
    BARTON against HERMAN.
    
      New York Common Pleas; Special Term,
    
    
      May, 1870.
    Mechanics’ Lien. —Continuance within the Year. 'Docket.—Amendment of Order.—Personal Judgment—Reviewing Referee’s Report by Motion.
    Under the mechanics’ lien law for the city of New York (Laws of 1863, 859, ch. 500), an order continuing a lien, which the act requires, to prevent the termination of the lien on the expiration of a year, must be docketed with the county clerk, in order to be effectual.
    Where the clerk declined to docket the order on account of a clerical mistake in it, and the agent of the lienor took-the order away, and failed to return it;—
    
      Held, 1. That the lien expired notwithstanding the order.
    2. That the lienor not having applied to the court for an amendment, and the order appearing to have been altered without authority, the court should not direct the lien to be revived.
    Under that act, if a valid lien has existed, and the court have jurisdiction, they have power to award a personal judgment, although the lien has ceased, so that a judgment in rem, cannot be awarded.
    
    Although referees are to some extent clothed with the powers of a court, and their decisions can, in general, only be reviewed on appeal, yet the court may, in proper cases, control their proceedings, and may set aside a report, for matters arising subsequent to the submission, which could not be brought before the court by appeal.
    Motion to a stay entry of judgment.
    This action or proceeding was brought by plaintiff, William S. Barton, a sub-contractor, against Isaac Herman, owner, and John Barry, contractor, to foreclose a mechanics’ lien on premises No. 19 East Fifteenth-street, in the city of New York. The cause was referred to Thomas H. Landon, Esq., referee, to hear and determine. The matter was tried before the referee, and on the 27th clay of Ajcril, 1870, he rendered his report in favor of said Bairy, for three thousand seven hundred and forty-five dollars and costs, subject to the payment of the lien filed by the plaintiff, Barton,' amounting to the sum of one thousand nine hundred and eighteen dollars and sixty-five cents, and- costs.
    It appeared that the notice of lien of Barry, the contractor, was filed on the 14th day of April, 1869. On the 9th day of April, 1870, an order continuing said lien was procured from a judge of this court, and the same day a certified copy thereof was taken to the county clerk’s office, where it was indorsed by one of the clerks as follows : “Filed 9th April, 1870, 11H. 15 M.” It was then, in accordance with the practice in the county clerk’s office, taken by the party who acted for the lienor, into "another room for the purpose of being there filed and entered in the mechanics’ lien docket, when it was discovered that the original lien was filed" on the 14th April, 1869, whereas the order purported to continue one filed on the 13th April. Under these circumstances it was found that the lien could not be continued, and the person acting in behalf of Barry took the order away with him, saying that he would have it corrected and returned ; but the same was never returned to or filed with the county clerk.
    Upon these facts, Herman, the owner, made this motion that the éntry of judgment be perpetually stayed, and the referee’s report set aside, and for such other and further relief as might be just.
    
      
      Compare, to the contrary, Grant v. Van Dercook, post.
      
    
   Loew, J.

This court held, at special term, in the case of Matthews v. Daly, 7 Abb. Pr. N. S., 379, that notwithstanding an. action has been commenced to enforce or foreclose a mechanics’ lien, under the act of 1863 {Laws of 1863, ch. 500), such lien ceases and is at an end after one year from the creation thereof (unless continued by order of the court, before the year expires) ; and further, that in such a case, the lien having expired and absolutely ceased by its own limitation, no order discharging it is requisite.

The- principles decided in that case have been affirmed by the general term, in Stone v. Smith (manuscript opinion, filed April 29, 1870); and the law in respect to the points in question may therefore be considered as settled, at least so far as this court is concerned. In the case at bar it is conceded that the order continuing the lien, although obtained before the expiration of the year, was never in reality left or filed with the county clerk, nor was the same ever docketed or entered in the proper book. The statute requires not only that the order of the court continuing the lien be obtained, but also that a new docket be made stating such fact. This act of making a new docket is an essential prerequisite to the continuation of the lien; and the law in this respect must, therefore, be strictly pursued. It may very well be, that where a party has done all that lies in his power, by procuring the necessary order from the court, and filing the same with the county clerk within the time limited by law, and that official has either lost or mislaid the same, or, through inadvertence or mistake, omits to make the new docket, that the court may in its discretion afford relief—provided the rights of bona fide purchasers do not intervene— by ordering the docket to be made nunc pro tunc, as Barry’s counsel contends should be done in this case. But here the lienor did not do all that lay in his power. When the county clerk declined to receive the order, on the ground that the lien which was sought to be- continued did not come within the purview thereof, the lienor should have made immediate application to the court to have the mistake therein rectified, and then filed the same with the county clerk. Tnis he could have done without much labor, and might thus have saved his rights. But he has done neither the one nor the other to this day, and is, therefore, guilty of laches» and cannot complain if he has lost the benefits of the statute.

It also appears, from an inspection of the original and certified copy orders referred to—and was conceded on the argument—that they were surreptitiously altered, by erasing the word “thirteenth” in each, and interlining the word “fourteenth,” without the knowledge or consent of the court. This was, to say the least, grossly improper and unprofessional conduct, which cannot be allowed to pass either unnoticed or unrebuked. I am very willing to believe the statement made by counsel, that he himself had no knowledge of, and neither authorized nor sanctioned the improper and ■irregular act in question. At the same time I cannot but regret that any one in his employ should have been so forgetful of his duty in the premises as to lend himself to a proceeding which does not commend either' him, or the cause he purposed to serve, to the especial consideration of the court.

But, while I fully agree with the views entertained by the learned counsel who represented the owner in the action, in saying that the lien has ceased and come to an end, and that the lienor has hot shown himself entitled to any relief looking toward resuscitating it— if indeed such relief could be granted—still it does not necessarily follow, nor am I prepared to say, that he has lost all his rights in the premises. Under the lien law of 1851 it was repeatedly held by this court, that» the proceeding authorized by that act was a proceeding in rem, and not in personam, and that if the lien •failed, the rights of the lienor in such proceeding were at an end, and that in in no case could a personal judgment be rendered even for a deficiency, except perhaps where the proceeding was directly between the original contractor and the owner (Quimby v. Sloan, 2 E. D. Smith, 594; Sinclair v. Fitch, 3 Id., 677; Cox v. Broderick, 4 Id., 721; Dennistoun v. McAllister, Id., 729.

It is true, that under somewhat similar provisions in the act of 1844 (Laws of 1844, ch. 305),—in regard to the manner in which the proceeding was to he tried and judgment therein enforced,—to those contained in the act of 1851 (Laws of 1851, ch. 513, §§ 7, 8), the court of appeals, in the case of Freeman v. Cram, 3 N. Y. [3 Comst.], 305; and the case of Maltby v. Green, 1 Keyes, 548, expressed views which would seem to justify a different conclusion. But on a careful examination of the two cases, it does not appear to have been necessary in either to determine the question as to the form of the judgment, in Older to dispose of it; and the rema?ks of the learned judges who delivered the opinions may in that respect, perhaps, be regarded as mere dicta.

However that may be, I have found but one case (Grogan v. Mayor, &c., 2 E. D. Smith, 693), in which a personal judgment was rendered in favor of a party, notwithstanding it was adjudged that lie had no valid lien. That case arose under the act of 1851^ as amended by the act of 1855 ; which latter act authorized, in addition to the judgment against the owner, a personal judgment in favor of the sub-contractor against the contractor; but as the latter did not appear in the action, and judgment was rendered against him by default, the case can hardly be called an authority on the point whether or not such judgment could be rendered when the lien had failed and judgment was given in favor of the defendant owner.

But the lien act of 1863 in some respects materially differs from the prior lien laws. Section 9 of that act provides, among other things, as follow's: “Personal liabilities may be enforced by execution against the property of any party against whom a personal judgment shall have been rendered. The contractor shall be personally liable to the lienor for the whole amount of his indebtedness, and the owner to the extent of the amount due by him to his contractor.” Again: under the act of 1851, each individual lienor was compelled to commence a proceeding to enforce of bring to a close the lien hé claimed to have created and acquired; but by section 4 of the act of 1863, each and every person having filed a notice of lien at any time before final judgment is rendered, is to be notified of and made a party Jo any proceedings which may be instituted. By section 2, they are to “ prove their demands in the same manner as in ordinary actions at law;” and “every party shall have relief according to the rights of the parties, as they shall appear in evidence.” Section 5 prescribes, that “ the court shall proceed without regafd to matters of form, which shall be amendable at all times while the proceedings progress, without costs; and judgment shall be rendered according to the equity and justice of the claims of the respective parties.” Section 7 provides, that “the court may determine the rights of all parties, and the amounts due to each; . . . and such judgment or decree shall be made thereon as to the rights and equities of the several parties among themselves, and as against any owner, as may be just.”

In view of all these sections, it is evident that the makers of the statute intended to confer authority on the court in these proceedings to render a judgment in personam as well ás in rem; and further, in order to avoid circuity of action, the rights and equities of all the parties, whether they appear or not (section 7), among themselves, and as against any owner, are to be adjusted and finally settled and determined in the action or proceeding first commenced. Doubtless, if it appeared that a party had never acquired a valid lien, he would not be entitled to a judgment in any form, and either the proceeding as to him would have to be dismissed, or judgment be rendered against him, as the case might be. . But where the proceedings are in good faith, and the facts exist which, according to section 1, are requisite in order to acquire a lien, and the court has obtained jurisdiction of the subject matter and of the parties, as iu this case, by the creation of a valid lien, in pursuance of section 6, and the service of a notice, in compliance with the requirements of section 5,1 see no objection to the rendering of a personal judgment, notwithstanding the lien may have been lost by reason of not being renewed. The language of section 9 of the act, in my opinion, is broad enough to authorize and warrant such a judgment, especially when taken in connection with the other provisions above referred to. The object of the lien is to bind the real estate to which it attaches; and when a judgment is obtained, it relates back to the time of the filing of the lien, which may be enforced by a sale of all the interest the owner had in the property at that time, in order to satisfy the judgment. This advantage, of course, is lost when the lien ceases, but I apprehend that that is all the lienor loses. I do not think that he will be compelled to commence de novo, by resorting to the ordinary remedy for the col. lection of his claim, but may have a personal judgment against the debtor, in the proceeding then pending, for the amount that appears to be due him by the latter; which judgment will be a lien upon, and bind all the real estate he may own at that time, and be as efficient to reach and appropriate any other property he may possess, as a judgment obtained in an ordinary action.

If I am correct in the views expressed above,—and my brethren, Chief Judge Daly and Judge Van Brunt, after consultation, and after examining the provisions of the act, concur in the result to which I have arrived,—then it follows that the contractor, Barry, has no lien, and none should be adjudged in his fav.or on the property in question; but, on the other hand, he is entitled to a personal judgment for the amount due him by the owner.

But the counsel for the lienor, Barry, on the argument, questioned the power of the court, at special term, to interfere with the report of the referee, either by modifying it or setting it aside, he claiming that the only mode of reviewing the action of the latter is Tby appeal to the general term.

To this doctrine I cannot assent. Formerly a referee was considered an officer.of the court, which exercised a constant supervision and control over his actions ; and whenever good and sufficient cause was shown, the court would interfere and set aside his report, in the same manner as if it were the verdict of a jury. But the legislature has of late years greatly increased the powers of referees; and in many respects they now possess all the authority, and can exercise all the functions of a court (Code, § 272); and their decisions' can in general be reviewed only on .appeal, nevertheless, I am of the opinion that' the court may, on motion, in certain cases, and for sufficient cause, still pass upon and control the acts and proceedings of a referee while the reference is pending, and in a proper case set aside his report, or stay proceedings thereon.

In the case before me, the lien did not cease by reason of the expiration of the year, until several days after the whole matter was submitted to the referee for his decision; and he, therefore, could not and did not pass upon the points involved in this motion. So, too, on appeal, nothing could be reviewed but the decision of the referee on the questions raised before and presented to him for his adjudication and^determination. It is quite apparent, therefore, that the questions presented on this motion could not be reached on appeal, and that the only mode in which the fact that this lien has ceased, could be brought up for the consideration of the court, was in a summary way, by motion, as was done in this case.

The report of the referee, in so far as it adjudges the defendant Barry to have a valid lien on the premises therein mentioned, should be- set aside, and the entry of judgment in that respect stayed.  