#### Andrew J. Fargo and Curtis A. Fargo, *v.*Louisa A. Hamlin.

*(Supreme Court, Special Term, Onondaga County,*

*Filed October,*1886.)

1. Mechanic’s lien — Offer of judgment.

After the commencement of proceedings to foreclose a mechanic’s lien, filed upon the premises of the defendant, the latter served upon the plaintiffs attorney an offer allowing property to he taken for $200 less the claim of W. J. G. against the plaintiff, and for which W. J. G. has filed a lien upon the premises of the defendant, with costs. The trial court found the existence of both liens, the plaintiffs for $195.36, that of W. J. G. for $ 128.07 and directed that the premises he sold, and the amount of W. J. G’s lien paid out of the first money realized on the sale, and the amount so paid he deducted from the plaintiffs’ lien, and that they he paid only the remainder thereof. *Held,*that assuming an offer of judgment can be made in these proceedings, the judgment rendered was more favorable to the plaintiff than that offered, and that the offer therefore did not relieve the defendant from liability for costs accruing subsequent to it.

2. Same — Costs — Laws 1885, cn. 342.

The question of costs incident upon the determination of such an action is not any part of the proceedings to enforce the lien, and the provision of Laws of 1885, ch. 342. “ This act shall not be so construed as to affect, *298enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceeding to enforce sucli lien now pending by virtue of any provisions of the act hereby repealed ” — does not govern it; the right to costs was not determined until the end was reached, and then only as a sequence.

3. Same — Taxation op costs — Whew set aside.

When costs are in the discretion of the court, none having been allowed by judgment, none can be taxed, and a taxation by the clerk allowing costs to a party will be set aside.

MOTION by defendant among other things to set aside the taxation of costs in favor of the plaintiff by the clerk of Onondaga county on the ground that they were not entitled to costs because their allowance was in the discretion of the court, and they were not allowed upon the determination of the action. The defendant also asks if costs are allowed the plaintiff, that they should be limited to those which had accrued prior to the time the defendant served an offer for judgment iñ their favor upon the plaintiff.

*Knapp, Nottingham and Andrews,*for defendant; *Edwin S. Butterfield,*for the plaintiff.

Kennedy, J.

After commencement of proceedings to foreclose the lien filed by the plaintiff, the defendant, as the owner of the premises, served upon the plaintiff’s attorney an offer of judgment in the following form: “ The defendant, Louisa A. Hamlin, hereby offers to allow judgment to be taken against her in the action or proceeding for the sum of $200 less the claim of William J. Gillett, against Andrew *J.*Fargo and Curtis A. Fargo for lumber furnished them, and for which said William J. Gillett has filed a lien against the premises of the said Louisa A. Hamlin, with costs.”

It appeared upon the trial that Gillett, during the erection of the house by the plaintiffs, furnished to them a quantity of lumber which was used in its construction, and for which the plaintiffs were indebted to him. They included this lumber in the amount of their claim filed, and Gillett also filed a claim in his own name for the same.

The court before whom the trial was had, found the existence of both liens, that of the plaintiffs with interest amounting to $195.86, that of Gillett with interest $128.07, and directed that the premises be sold, and the amount of Gillett’s lien be paid out of the first money realized on the sale ; and that the amount so paid be deducted from the amount of the plaintiff’s lien, to wit, said $195.86, and that they be paid only the remainder thereof.

This judgment was more favorable to the plaintiffs than that contained in the offer in this: the offer was to allow the plaintiffs to take judgment for $200 less Gillett’s claim, thereby discharging theff lien to the extent of such claim, but leaving them still indebted to Gillett for the amount of his bill. The judg*299ment orderea protects tbe plaintiffs’ lien in full, but provides that out of the proceeds on sale the amount of their indebtedness to .Gillett shall be first paid, thereby discharging that indebtedness out of the property of the owner.

The defendant, therefore, by the offer assuming that the same can be properly made in these proceedings, did not relieve herself from liability for costs accruing subsequent to the time the same was made.

The proceedings of the plaintiffs to foreclose their lien was a proceeding in equity. The court in the decision of the case did not award costs to either party. The contention by the defendant is that costs were wholly in the discretion of the court, and they, not having been adjudged to the plaintiffs, cannot be taxed in their favor. On the other hand, the plaintiffs insist that by the Laws of 1864, chap. 366, being a special act to secure mechanics in the County of Onondaga (the premises in quesiion being situated in the city of Syracuse, in said county,) costs followed the recovery, and that they are in no manner discretionary.

The Act referred to is entitled “ An Act for the better security of mechanics and others erecting buildings and furnishing materials therefor, in the County of Onondaga.” And so far as the question here involved provides: That upon the foreclosure of any such lien, if the amount of the claim established be fifty dollars or over, the plaintiff shall recover his costs and disbursements according to the same rates as in suits for the foreclosure of mortgages. (Sec. 3.)

The Act further provides for the foreclosure of the lien in the general manner now provided by the General Lien Law of the State. (Sec. 4.)

The general lien law provides that a lien may be foreclosed by an action if the amount be over fifty dollars, which shall be commenced by the service of a notice containing a statement of facts constituting the claim, etc. It then provides how an issue is to be made and tried. Chap. 402 of the Laws of 1854, Sec. 6.

The proceedings in this case were commenced by the service of a notice by the lienors as provided in the general Act.

In 1880, Chap. 486 of the laws of that year was passed an act entitled “ An Act to secure the payment of mechanics, laborers and workmen who perform work, also persons furnishing materials towards the erection, altering or repairing buildings, wharves and other structures in the cities of the State of New York.”

The Act provides for the filing of claims and the creation of liens in the several cities of the State, and for their enforcement, which shall be by civil action, commenced in any court of record in said city having equitable jurisdiction, etc. The action shall be commenced, carried on and judgment entered *300and enforced as provided in action to foreclose a mortgage in the Code of Civil Procedure; and that costs for or against the parties litigant shall be in the discretion of. the court. It does not repeal any other act;

By chap. 342 of the Laws of 1885, which took effect May 27th, 1885, both the foregoing acts, together with the General Lien Law, were repealed. By this Act proceedings to foreclose are by actions commenced by summons, and costs are in the discretion of the court. Secs. 9 and 11. A saving clause in See. 28 provides that the' act shall not be so construed as to effect, enlarge, invalidate or defeat any lien or right to a lien now (then) existing, or any proceeding to enforce such lien now pending by virtue of any of the provisions of the Acts hereby repealed.

This action was tried on the 10th day of February, 1886, and after the Act of 1885, became effective.

The question of costs is, unless otherwise provided, to be determined by the law as it exists at the time the right or claimed right-to them accrued. In *Smith*v. *Castlers,*5 Wend. 81, under a saving clause in a statute passed subsequent to the commencement of the action, and which changed the rule in relation to costs, reading as follows : “ All rights accrued or established are saved from its operation.” It was held that the new Statute controlled the question of costs, because the right to them did not accrue until after the statute had gone .into operation. In *Baker*v. Bartlett, 9 Wend., 493, the action being one to recover a penalty, and when it was commenced no costs was allowed to the prevailing party during its pendency, the statute was changed so as to give costs. The saving clause in the new law was : “ But actions already commenced shall proceed in all respects as if the law giving the penalty had not been repealed.”

It was held that the question of costs was governed by the repealed statute, and that neither party could recover costs.

In the Statute of 1885 the saving clause relating to actions and proceedings is : “ This Act shall not be so construed as to effect, enlarge, invalidate or defeat any lien or right to a lien now existing, or any proceedings to enforce such lien now pending by virtue of any of the provisions of the acts hereby repealed.”

Can it be said that the question of costs incident upon the determination of the action is any part of the proceedings to enforce a lien? I think not. The proceedings to enforce the lien under the statute as it stood when the action was commenced, as they might result, determine the question of the parties’ right to costs. That was simply an incident depending upon the result, and the right was not determined, nor did it exist until the end was reached, and then only as a sequence.

*301In my judgment at the time the right to costs, if any, accrued in this proceeding the same were in the discretion of the court, and none having been awarded to the plaintiff, none can be allowed or taxed.

An order will be entered setting aside the taxation upon the ground that the plaintiffs are not entitled to costs, under the decision, but without costs of this motion.

It is claimed by the plaintiffs that the court has, since the decision, signified its intent to allow them costs. If this is so they ' perhaps have a remedy by application to correct the direction for judgment, so that the same shall conform to the purpose of the court in this regard, and the order to be entered will provide that it be without prejudice to any future action.