Statement of case.

right to control the remedy. (Morse v. Gould, 11 N. Y., 281, 286, 293; Bay v. Gage, 36 Barb., 447; McCormick v. Rusch, 3 Am. Law Reg. [N. S.], 93; Conkey v. Hart, 14 N. Y., 22; James v. Steele, 9 Barb., 482; 1 Seld. Note, 6; Wolfked v. Mason, 16 Abb., 222; 34 How. 629.) The remedies created in the mechanics' lien law are of a purely statutory and extraordinary nature, and the provisions for their enforcement must be strictly construed. (Rafter v. Sullivan, 13 Abb., 263; Roberts v. Fowler, 3 E. D. Smith, 632; Grant v. Vandercook, 8 Abb. [N. S.], 455; Gen. T. 3d Dist.; Houck on Liens, § 73, p. 83; Roberts v. Fowler, 3 E. D. Smith, 632; Cheney v. Wolf, 2 Lans., 188; Rafter v. Sullivan, 13 Abb, 263.) The act of 1869 applied, as soon as it took effect, to claims for materials furnished before its passage. (Morse v. Gould, 11 N. Y., 281; James v. Steele, 9 Barb. 482.) The word "hereafter" was not an amendment, but speaks as of the date of the passage of the original act in 1854. (Ely v. Houghton, 15 id., 596; Hartung v. People, 26 id., 171, 172; United States v. Marks, 2 Am. Law Times [U. S. C. Rep.], 127; United States District Court, Ky.) The amendment of 1869 was an absolute repeal of the prior law so far as it allowed notices to be filed with the town clerk. (U. S. v. Tysun, 11 Wall., 83; Reg. v. Swan, 4 Cox Crim. Cas., 108'; Hartung v. People, 26 N. Y., 171; The Schooner Harriet, 1 Story, 257.) Unless the amended act applied to old claims, no lien could be acquired. (Rafter v. Sullivan, 13 Abb., 263.) After the amendment the lien could only be acquired as then specified. (Cheney v. Wolf, 2 Lans., 188.) The judgment should be in rem, not in personam. (Hauftman v. Catlin, 20 N. Y., 24; Althause v. Warren, 2 E. D. Smith, 657; Lenox v. Trustees, etc. id., 673; Grant v. Vandercook, 8 Abb. [N. S.], 455, 462; Quimby v. Sloan, 2 E. D. Smith, 609; Randolph v. Early, 4 Abb., 205; Walker v. Paine, 2 E. D. Smith, 664.) A judgment in rem cannot now be entered, as the year has expired. (Grant v. Vandercook, 8 Abb., 455.) A joint lien against owners in severalty is invalid. (Jennings v. Collins, 99 Mass., 29.) A

Opinion of the Court, per GROVER, J.

debtor paying money to a creditor may appropriate it to any debt he pleases. (Allen v. Culver, 3 Denio, 284; Patterson v. Hull, 9 Cow., 747; Seymour v. Marvin, 11 Barb., 80; Braman v. Bingham, 26 N. Y., 483.)

GROVER, J. In Ely v. Holton (15 N. Y., 595), it was decided by this court that the effect of an amendment of a statute made by a subsequent statute declaring that such statute shall be amended so as to read as follows, retaining a part of the statute amended and incorporating therein new provisions, was not to repeal the part retained and re-enact the same, but that such part of the statute continued in force from the first enactment, and that the new provisions incorporated became operative from the time the amendatory statute took effect. It would follow that, where certain provisions of the original statute were omitted from the amendatory statute, such provisions were abrogated and ceased to form any part of the statute after such time. Applying these principles to the present case, it follows that the word "hereafter," in the first line of section 1, of chap. 402, p. 1086, Laws of 1854, being contained in the section as amended by chapters 588, p. 1355, Laws of 1869, continues to speak from the time of the passage of the act of 1854, and applies to and includes all labor and materials after that time; and that the new provision incorporated in amendatory statute, requiring notice to be filed in the office of the county clerk of the county in which the property was situate, took effect when the same became operative; and that the provision for filing notice in the office of the town clerk of the town, in the fourth section being left out of the section as amended, was abrogated at the same time. The amendatory statute took effect before the filing of the notice by the lienor in the town clerk's office. There was at that time no statute giving a lien upon filing' notice in the town clerk's office. No lien was, therefore, acquired by filing the notice in that office. No notice was filed in the office of the county clerk, the place where it should have been filed, as the statute then stood, to acquire a

Statement of case.

lien. The order of the General Term reversing the judgment of the referee in favor of the lienor must be affirmed, and judgment final given for the owner upon the stipulation. All concur.

Order affirmed; judgment accordingly.

FRANCIS VOSE, Appellant, v. NATHANIEL A. COWDREY et al., Respondents.

Plaintiff's complaint alleged, in substance, that certain of the creditors of an insolvent railroad corporation, entered into an agreement to purchase its property upon a foreclosure sale, and to organize a new company for the purpose of operating the road, which agreement provided for the issuing of bonds and stock of the new company, and apportioning them among the holders of the mortgage bonds, actually issued, of the old company and among certain other specified classes of creditors; that in pursuance of the agreement the property was purchased for less than the amount of mortgage bonds held by the parties to the agreement and was afterward transferred to the new company, its stock and bonds issued, and distributed as stipulated; that the old company was indebted to plaintiff upon a contract for iron rails furnished to lay its tracks, and, under the contract of purchase, plaintiff was equitably entitled to its mortgage bonds for the balance claimed. This claim was unprovided for in the creditors' agreement. Plaintiff was a party to that agreement, he holding a large amount of the mortgage bonds provided for therein, and he received their proportion of the bonds and stock of the new company. Plaintiff claimed that the bonds to which he was equitably entitled should be considered as issued at the time of making the creditors' agreement, and that the property in the hands of the new company was subject to the trust of providing for them, as other mortgage bonds were provided for in that agreement. There was no allegation of any fraud in the agreement, or that any of the stockholders of the old company derived any benefit thereunder, or that the foreclosure or sale were collusive.

On demurrer,-Held, that the creditors who entered into the agreement were bona fide purchasers, and took the property clear of any trusts in favor of other creditors; that although as between the old company and its creditor equity would consider that done which ought to have been done, the rule did not affect the rights of third parties (as between each other) who had contracted in reference to what the company had

Statement of case.

actually done, and especially where the one claiming the benefit of it was a party to that contract, assented to its terms and received its benefits; and that, therefore, the facts stated did not constitute a cause of action.

(Argued February 21, 1872; decided April 30, 1872.)

APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, in favor of defendants, entered upon an order affirming an order of Special Term sustaining demurrers to plaintiff's complaint, and directing judgment for costs.

The complaint is very voluminous, but its main allegations are, in substance, that on the 3d of December, 1856, the firm of Vose, Livingston & Co, of which the plaintiff was a member, entered into a contract with the La Crosse and Milwaukie Railroad Company for the sale to it of 11,000 tons of railroad iron, to be paid for in first mortgage bonds at eighty cents on the dollar, which bonds were to be made and signed by the company. That it was well understood between the parties, that to enable Vose, Livingston & Co. to perform their contract, it would be necessary for them to dispose of the bonds as received, and that, to prevent loss to them by the depreciation of their market value, it was agreed that the issue of 1857 should not exceed $2,500,000; that if the company should sell any of such issue of $2,500,000 of such bonds. to be made during the year 1857 at a less rate than eighty cents on the dollar, they should pay to the firm such an additional amount of bonds as should, at the lowest rate at which any of them should be sold, pay Vose, Livingston & Co. the contract price of the iron; that the bonds were issued, and, during the year 1857, over $700,000 of them were delivered to Vose, Livingston & Co., in payment for iron delivered by them under their contract, but that during the same year the company disposed of other portions of the issue of $2,500,000 to other parties at rates not exceeding forty cents on the dollar, without making any allowance to Vose, Livingston & Co., and also made further issues of bonds beyond the $2,500,000, and sold them at thirty cents on the dollar.

SICKELS-VOL. IV. 43

Statement of case.

The losses thereby sustained by the firm, and the failure of the company to make satisfaction therefor, are fully set forth. The bonds were secured by a mortgage of the road of the company to Greene C. Bronson, James T. Smith and Shepherd Knapp, as trustees, and provided for an issue of $10,000,000 of bonds. The total amount actually issued was $4,000,000.

The plaintiff claims that, by reason of the premises, his firm became entitled to an additional amount of bonds, and also to damages. It is further alleged that the iron sold by Vose, Livingston & Co. was used in the construction of the road of the company from Portage City to La Crosse; that the company became insolvent, and has ever since remained so, and failed to keep up its organization; that Bronson, Smith and Knapp, the trustees, foreclosed the mortgage in 1859, and a decree of sale was obtained in 1862, whereby it was adjudged that the bonds numbered from 1 to 1991, inclusive (embracing those which had been issued to Vose, Livingston & Co.), be paid in full, and that on the residue of the $4,000,000 there was then due only the sum of $803,600, making the total amount due on the mortgage $2,794.600.

The complaint then sets forth an agreement made in 1861, between the creditors, for reorganizing the company, by purchasing its property under the foreclosure then pending. The plaintiff was a party to this agreement, having previously purchased the interest of his copartners in the claim of his firm. This agreement provided for the purchase of the road by such creditors as should join in the agreement, and for the formation of a new company by the purchasers, and the issue of new bonds and stock, to replace the first mortgage bonds and other specified liabilities of the old company. Of the first mortgage bonds, only the $4,000,000 actually issued were provided for by this agreement. It made no provision. for the floating or unliquidated debts of the company. The $4,000,000 of bonds provided for were specified by their numbers. Those from 1 to 1991 were to be replaced by first mortgage bonds of the new company at par; those of higher