
    (67 Hun, 109.)
    JONES v. MOORES et al.
    Supreme Court, General Term, Second Department.
    February 13, 1893.)
    Mechanic’s Lien—Waiver—Accepting Note.
    A material man’s acceptance of the owner’s note for materials furnished by him is not a waiver of his lien.
    Appeal from special term, Kings county. '
    Action by Howard S. Jones against Robert L. Moores and others to foreclose a mechanic's lien. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    Geo. F. Alexander, for appellants.
    Logan, Clark & Demond, for respondent.
   BARNARD, P. J.

The plaintiff agreed with the defendants to furnish embossed, cut, and ground glass to be set and furnished in the defendants’ houses. By the terms of the agreement, when the work and materials were properly set and furnished; the defendants were to give their promissory note for the same, three months from the date thereof. On the 20th of January, 1891, the work was completed to the satisfactian of defendants, and was accepted by them. On the 12th of January, 1891, the defendants gave the plaintiff a note for $500, at three months from date, and on the 21st of January, 1891, they gave the plaintiff another note, for $125, being for the balance due on the contract. Both notes were protested. On the 17th day of April, 1891, the plaintiff filed a lien on the premises. The only question presented is whether the giving and acceptance of the notes, by the terms of the contract, destroyed the lien. It was held by the court of appeals in Happy v. Mosher, 48 N. Y. 313, that the taking of notes of a third person did not affect the lien, except to defer its enforcement. It was held by the same court in the case of Mott v. Lansing, 57 N. Y. 112, that work done upon a vessel, upon the personal credit of the owner, does not affect the right to a lien; that a lienor might give credit, provided the lien was filed within the statute time. Both these cases were approved in King v. Greenway, 71 N. Y. 413. In this case the lien was filed within the 90 days given by statute, and the debt became due within that time.

The judgment should therefore be affirmed, with costs.  