
    Charles Ottman, Respondent, v. The Schenectady Co-operative Realty Company and Others, Respondents, Impleaded with Clarence F. Shank and William J. Shephard, Composing the Firm of Shank & Shephard, and Others, Appellants.
    Third Department,
    May 8, 1907.
    Mechanic’s lien — costs discretionary—when owner not chargeable with costs.
    By virtue of section 3411 of the Code of Civil Procedure, costs are discretionary in an action to foreclose a mechanic’s lien, and a referee may award costs in favor of lienors payable from a sum due from, the owner to a defaulting con- • - tractor. When an owner' who completes a contract tin- the default of the contractor admits his liability for the amount due the defaulting contractor, and makes no defense, he should not personally he charged with costs.
    When a defendant lienor takes no active part in the action, save to prove his lien or to observe some other formality, he should not be awarded costs.
    Appeal by the defendants, Clarence F. Shank and William J. Shephard, composing the firm of Shank & Shephard, and others, from a judgment of the Supreme Court in favor of tlie plaintiff and certain of the defendants, entered in the office of the clerk of the county of Schenectady on the 31st day of March, ,1906, upon the report of a referee.'
    
      It. J. Cooper and William Dewey Louchs, for the appellants.
    
      John D. Miller, Everett Smith, MiUer dá Golden, Jacob W. Olute arid II. G. Glenn, for the respondents.
   Cochrane, J.:

This is an action to foreclose a mechanic’s lien. The appeal con- ■ eerns only the award of costs. .The oxvner of the real property in question is the defendant, The Schenectady Co.-operative Realty Company. The defendant George Marr contracted with such owner, for the construction of certain buildings. After partially performing, his contract the contractor defaulted. The owner completed the contract and after completion there was due to the contractor under such' contract the sum of $1,240. The parties hereto other than such oxvner and contractor are lienors for labor, and material furnished the contractor. The parties stipulated at the trial that the said sum of $1,240 take the place of and be considered ' as the real estate, and that the referee direct distribution thereof as if the same had been duly'paid into court without prejudice in the matter of costs. The referee awarded costs to’ the plaintiff and to each of the lienors who appeared by separate attorneys payable out of said sum of $1,240, and also directed payment thereof by the contractor and directed, judgment against such contractor for any deficiency which should remain unpaid to any of the lienors'after the application of said suin of $1,240. The contractor does not appeal. . The éffect of this award of costs is to cause the said sum of $1,240, out of which the liens are to be paid, to be absorbed before payment of the appellants’ liens in - the order of their priority.

We entertain no doubt of the power of the referee to award costs payable out of said sum of $1,240. Section 3411 of the Code of Civil Procedure makes the question of costs discretionary with the court and directs that the judgment shall spe'cify to whom and by whom such costs shall be paid. The theory of the. appellants seems to be that such costs should be paid by the owner. Doubtless there are cases where it would, be equitable to charge the owner with the costs. . Such were the cases of Kenney v. Apgar (93 N. Y. 539) and Wheeler v. Scofield (67 id. 311),. cited by appellants. ■. There the owners were the litigating defendants and were defeated in the litigation. Here"the owner litigated nothing, but admitted liability, and offered to pay the amount due on the contract according to the direction of the. court, It would have been unjust and inequitable under such circumstances, to charge the owner with costs.

Criticism is also made of the award of costs to the defendants. Where a defendant lienor takes no active part in the action save to make proof of his lien or to observe some other formality he should not as a general rule be awarded costs. In this case we have not been supplied with the pleadings or evidence save that a brief synopsis of the pleadings is given. We are unable to say just what attitude the several defendants assumed at the trial or whether they raised or litigated any question. We cannot assume that the discretion of the referee in awarding costs to the defendants was improperly exercised.

The judgment should be affirmed, with costs:

. All- concurred

Judgment affirmed, with costs.  