
    Van Clief et al. v. Van Vechten et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 10, 1890.)
    1. Mechanics’ Liens—Material-Men—When Lien Attaches.
    Laws N. Y. 1885, c. 342, as amended by Laws 1888, c. 316, giving material-men a lien subject to the limitation that all liens must not exceed the amount remaining unpaid on the contract at the time of filing, does not make the lien dependent on the right of the contractor to collect the money from the owner at the time the lien was filed.
    2. Statutes—Amendment of Repealed Statutes.
    A statute purporting to amend a repealed statute “so as to read as follows” is operative, without regard to the former statute.
    Appeal from Richmond county court.
    An action to foreclose a mechanic’s lien, filed by John H. Van Olief and William S. Van Olief against George L. Smalle, contractor, and Hannah R. Van Vechten, owner. Judgment for plaintiffs. Defendant Van Vechten appeals. Laws B". Y. 1880, c. 480, amends Laws 1870, c. 467, § 1, (which was repealed by Laws 1877, e. 417,) “so as to read as follows,” etc.
    Argued before Barnard, P. J., and Dykman, J.
    
      Ezekiel Fixman and A. H. Stoiber, for appellant. Thornton, Earle & Kiendl, for respondents.
   Barnard, P. J.

Hannah Van Vechten made an agreement with one George M. Smalle, by which Smalle was to furnish all labor and materials for and to complete a building on her land. The contract price was $4,298, payable by installments. The first two installments were earned by Smalle, and were paid, amounting to $2,000. The contractor did work and furnished material to the amount of $900 beyond what was paid for by the owner to the contractor, and then abandoned the contract, without fault upon the part of Mrs. Van Vechten. Smalle bought lumber of the plaintiff, which went into the building. The referee allowed a judgment to him to the extent of $800, and ■the question is whether this judgment was right under the lien law. The lien was filed before the abandonment of the contract by Smalle. The lien law of 1885, (chapter 342, Laws 1885; chapter 316, Laws 1888,) which was in force when the lien was filed, gave a lien, with a limitation that all liens shall not exceed the amount remaining unpaid on the contract at the time of the filing of the lien. As between contractor and owner, nothing was due under the contract; but the property of the lienor had been used in the building, and the owner had received value therefor, over and above her payments, to the extent of this judgment. In Heckmann v. Pinkney, 81 N. Y. 211, the court of appeals held that the words “liable to pay at the time” of filing the lien, which was the enactment under the lien law of 1875, meant liability to pay by virtue of the contract, according to its terms, either presently or in future; that the liability was not necessarily a liability which could be enforced when the lien was filed; which construction would defeat the law. The words in the present law are broader. By the first section of the act of 1885, as amended in 1888, the liens are to be limited so that the owner would not be compelled to pay a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of the filing of such lien. The lien is therefore for the value of the materials. It covers the plaintiff’s lot. All the liens must not exceed the contract price. The lien does not necessarily depend on the right of the contractor to collect the sum of money himself from the owner. It covers the value of the building at the time of the filing of the lien. Graf v. Cunningham, 109 N. Y. 369, 16 N. E. Rep. 551.

The county court had jurisdiction of the action to foreclose the liens. The legislature bad power to confer original jurisdiction on the county court. Section 15, art. 6, Const. Chapter 480, Laws 1880, confers jurisdiction on county courts to the amount of $3,000. This law purported to amend a repealed law, -but the power of the county court can be conferred by reversing a repealed law. The law of 1880 has full force of itself. The lien law of 1885 gives courts of record jurisdiction to enforce mechanics’ liens to the extent of the jurisdiction of the court in money judgments. The judgment should therefore be affirmed, with costs.  