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of Limitations, or unless steps taken by the N. Y. Leg. Obs., 58.

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not be acquired by filing a notice of lien after the conveyance, although the purchaser took with notice of the amount of the claim, and the conveyance was made subject to its payment. N. Y. Com. Pl., 1857, Sinclair v. Fitch, 3 E. D. Smith, 677.

25. The lessee of an inn erected a ball-room, resting upon stone posts slightly imbedded in the soil, and removable without injury to the inheritance. Held, that the ball-room was, within the principle of erections made for purposes of trade, removable by the tenant, and that the right passed to a material-man, who purchased the building under execution. on a judgment establishing his lien. Ib.

26. Prior incumbrances. In the foreclosure of a lien under section 1 of the act of

21. Filing a notice of lien against A. as owner, after A. has conveyed to B., and the conveyance has been recorded, is ineffectual. Supreme Ct., 1859, Noyes v. Burton, 29 Barb., 681; S. C., 17 How. Pr., 449. 22. Assignee. Where the owner of a build-1851,-which confined the lien to the right, ing in the city of New York conveys it, with the lot, to trustees for the benefit of creditors, material-men, laborers, and contractors, do not, by afterwards filing notices under the Mechanics' Lien Law, acquire any lien under the statute upon the premises, although the notices are filed before the recording of the deed. Nor do they acquire a lien as against the grantees. If in such case the materialmen, &c., do acquire an equitable lien, it is not one which can be enforced by proceedings in the Marine Court under the Mechanics' Lien Law. N. Y. Com. Pl., 1855, Quimby v. Sloan, 2 E. D. Smith, 594; S. C., 2 Abbotts' 93.

Pr.,

23. Where the owner of a building in the city of New York conveys it, with the lot, to trustees for the benefit of creditors, materialmen, laborers, and contractors do not, by afterwards filing notices under the Mechanics' Lien Law, acquire a lien upon the premises, such that it can be enforced by proceedings under that statute, although the proceedings are conducted in a court having general equity jurisdiction. N. Y. Com. Pl., Sp. T., 1855, Jackson v. Sloan, 2 E. D. Smith, 616; S. C., 2 Abbotts' Pr., 104.

&c., of the owner, existing at the time of filing the notice,-any prior liens existing at such time must be taken into account, and the amount secured by them deducted from the contract price, in determining the amount which the owner can be compelled to pay. N. Y. Com. Pl., 1852, Cronk v. Whittaker, 1 E. D. Smith, 647; S. P., Lehretter v. Koffman, Id., 664; Sp. T., Chamberlain v. O'Connor, Id., 665; 1853, Kaylor v. O'Connor, Id., 672.

27. An injunction will not be granted to restrain proceedings to foreclose a lien, on the ground that there are prior liens exceeding the amount due from the owner. The existence of such liens is a good defence to the proceeding. If they are set up as such defence, the claimant may impeach them. N. Y. Com. Pl., Sp. T., 1852, Lehretter v. Koffman, 1 E. D. Smith, 664; S. C., 1 Code R., N. S., 284.

28. Deceased owner. That a lien cannot, in general, be created by a sub-contractor, by filing a notice after the death of the owner, with whom the contract was made. N. Y. Com. Pl., 1855, Crystal v. Flannelly, 2 E. D. Smith, 583.

29. Married woman. Whether a married 24. Tenant. The lien given by the act of woman can so contract for the erection of a 1852 (Laws of 1852, 611, ch. 384),-applying building on her separate estate, as to subject it to certain counties,-attaches wherever labor to the creation of a lien,-Query? Hauptis performed or materials furnished for a build-man v. Catlin, 1 E. D. Smith, 729. Compare ing, under a contract with the owner thereof, Berry v. Weisse, 2 Id., 662, note. however temporary his interest in the land on which it stands. It attaches to the land and to the building, to the extent of the interest of the owner of the building in them respectively. Such lien exists, therefore, upon a building erected by a tenant from year to year, or at will, where, as between landlord and tenant, the latter has the right to remove it. Ct. of Appeals, 1859, Ombony v. Jones, 19 N. Y. (5 Smith), 234.

30. Where a contract is made with a husband acting as agent of his wife, for erection of a building upon land which she owns as her separate estate, a lien may be acquired. N. Y. Com. Pl., 1857, Hauptman v. Catlin, 3 E. D. Smith, 666; S. C., 4 Abbotts' Pr., 472; affirmed, 20 N. Y. (6 Smith), 247.

31. Although the notice stated that the building was owned by a wife, and described the contract as being made with the husband,

yet it being admitted on the pleadings that and that the contractor has so far performed the contract was entered into by the husband the contract, as to become entitled to payment in the capacity of agent of his wife,-Held, under it. If the owner denies that the conthat the proceeding might be sustained. Ib. tract has been performed, the burden of show32. Several buildings. Where materials ing performance is upon the claimant. N. Y. are furnished for several buildings, belonging Com. Pl., 1853, Hauptman v. Halsey, 1 E. D. to one owner, situated upon adjacent lots, Smith, 668; S. P., Sullivan v. Brewster, Id., under one contract for the construction of all, 681; 1854, Dixon v. La Farge, Id., 722; 1856, a single lien, charging the whole debt upon Walker v. Paine, 2 Id., 662. all the premises, is proper. N. Y. Com. Pl., Sp. T., 1858, Paine v. Bonney, 4 E. D. Smith, 734; S. C., 6 Abbotts' Pr., 99.

39. A sub-contractor cannot enforce a lien where he has not fulfilled his contract with the contractor, even though prevented by the 33. Contract with the owner. Under the latter from performing. For that he has a act of 1851, relative to Westchester, &c., right of action against the contractor, but no counties (Laws of 1851, 319, ch. 514), there lien under the statute. N. Y. Com. Pl., 1856, can be no lien unless the work or materials Dennistoun v. McAllister, 4 E. D. Smith, 729. were furnished under a contract with the 40. The sub-contractor cannot have a lien owner. Supreme Ct., Sp. T., 1852, Dressel v. | (under Laws of 1830, 412, ch. 830) upon French, 7 How. Pr., 350. money due from the owner to the contractor,

34. Where it appeared that by the original by way of unliquidated damages for preventcontract nothing was yet due to the contrac-ing the contractor from completing the contor, but it was contended that an earlier time tract. The lien is confined to what is due for for payment had been substituted by a subse-performance. Ct. of Errors, 1844, Hoyt v. quent parol agreement;-Held, under the act Miner, 7 Hill, 525; affirming S. C., 4 Id., 193. of 1851, relative to New York (Laws of 1851, 953, ch. 513), there appearing not to have been any consideration for the alleged parol modification, it could have no effect on the sealed agreement; and the sub-contractor could not recover. N. Y. Com. Pl., 1853, Tinker. Geraghty, 1 E. D. Smith, 687.

35. The recovery by a sub-contractor must be limited to the amount due to the contractor by the very terms of the building-contract itself. N. Y. Com. Pl., 1856, Nolan v. Gardner, 4 E. D. Smith, 727.

36. Where the owner promised during the execution of the work to pay the contractor a specified sum as damages, for an unforeseen loss,-Held, that this indebtedness could not be reached by the sub-contractor. Ib.

41. Deviation. Although the work of the sub-contractor was done pursuant to the contract between himself and the contractor, yet if there has been such a deviation on the part of the contractor from the terms of his contract with the owner, that the latter is not liable to the contractor upon the contract, the sub-contractor cannot sustain a lien. N. Y. Com. Pl., Sp. T., 1856, Grogan v. Mayor, &c., of N. Y., 2 E. D. Smith, 693.

42. Abandonment. Where the original contractor abandons the work before any payment has become due, so that by the terms of the contract the owner is not liable, the subcontractor cannot create a lien. It makes no difference that the contractor was induced to enter into the contract by false and fraudulent representations from the owner. If the contractor has a right of action under such circumstances, for the value of his work, it is not one which can be made the basis of a lien, under the statute, in favor of a sub-contractor. N. Y. Com. Pl., 1855, Linn v. O'Hara, 2 E. D.

37. must be express. The mere implied agreement on the part of the owner, which may be inferred from his suffering improvements to be made upon his premises, that he will pay what the same may be reasonably worth, is not such a contract as can form the basis of a lien in behalf of a sub-con-Smith, 560. tractor. N. Y. Com. Pl., 1856, Walker v. Paine, 2 E. D. Smith, 662.

43. A contract with an owner for the erection of a building, stipulating no time of payment, nor any sum, excepting that the labor was to be done by days' work, is an entire contract, and not divisible as to the time of payment. N. Y. Com. Pl., 1857, Cunningham

The Lien.

. Jones, 3 E. D. Smith, 650; S. C., 4 Abbotts' ing the Remedy, as distinguished from the Pr., 433. contract, see CONSTITUTIONAL LAW.

44. The contractor upon such a contract having abandoned the work and absconded, leaving the building not inclosed. Held, that he was entitled to no payment, and that a laborer or material-man had no claim against the owner. Ib.

49. A party cannot acquire a lien under the act of 1851, for labor, &c., furnished prior to that act. N. Y. Com. Pl., 1853, Donaldson v. O'Connor, 1 E. D. Smith, 695. Compare Smith v. Manice, 1 Code R., N. S., 283.

50. Extra work, not within the contract, cannot be made the subject of a mechanic's lien. N. Y. Com. Pl., 1855, Foley v. Alger, 4 E. D. Smith, 719.

45. Payments. Under the act of 1851 the owner cannot be compelled to pay any greater sum than the contract-price. Any payments made by him to the contractor, in good faith, 51. Under the act of 1830 (Laws, 412, ch. according to the terms of the contract, and be- 330), the sub-contractor may establish a lien fore the notice of lien is filed, must be allowed for extra work. There must have been a to him in making up the aggregate which he written contract for the erection of the buildmay be compelled to pay. Nor can he be ing; but it is not necessary it should have required to pay money to the claimant, before been performed without any departure. Suit becomes payable by the terms of his con-preme Ct., 1834, Haswell v. Goodchild, 12 tract. N. Y. Com. Pl., 1852, Doughty v. Wend., 373. Devlin, 1 E. D. Smith, 625; S. P., Cronk v. Whittaker, Id., 647; Kennedy v. Paine, Id., 652; McBride v. Crawford, Id., 658; 1853, Allen v. Carman, Id., 692; 1854, Spalding v. King, Id., 717; S. C., 12 N. Y. Leg. Obs., 186; | Smith, 724. Trial T., 1857, Lynch v. Cashman, 3 E. D. Smith, 660. Ct. of Appeals, 1855, Carınan v. MeIncrow, 13 N. Y. (3 Kern.), 70; S. C., 2 E. D. Smith, 689.

46. So held, under the act of 1830. Supreme Ct., 1884, Haswell v. Goodchild, 12 Wend., 373.

47. Credit in account. Where, by mutual consent, the contractor, instead of receiving a payment due under the contract, in cash, has received a credit therefor upon an account due from him to the owner, such credit is equivalent to a payment within the rule that the sub-contractor cannot recover from the owner, where the contractor has been paid all that is due. N. Y. Com. Pl., 1853, Allen v. Carman, 1 E. D. Smith, 692.

48. For what work a lien may be acquired. The act of 1851 (Laws, 953, ch. 513), relative to mechanics' liens, is not unconstitutional, even in its application to contracts made before its passage. It does not affect the contract, but provides a new remedy. N. Y. Com. Pl., 1853, Sullivan v. Brewster, 1 E. D. Smith, 681; S. C., 8 How. Pr., 207; 1854, Miller v. Moore, 1 E. D. Smith, 739. Ct. of Appeals, 1857, Hauptman v. Catlin, 20 N. Y. (6 Smith), 247; affirming S. C., 3 E. D. Smith, 666; 4 Abbotts' Pr., 472.

52. Work done under the contract, though pursuant to an oral modification of its terms in respect to time, may be recovered for. N. Y. Com. Pl., 1856, Foley v. Gough, 4 E. D.

53. Sidewalks. Under the act of 1830 (Laws, 412, ch. 330, § 1),-which only allows a lien for work done in erecting, &c., buildings, no lien can be acquired for the construction of sidewalks in front of the building. The term "appurtenances," employed in Laws of 1844, 339, ch. 220, § 1; and Id., 451, ch. 305, § 1, would probably include sidewalks. Ct. of Appeals, 1853, McDermott v. Palmer, 8 N. Y. (4 Seld.), 383; S. C., 2 E. D. Smith, 675.

54. Contract with owner. Where the laborer's notice of lien is filed for work done for the contractor, he cannot recover under it for work done under a contract direct with the owner. N. Y. Com. Pl., 1853, Hauptman v. Halsey, 1 E. D. Smith, 668.

55. Requisites of the notice of lien. It is indispensable to the creation of a lien, under the act of 1851, that the prescribed notice should be filed. No particular form of notice need be followed; but the notice must state the matters required by statute to be stated. If defective, in omitting any essential particular, it cannot be aided by amendment in the proceeding to enforce the lien. N. Y. Com. Pl., 1852, Beals v. Congregation B'nai Jeshurun, 1 E. D. Smith, 654.

56. Name of owner. The notice omitted

As to the constitutionality of statutes affect- to state the name of the owner of the building.

The Lien.

The defendants, a religious society, appeared, and set up the defect as a ground of defence. Held, 1. That the notice was essentially defective. 2. That the appearance did not waive the objection. 3. That no amendment could be allowed. Ib.

nishes no foundation for a judgment. The objection can be taken at the trial. Ib.

66. Expiration of the lien. A mechanic's lien, under Laws of 1844, 339, ch. 220,—relating to the city of New York,-expires in one year from its commencement. It is not prolonged by obtaining a judgment against the owner of the property within the year. Ct. of Appeals, 1850, Freeman v. Cram, 3 N. Y. (3 Comst.), 305.

57. Contract with agent. Where the contract is made with an agent of the owner, it is not necessary that a notice filed to create a lien under the act of 1851, should state the name of the person with whom the contract 67. If proceedings have been commenced was made. Ot. of Appeals, 1857, Hauptman within the year, the inchoate lien created by v. Catlin, 20 N. Y. (6 Smith), 247; affirming the filing of the claim continues after the S. C., 3 E. D. Smith, 666; 4 Abbotts' Pr., 472. | year, and until judgment in the proceedings, 58. Time of performing work. It is not which becomes itself a lien, relating back, and material to state, in the notice filed to create a lien, that the work was done within six months. If it was not, that is matter of defence to be shown affirmatively. N. Y. Com. Pl., 1856, Lutz v. Ey, 3 E. D. Smith, 621; S. C., 3 Abbotts' Pr., 475.

59. Capacity. A notice to create a lien is not insufficient because it fails to state in what capacity-whether as contractor or laborer, &c.-the claimant rendered the services. Ib.

60. Filing. There is no need that a notice filed to create a lien should state when it was or would be filed. N. Y. Com. Pl., 1853, Tinker v. Geraghty, 1 E. D. Smith, 687.

61. Description of premises. A notice sustained, though it did not state with precision that the building was situate within the city and county of New York. Ib.

62. A description of premises in a notice of lien, by a general statement that they are on the west side of a street, between two other streets, may be sufficient if the street-number of the building is unknown. N. Y. Com. Pl., 1857, Duffy v. McManus, 3 E. D. Smith, 657; S. C., 4 Abbotts' Pr., 432.

63. Verification. The provision in the amendatory law of 1855 (Laws, 761, ch. 404, §7), requiring the verification of the notice of lien, does not affect proceedings instituted prior to the passage of that act. N. Y. Com. Pl., 1856, Foley v. Gough, 4 E. D. Smith, 724. 64. Under the act of 1855,-requiring the notice of lien to be verified "in the same manner as a pleading,"-a verification alleging only that "the statement of the balance due, &c., is true according to deponent's knowledge," is insufficient. N. Y. Com. Pl., 1857, Conklin v. Wood, 3 E. D. Smith, 662.

having effect as an incumbrance, as of the day of filing the claim. So held, under the act of 1851. N. Y. Com. Pl., Sp. T., 1858, Paine v. Bonney, 4 E. D. Smith, 734; S. O., 6 Abbotts' Pr., 99.

68. Although a person having a mechanic's lien upon certain premises is joined as a party to an action to foreclose a mortgage on such premises, he is not thereby relieved from the necessity of foreclosing his lien within one year, as required by statute. [Laws of 1851, 954, ch. 513.] And if he fail to do so, he cannot receive the amount of his expired lien out of the surplus remaining after a foreclosure sale. Supreme Ct., 1859, Noyes v. Burton, 29 Barb., 631; S. C., 17 How. Pr., 449.

69. Discharge of the lien. The payment by the owner to the county clerk of the amount of claimant's demand, under section 11 of the act of 1851, simply reclaims the land from the lien. The right to the money remains unsettled; to recover it the claimant must prosecute his claim before the court. If he fails in his suit the defendant is entitled to a return. N. Y. Com. Pl., Sp. T., 1854, Dunning v. Clark, 2 E. D. Smith, 535.

70. Therefore where the owner, having made such payment, failed to appear in the proceeding to foreclose,-Held, that the plaintiff was regular in issuing a writ of inquiry, &c., and was entitled to the costs of his proceedings to establish the demand. Ib.

71. In proceedings to enforce a mechanic's lien, the omission to notify the county clerk, within a year of the filing of the claim, that legal steps to enforce the lien have been taken. does not operate to discharge the lien. It is not the want of such notice, but the act of the 65. A notice so verified is void, and fur- clerk in making the entry in the book of liens,