
    PAINE a. BONNEY.
    
      New York Common Pleas; Special Term,
    
    
      January, 1858.
    Mechanics’ Lien.-^Omission to give Notice oe Commencement oe Proceedings—Application oe Payments.
    In proceedings to enforce a mechanic’s lien, the omission to notify the county clerk within a year of the filing of the claim, that legal steps to enforce the lien have been taken, does not operate to discharge the lien. It is not the want of such notice, but the act of the clerk in making the entry in the book of liens, stating that no such notice has been given, that discharges the lien; and if proceedings have been commenced within the year, the inchoate lien created by the filing of the claim (no such entry having been made by the clerk) continues after the year, and until judgment in the proceedings, which becomes itself a lien, relating back, and having effect as an incumbrance, as of the day of filing the claim.
    The only object of the notice is to prevent the clerk from making the entry discharging the lien, on the presumption, from the want of such notice, that no proceedings have been commenced.
    
      It seems, that when proceedings have been commenced within the year, the failure to give such notice does not entitle adverse parties to have the entry made as a matter of right.
    What are the requisites of a sufficient notice, considered.
    Whether the claimant could be relieved against the discharge of his lien by such an entry made under mistake,—Query ?
    
    The practice of the county clerk in requiring, before making such an entry, the affidavit of the owner that he has had no notice within the year of proceedings to enforce the lien, approved.
    Where materials are furnished for several buildings upon adjacent lots, under one contract for the construction of all, a single lien charging the whole debt upon all the premises is proper.
    Whether in any case the court might equitably apportion the lien, and distribute the burden upon the lots and buildings severally,—Query ?
    
    
      It seems, that if a creditor holds two liens for different debts, one of which is secured upon several parcels of land, and the other is secured upon but one of them, and the latter parcel is judicially sold and the proceeds are to be distributed, he has a right to call for the application of the proceeds towards the ex-tinguishment of the debt secured by the lien, upon that parcel alone, although the other lien may have been created before it.
    Action submitted upon agreed statement of facts
    The defendant Ilardenbrook was the owner of six lots of ground lying together, three of which lots fronted upon Thirty-sixth street, and the other three on Thirty-fifth street, thus forming one parcel.
    In August, 1855, Hardenbróok executed three mortgages, one upon each of the three lots on Thirty-fifth street, to one Daniel Paine, to secure the payment of the sum of $6000, which, if necessary, was due from Hardenbrook to the plaintiff John Paine, but, at the plaintiff’s instance, and for his benefit, the three mortgages were executed to Daniel Paine.
    On the 20th of December, in the same year, William H. Col-well filed a notice of lien for materials furnished for, and which were used by Hardenbrook in the erection of, six dwelling-houses upon the six lots, and on the 20th of March following Colwell commenced an action, in this court, to foreclose his lien; but he omitted to give notice to the county clerk that legal steps had been taken to foreclose the lien until more than a year had elapsed from the time of the filing of his claim. He gave the notice after that time and before the commencement of this action.
    In August, 1856, Daniel Paine foreclosed his mortgages. The three dwelling-houses and lots on Thirty-fifth street were sold under the foreclosure, and the plaintiff, John Paine, became the purchaser. Colwell was not made a party to the foreclosure suit, but the plaintiff, before he purchased, knew of the existence of Colwell’s lien; and the attorney of the plaintiff in this action, who was also the attorney of Daniel Paine in the foreclosure suit, was, on the day when the plaintiff completed his purchase, particularly notified of Colwell’s claim. After the plaintiff purchased, other parties became interested as owners in two of the houses and lots; and the plaintiff, when this action was brought, was the owner of the most westwardly one of them.
    On the 16th of February, 1857, Colwell recovered a judgment for.$1628.99 upon the foreclosure of his lien, and obtained a decree for the sale of all the right, title, and interest which Har'denbrook had on the day when Colwell filed his notice of lien, which judgment was assigned by Colwell, before the commencement of this action, to the defendant Bonney.
    One of the three houses and lots on Thirty-sixth street was also sold upon the foreclosure of a mortgage, and after satisfying the mortgage there remained a surplus of $4912.12, subject to other liens; and upon a reference ordered to ascertain the amount and priority of such liens, Colwell’s assignee, the ■defendant Bonney, attended and made no claim to the surplus ■as assignee of Colwell’s judgment, but claimed it under another lien which was subsequent in point of time to that under Col-well’s judgment, and which other lien absorbed the whole of the surplus.
    The relief claimed in the present action was, that the judgment obtained by Colwell be vacated, upon the ground that he had no lien upon the three houses and lots in Thirty-fifth street,—but one lien having been filed against six houses and lots, instead of a separate lien having been placed on each house and lot, and he having lost any lien he might have acquired, by neglecting to .give notice to the county clerk, within a year after the filing of ■the claim, that legal steps had been taken to enforce the lien; or if that be denied, that a reference be ordered to ascertain what amount of the materials furnished by Colwell was used in the construction of the house now owned by the plaintiff, and upon the payment of the amount or value of the proportion of the materials so used, that a perpetual injunction be granted against the enforcement of the judgment obtained by Colwell against the house and lot now owned by the plaintiff.
    
      A. W. Classon, for plaintiff.
    
      E. Ketchum, for defendant Bonney.
   Daly, J.

When the plaintiff purchased the three houses and lots in Thirty-fifth street, they were subject to Colwell’s lien, and if that lien ceased and was at an end by the omission within a year to notify the county clerk that proceedings had •been instituted to enforce it, then the plaintiff, who had no notice of these proceedings, would be entitled to have the judgment ■of foreclosure vacated.

The statute declares that the lien shall continue “ until the expiration of one year from the creation thereof, and until judgment rendered in any proceedings for the enforcement of itand that the lien, after one year from the filing of it, may be discharged by an entry of the county clerk in the book of liens, “ stating that no notice has been given to him of legal steps to enforce the lien.” If no proceedings have been commenced within the year, then the lien ceases at the end of that time, and it is the duty of the county clerk to make the entry that he has had no notice of proceedings to enforce it, which entry discharges the lien. But if proceedings have been commenced within the year, then the lien continues until judgment, unless the clerk makes an entry of the want of notice after the year has elapsed, as the statute provides that it shall continue until judgment rendered in any proceedings for the enforcement of it. In this case, proceedings were commenced in three months from the filing of the claim, though more than a year elapsed before notice of the proceedings was given to the clerk; but as no entry was ever made by him of the want of notice, the lien continued until the judgment, which was a judicial determination of the extent and validity of the lien, became itself a lien, relating back and having effect as an incumbrance, as of the day of the filing of the claim. It is not, therefore, the fact that a year has elapsed from the time of the filing of the claim without notice to the clerk that discharges the lien, bpt the entry by the clerk, that operates to have that effect.

It is insisted that if proceedings are commenced within the year, but no notice of them is given to the clerk, that any one interested in the removal of the incumbrance is entitled, after the year has elapsed, to have the lien discharged by the entry of the clerk of the want of notice; and it is suggested that no such entry in this case could be obtained, as it is the practice of the clerk to refuse in any case to make it without an affidavit from the owner that he has had no notice within the year of proceedings to enforce the lien,—which could not be obtained by the plaintiff, as such proceedings had been commenced, and the owner could make no such affidavit. That thus—though the failure to notify the clerk of the steps that had been taken to foreclose the lien, gave to plaintiff the right to have the entry made and the lien discharged—he was deprived of the right in consequence of the practice adopted by the clerk. It does not appear that the clerk was ever requested to make such an entry; and if he had been, and had refused, unless such an affidavit was made by the owner, the proper remedy of the plaintiff, if he was entitled to the entry, was to compel the clerk, by mandamus, to make it.

But in a case where proceedings have been commenced within the year, I do not understand that a failure to notify the clerk entitles the owner or any other person, as a matter of right in all cases, to have such an entry made when the year has elapsed, and I think the practice adopted by the clerk, of requiring an affidavit from the owner before he will make such an entry, is a very proper one.

The only object of this notice is to prevent the clerk from making an entry, which he may do at the end of the year, discharging the lien upon the presumption, from the want of such notice, that no proceedings have been commenced. A lien expires in a year from the creation of it, unless proceedings are commenced to enforce it; but it remains a subsisting incumbrance upon the lien docket until an entry is made discharging it. It is presumed that no proceedings have been commenced, if the clerk has had no notice of any proceedings when a year has elapsed after the filing of the claim, and he is then at liberty to make the entry which will discharge it. The statute simply declares what may be the effect of want of notice to the clerk, and what he may do or shall do, when a year has expired, if no notice has been given to him; but it has not prescribed how this notice is to be given,—whether it may be given to him orally, or whether it must be in writing: whether it should apprise him that notice has been served upon the owner, specifying the court in which and the time when the owner was to appear and submit to an accounting and settlement, or whether it is sufficient to notify him simply, in the words of the statute, that legal steps have been taken to enforce the lien. The sole purpose of this provision, in respect to notice, or rather to the want of notice by the clerk, was simply, in my judgment, to point out a mode in which the lien might be discharged from the docket in cases where neither claimant nor owner had taken any steps throughout the year during which the lien runs, to enforce it or bring it to a close. If this notice to the clerk was intended for any other purpose—if it was essential to the validity of the proceedings to enforce the lien, or designed to protect the rights of the owner, or any other party interested in the foreclosure of the lien—the statute, I think, would have been more explicit in pointing out how it was to be given, and would have indicated what it was to contain, with at least some degree of certainty, as has been done in respect to the notice which creates the lien, and the notice which is to be given for the enforcement of it. The whole design of this statute is to render the proceeding on the part of the mechanic or material man, in imposing and enforcing his lien, as simple as possible, and connected with as little detail as may be consistent with the due protection of the rights of the owner, or of the other parties whose interests may be affected by the incumbrance created. The service of such a notice is not necessary for the owner, for the proceedings to enforce the -lien-are commenced by the ser-, vice of a notice upon him personally; and as respects other parties standing in a position like that of the plaintiff, who has succeeded to the rights of the owner in the premises, the notice cannot have been intended to apprise such parties of the proceedings to enforce or bring the lien to a close, as no effect can arise from the want of notice to the clerk until a year after the filing of the claim; and during that time—that is, before the end of the year—the lien might be foreclosed, the judgment obtained, and the property sold. Indeed, in the great majority of cases coming under our notice, the judgment is obtained before the year has elapsed, and entered, according to the ninth section of the statute, in the lien docket with the county clerk, thus superseding the inchoate lien created by the filing of the claim, by a judgment which perfects the lien and fixes the amount or extent of it, under which the right and title of the owner at the time of the filing of the claim may be sold before' the expiration of the time for giving this notice to the clerk, and which judgment is itself notice to the clerk of the steps that have been taken to enforce the lien.

If the clerk has no notice, he has undoubtedly the right, after the year has elapsed, to make this entry whether proceedings have been commenced or not; and if he makes it, .the lien is discharged, as it was made upon a presumption, warranted by the statute, that no proceedings had been commenced; but the practice of the clerk of requiring an affidavit from the owner, is a proper precautionary measure on his part, before making such an entry. A notice may have been actually given, and may have been lost or mislaid. The clerk may have neglected to file it, or to make any entry of the receipt of it. If a verbal notice suffices (and the statute, as before remarked, has not indicated how it is to be given, or what notice will suffice), the clerk may have forgotten it. Yet, if he makes the entry, the lien is discharged. The right acquired by the claimant is gone by the ministerial act of the clerk; for in such a case as I have put, I doubt if this court, or if any court, could relieve the claimant from the effect of such an entry. If a court could, as between claimant and owner, relieve in such a case, upon the ground that sufficient notice had been given to the clerk, and that his entry was, therefore, improperly made under the statute, I feel very confident that it would not interfere as against the rights of an innocent purchaser after such an entry, who had purchased upon the warrantable presumption that the lien- was discharged in the manner provided by law. To guard against such consequences, therefore, extraordinary precaution on the part of the clerk is but a proper exercise of his official duty, and if in the exercise of that duty he becomes apprised of the fact that proceedings have been commenced, then he has notice that legal steps have been taken, and should not make the entry.

My conclusions upon this branch of the case are, that the omission, during a year from the filing of the claim, to notify the clerk that legal steps have been taken, did not operate to discharge the lien,—the only object or necessity of such a notice, in any case, being to prevent the clerk from making the entry discharging the lien. That the inchoate lien created by the filing of the claim (no entry having been made by the clerk), continued after the year and until the judgment, which judgment became and is now a valid and subsisting incumbrance upon the premises; and the application to vacate the judgment upon the ground that the lien had ceased to exist when the judgment was rendered, is denied.

The next point in the case, is a demand for equitable relief, if the court should refuse to vacate the judgment upon the ground above stated. The plaintiff asks that the judgment and all proceedings subsequent to the complaint be set aside, or that the judgment may be so modified that he may be allowed to come in and defend, and show to what extent Colwell had a lien upon the house now owned by the plaintiff; that a reference be ordered to ascertain what proportion of the materials furnished by Colwell for the six houses, was used in the construction of the house now owned by the plaintiff; and that, upon the payment by plaintiff of the amount or value of such proportion, a perpetual injunction be granted against enforcing the judgment against the plaintiff’s house and lot.

It is assumed, on the part of the plaintiff, that the lien of Colwell for the materials furnished by him towards the erection of the six houses, is divisible into a separate lien upon eacfi house and lot, to the extent of the materials used in each house; that the lien given by the statute is upon a house or building, together with appurtenances to such house or building and the lot of land on which the house or building stands; and though the materials were furnished by Colwell in pursuance of a contract for the erection of six houses, yet as each house and lot is distinct in itself, and capable of being severed and sold separately, that it is the duty and within the power of the court to apportion the lien and distribute the burden equally upon each house and lot.

When there are incumbrances upon several parcels or lots of land, which have passed into the hands of different owners, a court of equity can undoubtedly, upon the maxim qm sentit commodum, sentvre debet et onus, so apportion the burden that each shall hear his proper part in the discharge of the common obligation (Rogers v. Mackenzie, 4 Ves., 472; Rooke’s Case, 5 Co., 100 a.; Story's Eq. Jur., 484); and it may be that this court, in a proper case, when the necessary parties were before it, might so adjtist its judgment upon the foreclosure of the lien, as to equalize the burden among the separate owners of the different lots, so far as it could be done consistently with the due enforcement of the rights of the claimant. But I do not deem it necessary to consider that question, as I am clear that the plaintiff has established no cause entitling him to this special relief, if the court were in a position to administer it. He purchased the three houses and lots on Thirty-fifth street at the mortgage sale, with a full knowledge of the existence of Col-well’s lien. He knew, when he ptu-chased, that they were subject to the payment of that lien, or to the payment of any judgment that Colwell might obtain upon the foreclosure of it. He bought at the mortgage sale in October, but did not complete his purchase until the 18th of ¡November, 1856, so that there can be no pretence that he relied upon the invalidity of the lien, upon the ground already considered, the want of notice to the clerk of proceedings to enforce it; as a year from the filing of the claim did not elapse until the 20th of December following. Before he became the owner of the three lots, therefore, he knew that Oolwell had filed his claim, and it is immaterial whether he knew or not that he had then commenced proceedings to enforce it, as he knew that it was a subsisting incumbrance upon the three houses and lots, and he bought them subject to Colwell’s right to foreclose it and obtain whatever judgment he might in law be entitled to. Having become the owner of the three lots under such circumstances, he has since parted with his ownership in two of them, to other parties who do not unite with him in a common application to the equitable power of the court; nor does he make them parties to this suit, but asks simply on his own behalf, that his house and lot, upon the payment of the value of the materials used in it, may be released from the effect of Colwell’s judgment. For all that we know, he may have sold to these parties without advising them that the lots were subject to this judgment, and be thus bound in equity to bear the whole burden himself. But without pressing this point, there is a more complete answer to his application.

The mortgage under which these three lots were sold, though nominally in the name of Daniel Paine, was for the plaintiff’s benefit. It was executed to secure a debt due to the plaintiff by Hardenbrook, the mortgagor, and the foreclosure of it, unless the contrary is shown, must be regarded as his act. The attorney of the plaintiff in this action was the attorney in the foreclosure suit, and both he and the plaintiff were advised, before the plaintiff completed his purchase, of Colwell’s claim. Col-well might have been made a party to that suit; and if he had been, he would have been entitled, as a subsequent incumbrancer, to the benefit of any surplus that might have remained of the purchase money, after the payment of the mortgage debt. It is not averred that the three houses and lots sold for no more than enough to pay the mortgage debt, which was but $6000, or that there were prior incumbrances sufficient to absorb the whole of the purchase money. If such were the fact, it was incumbent upon the plaintiff, in an action addressed to the equitable consideration of the court, to have set it forth; and if there is any presumption arising from his omission to do so, it is, that the fact was otherwise. We do not know but that there was an ample fund, arising from an excess of the purchase money over the mortgage debt and expenses of foreclosure and sale, out. of which the claim of Colwell might have been paid ; and if there was, it may have gone through the plaintiff’s instrumentality, for all we know, to Hardenbroob. From the case, it appears that Colwell was left to go on and perfect his judgment, which is the only security that he, or rather his assignor, now has; and the court will not impair that security by limiting the operation of the judgment to any particular part of the premises to which the lien attached, or by exempting upon any terms or conditions any part from the operation of that judgment, unless upon a state of facts establishing a better ground for equitable relief than has been shown on the part of the plaintiff.

The presumed equity in favor of the plaintiff, as between him and the assignor Bonney, arising out of Bonney’s absorbing the surplus remaining after satisfying the mortgage on the house and lot upon Thirty-sixth street, by having it applied in payment of a lien in his favor, which was subsequent in point of time to the lien of Colwell’s judgment, of which Bonney was the assignor, is not presented in the points submitted to me, and I do not know if the plaintiff wishes the court to consider it. If he does, it may be disposed of very simply. If the lien of Bonney, which absorbed the surplus arising upon the sale of the house and lot in Thirty-sixth street, was limited to that house and lot, then the surplus fund arising from the sale of it constituted the sole security for the payment of that lien; and if that surplus had been applied to the extinguishment of the lien arising upon the Colwell judgment, which was more extensively secured upon the six lots, it would have been to the prejudice and partial loss of a lien secured but upon one lot. This, I think, Bonney was not bound to do, because the lien upon the Colwell judgment was prior in point of time. If both liens were limited to the same piece of ground, it might be incumbent upon Bonney to apply the surplus from the sale first in payment of the lien prior in point of time.; at least, if the rights of other parties might be prejudiced by applying it first to the payment of a subsequent lien. But if the creditor holds two securities, one of which is secured upon several parcels of land and the other is secured but upon one of them, and the latter is sold, I think he has the right to apply the proceeds upon that sale towards the extinguishment of the lien which is secured upon that parcel alone, though the other security may have been created before it. It does not appear here but that such was the fact; or at least, the facts stated do not show that the plaintiff has any equity as against Bonney arising out of that transaction.

Judgment for the defendants.  