
    McGUCKIN against COULTER.
    
      New York Superior Court;
    
    
      General Term, April, 1871.
    Discharge of Mechanic’s Lien.—General Allegation.—Presumption.
    . Pending a reference of an action to foreclose a mechanic’s lien, the court cannot properly discharge the lien upon a summary application on affidavits as to the merits.
    An owner moving to have a lien discharged, upon the ground that it has not been continued, though a year has elapsed, must aver in his affidavit facts showing this to be the case. A general allegation is insufficient.
    If it appear that an order continuing the lien was filed, the making of a new docket will be presumed.
    Appeal from, an order discharging of record a me chanic’s lien.
    In September, 1868, the plaintiff, Henry McGuckin, filed with the clerk of the city and county of Hew York, a notice under the mechanic’s lien law, to the effect that he had a claim against the defendant, Julia A. Coulter, on account of work performed and materials furnished upon and in the house and premises on the north-east corner of Hinth-avenue and Sixty-second-street, owned by the defendant; and which had been performed and furnished under a contract with the defendant as such owner.
    In December of the same year the plaintiff commenced this action to foreclose the lien; and in February, 1869, the action was sent to a referee to hear and determine.
    Within one year from the filing of the notice of lien, it was continued, by an order of a justice of this court, duly entered.
    Upon an affidavit made in behalf of the defendant, setting forth the commencement and reference of the action, and that it appeared by the testimony and proceedings before the referee, that the plaintiff’s lien is upon a vacant lot belonging to Julia A. Coulter, on the north-west corner of Mnth-avenue and Sixty-second-street, and that no work or labor was done or materials furnished on said plot by the plaintiff; and that it further appeared that whatever work the said plaintiff claimed to have done, or whatever materials he claimed to have furnished, were done and furnished on an entirely different lot or piece of ground, with an erection upon it; and, also, that the lien had not been renewed according to law; and that more than a year had elapsed since the lien was filed and had never been renewed, a motion was made at special term to have the action discontinued and the lien discharged of record, with a general prayer for further and other relief, &c.
    In opposition to the motion, the plaintiff, by affidavit, showed the filing of the lien, the commencement of the action, and its actual pendency before the referee, and annexed a copy of the order of the court continuing the lien. He further claimed that it did appear, and was fully proved before the referee, that the lien filed by him covered the premises owned by the defendant, and the work, labor, and services, and the materials furnished by the plaintiff, and for which he sought to recover, were performed and furnished toward the erection of the building situate on the lot upon which the lien was filed, and of which the defendant is the owner, which proof has not been contradicted by the defendant.
    The motion was granted, and an order made discharging the lien of record ; declaring it null and void, and vacating the order continuing the lien.
    From this order the plaintiff appealed.
    D. McAdam, for plaintiff.
    
      S. B. Noble, for defendant.
   By the Court.—Monell, J.

It is understood that the order in this case was made upon two grounds: First, that it sufficiently appeared that no work was done nor materials furnished upon the premises designated in the notice; and second, that the lien docket has not been properly renewed, namely, that it did not appear that a new docket has been made by the clerk, stating the renewal of the order of the court.

Section 10 of the mechanic’s lien law (Laws of 1863), p. 863), prescribes the various modes in which the lien may be discharged, neither of which was pursued in this case; and the order discharging the lien in this case cannot, therefore, be sustained, under any provision of the statute.

But it is supposed that, independently of the statute, the court can exercise such control over actions pending in it as to direct their discontinuance for reasons other than such as are specified in the statute, if such reasons are in themselves otherwise sufficient. And such probably is the power of the court; but the reason must be one applicable to all cases pending in the court, and not peculiar to any class of cases. In other words, the power must be exercised under general rules governing all cases.

In this case, the learned justice who decided the motion assumed to determine upon affidavits a material and perhaps the most material question of fact in the case, and not upon any proof of the fact in the affidavits, but merely upon the assertion that it appeared from the testimony before the referee, without giving the testimony itself.

One of the questions in the action which the referee was empowered to determine, was the very question which the court, upon this motion, undertook to determine in a summary way, upon ex-parte affidavits and upon hearsay evidence.

That could not be done. It was invading the premises of the referee, who, having got possession of the case, could not be interfered with in that way.

The second ground upon which the decision was placed is equally untenable.

Section 11 of the act provides that liens shall cease after one year, unless, by order of the court, the lien is continued, and a new docket made, stating such fact.

It is not disputed that the order made by this court continuing the lien was in all respects sufficient, both in point of time and manner of making, but, according to the learned justice below, it did not appear that a new docket had been made by the clerk.

Upon a motion of this kind, which was not founded upon any of the reasons for a discharge contained in the statute, the burthen was upon the moving party to furnish another reason, sufficient in law, for granting the relief sought. That was not done in this case. The defendant's allegation was merely that “ the'lien has not been renewed according to law, and that more than a year has elapsed since the lien was filed.”

This general allegation, unsupported by any fact, was wholly insufficient. It does not prove any thing; certainly not that a new docket had not been made. And the learned justice must have been of the opinion that the burthen rested on the plaintiff to show a subsisting lien. That might possibly be so if he was the moving party. It is not so, when the owner is seeking to have the lien discharged.

But apart from this, every presumption is in favor of the performance of official duty. It was for the county clerk to make a new docket, as required by the statute, and the law will presume that he performed his duty.

It was proved that the order continuing the lien was duly filed with the county clerk by the plaintiff. With that the plaintiff’s duty ceased. It then became the duty of the clerk to make the entry, and we must intend that he did it (Hartwell v. Root, 19 Johns., 345 ; People v. Carpenter, 24 N. Y., 86).

The order should be reversed, with costs.

Barbour, Ch. J., and Jones, J., concurred.

Order reversed. 
      
       Present, Barbour, Ch. J., and Monell and Jones, JJ.
     