
    James Cunningham, Resp’t, v. Annie L. Hatch et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1892.)
    
    Mechanic’s lien—Withdrawal of deposit on default—Return of, on OPENING DEFAULT.
    Where upon a default in an action to foreclose a mechanic’s lien the defendant withdraws the money deposited to discharge the lien, the court upon opening the default may properly direct the return of the deposit.
    
      Appeal from order at special term directing return of money to the county clerk.
    
      John A. Grow, for resp’t; G. S. Wilkes, for app’lts.
   Pryor, J.

On the 19th of April, 1889, the plaintiff duly ac■quired a mechanic’s lien on property of the defendants. On the 15th of July, 1889, the defendants discharged the lien by a deposit with the county clerk. On the 24th of February, 1890, the plaintiff commenced this action to enforce the lien, but failing to appear at the trial, judgment by default was entered dismissing his complaint. Thereupon the defendants withdrew the deposit from the clerk’s office. But, on application to the court at special term, the plaintiff was relieved of his default, the judgment against him vacated, and the defendants ordered to return the deposit to the clerk. From this order the appeal is taken.

So much of the order as vacates the default judgment was allowed in the discretion of the court; and upon the papers before us we do not perceive any abuse in the exercise of that discretion.

The contention is over the provision in the order which directs the return of the deposit by the defendants. But this, too, being matter of discretion, Coster v. Peters, 7 Rob., 386; 4 Abb., N. S., 53, we cannot countermand the return of the deposit unless manifest justice ■ so require. On the contrary, the interests of justice plainly demand the restoration of the deposit.

By the payment into the office of the county clerk, plaintiff’s lien on the property was extinguished; and the papers show that he has no other resource for the satisfaction of his claim except the fund to which his lien is transferred. The withdrawal of the money by the defendants was the consequence of their judgment ; and that judgment being vacated, they have no authority to retain the money. On the other hand, the action being reinstated, the plaintiff has a right to a return of the security which he lost only by a default from all the effects of which he is exonerated.

The single point urged by appellant against the order is that it “ is unauthorized without a trial and judgment of ownership.” The argument would be valid and convincing if the order required payment to the plaintiff; but, since its only effect is to return the deposit into the clerk’s office, to abide the event of the litigation, no question of ownership arises, or is determined by the order. Defendants’ property in the fund cannot be affected except by a judgment for the plaintiff; and before that is attained they will have ample opportunity to protect their rights. To suffer defendants to retain the money would be to adjudicate the right without a trial.

Present discussion of the proper procedure to enforce the order of restitution is premature.

Order affirmed, with costs.

Bischoff, J., concurs.  