
    TELFER a. KIERSTED.
    
      New York Common Pleas;
    
    
      Special Term, December, 1859.
    Mechanics’ Lien.—Death of Contractor.
    The right to file a lien under the Mechanics’ Lieu Law, and to proceed for its foreclosure, is not lost by reason of the death of the contractor.
    Demurrer to complaint.
    The facts appear in the opinion.
   Brady, J.

William Dennison agreed with the defendants, the owners of the premises described in the complaint, to erect a building thereon, and the plaintiff contracted with Dennison to do certain work, and furnish certain materials, towards such erection, and in conformity with the contract between defendants and Dennison. The plaintiff performed his agreement, and Dennison completed his contract, but died intestate before the plaintiff’s lien was filed. The plaintiff’s labor was performed and th-e materials furnished, however, within six months prior to the filing of the lien. The defendants demur, and insist that the lien law is a special statute, to be strictly construed; that it contemplates the existence of the contracting parties, and that the death of the contractor, in effect, repeals or abrogates the statute, and deprives the laborer, or material man, of his lien. That upon the death of the contractor, his assets pass to the executor or administrator, and that the intervention of the lien cannot deprive his legal representatives of their power over his estate. The answer to this argument is, that the primary object of the Legislature was to create, in favor of the laborer and material man, a lien upon the fund in the owner’s hands due to the contractor; and as to that fund to give him priority over every general creditor of the contractor, imposing only as a condition, that within the time prescribed therefor, he should file and serve the notice required by the statute. That condition has been performed, and the plaintiff’s right, thereupon, became absolute. The contractor having finished the building, there was a balance due to him, which was subject to the plaintiff’s inchoate right, and that right could be defeated only by the payment to the contractor of the balance, prior to notice of the lien. For these reasons, I think the demurrer was not well interposed, and that the plaintiff is entitled to judgment.

Ordered accordingly.  