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First Department, October, 1911.

[Vol. 146. granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint on payment of such costs.

INGRAHAM, P. J., LAUGHLIN, CLARKE and MILLER, concurred.

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Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to amend complaint on payment of such costs.

WILLIAM BRADLEY AND Son, Appellant, v. HENRY HUBER

COMPANY and CHARLES J. TAGLIABUE MANUFACTURING COMPANY, Appellants, Impleaded with PATRICK SULLIVAN, Respondent, and THE CITY OF NEW YORK and Others, Defendants.

First Department, October 20, 1911.

Mechanic's lien - lien on municipal improvement- defective notice –

dismissal of complaint - dismissal of suit as to defendants who have not preserved their lien — failure to comply with Lien Law, section 18.

A complaint in a suit to foreclose a mechanic's lien upon a municipal

improvement should be dismissed where the notice of lien fails to state

the date when the amount claimed became due. So, too, the suit should be dismissed as against other lienors made parties

defendant where they failed to keep their lien alive, as required by sec tion 18 of the Lien Law, by neglecting to serve a lis pendens within three months, or by serving an answer on the other parties within that

time, or by applying to the court for an order continuing their liens. A mechanic's lien upon a municipal improvement is not kept alive by the

fact that the lienors are made parties defendant in a suit of foreclosure brought by another lienor, as section 17 of the Lien Law relates solely

to liens upon private property. There is a clear-cut distinction between liens upon private property and

liens upon funds accruing to contractors for a public improvement.

APPEAL by the plaintiff, William Bradley and Son, and the defendants, Henry Huber Company and another, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 28th day of January, 1911, upon the decision of the court rendered after a trial at the New York Special Term.

App. Div.]

First Department, October, 1911. Robert H. Elwell, for the plaintiff, appellant.

David Asch, for the appellant Henry Huber Company.

Henry B. Johnson, for the appellant Charles J. Tagliabue Manufacturing Company.

Jay Noble Emley, for the respondent. MCLAUGHLIN, J.:

This appeal is from a judgment dismissing the complaint against the defendants Sullivan and City of New York and dismissing the action against the same defendants as a lien action.

The action was brought to foreclose a municipal lien. The respondent Sullivan was the general contractor for the construction of a school building for the city of New York. The appellants claim liens for labor and materials furnished to a sub-contractor. At the trial the complaint was dismissed against the city and Sullivan, and the action dismissed as a lien action so far as it concerned the same defendants. The plaintiff, the Huber Company and the Tagliabue Manufacturing Company have each separately appealed.

It is unnecessary to consider the various questions raised by the appeal, it being sufficient to state why, as it seems to me, this judgment is right and should be affirmed. The complaint was properly dismissed as to the plaintiff because its notice of lien did not comply with the statute. Section 12 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) provides that “The notice shall state the name and residence of the lienor, the name of the contractor or sub-contractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due," etc. There is no statement in the notice of lien filed by the plaintiff of “the date when due” and as this is expressly required by the statute it rendered the notice ineffective. It is true that section 23 of the Lien Law provides: “This article is to be construed liberally to secure the beneficial interests and purposes thereof." But this does not authorize the court to entirely dispense with what the statute says the notice shall

First Department, October, 1911.

[Vol. 146. contain. (Mahley v. German Bank, 174 N. Y. 499; Schwariz v. Lewis, 138 App. Div. 566.)

As to the other two appellants, the action was properly dismissed as a lien action because of their failure to keep their liens alive as provided in section 18 of the Lien Law. This section provides that “If the lien is for labor done or materials furnished for a public improvement it shall not continue for a longer period than three months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time and a notice of the pendency of such action is filed with the Comptroller of the State or the financial officer of the municipal corporation with whom the notice of such lien was filed, or unless an order be made by a court of record continuing such lien and a new docket be made stating such fact.” Section 21 of the same law provides that “A lien against the amount due or to become due a contractor from the State or a municipal corporation for the construction of a public improvement may be discharged as follows: 2. By lapse of time, when three months have elapsed since filing the notice of lien and no action has been commenced to enforce the lien.” Neither the Huber Company nor the Tagliabue Company commenced actions to foreclose their liens within the time specified in the statute, nor did they file a lis pendens in this action, or procure their liens to be kept alive by an order of the court, and it, therefore, follows that their claims ceased to be liens upon the fund in question unless the same were preserved and kept alive by the commencement of this action. I do not think the commencement of this action had that effect; certainly not if effect be given to section 18, above quoted. That section, which prescribed the duration of the lien, provides two specific methods by which that lien could be kept alive and they have availed themselves of neither. But it is contended that the commencement of this action relieved them of the burden of keeping their liens alive. Such contention is based upon the provisions of section 17 of the Lien Law, which relates wholly to liens upon private property and provides that “If a lienor is made a party defendant in an action to enforce another lien, and the plaintifi or such defendant has filed a notice of the pendency of the ac ion within the time pre

App. Div.]

First Department, November, 1911.

scribed in this section, the lien of such defendant is thereby continued." But this section is not available. (Guardian Trust Co. v. Church Construction Co., decided without opinion, 146 App. Div. 879; Snyder Lien Law [5th ed.], 194; Danziger v. Simonson, 116 N. Y. 329.) The language of the statute makes a clear-cut distinction between liens upon private property and liens upon funds accruing to contractors for a public improvement. Section 18 does not contain any provision analogous to the provision quoted from section 17, and to read into it that provision is to enact a statute by judicial decree instead of construing a statute which the Legislature has made.

It may be if they had filed a lis pendens in this action within three months after filing their notice of lien, and served an answer on the other parties to the action, that then they would be in a position to proceed in the action, notwithstanding the complaint was dismissed as to the plaintiff. This, however, they did not do, and, therefore, it is unnecessary to pass upon that question at this time.

The judgment appealed from, therefore, is affirmed, with costs.

INGRAHAM, P. J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.

Judgment affirmed, with costs.

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v.

CHARLES H. HYDE, Respondent.

First Department, November 3, 1911.

Crime - procedure -- removing indictment to Court of General Sessions

- motion by defendant- appeal — record.

By subdivision 6 of section 22 of the Code of Criminal Procedure a Trial

Term of the Supreme Court in New York county is authorized to send an indictment found therein for a crime triable at the Court of General

Sessions of the city and county of New York to said court for trial. And under subdivision 3, section 51 of the Code of Criminal Procedure

the Court of General Sessions has power to try an indictment so sent to it.

First Department, November, 1911.

[Vol. 146. There is, however, no provision in the Code of Criminal Procedure allow

ing a defendant to move to have an indictment sent from the Supreme Court to the Court of General Sessions. Such removal must be by action of the court while it is in session. An appeal from an order of a Trial Term of the Supreme Court sending an

indictment to the Court of General Sessions for trial will not be entertained where there is nothing in the record to show that the term of court at which the order was made had adjourned or had in any way

lost jurisdiction of the indictment when the order was made. This is so although the order as entered on the minutes of the court recites

that it was granted on defendant's motion. An appeal in a criminal action lies only in such cases as are provided for

by the Code of Criminal Pr cedure.

APPEAL by the plaintiff, The People of the State of New York, from an order of the Supreme Court, made at the New York Trial Term transferring the indictment against the defendant to the Court of General Sessions for trial.

Robert S. Johnstone, Assistant District Attorney, for the appellant.

Benjamin N. Cardozo, for the respondent.

INGRAHAM, P. J.:

The defendant was indicted in the Supreme Court. On June 28, 1911, he served upon the district attorney a notice that a motion would be made on Thursday, June 29, 1911, before Mr. Justice MCCALL, presiding at a Criminal Term of the Supreme Court, Part 1, for an order transferring such indictment to the Court of General Sessions of the Peace in and for the city and county of New York for trial. By what appears to be an extract of the minutes of the Trial Term, Part 1, of the Supreme Court, held on Thursday, June 29, 1911, it is stated that counsel for the defendant moved for an order of the court transferring the indictment to the Court of General Sessions, and after hearing counsel the court stated that the Supreme Court in which the indictment was found had adjourned for the summer vacation, but the Court of General Sessions would, during the summer months, have at least three of its several parts in operation, and that there was thus afforded an opportunity for the defendant to be heard speedily in defense; that the court, after a careful consideration of the entire subject, could find

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