
    Noyes vs. Burton and others.
    A lien tinder the mechanics’ lien law in the city of New York ceases, after one year from the time of filing, unless the party filing it commences proceedings in the court of common pleas, within that time, to bring it to a close. And the fact of the person asserting the lien being made a party to an action to foreclose a mortgage upon the property, will not relieve him from the consequences of his neglect to bring the lien to a close.
    Daring the year-, the supreme court can recognize the lien as existing, and can continue the lien on the property, or keep its proceeds in court, subject to thé lien, if proper proceedings are taken to enforce it; and it may, perhaps, obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payments, if it is brought to a close within the year, or if proceedings are still pending for that purpose. But it can give no judgment ordering the property to be sold to satisfy the lien, either before or after the year expires.
    A lien under the mechanics’ lien law cannot be asserted where the person alleged to be the owner of the premises did not hold the fee at the time the notice of lien was filed, he having previously conveyed the premises to another.
    An innocent purchaser from a person obtaining his title and having his deed «recorded previous to the filing of a notice of lien, is not bound to take notice of any lien filed after his grantor’s deed was recorded.
    APPEAL from an order made at a special term, upon the report of a referee. The facts are detailed in the opinion of the court.
   By the Court, Ingraham, J.

On a reference to ascertain who was entitled to the surplus on a sale of mortgaged premises, Bailey, one of the defendants, claimed the amount due him under the mechanics’ lien law, for work done upon the premises sold. This work was done for Wm. L. Johnson, contractor with Warren Beman and Josiah H. Burton, and the notice of lien was filed on. the 28th of September, 1857. Beman never held the title of the property. Burton, in whom the title was, conveyed the premises to Leeds by deed, May 16, 1857, which was recorded May 20,' 1857, and Leeds conveyed the premises to Ogden, February 1, 1858, by deed recorded February 19, 1858.

On the hearing before the referee, Bailey offered to prove the facts necessary to sustain alien against Burton and a contract with Beman, made by Burton for the sale of the premises, and that the conveyance to Leeds was intended to defraud the workmen out of their liens. No offer was made to show that Ogden was cognizant of these facts.

It appears to me there are several reasons why Bailey’s lien cannot be enforced. 1. The lien has expired By the statute the lien ceases after one year from the time of filing, unless the party filing it within that time commences proceedings in the court of common pleas, to bring it to a close. (Sess. Laws of 1851, p. 954.)

The fact of his being made a party to this action does not relieve him. The lien still ceases after a year, because he has not done what the statute declares to be necessary to continue the lien in force after that period. During the year this court could recognize the lien as existing, and could continue the property, or keep its proceeds in court subject to the lien, if proper proceedings were taken to enforce it; and might, perhaps, obtain jurisdiction so far over the subject matter as to order the lien to be discharged by payment, if it was brought to a close within the year, or if proceedings were still pending for that purpose. But they could give no judgment ordering the property to be sold to satisfy the lien either before or after the year expired, because that judgment can only be rendered by the common pleas, and the proceeding is not one known to this court or the common law.

2. Another reason why the defendant Bailey is not entitled to a share of the surplus is, that neither Beman nor Burton held the fee at the time of filing the notice of lien. Burton had some months previously sold the property to Leeds, whether fraudulently or not is immaterial; because Ogden had purchased from Leeds innocently, for value and without notice of the lien. He had no notice of the filing of the lien in September, because Leeds obtained the title previously; and whether he held it for Burton or not, Ogden not knowing that fact, was not bound to take notice of any lien filed after Burton’s deed was recorded.

[New York General Term,

May 2, 1859.

Roosevelt, Ingraham and Pratt, Justices.]

3. Even if Ogden had knowledge of the fraud, the conveyance was good between the parties. The creditors had their remedy in an action for equitable relief, but if, instead of resorting to that remedy, they neglected their rights, and suffered their lien to expire, it is now too late to ask the court to enforce it.

I see no ground upon which Bailey is entitled to relief. The ruling of the referee was right, and the order made by him should be affirmed.  