#### In the Matter of the Application of Mary A. Poole to discharge a Mechanics’ Lien.

*(New York Common Pleas, General Term,*

*Filed June 1, 1891.)*

1. Mechanics’ lien—Discharge.

The right of the owner of property to a discharge of a mechanics’ lien on return of the notice, prescribed by sub. 5 of § 24 of the act of 1885, in case no action has been commenced within the time prescribed in the notice, is not absolute, but the court has power, and it is. its duty, to. consider the equitiesof the case in determining the application

*8072. Same.

Within the time prescribed in the notice the lienor filed a summons, complaint and *Us pendens,*and served copies of the same on the attorney who had countersigned the notice, who refused to appear for the owner without seeing her. The owner was a non-resident. On the return day the court gave the lienor ten days to make service or begin publication of the summons, and subsequently on proof that an order of publication had been made and publication actually begun within the time allowed, denied the application to discharge the lien. *Held,,*that the court had power to make the orders, and that the denial was a proper exercise of discretion.

Appeal from order denying application to discharge a mechanics’ lien.

*George W. Carr,*for app’lt; *Charles M. Earle,*for resp’t

Allen, J.

On October 29, 1890, Charles Molten, who had done the plumbing work of nine houses in Ninety-ninth street, in the city of New York, filed a mechanic’s lien for $1,183.20 against said property. Three of the said houses are owned by Mary A. Poole. On December 4, 1890, said Mary A Poole caused to be served upon the said Molten the notice provided for in paragraph 24, subd. 5, chap. 342, Laws 1885, requiring him to forclose his lien on or before January 6, 1891, or in default thereof show cause at a special term of this court on January 10, 1891, why the lien should not be discharged. This notice was signed by the said Mary A. Poole and countersigned by George W. Carr, attorney for owner, 29 Wall street, N. Y. On January 6, 1891, the lienor filed with the clerk a summons and verified complaint in foreclosure and *lis pendens*with the county clerk. On the same day his attorney went to the office of Carr, the attorney who had countersigned the notice, at the address named in that notice, and said Carr being absent, left copies of the papers with the person in charge; and on January 8th Mr. Carr was asked to appear for Mrs. Poole, which he declined to do without seeing her. On the return of the notice, the court at special term made an order giving the lienor ten days time to enable him to serve Mrs. Poole, or to procure an order and begin the publication of the summons against her. After the lapse of ten days, upon proof that an order for the publication of the summons against Mrs. Poole had been made, and that the publication was actually begun within the time allowed by the order, the court made an order denying the application to discharge the lien.

The appeal is taken from both of said orders. The appellant claims that the court had no power to make either of the orders, and that no action to foreclose the lien having been begun according to the terms of the notice, the court was obliged to discharge the lien.

The statute, pursuant to which the notice was served, provides that the owner may give notice to the lienor to bring an action of foreclosure by a day named, or show cause why the lien should not be vacated ; and further provides that the court may make an order vacating the lien. The language of the statute is plain and intelligible. The intention of it was clearly to enable the owner to require the lienor to test the validity of his lien speedily and to give to the court the power to vacate or discharge the lien *808in, case the action was not commenced, or sufficient reason presented to the court excusing the lienor for not commencing the action in the time named in the notice.

A proper and equitable construction of this statute gives the court not only the power but makes it the duty of the court to take into consideration the equities of the case and exercise a sound discretion in granting or refusing the application. *Equitable Life Insurance Soc.*v. *Stevens,*63 N. Y., 341. If the intent of the statute was that the right of the owner to have the lien discharged upon the return of the notice, in case no action was com-, menced within the time mentioned in the notice, should be absolute, the application to the court is an idle ceremony.

It is clear to us that the court had the power to exercise its discretion in treating the application in accordance with the equities of the case; and it is also clear to us, from the facts disclosed by the record, that there was no improper use of discretion in making either of the orders appealed from.

Mrs. Poole was a resident of Mew Jersey and could not be found in this state so that service could be made upon her within the time mentioned in the notice; and it appears the lienors exercised reasonable diligence in his attempts to obtain an appearance for her and ascertain where she could be found in order that service might be made upon her. This proof being presented to the judge on the return of the notice, the court, in the proper exercise of its discretion, made an order directing the motion to stand over for ten days to enable the lienor to serve Mrs. Poole and ordering the publication of the summons. The order of publication was obtained, and the publication was begun before the ten days allowed by the order had expired, and the court having before it these facts showing plainly that the lienor bad done everything that could be done up to that time to commence the action, denied the application. Although, strictly speaking, it may not be said that the action was begun by filing the summons and complaint and obtaining the order of publication, yet the lienor had certainly commenced the action so far as it was possible for him to do so, and we think the denial of the application of the owner was a proper exercise of discretion.

The orders should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.