
    David G. Burton, Resp’t., v. Harriet R. Rockwell, Impl’d., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    Mechanic’s lien—Discharge—Payment into court.
    A failure of an offer to pay money into court under § 19 of the Mechanic’s Lien Law of 1885 to state that it is made “in discharge of the lien’” renders the offer insufficient.
    
      (Hall v. Denncrlein, 39 St. Rep., 67, followed.)
    
      Appeal from order awarding plaintiff costs and an allowance and from so much of the judgment as awards judgment to plaintiff against the defendant Rockwell for costs and disbursements.
    Action to foreclose a mechanic’s lien filed against the property of defendant Rockwell. The builder, Ringrose, did not answer.
    
      Charles A. Decker, for app’lt; Norman A. Lawlor, fór resp’t.
   Pratt, J.

The only question raised in this case is one of law, to wit, whether under the offer of the defendant made in the course of the trial the plaintiff or defendant was entitled to costs which accrued subsequent to the making of the offer.

The offer is as follows after the caption of the suit: “ I, Harriet R. Rockwell, one of the defendants above named, do hereby offer to allow the above named plaintiff to take judgment against me in the above entitled action for the sum of two hundred dollars with interest from January 1, 1890, together with costs of this action, or pay the same into court.”

The statute, § 19 of chap. 342 of Laws of 1885, authorizing an offer to be made in a suit under the “Mechanic’s lien ” law, provides that “ At any time after an action has been commenced the owner or owners of property affected may in writing offer to pay into court any amount stated in the offer or to execute and deposit any securities or papers which he may describe in discharge of the lien or liens.”

It is objected that the offer as made was insufficient because the words “in discharge of the lien” were not contained in the notice.

The statute authorizing the offer is in the subjunctive, and the offer here contained more than the statute requires, as it offered to permit the plaintiff to take judgment for $200 in addition to offering to pay $200 into court.

It is clear that the offer was a nullity under § 738 of the Code, as it was not made ten days prior to the trial of the action. Sares v. Matthews, 39 St. Rep., 920. So that the only point is whether it was necessary that the offer should contain the exact words of the statute, i e., “ in discharge of the lien.”

That such a form of offer iá requisite was held in the case of Hall v. Dennerlein, 39 State Rep., 67.

I cannot well see how the omission of the words “ in discharge of the lien ” "could work any injustice or surprise to the plaintiff.

The words are a mere statement of the legal effect of the offer, and if this question was now raised for the first time, I should be strongly inclined to hold that the offer was sufficient to put the plaintiff to an election.

In substance the defendant offers to pay the money into court, with costs, and it could be for no other purpose under the statute except to discharge the lien.

The offer did more; it anticipated that there was no valid lien, as afterwards turned out to be the fact, and it offered to permit plaintiff to take judgment for $200, etc., as in a common law action. I cannot see why the plaintiff should be allowed to go on piling up the costs, and, when it was found that his claim was less than the offer, be rewarded with full costs and extra allowance.

To avoid the confusion of one court holding one way, and another court the opposite, I think this order better be affirmed, but without costs.

Order affirmed, but without costs.

Barnard, P J., concurs . Dykman, J., not sitting.  