Opinion
March 5, 1909.
Benjamin F. Donvan of counsel [ Henry A. Brann, Jr., attorney], for the appellant.
Constantine T. Timonier, for the respondent.
This appeal is from an order of the County Court denying a motion to cancel and to discharge of record a mechanic's lien and a lis pendens. The defendant who moved and who now appeals is the owner of the premises. He has not appeared generally.
The mechanic's lien was filed on May 4, 1907. The plaintiff deposes that he began this action for foreclosure on May 1, 1908, by filing the summons and complaint with a lis pendens "and by the service of a copy of the said summons and complaint upon the defendant Herman Hahn" on May 2, 1908; that the defendant Hurley "has also been served with a copy of the said summons and complaint" and that "the defendant Thomas F. O'Neill was similarly served after the year had expired and subsequent to the 4th day of May, 1908." Hurley was a mortgagee and Hahn was the contractor to whom the plaintiff was a sub-contractor. It does not appear that the lien was ever continued by order, or redocketed. To keep the lien alive the plaintiff must have begun his action to foreclose within one year after the filing of his notice of the lien. (Lien Law [Laws of 1897, chap. 418], § 16.) An action is begun by service of a summons. Concededly he did not serve the owner until the lapse of that year. And hence he did not begin his action against him unless Hahn was a codefendant who was "a joint contractor" or was "otherwise united in interest" with O'Neil. (Code Civ. Proc. § 398.) The owner of the premises and a contractor for work thereon are not joint contractors as to the sub-contractor. (Phillips Mechanics' Liens [3d ed.], § 397.) And they are not "otherwise united in interest." The interest of the contractor is to defeat the claim, or to reduce it to the saving of his own claim against the owner. The interest of the owner is confined to see that the claim of the sub-contractor rests upon a sum justly due from the owner to the contractor under their contract, inasmuch as the lien of the sub-contractor attaches perforce of the owner's indebtedness to the contractor. ( Van Clief v. Van Vechten, 130 N.Y. 571; Brainard v. County of Kings, 155 id. 538.) Payment to the contractor of the full contract price in good faith may defeat the right of the sub-contractor to his lien ( De Lorenzo v. Von Raitz, 44 App. Div. 329), and it might be to the interest of a dishonest contractor to conceal such fact. The sub-contractor's claim against the contractor rests upon their contract. His claim against the owner is perforce of his right to garnish or to attach the amount due from the owner to the contractor, and to proceed to foreclosure. He seeks foreclosure against the owner, and but a personal judgment for deficiency against the contractor. If the contractor and the owner were united in interest, they must be made parties. (Code Civ. Proc. § 448.) But section 3402 of the Code does not enumerate the contractor as such a party. He is not such an one. (Phillips Mechanics' Liens, § 397.) There was no unity of interest. (See Smith v. Hurd, 50 Minn. 503; Smith v. Gault, 5 Month. Law Bull. 54; Henry v. Lynch, 1 N.Y. Supp. 780; Moore v. McLaughlin, 11 App. Div. 478.)
I am of opinion, then, that the service of the summons and complaint on the contractor was not a beginning of the action against the owner. As the plaintiff did not begin his action of foreclosure, or secure an order to continue it within one year from the time of filing his lien, the lien was discharged. ( Albro v. Blume, 5 App. Div. 309.) Section 18 of the Lien Law is self-operative ( Matter of Rudiger, 118 App. Div. 86), and hence no order of the court was required as to the lien. I think, however, that the court could and should have directed that the notice of lis pendens should be canceled. (Code Civ. Proc. § 1674.)
The order should be modified accordingly, and as so modified affirmed, without costs.
HIRSCHBERG, P.J., WOODWARD, GAYNOR and MILLER, JJ., concurred.
Order of the County Court of Queens county modified in accordance with opinion, and as so modified affirmed, without costs.