Application by the owner of premises against which liens had been filed, to terminate the same.
   Brady, J.

It is provided by section 4 of the act of 1863, to secure the payment of- mechanics’ liens (Laws qfl863, 861), that “any person or persons, having filed a notice of lien, may, in ten days thereafter, institute a proceeding to enforce or foreclose the lien, and any owner or other person interested may also commence such proceedings,” &c. “The proceedings shall be commenced (section 5) by a notice stating the liens and times of filing, and be served upon all persons having filed notices of lien at the place by them designated, . . . requiring them to appear in court at a day and hour named,” which notice shall be served ten days before the time specified (except those acquiring after liens), and within ten days after such service, each party shall file in court, or with the clerk, a brief statement of his claim; and any party interested may, in five days, state his objections to such claims, &c.

These sections, as we have seen, provide that the owner may initiate the proceeding to terminate the lien upon his property, by the service of a notice upon the lienors, who have ten days after service thereof to file in court a brief statement of their claims; and the object of the section is to restrict the right of the lienors to commence an action within one year after the filing of the lien, which they may do, unless the owner compel them to begin at an earlier period.

The latter proposition results from the construction to be placed upon section 10, which provides for the manner in which liens may be discharged, and which, by subdivision 3, declares that it may be accomplished ‘ ‘ by an entry of an order to discharge the same by any judge of a court of record, made on due proof that one year has elapsed, and that no action or proceeding has been had on such lien, and a certificate of the clerk that no notice of such proceeding has been filed with him.” By section 7 it is provided that “in case the parties notified shall neglect to appear and object or insist on any claim,' the court may take the proofs and determine the equities of the parties,” &c. ; and by section 10, to which reference has already been made, it is provided by subdivision 4 that a lien may be discharged “ by a judgment or docket of a judgment exempting such property, on proof of notice of such judgment, and that ten days have elapsed, and no appeal has been taken therefrom.”

If the owner can initiate the proceedings, and cannot terminate the lien, then the power conferred is an absurdity, which we cannot say it was the intention of the legislature to enact. It is a general principle that where a power is conferred by statute, there arises by implication, when the statute is silent on the subject, the necessary authority to make it effectual. It is not expressly declared, by the act under consideration, what shall be the effect of a failure of the lienor to appear on the day named in a notice from the owner, and to file a statement of his claim; but the sections to which reference' has been made develope an intention by the legislature that the owner should possess the right to compel a speedy determination „ of the validity of a lien filed against his property, which the lienor should not retard simply because he chooses for any reason to delay, during the greater part of the year given him, to enforce his lien.

The reason for such a construction of the statute is obvious ; and it is that the lien being an incumbrance on the property, affecting its value, and also a cloud upon the title, it should not be permitted to remain, if unauthorized by the facts, one moment beyond the time necessary to determine in a legal mode its truthfulness.

It is my opinion, therefore, under sections 4, 5, 7 and 10, to which reference has been made, considered together in regard to the rights of the owner secured by their provisions, that he may serve notice on the lienors to appear, and if they fail to appear and file a statement of their claims within the time prescribed, that the court before which the lienors are cited to appear may, on proof of service of the notice, and the failure of the lienors as stated, direct a judgment exempting the property from their liens, in the language of section 10, heretofore cited.

Upon a careful consideration of this subject, I am unable to discover any reason against this construction of the sections referred to, assuming them, for the sake of the argument, to be of extremely doubtful import upon the question stated. The lienors are required, after per- • sonal service of the notice, to file their claims, and abundant time is given for that purpose. If they neglect to do what is required, it involves no more serious consequences than the failure to answer a summons served, in twenty days, and thereby permitting judgment to be taken, or to do any other act which by law must be performed within a given period. It is also eminently just that the owner who denies the validity of a lien shall not be required for a whole year to await the action of the lienor, and keep his property subject during that time to the caprice of the latter. It is true that the owner may relieve his property of the lien by depositing the amount to the credit of the lien with the clerk where the lien is filed (§ 10); but the owner should not be compelled to do that, unless the statute is imperative that he cannot in any other mode procure the discharge of the lien. 0

My views are, as already stated, that either owner or lienor may be the prosecuting party, and that in either proceeding a judgment may be rendered, whether the party served appear or not.

Ordered accordingly.  