
    John Egan, Resp’t, v. Joseph Laemmle, Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed October 2, 1893.)
    
    1. Mechanic’s lien—Judgment in action in district court.
    In an action brought in a district court to foreclose a mechanic’s lien, the judgment adjudged plaintiff entitled to the amount claimed, and that lie had a valid lien therefor, and then directed foreclosure and sale in form as in a judgment of foreclosure in a court of record. Held, that the judgment in so far as it adjudged plaintiff entitled to ssid sum and a lien was valid, and that the objection to the latter portion as exceeding the power of the court could be removed by a modification of the judgment in that respect.
    
      2. Same—Bar—Action by contractor.
    An action to foreclose a lien by the contractor, to which a material man who has filed a lien is not a party, is not a bar to an action by the material man to foreclose his lien.
    Appeal by the defendant owner from a judgment for plaintiff rendered by the district court in the city of New York for the third judicial district.
    Action by a material man against contractor and owner to foreclose a mechanic’s lien claimed for the unpaid purchase price of certain lumber furnished and used in the making of alterations and repairs.
    
      John Delahunty, for resp’t; Jones Cochrane, for app’lt.
   Bischoff, J.

This action was brought by plaintiff, a material man, against the defendants, the contractor and owner, to foreclose a mechanic’s Hen claimed under the provisions of the mechanic’s lien law, Laws 1885, ch. 342, for the unpaid purchase price of certain lumber furnished to the contractor and used by the latter in making certain alterations and repairs at the owner’s- request. On the trial it was shown without contradiction that the lumber was sold, delivered and used as plaintiff claimed. It further appeared from sufficient evidence that the purchase price of the lumber remained unpaid, that within the required time after the lumber was furnished and the work of making the alterations and repairs was completed plaintiff caused a notice claiming a lien which substantially complied with all the Requisites of such a notice to be filed in the proper office, and that at the time of its filing there was due the contractor from the owner for such alterations and repairs an amount in excess of that which was due plaintiff. Upon this state of facts plaintiff’s right to the recovery of a judgment for the amount due him and to the enforcement of the lien claimed cannot be successfully disputed.

The judgment is, however, assailed by the owner-defendant upon two grounds: Firstly, that it is unauthorized, because, besides adjudging plaintiff to be entitled to the amount shown tobe due him and that he has a valid lien therefor-, it proceeds to direct foreclosure and sale in form the same as a judgment in an action brought to foreclose a mechanic’s lien in a court of record; and, secondly, that the prosecution of this action was arrested by the pendency of an action in the city court of New York, which was brought by the contractor against the owner for the foreclosure of a lien upon the same premises claimed for a balance alleged to be due upon the same contract with the owner upon which plaintiff’s lien was held enforceable against him in this action. The pend-ency of the city court action at the time of the commencement of this was admitted on the' trial.

Neither objection requires a reversal of the judgment. Section 8 of the Mechanic’s Lien Law, Laws 1885, ch. 342, which provides that the manner and form of instituting and prosecuting an action brought to foreclose a mechanic’s lien to judgment shall be the same as in actions for the foreclosure of mortgages upon real property, is exclusively applicable to courts of record. The same section specifically exempts from its operation such actions as are specially provided for, and such provision is made for actions brought in courts not of record by §§ 9, 10, 11 and 12. Sections 11 and 12 prescribe the form of judgment, if for the lienor, in an action in a court not of record, to consist of an entry to the effect that the plaintiff is entitled to recover the amount adjudged to be due him, with costs, and the evident intention of the legislature was to preserve the simpler form of judgment which ordinarily prevails in courts not of record. Jennings v. Newman, 52 How., 282. Provision for the enforcement of the judgment and lien is made by the execution specially prescribed for such cases by § 11. In so far, therefore, as the judgment entered and appealed from adjudges plaintiff to be entitled to recover the amount shown to be due him with costs, and that he has a valid lien against the owner upon the premises described in the complaint, it satisfies the requirements of the statute, and objection to its further directions can only be made on the ground that they are in excess of the power of the court to render judgment That objection, however, may be removed by a modification of the judgment, for which purpose ample authority is conferred upon this court in the case of appeals from judgments of the district courts in the city of New York by § 3213 of the Code of Civil Procedure. See also Consolidation Act, Laws 1882, ch. 410, § 1488, which extends to actions brought to foreclose mechanic’s liens; Mechanic’s Lien Law, Laws 1885, ch. 342, § 13-.

The contractor’s notice of lien was filed before plaintiff caused his to be filed, and the former’s action in the city court of Mew Yorle was commenced after both notices were filed, but before the commencement of this action. Plaintiff was not made a party to the contractor’s action, and independently therefore of the mechanic’s lien law, Laws 1885, chapter 342, there is no ground for precluding him either from instituting or prosecuting a separate action for the enforcement of his lien. Mor do we find anything in the mechanic’s lien law capable of being invoked with that effect. Any lienor may enforce his lien by a civil action in a court of record (§ 7) or in a court not of record if the amount for which the lien is claimed does not exceed the jurisdictional limit of- the court (§ 9) and such lienor shall be plaintiff in such action (§ 17). If the action is brought in a court of record, prior as well as subsequent lienors and others claiming under subsequent judgments, mortgages and conveyances must be made parties; otherwise, however, if the action is in a court not of record, § 17, and see Sullivan v. Decker, 1 E. D. Smith, 699; Kaylor v. O'Connor, id., 672. It may be contended that the proper construction of the words “any lienor,” as used in § 7, comprehends one of two or more lienors to the exclusion of the others and does not necessarily mean “each” or “every” lienor; but that the latter is the sense in which the legislature intended to be understood, and that there may be as many actions as there are lienors, is clearly expressed by the further provision for a consolidation of actions, and the prosecution of the action first commenced, upon the application of the owner of the premises upon which the several liens are claimed and from the operation of which provision, however, actions brought in courts not of record are expressly exempted, § 18. A different question would of course have been presented if plaintiff at the time of the commencement of this action had been made a party to the contractor’s action, but it is at least debatable whether, under the peculiar provisions of the mechanic’s lien law, Laws 1885, chapter 342, above referred to, the pendency of an action by one lienor could be pleaded in bar to the prosecution of a subsequent action by another lienor who was made a party to the first action, and whether or not the owner is not confined to his remedy of causing the several actions to be consolidated.

If our conclusion, as appellant’s counsel contends, will expose an owner to the burden of having to defend several actions brought by as many different lienors when the rights of all could be just as well adjusted in one action, redress must be sought from the legislature, since wo cannot, upon, any proper theory of construction, defeat its clearly expressed intention.

We do not discover any error in the rulings of the trial court. The judgment should, therefore, for the reasons above stated, be modified by eliminating therefrom all provisions other than that plaintiff is entitled to recover from the defendant, Martin A. Schmidt, the sum of $145.86, principal and interest, with $17.87, the costs of the court below, amounting in the aggregate to :$163.73, and that for the amount so adjudged to be due him plaintiff has a valid lien against the defendants, and each of them, upon the premises described in the complaint. As so modified, the-judgment is affirmed, but without costs of this appeal to either party as against the other.

Pryor, J., concurs.  