
    Ferdinand Schaettler v. Thomas Gardiner.
    Under the provisions of the Mechanics’ Lien Law for the city of Mew York (Laws-of 1863, ch. 600, § 11), which provide that the lien shall cease after one year, if it be not continued by order of the court, the fact that an action for the fore- ■ closure of the lien has been commenced within the year does not preserve the lien beyond the year.
    
      But as between the leinor and parties personally liable to him who have appeared in the proceedings, and joined issue on the merits, a judgment on the merits • may be rendered after the lien has expired.
    Where the sub-contractor files a lien against the contractor and owner, and the contractor deposits in court, under § 10 of the act, the amount claimed with costs,. the proceedings as against the owner, if he is not sought to be made personally liable, should be dismissed.
    The rule of the Supreme Court requiring exceptions to the referee’s report to be heard in the first instance at the special term, does not apply to a reference of' the issues in proceedings for forclosure of mechanics’ liens.
    Appeal from, an order of this court made at special term,. denying plaintiff’s motion to vacate or modify a judgment on the merits entered in favor of defendant.
    This was a proceeding under the. Mechanics’ Lien Law of' 1863, relating to the city of New York. The lien was filed May 6, 1868, by the plaintiff, a sub-contractor, against the de- ■ fendant, the contractor, and Wm. H. Vanderbilt, the owner, for work and materials furnished in the erection of No, 459 Fifth avenue. The claim was for $4,068 67, and interest from April 20,1868. The lien notice was filed in time.
    The proceeding was- commenced by the lienor serving the notice to foreclose, required by § 5 of the act, upon the contractor and the owner, on May 29, 1868. The notice was returnable June 15, 1868.
    On the return day, the lienor, the contractor, and the owner all appeared by attorney in this court, in response to the .notice, and an order was made according to the practice of this • court, requiring the issues between the parties to be joined by the plaintiff (lienor) serving his complaint and hill of particulars within twenty days, on the attorneys of the defendants (contractor and owner), and by the defendants serving their answers thereto in twenty days thereafter.
    The plaintiff served his complaint, alleging that Vanderbilt was the owner of the premises, and had made a contract with Gardiner for the carpenter-work and materials in the building ; that, by agreement between Gardiner and the plaintiff, the latter performed work and labor and services, and furnished materials, in conformity with the said contract, in the erection of the building, for said Gardiner, for which Gardiner remained indebted to plaintiff in the sum of $4,008 67; and that there-was then due from the owner to the contractor more than sufficient to pay said sum. The complaint demanded judgment: I. Directing a sale of the owner’s interest, &c.; and, II. Personal judgment against Gardiner, the contractor.
    The defendant, Gardiner, answered denying, among other things, that he was indebted in any sum to the plaintiff; averred payment in full; and alleged that he had deposited with the county clerk, under § 10 of the Lien Act of 1863, the -full amount of the lien and costs, and had it removed. The owner did not answer, and on November 27, 1868, the proceeding was dismissed as to him, on account of the deposit made as aforesaid.
    On November 27, 1868, the issues between the plaintiff" and Gardiner, the then sole defendant, were referred by consent to P. T. Ruggles, Esq., to hear and determine the same.
    The lien expired May 6, 1869 (being one year after its filing), and was not renewed as provided by the section of the Act. The proceeding, nevertheless, was continued, and on May 30, 1870, the referee reported in favor of defendant, finding that the plaintiff had been paid in full by the defendant Gardiner, and that the defendant was entitled to judgment dismissing the complaint with costs.
    The plaintiff excepted to the referee’s findings; the report was confirmed by the court June 28, 1870, and judgment for costs entered in favor of defendant.
    On October 1, 1870, plaintiff moved to vacate the judgment. •or to modify the same so as to make it simply a judgment dismissing the lien with costs, and not a judgment against him on the merits of his claim on which the lien was filed. His grounds were: 1. That all proceedings were void after the lien ceased on May 6, 1869. 2. That all proceedings were irregular after the unauthorized dismissal of the proceedings as to the owner Vanderbilt, on November 27, 1868. 3. That the judgment was irregularly entered before argument of the exceptions to the referee’s report.
    The motion was denied, whereupon this appeal was taken.
    
      Theo. F. Sammy, for appellant.
    
      Alfred Foe, for respondent.
   By the Court.—Joseph F. Daly, J.

—The effect of the ceasing of the lien for want of an order renewing it under §11, of the Mechanics’ Lien Law, chapter 500, Laws of 1863, is to destroy all recourse of the lienor to the particular property described in the lien. This has been settled in this court. The proceeding, so far as the owner of the property is concerned (if he is not personally liable to the lienor for the debt), is at an end, and the proceeding should be dismissed as to him.

But as between the lienor and the contractor personally liable to him, the ceasing of the lien does not affect the proceóding if the issue joined, and the judgment claimed by the lienor, depend, not upon the lien, but the merits of the claim npon which it was’founded, if the court have jurisdiction of the proceeding.

The plaintiff cited the defendant to appear in this court by personal service of the notice required by the lien law. Pursuant to such notice, the defendant appeared. Pleadings were served joining issue upon the merits of the claim. That issue was indispensable in the proceeding to enforce the lien against the building, even if it were not made indispensable by the plaintiff’s demand for personal judgment against the contractor. By the service of such notice, by the appearance of the parties in court, submitting to its order, and pleading, all which took place before the lien ceased, by the expiration of the year, and all which proceedings were had under express authority of the lien law, the court acquired full jurisdiction of the controversy between the parties. Jurisdiction having been acquired, the judgmentrendered was regular. This view has been held in the Court of Appeals (Maltby v. Green, 3 Abb. Ct. App. Dec.; 1 Keyes, 548), in a proceeding under the Erie County Mechanics’ Lien Act (chap. 305, laws of 1844). And a decision arriving at the same result has been made in this court at special term (Barton v. Herman, 8 Abb. Pr. N. S. 399). This view is perfectly consonant with justice. It would not be fair to permit the plaintiff to avoid the effect of a judgment against him upon the merits, after a full and protracted trial of issues raised by him, necessary to his demand, in a proceeding of his own commencing, and in a tribunal of his own choosing.

As to the second point—it would seem to be proper to dismiss the proceedings as to the owner, after the lien had been removed by the deposit of the amount with the county clerk by the contractor, under the Act. The owner had no possible interest after that in the proceeding, and the lienor had no rights against the owner but was left to the fund in the clerk’s hands for the satisfaction of his lien.

Upon the third point—my view is, that rule 32 (now rule 39), does not apply to a reference “ of the issues ” in a lien proceeding, and that the exceptions are not to be heard first at special-term.

The order of special term appealed from should be affirmed.

Order affirmed. 
      
       Present, Daly, Ch. J., Larremore and J. F. Daly, JJ.
     