
    In the Matter of the Application of Margaret Dean.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 27, 1894.)
    
    Mechanic’s Lien—Deposit.
    Chap. 300 of 1893 does not change the rule that money, deposited for the purpose of discharging a mechanic’s lien, is only a substitute for the property, and that the claimant is not entitled to receive it until he establishes his claim in an action brought for that purpose.
    Appeal from an order vacating an ex parte order, directing the payment of money deposited to discharge a mechanic’s lien.
    
      W. H. Whiting, for app’lt; J. S. Havens, for resp’t.
   Dwight, P. J.

The respondent, John D. Rutledge, was the owner of premises in the of Rochester, which the pellant, on the 21st day of February, 1894, had filed a notice of lien, under the mechanic’s lien law, for the sum of $122. On the 9th of March following, the respondent deposited with the clerk of Monroe county the sum of $122, with 28 cents as interest thereon, and the lien was marked, on the docket of liens, as discharged by payment to the clerk. On the 10th day of March the appellant commenced an action in the municipal court of Rochester to foreclosure the lien, the summons being made returnable on the 16th day of March, but on the 14th day of the same month the appellant, having learned of the deposit of the amount of her lien and claim, applied to the county court, and obtained an ex parte order for the payment to her of such amount, and on presentation of that order, received the money the same day from the clerk. The respondent duly appeared in the municipal court on the return day of the summons against him, to make defense to the action to foreclosure the lien, but that action was not prosecuted, and on the 19th day of March he procured an order of the county court requiring the appellant to show cause why the ex parte order procured by her should not be vacated, and she be required to restore the money to the custody of the court. On the return of the order to show cause, the facts being made to appear as above stated, the court made the order from which this appeal is taken, vacating the ex parte order above mentioned, and directing the appellant to restore the money in question to the custody of the court. The question here presented, like many other questions arising under the mechanic’s lien law, is embarrassed by the appellant carelessness which has marked much of the legislation on this subject. In the particular now under consideration the statute of 1885 (Laws 1885, c. 342, § 24) provided for the discharge of the lien in several modes ; among others, by depositing with the county clerk the amount claimed, with interest (subdivisions 2 and 3), or by the execution, justification of sureties, and approval by the court of a bond conditioned for payment of any judgment which might be rendered against the property (subdivision 6). Under this statute it was uniformly held, as the terms of the statute import, that the deposit of money was not payment, nor the bond an absolute undertaking to pay, but that either was a substitute, merely, for the property from which the lien was discharged ; that the bond could be enforced or the money realized by the claimant only on establishing his claim in an action brought for that purpose ; that while there could be no judgment in such action for the foreclosure of the lien because the lien was discharged, it must be adjudged that a claim existed which, but for the bond or the deposit, would have entitled the claimant to a judgment of foreclosure. See People v. Butler, 61 How. Pr. 274; Copley v. Hay, 34 St. Rep. 771; Cunningham v. Hatch, 45 St. Rep. 685; Brandt v. Verdon, 44 St. Rep. 885 ; Kruger v. Braender, 3 Misc. Rep. 275; 51 St. Rep. 906. But by chapter 300 of the Laws of 1893 a further 'subdivision (No. 7) is added to section 24, above cited, of the act of 1885, in the following language:

“All moneys paid to the clerk as hereinbefore provided shall be considered as paid into court, and shall be subject to the provisions of section 745 of the Code of Civil Procedure, and upon such payment the county cleik shall forthwith enter upon the lien docket, and against the lien for the discharge of which said moneys were paid, the words ‘discharged by payment.’ And thereafter the provisions of section 751 of the Code shall apply as to the payment or surrender of said moneys. * * * ”

It is upon this provision that the appellant bases her contention to the effect that the deposit of money under the former subdivisión is no longer to be regarded as a deposit," merely, to abide the establishment of the claim against the property from which the lien has been discharged, but as payment of the claim, and to be treated as money paid into court to keep a tender good, and as belonging to the claimant from the time of its deposit, and to be surrendered to him, on his application, at any time thereafter. There is, no doubt, some language employed in the new subdivision which suggests such an effect as that contended for, but we think it very plain that it falls short of accomplishing that result. The apparently careless substitution of the word “payment” in the new provision for “deposit” in the old cannot have the effect to transform the one into the other, and the sections of the Code of Civil Procedure referred to in subdivision 7 have no reference to the distinction suggested. Section 745 relates merely to the custody of the money paid into court, and section 751 only to the mode of authentication of the order for its payment out of court; and this seems to be the only effect of the new subdivision, namely, to bring the case of moneys deposited in court for the discharge of mechanics’ liens within the rules of the Code in respect to the custody of the funds, and the authentication of the order for its payment to the person entitled thereto. We find, therefore, that the amendment of 1893 works no change in the nature or effect of the deposit provided for by subdivision 2 of the original section, and consequently does not take the ease in hand out of the rule established by the decisions before cited. The order appealed from should be affirmed.

All concur.

So ordered, with $10 costs and disbursements.  