Manton v. Brooklyn & Flatbush Realty Co.

• Decision Date: 22 February 1916
• Citation: 111 N.E. 819,217 N.Y. 284
• Parties: MANTON v. BROOKLYN & FLATBUSH REALTY CO. et al.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 284

111 N.E. 819

MANTON

v.BROOKLYN & FLATBUSH REALTY CO. et al.

Court of Appeals of New York.

Feb. 22, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Michael J. Manton against the Brooklyn & Flatbush Realty Company and others. From a judgment of the Appellate Division (160 App. Div. 783, 145 N.Y. Supp. 996) affirming a judgment of the Special Term dismissing the complaint as to the named defendant, plaintiff appeals. Reversed, and new trial granted.

Martin T. Manton, of Brooklyn, for appellant.

Benjamin Reass, of Brooklyn, for respondent.

CARDOZO, J.

This action is brought to foreclose a mechanic's lien. The plaintiff's assignors filed their notice of lien on October 29, 1909, and the lien was entered in the docket. It was continued and redocketed on October 20, 1910. On October 19, 1911, an order was made that it be continued for another year. This order was filed with the clerk of Kings county on October 20, 1911. A fee of 50 cents is payable to the clerk for docketing a lien. Laws 1906, c. 446. This fee was not paid, and so the lien was not redocketed. The omission was discovered in February, 1912. The plaintiff procured an ex parte order that on payment of the fee the lien be redocketed nunc pro tune as of October 19, 1911. That order was vacated upon motion, and the ruling was affirmed in the Appellate Division and in this court. Matter of Manton, 152 App. Div. 888, 136 N.Y. Supp. 597;Id., 206 N.Y. 742, 100 N.E. 1129. The question now to be determined is whether the delay in redocketing has terminated the lien.

[1]Section 17 of the Lien Law (Laws 1909, c. 38; Consol. Laws, c. 33) provides that no mechanic's lien shall continue for a longer period than one year after the notice of lien has been filed unless within that time an action of foreclosure is commenced and a notice of lis pendens filed, “or unless an order be granted within one year from the filing of such notice by a court of record, continuing such lien, and such lien shall be redocketed as of the date of granting such order and a statement made that such lien is continued by virtue of such order.” In this case the order was obtained and filed within the year; but the redocket was not made till after the expiration of the year. No rights of third persons have intervened, and no prejudice or loss is shown to have been suffered by the owner.

The effect of the failure to redocket a continued lien can be no greater than the effect of the failure to docket a lien when the notice is first filed. Section 3 of the Lien Law says that the contractor shall have a lien “from the time of filing a notice of such lien as prescribed in this article.” Section 10 says that the notice of lien may be filed during the progress of the work or within a stated time thereafter. It then goes on to provide that the county clerk of each county shall keep a book to be called the lien docket, which shall be ruled in columns with prescribed headings “in each of which he shall enter the particulars of the notice properly belonging therein.” The filing of the notice is the act that creates the lien. In like manner the filing of the order of the court is the act that continues it when the year has expired. Lien Law, §§ 17 and 19. The entry in the docket is not a condition of the creation of the lien. The re-entry in the docket is not a condition of its continuance. The condition is “unless the order be granted.” What follows is not a condition, but a command: “Such lien shall be redocketed.” The command is addressed to the public officer by whom the docket book is kept. The docket or redocket is the act of the clerk, and its function is notice.

Many decisions uphold the conclusion that the existence of a lien is not affected by the omission of a public officer to enter it in the public records. In Mutual Life Ins. Co. v. Dake, 87 N.Y. 257, 263, a mortgage upon real estate was not indexed by the clerk. None the less it was held to have been effectually recorded. In Prest., etc., of Manhattan Co. v. Laimbeer, 108 N.Y. 578, 590, 15 N.E. 712, the certificate for a limited partnership was filed, but the clerk failed to record it, and it was held that the partnership had been duly formed. In Bishop v. Cook, 13 Barb. 326, and Dodge v. Potter, 18 Barb. 193, the duty of the town clerk was to provide suitable books and to enter in them the names of parties to chattel mortgages. He failed to fulfill that duty, but the chattel mortgages were not affected. Prest., etc., of Manhattan Co. v. Laimbeer, supra, at page 590 of 108 N. Y., 51 N.E. 712. Other cases involve similar rulings. Fink v. Wallach, 109 App. Div. 718, 96 N.Y. Supp. 543;N.Y. County Nat. Bank v. Wood, 169 App. Div. 817, 821, 153 N.Y. Supp. 860. If the courts below are right, and the docket is essential to the creation of the lien, the lienor who files a notice is not at liberty to depart in peace. He must follow up the conduct of the clerk, and wait till in the press of business the lien is entered in the docket book. We think that no such consequence was intended by the Legislature. The analogy of judgment liens is of no value. The statute expressly declares that a judgment “neither affects real property or chattels real, nor is entitled to a preference, until the judgment roll is filed, and the judgment docketed.” Code Civ. Proc. § 1250. The clerk who...