
    William Tubridy, App’lt, v. Stephen J. Wright et al., as Executors, etc., Resp’ts.
    
    
      Court of Appeals,
    
    
      Filed January 29, 1895.)
    
    Mechanic’s lien—When bight to file tebminates.
    The right to file a mechanic’s lien for materials furnished and labor performed terminates with the death of the owner of the property.
    Appeal from judgment of the general term of the court of common pleas for the city and county of Hew York, entered upon an order, which affirmed a judgment in favor of defendants entered upon the report of a referee.
    
      Lawrence E. Prendergast, for app’lt; William J. Leitch, for resp’t.
    
      
       Affirming 58 St. Rep. 52.
    
   Haight, J.

This action is brought to foreclose a mechanic’s lien. It appears that one Samuel 0. Wright, in his lifetime, was the owner of seven houses in the course of erection in the city of New York; that he entered into a contract with the plaintiff to-do the plumbing therein for the sum of $11,000; that the plaintiff entered upon the performance of his contract, and had nearly completed the same when the work was postponed, by the mutual consent of the parties, until further direction by Wright. Shortly thereafter Wright died, leaving a will whereby he devised his property to the defendants in trust. The defendants then called upon the plaintiff to complete his contract, which was done, and thereafter, within the ninety days prescribed by the statute, he filed a lien against the property for the sum of $2,557.70, the amount then remaining unpaid upon his contract.

The referee found that the value of the work done by the plaintiff, under the direction of the defendants, was the sum of $60, for which amount he ordered the usual judgment, and refused to include the balance of the plaintiff’s claim.

The question presented upon this review is as to whether the plaintiff acquired a valid lien upon the property for the work done under the contract prior to the death of the defendants’ testator.

It has been held that, upon the death of the owner of real property, the title passes to his heirs at law or devisees, and that the right to file a mechanic’s lien for materials furnished and labor performed terminates with his death. Crystal v. Flannelly, 2 E. D. Smith, 583; Meyers v. Bennett, 7 Daly, 471 ; Brown v. Zeiss, 9 id. 240; Leavy v. Gardner, 63 N. Y. 624. It is contended, however, that these decisions were made under other statutes and were based upon special language incorporated therein, and that they should not be regarded as decisive of the question now presented.

The statute under which the plaintiff sought to perfect his lien is chapter 342 of the Laws of 1885. Section 1 of the- act gives to the person performing the work or furnishing material used in the erection of any building, etc., with the consent of the owner, a lien to the extent of the owner’s interest therein, not, however, exceeding the amount remaining unpaid upon the contract. Section fi ve provides that “ the liens provided for in this act shall be preferred as prior liens to any conveyance, judgment or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the fourth section of this act,” etc.

The statute under which Brown v. Zeiss (supra) was decided, provided that “the liens provided for in this act shall be preferred to any lien, mortgage or other incumbrance of which the lien-holder had no notice and which was unrecorded at the time of the filing of the claim,” etc.

It will be observed that the only material change in the statute is the incorporating therein the word “ conveyance; ” and it is not apparent how this affects the construction of the statute as to the question under consideration. No provision is found in the statute giving the claimant the right to acquire a lien after the death of the owner.

Mechanics’ liens are created by the statute, and whilst the law should receive a liberal construction, so as to secure the beneficial purpose had in view by the legislature, yet, as it creates a remedy unknown to the common law, it may not be extended to cases not fairly within its general scope and purview. Spruck v. McRoberts, 139 N. Y. 193; 54 St. Rep. 461; Stevens v. Ogden, 130 N. Y. 182; 41 St. Rep. 331; McCorkle v. Herman, 117 N. Y. 297; 27 St. Rep. 333.

It may be claimed that the equities in favor of the lienor are as strong after the decease of the owner as in his lifetime, but the difficulty is, that upon his death the rights of the general creditors intervene, who are entitled to have the entire estate, if necessary, devoted to the payment of their claims.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.  