
    Peter Campbell et al., Respondents, v. Amalie Coon, Appellant.
    (New York Common Pleas—General Term,
    May, 1894.)
    The right to file a lien pursuant to the Mechanics’ Lien Law of this state does not extend to contracts made and to be performed in another state. Plaintiffs, who were residents of New Jersey, furnished building materials to a contractor who was also a resident of that state. The contract provided that the materials were to be delivered in Hoboken and in the city of Ne-fc York, but no place of payment was specified. Held, that the contract was to be deemed one made and to be performed in the state of New Jersey, and that plaintiffs were not entitled to file a lien under our law.
    Appeal from a judgment for plaintiffs rendered on the-report of a referee.
    Action by subcontractors against contractor and owner for the foreclosure of an alleged lien under the provisions of the Mechanics’ Lien Law (Chap. 342, Laws 1885).
    
      James J. Allen, for respondents.
    
      Robert L. Harrison, for appellant.
   Bischoff, J.

That plaintiffs did not, by means of the filing-of their notice claiming it, acquire a lien upon the premises of the owner, the defendant appellant, is clear and beyond successful dispute. The right to a lien pursuant to the provisions of the Mechanics’ Lien Law (Chap. 342, Laws 1885) does not extend to contracts made and to be performed out of this state. Birmingham Iron Foundry v. Glen Cove Starch Manfg. Co., 78 N. Y. 31.

The action was to foreclose an alleged lien under the provisions of the Mechanics’ Lien Law (Chap. 342, Laws 1885) of this state. It was intended thereby1 more particularly to secure the application of a balance due from the owner to the contractor towards the payment of an indebtedness from the latter to the subcontractors, who had supplied certain materials which were used in the construction of the building. The contractor was a corporation organized under the laws of’ New Jersey, hence a resident of that state. Plimpton v. Bigelow, 93 N. Y 592. Plaintiffs, also, were residents of New Jersey, and their contract to supply the materials was made there. By the terms of the contract the materials were to be delivered in Hoboken, New Jersey, and in the city of New York: No place of payment by the contractor was, however, specified. In legal intendment, therefore, the state wherein the contract was made, and the contracting parties severally resided, was the place contemplated by the parties for the purposes of such payment. Perry v. Erie Transfer Co., 1 Misc. Rep. 208; 28 Abb. N. C. 430.

The lien provided for by the Mechanics’ Lien Law (Chap. 342, Laws 1885) is a statutory security, in effect the same as a mortgage, and was unknown to the common law. Davis v. Alvord, 94 U. S. 545; Freeman v. Cram, 3 N. Y. 305; Benton v. Wickwire, 54 id. 226; Mushlitt v. Silverman, 50 id. 360. It is a right, not a remedy (Atkins v. Little, 17 Minn. 342); and the statute which confers it has no extra-territorial force. Birmingham Iron Foundry v. Glen Cove Starch Manfg. Co., 78 N. Y. 31. We appeal to the lex fori for the remedy by which to enforce an alleged right, but the lex loci contractus, or lex solutionis, must determine whether or not the right exists. Contracts are presumed to have been made with reference to the lex loci contractus and the lex solutionis, never with reference to the laws elsewhere. Accordingly, it cannot be successfully contended that by means of a contract made and to be performed in Mew Jersey plaintiffs became entitled to a right or security in Mew York, the quality of which is wholly derived from the statute law of the last-mentioned state and which is only there enforcible.

The judgment should be reversed as to the defendant appellant, and the complaint as to her dismissed, with the costs of this action and of this appeal.

Bookstaver and Pryor, JJ., concur.

Judgment reversed and complaint dismissed, with costs.  