
    WILLIAMSON a. HENDRICKS.
    
      New York Common Pleas;
    
    
      Special Term, January, 1860.
    Mechanics’ Lien.—Costs.
    If the owner, against whose property a mechanics’ lien is filed for a claim justly due, does not protect himself by depositing the amount with the county-clerk, he will be liable for costs of proceedings to foreclose the lien.
    
      It seems, that it would be otherwise if the amount claimed in the notice of lien were reduced on the trial.
   Hilton, J.

—In Eagleson a. Clark (2 E. D. Smith, 644), this court, at general term, held that the owner was chargeable with the costs of a judgment by default in favor of the lien creditor, rendered necessary by the owner failing to pay the lien without suit.

It seems that the owner has the option, in all cases where a lien is filed against his property, to relieve himself of any liability for costs of an action brought to enforce the lien, by depositing with the county-clerk a sum of money equal to the amount claimed (see Lien Law, § 11, sub. 2); and, consequently, when he fails to avail himself of this provision of the law for his benefit, and the claimant is needlessly put to the necessity of an action, there is a propriety in charging the expense of it upon the owner.

It would probably be otherwise where the amount claimed in the notice creating the lien is greater than the sum actually owing upon the contract at the time the notice was filed, because in such a case an action might be necessary for the purpose of ascertaining the amount due from the owner, and limiting the-recovery of the lienor to the sum thus ascertained.

Here, no such necessity existed. It is conceded that, at the time the notice was filed, there was in the hands of the owner, and due to the contractor upon the contract, a sum more than sufficient to discharge the lien, and the neglect of the owner to pay the amount without action makes him chargeable with the costs, within the decision and rule stated.

Ordered accordingly.  