
    Charles A. Steuerwald, Appellant, v. Harry D. Gill, Respondent.
    
      Personal judgment, when a mechanic's .Men, is not established in an action brought for its foreclosure—right to a jury trial, how secured—how waived.
    
    Section 3412 of the Code of Civil Procedure, providing that, in an action to foreclose a mechanic’s lien, the court may, if the lien is invalid, award the plaintiff a personal judgment against the defendant, does not impair the defendant’s right to a jury trial.
    This right may he preserved (1) by having the issues settled and tried by a jury in advance of the trial at Special Term, or (2) by trying the issue as to the validity of the lien at Special Term first, with the understanding that if the lien be declared invalid an interlocutory judgment to that effect will be granted, and the issues upon which the personal judgment depends sent to the Trial Term.
    Unless the defendant preserves his right to a jury trial by one of such methods, he will be deemed to have waived the same, and the court, on decreeing the invalidity of the lien, may enter the personal judgment.
    Van Brunt, P. J., dissented.
    Appeal by the plaintiff, Charles- A. Steuerwald, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Arthur Furber, for the appellant.
    . Joseph Steinert, for the respondent.
   Laughlin, J.:

- This is an action to foreclose a mechanic’s lien for work, labor and services performed on premises known as No. 337 East Fifty-seventh street owned by the defendant. The lien is based upon a contract in parol by which the owner employed the plaintiff to make changes and alterations in the building then on the premises upon a ten per cent basis, that is, the plaintiff was to purchase the materials and procure the labor, and the defendant was to advance the necessary money therefor and to pay the plaintiff for his services in supervising the work and paying the bills an amount equal to ten per cent of the aggregate cost of materials and labor. • The court evidently dismissed the complaint upon the theory that the lien was not filed within the time prescribed by the statute. (Laws of 1897, chap. 418, § 10.) The lien was filed on the 16th day of November, 1900. The.last item of work performed by the plaintiff was on the Sth day of September,. 1900, and consisted in oiling the concrete on the fop floor, .the cost of. which for.labor and material was eight dollars and eighty-six cents. The last .wor-k xlone prior tó that time was on the fourth day of August, which was more than ninety days prior to filing, the lien.. The plaintiff gave evidence from which the trial court was ¡justified in finding that his contract work was complete on .the fourth day of August, and that the oiling of the floor was not part of the original contract work, but was work done at the suggestion of the defendant’s wife. The court, therefore, was justified in finding that the lien was invalid, but this does not warrant the. dismissal of the complaint. In addition to demanding a foreclosure of. the lien, the plaintiff in his complaint demanded personal- judgment against the defendant for any deficiency. The Legislature, by section 3412 of the Code of Civil Procedure, has commanded that even though the lien be invalid, the right to a personal judgment in such case shall be determined in the action, and wé have held that this provision of law does not impair the defendant’s right to a jury trial. (Hawkins v. Mapes-Reeve Construction Co., 82 App. Div. 72.) The. defendant;will now, of course, be entitled to a jury trial if he desires it. In Hawkins v, Mapes-Reeve Construction. Co. (supra) we suggested two methods by which this may be secured : (1) By having the issues settled and tried by a jury in advance of the trial at Special Term, or (2) by trying the issue as to the validity of the lien at Special Term first, with the understanding that if the lien be declared invalid an interlocutory judgment' to that effect will be granted, and sending the issues upon which the personal judgment depends- to the Trial Term. Unless the defendant in such case secures or preserves his right to a jury trial in one of these methods, lie will be deemed to have waived the same,- and the' court, on decreeing the invalidity of the lien,, may enter the personal judgment:

' It follows, therefore, that the judgment should be reversed aiid a new trial granted, with costs to appellant to abide the event. ;■

Patterson, Ingraham and Hatch, JJ., concurred Van Brunt;, P. J., dissented.

judgment reversed, new trial ordered, costs to appellant to abide event.  