
    O’DONNELL against ROSENBERG.
    
      New York Common Pleas;
    
    
      General Term, January, 1873.
    Mechanics’ Lien.—Foreclosure.—New Trial.— Liquidated Damages.
    In an action to foreclose a mechanics’ lien, under the act relating to the city of New York, judgment on the report of a referee in favor of a plaintiff will be reversed on appeal, if a year elapsed since the filing of the lien, and before the report of the referee, and it does not affirmatively appear that the lien had been continued and a new docket made, as required by the Laws of 1863, ch. 500, § 11.
    
      So held, although the point was not raised before the referee, and no motion was made to vacate the judgment.
    In a building contract containing the usual clauses fixing the days for completing various parts of the work, a stipulation to the effect - that any neglect to comply with the conditions of the contract, and finish the work as provided, shall be sufficient cause for the employer to claim damages .at the rate of ten dollars for each and every day’s detention so caused, may be regarded as covenanting for stipulated damages; and the owner is entitled to retain at that rate for delay occurring without his contributory negligence or consent.
    
      Appeal from a judgment.
    John O’Donnell filed, a lien under the mechanics’ lien law relating to the city of New York, against Joseph H. Rosenberg, owner of land and building in the city of Yew York; and George Graf also filed a lien against Louis Zaun and. Andrew Schappel, the contractors for the construction of the building.
    The contract between the owner and the contractors contained the following clause:
    “It is further agreed between the within named parties, that the parties of the second part shall finish the work on date above written, and progress as herein stipulated and directed by the architect, and any default or neglect on the part of the parties of the second part to comply with any and all the within conditions and finish the. work as above stated, shall be sufficient cause for the party of the first part to claim damages at the rate of ten dollars for each and every day’s detention so caused, and such damage money shall be retained out of any money due or to grow due under this contract.” .
    On February 12, 1869, George Graf filed his notice of lien, claiming nine hundred and eighty-eight dollars and forty-five cents. On the 15tlr of the same month O’Donnell filed his notice of lien for five hundred and sixty-eight dollars.
    The referee before whom the proceedings to foreclose the liens were tried, made his report in April, 1870, more than a year after the filing of the liens. He reported in favor of the lienors, and judgment was entered on his report accordingly; from which Rosenberg now appealed.
    
      Stephen Henry Olin, for the owner, appellant;
    That the sum of ten dollars a day, named in the contract, was stipulated damages, and not a penalty, cited Cotheal v. Talmage, 9 N. Y. (5 Seld.), 551; Lampman v. Cochran, 16 N. Y., 275; Esmond v. Van Benschoten, 12 Barb., 367; Pearson v. Williams, 26 Wend., 630; Mundy v. Culver, 18 Barb. 336; Brinkerhoff v. Olp, 35 Barb., 28; Clement v. Cash, 21 N. Y., 253; Bagley v. Peddie, 16 N. Y., 469; Hosmer v. True, 19 Barb., 106; Crisdel v. Bolton, 3 Car. & P., 241; Pettis v. Bloomer, N. Y. C. P., 1861, 21 How., 317; Harmony v. Bingham, 12 N. Y. (2 Kern.), 99; Worrell v. McClingham, 5 Strobh., 115; Hall v. Crowley, 5 Allen (Mass.), 304; Peine v. Weber, 47 Ill., 41).
    The language of the contract evinces a clear and undoubted intention to fix the sum mentioned as liquidated damages in case of default in the single act of completing the building (Bagley v. Peddie, sup.). The damages would be conjectural and uncertain (Shute v. Hamilton, 3 Daly, 462). The sum is not fixed to avoid any statute, and is reasonable and less than the actual damage. In Colwell v. Lawrence, 38 Barb., 643, affirmed 38 N. Y., 71, the word “forfeiture” was used to designate the payment, the sum fixed was excessive, and the damage, which was slight, could have been remedied by the defendant. The work had been accepted by the defendants at the beginning of the period for which damage was claimed. This case sustains the rule contended for by the appellant. Even if the contract had not provided for liquidated damages, damage was proved, amounting to eight hundred dollars.
    II. The fact that a lien has been renewed is matter of affirmative proof on the part of -the lienor. The law states that the lien shall in all cases cease one year after filing, unless continued by the court, and there can be no presumption that the court has ordered the continuance of the lien. The proceeding, therefore, had become discontinued, as far as the claim of Graf was concerned, before the making of the referee’s report.
    
      For the same reason, the judgment in favor of O’Donnell is erroneous (Grant v. Vandercook, 8 Abb. Pr. N. S., 455; S. C., 57 Barb., 165-175).
    
      Dennis McMahon, for respondents
   By the Court.—Robinson, J.

The referee, in the absence of any proof that the liens of O’Donnell and Graf, filed in February, 1869, had been renewed, was not authorized by his report and decision, dated April 36, 1870, and after the expiration of one year, to render any judgment for the foreclosure of either, as a subsisting lien, and order a sale of the owner’s interest in the property. The liens ceased after the year, without order being made for their continuance, and a new docket made stating the fact (Laws of 1863, p. 859, ch. 500, § 11. Ho decree could be made, continuing what the law enacted should cease ; and,—as in the case of liens by judgment which terminate at the end of ten years,—the actual sale must occur, and the acquisition of a title by a purchaser be effected before the expiration of the lien (Dickerson v. Gilliland, 1 Cow., 481; Roe v. Swart, 5 Cow., 294).

From the case it would seem that the claimants relied upon such matter of cessation or expiration of lien as the subject of defense to be set up and proved by the owner; while on the contrary its continuance was the only basis of any judgment in rem of foreclosure and sale, which they are sub-contractors could have originally recovered affecting the owner. Any such judgment was abortive as to the claimant Graf, as on examination I have caused to be made of the records in the county clerk’s office, I find there was no renewal of this lien, and an order for new trial as to him would be of no avail or benefit.

As to the claimant O’Donnell, he equally failed to establish any renewal of his lien, and the judgment must therefore be also, for this cause, reversed as to him, but a new trial ordered to enable him if possible to show such a continuance of his lien as entitles Mm to any judgment in Ms favor, either 'in rein or in personam, notwithstanding any lapse of the lien. I find on the examination of the record, it was continued on February 15, 1870, and as to him a new trial should be ordered, with costs to abide the event, in order to enable him, if he chooses, to endeavor to maintain that his lien continues.

I am also of the opinion that the ten dollars a day named in the contract was intended as, and was in law, stipulated damages for each day’s delay by the contractor in the completion of the work; and that the owner should be allowed at that rate for each day’s delay that should be found to have occurred without liis contributory negligence or without his express consent (Pettis v. Bloomer, 21 How. Pr., 317), and that the referee erred in not giving effect to this provision.

Order accordingly.  