#### Dennis W. Moran, Respondent, *v.*The Mayor, Aldermen and Commonalty of the City of New York, Appellant, Impleaded with Charles W. Collins and Others, Defendants.

First Department,

May 1, 1914.

Lien—liability of municipal corporation for interest and costs in action to foreclose mechanic’s lien—provisions of Mew York City Consolidation Act construed.

Under the provisions of the New York City Consolidation Act (Laws of 1882, chap. 4'* 0), and subsequent enactments, the amount of recovery by a sub-contractor in an action against the city to foreclose a mechanic’s lien is expressly limited to the amount due from the city to the contractors. Hence, the sub-contractor is not entitled to interest upon the amount found due by the referee from the time the same became due, or from the date of the referee’s report to the entry of judgment, or to costs.

*It seems,*that if the plaintiff had entered judgment upon the report of the referee he would have been entitled to interest thereon.

The provisions of section 1285 of the Code of Civil Procedure and section 58 of the Lien Law as to the granting of costs in an action to foreclose a lien are subject to the express limitations contained in the Consolidation Act and subsequent enactments relating to liens against municipal corporations, to the effect that in no case shall a judgment be entered against them for more than the amount due to the contractor.

Appeal by the defendant, The Mayor, etc., of the City of New York, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1912, upon the report of a referee.

*William E. C. Mayer,*for the appellant.

*John Mulholland,*for the respondent.

McLaughlin, J.:

On the 15th of June, 1894, the city of New York entered into a contract with Collins & G-illis, by which the latter agreed to curb, grade and flag a portion of One Hundred and Sixty-eighth street. Some time thereafter Collins & Gillis sublet a portion of the work to the plaintiff who, having fully performed his contract and not having been paid therefor, on the 17th of *378August, 1895, filed with the city a notice of lien for the amount due him from the contractors to the extent of $4,633.91. The contractors completed their contract on the 6th of December, 1895, and there was then due them from the city $1,459.68, and thereafter became due an additional sum of $401.37, an amount withheld by the city as security for the making of certain repairs. This action- was commenced on the 15th of November, 1895, the city, the contractors, and a subsequent lienor being made parties defendant. The subsequent lienor, in her answer, disputed plaintiff’s right to a prior lien and the city denied that it had any knowledge or information sufficient to form a belief as to its liability to any one. The issues were sent to a referee to hear and determine and on May 14, 1904, he filed his report, by which he found there was due the plaintiff from the contractors $4,633.91, with interest, and for which he had a first lien upon $1,861.05, the amount due from the city to the contractors. He accordingly directed that judgment be entered in favor of the plaintiff against the city for $1,861.05, together with the interest thereon from the date when the same became due, which, at the date of the report, amounted to $923.67. He also awarded plaintiff the costs of the action. Judgment was not entered upon the report until October 22, 1912. It included interest on the amount found due in the report from the date thereof and also the costs of the action, which amounted in all to $5,018.03.

The city appeals from the judgment and but two questions are presented: (a) Whether plaintiff was entitled to any interest whatever; and (b) whether he was entitled to costs.

I am of the opinion that the plaintiff, by reason of express provisions of the statute in force at the time the notice of lien was filed and the action commenced, was not entitled to interest either upon the amount found due by the referee from the time the same became due, or from the date of the referee’s report to the entry of the judgment, or to costs. The statute then in force was the New York City Consolidation Act (Laws of 1882, chap. 410). Section 1824 of this act is to the effect that a sub-contractor can have a lien for the value of labor performed or materials furnished by him upon moneys in the control of the city “to the extent of the amount due or to grow *379due ” under the general contract, “ provided that the city shall not be required to pay a greater amount than the contract price or value of the work and the materials furnished, when no specific contract is made in the performance of said work by the contractor. ” Section 1831, which relates to actions brought to enforce a lien, provides that the court in which the action is brought shall determine the validity of the lien, the amount due from the debtor to the contractor under his contract, and from the contractor to the respective claimants, and shall “ render judgment, directing that the city shall pay over to the claimants * * * so much of said funds or money which may be due from the city to the contractor under his contract, against which the lien is filed, as will satisfy their liens or claims, with interest and costs, to the extent of the amount due from the city to said contractor.” Section 1831 of the Consolidation Act, together with section 1824 and correlative sections of said act, was repealed in 1899 (Chap. 195). Asimilar provision had, however, previously been enacted as section 3418 of the Code of Civil Procedure (Laws of 1897, chap. 419, as amd. by Laws of 1906, chap. 255), and by chapter 38 of the Laws of 1909, being the Lien Law (Consol. Laws, chap. 33), this section 3418 of the Code was repealed and a similar provision re-enacted as section 60 of the Lien Law. Said section 60 was repealed and again re-enacted by chapters 450 and 873 of the Laws of 1911. Under the provisions of the Consolidation Act and the subsequent enactments above referred to the amount of plaintiff’s recovery, as it seems to me, was expressly limited to the amount due from the city to the contractors, which was $1,861.05, and judgment could not be entered against it in excess of that amount.

A quite similar question was passed upon in *Rockland Lake Co.*v. *Port Chester*(102 App. Div. 360; affd., 185 N. Y. 590). It was there held that a judgment could not be rendered against a municipal corporation for a sum including principal, interest and costs in excess of the amount due from it to the contractor. The court said: “We think that the referee was bound by the provisions of section 3418 of the Code of Civil Procedure, which provides that in an action to foreclose a lien on account of a public improvement, if the court finds that the lien is established *380it shall render judgment directing the municipal corporation to pay over to the lienors entitled thereto 6 so much of the funds or money which may be due from the State or municipal corporation to the contractor, as will satisfy such hens, with interest and costs, not exceeding the amount due to the contractor.’”

It is true that section 1235 of the Code of Civil Procedure provides that where final judgment is rendered for a sum of money awarded by a report, interest upon the sum awarded from the date of the report to the time of entering judgment must be computed by the clerk, added to the sum awarded and included in the amount of the judgment; and section 53 of the Lien Law leaves the granting of costs in an action to foreclose a lien to the discretion of the court. But these provisions must be considered subject to the express limitations contained in the Consolidation Act and subsequent enactments relating to liens against municipal corporations to the effect that in no case shall judgment be entered against them for more than the amount due to the contractor. The right to file a lien at all comes from the statute and only such rights as are there given can be obtained. The plaintiff has only himself to blame for the loss of interest on the amount found due by the referee from the date of his report to the entry of judgment because he could have entered judgment upon the report had he seen fit to do so, in which case the judgment would have drawn interest.

The city’s liability was practically conceded at the close of plaintiff’s case, when a motion was made that judgment be allowed against the city for the amount that it had on hand belonging to the contractor, viz., $1,861.05.

The judgment is, therefore, modified by reducing it to $1,861.05, and as thus modified affirmed, without costs to either party.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment modified as stated in opinion, and as modified affirmed, without costs. Order to be settled on notice.