
    MAX DANZIGER, Respondent, v. WILLIAM H. SIMONSON, Impleaded, &c., Appellant.
    
      Mortgage, foreclosure—Mechanics lienor, defendant, no standing in court, if notice of pendency of action to foreclose lien nop filed in statutory time—Builder's mortgage—as to mechanics' lien attaching only to amount due on.
    
    To an action brought to foreclose a mortgage, one who, subsequently to the mortgage had filed a notice of a mechanics’ lien on the premises, was made a party defendant. At this time ninety days had not elapsed since the filing of the notice. Before the ninety days expired the mechanics’ lienor answered setting up various matters as defenses. ’ After the ninety days had expired, an order referring the issues was made. The defendant claiming the mechanics’ lien did not, within the ninety days, file a notice of the pendency of an action to foreclose his lieu.—Reid, that he had no standing in court to litigate.
    The mortgage under foreclosure was a builder’s loan mortgage—the builder, before the filing of the notice of lien conveyed to a third person for the benefit of the mortgagee. The notice of lien was filed against the builder and the third person, claiming for materials furnished under a verbal contract with the builder. The action was brought by the mortgagee.
    
      Reid, that if the lien were valid and of full binding force it could only be for materials furnished under the verbal contract with the builder, and could only attach to the money due by the mortgagee to the builder.
    Before Sedgwick, Oh. J., Tritax and O’Gorman, JJ.
    
      Decided April 7, 1886.
    
      Appeal from a judgment in favor of plaintiff entered on the report of a referee.
    The action was brought by the plaintiff, as mortgagee, to foreclose a builder’s loan mortgage on certain lots of land in New York city, made by defendant Kelly, as owner in fee, and for money advanced from time to time by plaintiff on account of the mortgage in the progress of the building of houses on the lots. The bond and mortgage were executed in August, 1883. Kelly commenced to build on the lots, and continued to do so, until November T, 1883, when he ceased, and conveyed the lots to defendant Maschke, the conveyance being for the benefit of the plaintiff. On April 18, 1884, defendant Simonson filed a lien on the lots against Maschke, as owner, and Kelly, claiming that he had furnished materials on the ■ employment of Kelly, on a verbal contract with him. No notice of It's pendens was ever filed by Simonson. The action was commenced May 12, 1884. Simonson demurred January 14, 1884. The issues were, on August 1, 1884, referred to a referee, who reported in favor of plaintiff, writing as follows :
    “ Edward Patterson, referee :
    “This is an action to foreclose a mortgage. The defendants Simonson and the ‘ A. Hall Terra Cotta Company,’ were made parties, because they had filed liens against the mortgaged premises upon sub-contracts for supplies used in the construction of the buildings, which contracts they had made with Kelly, the principal contractor.
    “ It appears affirmatively that neither of these defend ants filed a notice of lis pendens within the ninety days required by the mechanics’ lien law, and by the failure to do so they lost whatever rights in the mortgaged premises they might otherwise have acquired (Bones v. N. Y. Christian Home, 64 How. 509). The filing of the lien and the subsequent filing within the statutory limitation of time of a notice of lis pendens were absolutely necessary to give the defendants above named a standing in court to litigate.
    “ The Act of 1882, as amended in 1883, does not in this respect differ from the act of 1875. Unless the liens are perfected, the court has no power to consider the claims of the defendants.
    “ These defendants seek to establish their liens in this action and possibly they might if notices of Us pendens had been filed, have set up their demands as counterclaims. I do not consider it necessary in this action to pass upon this, except to say that under the form of the respective answers of the defendants referred to, counterclaims are not pleaded as the Code requires. But even considering that counter-claims are properly pleaded, the defendants then virtually occupy the positions of plaintiffs seeking to enforce their respective liens against the property—that is to say, the affirmative is with them to establish their rights under the mechanics’ lien law.
    “I think, therefore, that the reasoning of Judge Rapallo, in Weyer v. Beach (79 N. Y. 409), covers this case. He says, speaking of the enforcement of a lien by proceedings under the act. ‘ The proceeding is statutory, and can only be resorted to in a case falling within the statute—that is, where a mechanic’s lien exists. The main object of the proceeding is to enforce the hen, and the power to render a personal judgment is merely incidental to the main purpose, and to avoid the necessity of resorting te a separate action. But where no lien exists, this form of proceeding cannot be resorted to for the purpose of enforcing a mere personal contract between parties, and the unfounded allegation of the existence of the lien does not authorize the substitution of this proceeding in place of the proper common law action.’
    “Section 1813 of the consolidation act, as amended in 1883, does not apply to a case of this kind, i. e., to an action for the forclosure of a mortgage. But if a mortgage is to be regarded as an ‘ other lien ’ within the meaning of the section, then the defendants should have filed notices of lis pendens, for that is expressly required to be done.
    “The fact that this is an action to foreclose a mortgage and that the defendants named are made parties, cannot affect the nature and character of their rights. If they have no claim upon or interest in the premises, they cannot under their pleadings enforce, on a failure of their liens common law demands against Danziger.
    “As to the other propositions urged by the counsel for the defendants, mentioned above, it is sufficient to say there are no issues raised by the pleadings giving them place in the litigation. The nature and validity of the conveyance to Maschke cannot be inquired into here for obvious reasons, and the alleged merger of the mortgage in a fee simple estate in the plaintiff, is also a matter outside of the legitimate scope of this action. The law furnishes a different and appropriate and effective remedy to said defendants if their rights have been invaded by fraudulent transfers of the property.
    “ The defendants are not judgment creditors.
    “ The plaintiff is entitled to judgment.”
    From the judgment entered upon the report of the referee, defendant Simonson appealed.
    
      H. D. Van Orden, attorney, and W. II. Arnoux, of counsel for appellant,
    on the questions considered in the opinion, argued :—I. The referee erred in holding that the appellant’s lien had expired ; and he erred in rejecting the testimony offered by appellant to sustain his answer. The filing of lis pendens by the plaintiff within ninety days from the time of filing lien by the appellant, inures to the benefit of all other defendants who have filed liens ; and, therefore, the filing of Us pendens by the appellant herein was unnecessary (McDermott v. McDonald, 50 Super. Ct. 153 ; Laws 1880, § 1813 ; Gildersleeve v. Landon, 13 N. Y. 609 ; Mack v. Phelan, 93 Ib. 20). The plaintiff’s action is a foreclosure of the defendant’s lien, and this Us pendens filed by plaintiff embraced in contemplation of law all liens of the defendants. Plaintiff can only file same (§ 1631 of Code).
    
    II. The Act of 1880, § 1813, also provides : “ But the neglect to file such notice shall not abate any action which may be pending to enforce the lien, such- action may be prosecuted to judgment against the persons liable for the debt.” The appellant claims that by this provision it was not necessary for him to file a Us pendens as to his lien, because the plaintiff was liable for the debt, and therefore, the action did not abate. This agreement by plaintiff with Kelly, and request by plaintiff that appellant furnish materials, makes the plaintiff liable for the debt, and so he becomes an original debtor. And if it were otherwise the plaintiff must be liable (Lawrence v. Fox, 20 N. Y. 268 ; Ramy v. Mullen, 5 Abb. N. C. 246). This agreement was excluded by the referee, and appellant excepted. The plaintiff being by law an original debtor the action does not abate under section 1813 of Laws of 1880.
    
      Max Gross, attorney, and Lewis Sanders, of counsel for respondent.
   By the Court.

O’Gorman, J.

This is an action in rem, and defendant Simonson, in his answer, claims as lienor, relief in his favor in rem, and that he be paid out of the proceeds of the sale of the lots under the foreclosure, the amount due on his lien.

His right to that relief, or to any relief in this action, depends on the existence of his lien as a statutory incumbrance on the land, and on his compliance with all the statutory requisites, to give to the lien full binding force and effect. Moreover, his lien, even if valid and of full binding force, could only protect him, as to materials furnished on the employment of Kelly and under the verbal contract with him, and pould only be effective, to the extent of any money due by the plaintiff, the mortgagee, to Kelly oil the contract between them and unpaid.

It is in evidence that no money was due by the plaintiff to Kelly under that contract: The referee, however, held, that by the failure of the defendant Simonson to file a notice of lis pendens within the ninety days required by the mechanics’ lien law, he lost whatever rights in the mortgaged premises he otherwise might have acquired, and that this omission was fatal to his claim to any relief in this action. There is ample authority to sustain that conclusion (Bower v. N. Y. Christian, &c. Home, 64 IIow. Pr. 509 ; Potter v. Rowland, 8 N. Y. 448; Weyer v. Beach, 19 Ib. 409).

The defendant, Simonson, has also excepted to findings of the referee, as to items of costs and disbursements allowed in his second report, and has appealed from the judgment.

In my opinion none of the exceptions to the findings of facts and conclusions of law of the referee, is well taken.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and Truax, J., concurred.  