
    Henry E. Fish, Plaintiff, v. Anstey Construction Company et al., Defendants.
    (Supreme Court, Kings Trial Term,
    February, 1911.)
    Mechanics’ liens: Notice of lien — Statement as to ownership; Amendment: Priorities — Prior mortgage.
    One filing a notice of mechanic’s lien is put upon inquiry as to the true owner of the premises and a notice filed only against a vendee in possession under an executory contract of sale acquires no lien upon the vendor’s interest; nor can the court upon the trial of an action to foreclose a mortgage claimed to be prior to the mechanic’s lien permit an amendment of the notice of lien so as to claim against the vendor or the holders of mortgages on the property.
    In such a case, mortgages given by the vendee to the vendor upon closing the contract of sale and which represent the same indebtedness as antecedent mortgages that are then discharged pursuant to the terms of the contract are prior to the mechanic’s lien.
    Actioh to foreclose mortgages.
    G. H. Brevillier, for plaintiff.
    
      Sidney F. Strongin (G. M. Moscowitz, of counsel), for defendant Dangler.
    M. V. Dorney (G. M. Moscowitz, of counsel), for defendant Trudder.
   Putnam, J.

Action to foreclose mortgages on seventeen lots on East 8th street, Brooklyn.

In 1905, two mortgages were placed on a tract of land -including the lots here involved; one dated April 5, 1905, to Edward L. Swift, for $25,000, and the other dated November 13, 1905, to Michael L. McLaughlin, for $8,200, which was subsequently reduced to $6,200.

In January, 1908, Lake Shore Realty Company, incorporated under the laws of New York, purchased this property subject to the two mortgages above mentioned. About May, 1908, the holders of said mortgages threatened to foreclose. As the Lake Shore Company was then unable to meet this demand, certain of the stockholders of that company, individually, advanced the funds necessary to purchase said mortgages, and, in May and July, 1908, had them assigned to plaintiff, who executed two declarations of trust in favor of the contributors to this fund in proportion to the amount of their respective contributions.

The Lake Shore company, on August 31, 190-9, entered into an agreement with defendant Anstey Construction Company, which provided for the sale to said defendant of the tract comprising these seventeen lots at the price of $950 for each lot, payable $150 in cash, and the balance in stated installments, to be secured by purchase-money mortgages. The Anstey company was, however, to erect upon each of the several lots a house as described. The Anstey company was to get a building loan to be secured by mortgage upon said lots and buildings, which should be given a priority. The above cash payment of $15-0 was to be paid out of the first installment on the building loan, and, upon receiving such payment, a full covenant deed of the several lots should be executed by the vendor. The title to all or any of the lots could be taken by the Anstey company, at any time, upon fifteen days’ notice, but, in any event, was to be closed on or before ¡November 15, 1909. The agreement made no reference to the time when possession should be taken. It was not filed or publicly recorded.

The Anstey company delayed performing the covenants on its part until February, 1910, although in the meantime there was no formal extension of the agreement. The building loans were effected by contracts dated February 28, 1910, and the lots were conveyed by the Lake Shore company to the Anstey company by deeds dated February 21, 1910. This plaintiff, under date of February 23, 1910, released the lots so conveyed from the lien of the $25,000' and $6,200 mortgages; and the Anstey company then gave plaintiff the seventeen mortgages here involved, each dated February 21, 1910, and stated to be for purchase money, but to be subject to the building loan mortgages.

In the meantime, however, upon the employment of the Anstey company, defendant Dangler, about ¡November 1,

1909, began the brick work on the erection of buildings upon said lots, and defendant Trudden, on December 17, 1909, began to supply cut stone therefor. On March 16 and 17,

1910, respectively, they filed- notices of lien, in which the Anstey Construction Company alone was named as the owner of the property against whose interest a lien was claimed; also as the person by whom the lienors were employed, and at whose request the materials were furnished.

Upon default by the Anstey Construction Company, this suit was brought to foreclose the seventeen mortgages. Defendants Dangler and Trudden alone defend, claiming a priority for their liens.

The mortgages for $25,'0©0 and $6,200; placed upon the premises in 1905, which were assumed by the Lake Shore company when it purchased said premises in January, 1908, were a first lien and prior to the liens of defendants Dangler and Trudden. When these defendants placed improvements upon the property, they were charged with notice of these mortgages. The persons, through plaintiff as trustee, who advanced in good faith the funds necessary to prevent the threatened foreclosure of these mortgages and took an assignment to plaintiff as trustee for them, did not extinguish the security, which was kept alive with all the rights of the former mortgagees. When, in February, 1910, plaintiff released from the lien of said mortgages these lots, and in lieu thereof took from the Anstey company these seventeen mortgages, it was a mere substitution of securities.

In November and December, 19'0‘9', the Lake'Shore Fealty Company was the record owner of the premises. The defendant lienors, therefore, when they began their work and furnished materials at the request of the Anstey company, were put upon inquiry as to the true owner of the premises (Spruck v. McRoberts, 139 N. Y. 193) and were chargeable with notice that the Anstey company was not the owner. Their liens, filed in March, 1910, were against the interest only of the Anstey company, and did not become operative until they filed the notices of lien. Lien Law, § 3. They made no attempt to file any lien against any interest in the property of the plaintiff or of the Lake Shore company. Upon this trial, a motion was made to amend the notice of lien so as to claim against the interest of the plaintiff and the Lake Shore company. The- matter is statutory, and the notice is a prerequisite to the lien. After the expiration of the statutory period allowed for filing notices of lien, the court is without power to amend or reform' a notice of lien in the manner here attempted. Maurer v. Bliss, 14 Daly, 150; affd. without opinion, 116 N. Y. 665; 27 Cyc. 206.

Having failed to name other interests than the Anstey company, these lienors cannot now assert a lien upon the interest of the Lake Shore company; and they cannot claim against the plaintiff, even if the persons he represents, who are interested in the mortgages, are chargeable with knowledge or notice of the contracts and building enterprises of the Lake Shore company.

Plaintiff, therefore, is entitled to a decree of foreclosure and sale.

Judgment for plaintiff.  