The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-19
Mechanics Lien Law.
COURT OF COMMON PLEAS.

Decl6lOn Oy HON. Judge WOODRUFF.
APRIL 1S.-Jchn Kalor and Others FrAncis B. D Con-
nor-Moton to strike out parts of the answer-Under
the Ac for the better security Of and others
in the city Of New York, passed in 1851 the claimant
whose notice of claim is first filed with the county clerk
is entitled to be first paid in full out of the funds in the
owners bands (due to the contradictory and in prefer
encs to lien holders whose notices subsequently filed.
But subsequent Lien holder, who desires to contest
prior lien either By denying its Validity . or Hr
nate in equity must himself become actor, and nsti-
proceedings for that In proceedings under
claimant to make those who hayed filed notices and
quired ens subsequently to tho fling Of the claimants
Is po to make lien holders whose liens are
prior to his own parties to his proceeding, unless he
seeks to impsach their validity or deny the amount
thereof aege some higher equity. But If they are
made parties, the whole amount Of such liens will be
allowed to the owner LAS sums to be first paid out
of the fund in his hands, before he be required to
will not be permitted to test their validity or amount
This action commenced by proceedings taken in pur
of the Act for the better security of mechanics
&c pass July H. 1851 against the defendant the
of certain buildings in the city Of New York. I'm
s thu the the
due to them the of 264 20 for work. labor and ma
terials furnished to Messrs Judd and Newton, con-
with the defendant towards the erection of the
buildings in questions and that 10 OF the act
above referred to- they did, the Goth Of July 1852 file
with the county clerk the notice required BY act to create
lien. The answer, after denying that the work &c,
furnished alleged and the value thereof AYERS
that besides the notice filed by the plaintiffs, and after
fling such notice. viz the l1th and 18th of August,
and 10Th September 1852 various other similar notices
fled by other persons named in the answer claim
gate of all of which claims (the plaintiffs being in
cluded) is 81, 006 16, and that at the time of the
filing and such Items the Whole ,d %.mo re-
under his contract with them, was S4l7 20 The de
fendant thercupon insists that plaintiffs entitled to
deductng the DEFENDANTS and expenses in this
ton, in the ratio which the amount that may be found
due 10 them from the contractors bears O05 49,
thQ wbO m which
fled and he prays that the rights of all parties may be
protected and he may be discharged from all liability to
the plaintiffs and also to the other parties interested
The Plaintiffs to strike this portion Of the
answer as irrelevant, and for other relief.
There may Dc cases wncn pEr .as
dituIb preference founded in the order Of time
if those who shall claim such prior equity take pro-
the contractor himself has Hled notice Of claim
for the whole balance due upon the contract, while
he had himself made default Of payment 20 the sabcon
tractors laborers, materials, men, &c. cannot doubt
that in such case they might successfully invoke the
equitable Of the court to prevent the defeat Of
his, and require the owner to apply the fund to their
benefit But until they do take such affirmative action,
and establish sqs the po. i'm
plant herein that George Judd and Charles Newton
the contractors with the owner, ths decndant) and
that the plaintiffs claim is for work DONE and materials
furnished upon their employment and in virtue of tho
paints agreement with them. Every fact, therefore,
which material TO the inquiries whether Judd and New
face Of the complaint Nor is any fact mate
rial to the question stated in that portion Of the answer
which the plaintiffs seek to strike out the defendant
wished insist that the contractors necessary
parties to the final determination Of the matters involved
It that it would be quite sufficient to raise
tbanapjn thAADsuee jay 81 9beGtoD 10 tee plain:
brought before the Court All that 10 said in the answer
about other subsequent liens a therefore irrelevant
the objections raised in the suggested
plaintiff would proceed at his peril and he did so With
out making the contra ctors parties the question would
when the comes be before the Court for dsterm
nation and should the Court then that complete jus
tce cannot be done without having the contractors
brought in and that the statute in question admits OF
such there is doubtless power given by the Code
for the necessary direction to that end Whether the
PENDANT shall be permitted to amend his and raise
the objection in this if he desire to do must be
left to future melton for that purpose The plaintiffs
are entitled to be heard such motion. They will per-
haps insist that the defendant ia not acting good faith
that the contractors admit their claim to be due and
willing TO have consented that the defendant should
pay it. In such leave to amend would probably be
withheld since the inference would be warranted that de
lay and vexation the defendants object. The
ton Of the plaintiff must be granted but the questions
involved are think raised in good faith and appartair
to the construction and effect Of statute the plain
ts cost Of motion, fixed at s1o may abide the
<t,a,