
    Matter of the Mechanic’s Lien Claimed by the Whale Creek Iron Works v. the New York and Queens Electric Light and Power Company, as Owner, and Harry T. Weeks, as Contractor.
    (Supreme Court, Queens Special Term,
    August, 1911.)
    Mechanics’ liens — Foreclosure — Extent and nature of right in general — Time for foreclosure.
    A contractor who employed one who has filed a mechanic’s lien may give the notice required to be given under section 59 of the Lien Law to begin an action to enforce the lien within thirty days thereafter.
    Where the lienor has brought an action against the contractor upon the claim for which the lien was filed, and the opposition of the contractor to advancing the ease for trial is justified by the decision of the court that it should not be advanced, the contractor who had given the lienor the notice required by section 59 of the Lien Law is entitled to have the lien discharged and not. held to await the trial of the action at law. .
    Motion to discharge a mechanic’s lien.
    Kellogg & Tappen, for motion.
    Joab H. Banton, opposed.
   Blackmar, J.

This is a motion to discharge a mechanic’s lien on failure to begin action to enforce the same within thirty days after notice given pursuant to section 59 of the Lien Law. The motion is made by the contractor and not the owner.

The law authorizing this practice was originally contained in chapter 342 of the Laws of 1885. By the terms of that act, the right to serve the notice and move to discharge was o conferred on the owner or the person against whom the lien was filed. Whether by the terms of that act the notice could be served by the contractor who employed the lienor, or whether the right was limited to the owner, is, in view of the change in the law, immaterial. This provision of law was carried into the Code in 1897 and became section 3417, and from there it was transferred to and has become section 59 of the Lien Law.

By the terms of the law, as it now reads, the right to serve the notice is not expressly limited to the owner. I believe that the notice may now be served by any person whose interests are affected by the lien. The lien practically garnishees the amount due the contractor. Frequently, the lien is more burdensome on the contractor than on the owner. It does not trouble the owner unless he wants to sell the property, whereas it may seriously embarrass the contractor not to be able to collect the amount due him'until the lien is discharged. I think, therefore, that the contractor may make the notice.

Section 59 of the Lien Law empowers the court in its discretion to discharge the lien for failure to prosecute. Whether it should do so or not depends upon the circumstances of each case. Ordinarily, the lien should be discharged unless some cause be shown to the contrary. The cause shown in this case is that the- lienor has brought an action at law in the City Court of the city of Hew York against the contractor upon the claim- for which the lien is filed and that the contractor opposed advancing that case on ‘the calendar for trial. As the City Court decided that the ease should not be advanced, the opposition of the contractor to that motion was justified.

The final question is whether a lienor should be permitted to hold to his lien until the question of the claim on which the lien is based can be fought out in another action in another court. The lienor deliberately chose an action at law in the City Court of Hew York in preference to a suit in equity in the Supreme Court. He now advances that fact as a reason why he should be permitted, to continue the lien. As I look at it, this choice to proceed at law is a reason why the motion should be granted, not denied. If the lienor prefers the jurisdiction of the City Court with a jury as a tribunal to that of the Supreme Court, sitting in equity, his choice should be made! final by discharging the lien. The lien, which is the only basis of a suit in equity, should not be held to await the trial of an action at law. Even after the action at law is decided, it will need another suit in equity to dispose of the lien.

I shall grant the motion and thus prevent unnecessary litigation.

Motion granted.  