Danziger v. Simonson

• Decision Date: 22 October 1889
• Citation: 22 N.E. 570,116 N.Y. 329
• Parties: DANZIGER v. SIMONSON.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 329

22 N.E. 570

DANZIGER

v.SIMONSON.¹

Court of Appeals of New York, Second Division.

Oct. 22, 1889.

Appeal from superior court of New York city, general term.

Action to foreclose a mortgage, brought by Max Danziger against several defendants; among them, William H. Simonson, who claimed a lien on the premises under a mechanic's lien. On report of a referee, judgment was entered for the plaintiff, which judgment was affirmed by the general term. Defendant Simonson appeals.

N. C. Moak, for appellant.

Lewis Sanders, for respondent.

HAIGHT, J.

This action was brought to foreclose a mortgage. The defendant Simonson was made a party defendant, as having, or claiming to have, some interest in or lien upon the mortgaged premises; which interest or lien, if any, had accrued subsequently to the lien of the mortgage. The answer interposed alleged, in substance, that the mortgage was executed by the defendant Andrew Kelly as a security for money thereafter to be advanced by the plaintiff under an agreement in writing by which Kelly had agreed to erect four buildings upon the premises covered by the mortgage, and that the plaintiff was to advance $8,000 on each of such buildings as they progressed in construction; that the defendant Simonson furnished materials for such buildings, at prices agreed upon, and which in the aggregate amounted to the sum of $2,715.73, and that he had filed in the office of the clerk of the city and county of New York a notice of his claim, and a lien upon the four houses and premises; that at the time of filing such lien the plaintiff had not advanced upon the mortgage the sums of money agreed to be advanced. Other matters were alleged in the answer which it will not be necessary to here consider. He prayed judgment that the premises be sold, and that the moneys arising from the sale be brought into court, and that he be first paid the amount due upon his lien for materials furnished, with costs, etc. Upon the trial it appeared that the defendant's lien was filed on the 18th day of April, 1884, and that on the 5th day of September, 1884, no notice of pendency of action to foreclose the lien had been filed. Thereupon the referee ruled out and excluded the evidence offered by the defendant to prove the defenses alleged in his answer, and found as facts that the defendant had not filed any notice of pendency of any action to foreclose his lien within 90 days after the filing of such lien. The question presented for review is as to whether the claim of the defendant continued a lien upon the premises after the expiration of 90 days from the time it was filed.

The statute in force at the time provided that ‘no lien provided for in this title shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be commenced within that time to enforce the same, and a notice of the pendency of such action filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket. And, where the claimant is made a party defendant to any action brought to enforce any other lien, the notice of the pendency of such action must be filed by him, or in his behalf. But the neglect to file such notice shall not abate any action which may be pending to enforce the lien. Such action may be prosecuted to judgment against the persons liable for the debt.’ Laws 1882, c. 410, § 1813, as amended by Laws 1883, c. 276. Under the first clause of the section, it will be observed that no lien shall bind the property for a longer period than 90 days, unless an action be commenced within that time, and a notice of the pendency of such action is filed with the clerk of the county. It is not claimed that the defendant Simonson had commenced an action to enforce his lien within that time, or that he had filed such notice. His lien would therefore cease to exist after the expiration of 90 days, under the express provisions of the statute, unless it was saved by the foreclosure action instituted by the plaintiff. The second clause of the section, as we have seen, provides that, where a claimant is made a party defendant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed, etc. Although he appeared in the foreclosure action and answered, he did not file any notice of the pendency of such action. If, therefore, the lien of the mortgage is one within the contemplation of this statute, the defendant's lien has expired, and no longer exists; for he has omitted to comply with the provisions of the statute for continuing the life of his lien. It is contended, however, that the lien referred to in this connection means other mechanics' liens, and does not include a lien by mortgage; that the word ‘other,’ appearing in the statute, means the same class or kind previously described; and that, inasmuch as the chapter pertains to mechanics' liens, other mechanics' liens than the defendant's were the liens referred to; and our attention is called to the case of People v. Richards, 108 N. Y. 137-150, 15 N. E. Rep....