#### August Mugler, Respondent, *v.*Castleton Hotel and Realty Company, Appellant, Impleaded with John J. Wood and Others, Defendants.

Second Department,

June 17, 1915.

Practice — effect of denial of motion without leave to renew — reference — when reference of issues arising upon foreclosure of mechanics’ liens granted.

Two motions for the same object cannot be made upon the same state of facts where the first has been denied without leave to renew.

Hence, when the court at Special Term refuses to grant a reference without leave to renew, it is improper to move again at Special Term in another county to refer the issues.

A statement by the court that it declined to refer “and will leave the parties where they were and they can thus try their case whenever the condition of the equity calendar in Richmond county permits ” does not show a reservation of a right to renew the motion.

A complaint by a building contractor in a suit against the owner for the foreclosure of a mechanic’s lien, alleging that it had two claims for a balance due under the contract, and making a further demand for extras, does not state a long account within the meaning of section 1013 of the Code of Civil Procedure, and a reference should not be ordered.

The complaint alone and not matters raised in the answer determines if the cause is referable.

Issues arising in suits to foreclose mechanics’ liens on buildings should not be referred except by consent unless they clearly involve a long account.

Appeal by the defendant, Castleton Hotel and Realty Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the *493county of Richmond on the 18th day of May, 1915, sending the issues to a referee to hear and determine.

The action was brought to foreclose a mechanic’s lien.

*Arthur B.*Hyman, for the appellant.

*Harry E. Herman,*for the respondent.

Per Curiam:

Plaintiff’s practice was wrong in moving again at the Special Term in Kings county to refer the issues after the court had refused to grant a reference when the cause was called at the Special Term in Richmond county. Two motions for the same object cannot be made upon the same state of facts where the first has been denied without leave to renew. *(Hall*v. *Emmons,*9 Abb. Pr. [N. S.] 370, 372; *Childs*v. *Childs, No. 2,*144 App. Div. 168. See Nichols Pr. § 635.) The language that the court declined to refer “and will leave the parties where they were, and they can thus try their case whenever the- condition of the Equity Calendar in Richmond County permits,” showed no reservation of a right to renew this motion for a reference. On the merits, also, the order should not stand. The complaint alone and not matters raised in an answer determines if the cause is referable. *(Stech*v. *Colorado Fuel & Iron Co.,*142 N. Y. 236.) This complaint was the usual one by a building contractor against the owner in a mechanic’s lien suit. It had two claims, for a balance of the contract compensation and a further demand for extras. These are not a long account under the Code of Civil Procedure f§ 1013).

Liens on real property enforced in a court of record follow the Code provisions for mortgage foreclosure. (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 43.) On the other hand statutory liens on *vessels*may be tried by a justice without a jury or “may be referred by such justice to a referee, to hear and determine.” (Lien Law, § 97.)

The reason for this contrast is obvious. Liens by mechanics on buildings, being presumably to realize the means to pay wages, are designed to be speedy and inexpensive in enforcement so as to reach a prompt determination of all claims filed *494against the property with the costs resting in the discretion of the court. (Lien Law, § 53.) Except by consent, such issues are not subject to the exceptional and costly mode of trial before a referee, unless clearly involving a long account between the parties in the legal sense of that term. *(Cassidy*v. *McFarland,*139 N. Y. 201.)

The order of reference should be reversed, with ten dollars ■ costs and disbursements, and motion denied, with ten dollars costs, a disposition which leaves the cause still pending for trial and subject to be disposed of at the Richmond County Special Term.

Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, a disposition which leaves the cause still pending for trial and subject to be' disposed of at the Richmond County Special Term.