The New York herald., 1869-05-22


lows :-"Liens shall IN all cases cease aer one year
unless by order Of Court the lien Is continued. ana
cnarre of the lienl rhe application FOR the contn-
uatOn OF the lien should be made before the expira-
tion OF the year ensuing its creaon. Ine s.atute s
imperative. II invests neither Judge nor court with
any discretion after the expiration OF the year. lt
shall cease. The Legislature intended to confer pow
er upon the court In which proceedings were pend
ing 10 continue the lien and gave the tribunal pro-
per jurisdiction TO be exercised with discretion 10
may be tnat In many cases an appcaea 70 continue
necessary to state In detail, such as an mi0rmalliy
that rendered 1t undoubtedly invalid or upon proof
ton eleven Is to continue That is to extend, in
duration TO pr0lOng not 10 revive. which would be
ter the expiration OF the year. TINS statute is In de-
rogatiOn OF the common law ana TO be construed
strictly. The object OF limiting tne hen 70 one year
not be prolonged unnecessarily and to exact from
the lenor diligence in the enforcement OF his lien.
to grant the order or continuance ex parte (Welch
Vs. The Mayor, 10 Ab0ott's Rep 1872, and the power
rs aSr
his rights, and not having performed It, Is chargea
BILE with laches, which do not commend him espe-
ton that where the year expires and no order OF
continuance has been granted, 1t may be assumed
them to found upon that circumstance any enter
prise or dealing.
The order appealed from should be affirmed.
OPINION OF JUDGE BARRETT.
entirely agree that after the year hos elapsed no
court has power to continue the lien. The apphca-
ton here was for an order nunc pro tune, and was
properly denied. But in my judgment the plaintifs
rights are not necessarily lost as his application as
sumes and as Judge Brady intlmates. The defend.
ant purchased the premises within the year. subject
to the llen and the plaintiff commenced proceedings
to enforce such lien before the expiration Of the year.
the County Clerk a notice OF the commencement OF
the suit, with an afdavit OF service as required by
the sixth section OF the act in question, do not
deem the procurement OF an order continuing the
lien to be necessary in aid or for the enectual pro-
secutiOn OF the proceedings. The commencement Of
such proceedings while the lien is in full force is In
the nature Of foreclosure. The notice thereof fled
with the County Clerk has the effect OF lis pendens,
ana the Judgment i, therein the an relates back 70 the
pare the previous act as expounded In Paine vs.
BOnney, 4. E. d. Smith, 734 The lien, 1t is true. is
the year; but on the other hand, 1t Is not dis
charged section H. Now 1t is not a continuation
nav S Sh
existed at the time OF institutlng the proceedings.
Then II at ALL the party was entitled to our decree,
and then he would have had 1t but for the necessary
imperfection Of human justice In such case the
law should not recognize the delay which Its practl
tice as OF the date when It was invoked Otherwise
the enforcement OF party's rights in these pro-
ceedDgs will depend upon the condition OF our
calendars and the discretion OF judges with respect
to the renewal. That such was not the Legislatures
intention Is obvious. Section six provides for the
filing with the County Clerk and the entry upon his
docket OF notice that suit has been commenced
upon the lien. Section ten provides several modes
OF dlScharglng the lien; one 10 by depOStlng Win
the County Clerk, to be held as substitute for the
realty, the amount OF the lien and interest, and in
case an action shall have been commenced, such
additional amount as security for the costs therein
as Judge Of the court shall deem proper.
Another mode Is by the entry OF an order to dis
charge. made by any Judge OF O court OF record on
"due proof that year has elapsed and that
ton or proceeding has been had on such lien, and
upon certificate OF the clerk that notice Of such
proceeding has been filed with him." Even judg-
ment exempting the property ls not permitted to
work discharge during the ten days Immediately
following It's rendition nor then In case an appeal be
taken. Coupling these provisions with the paren
thesis appended TO section eleven, whereby the very
hen which for the want OF an order OF renewal has
ceased, is continued undlscnarged, and considering
that by section ten It can only be discharged In nvt
tum by certificate that no notice OF proceedings
templates the continuation Of the existing suit and
the enforcement Of the undischarged, although un-
renewed lien. Let US suppose similar position In
the law OF chattel mortgages. The MORTGAGE seeks
to f0reclOse within the year. but Is refused physical
possession. He brings repevin. and the Sheriff
continuation OF the lien would be unnecessary, and
the rights OF the mortgage would be determined as
OF the day when he commenced his suit, aud that,
whether the property were delivered to him or re.
tained by the Sheriff pending the suit, reb0nded
and delivered to the defendant. Here the proceed
the lis pendens ts the statutory substitute for an
actual SEIZURE and the property, pending the ltiga
ton may thus be said to be quasi in custodia legis.
Indeed, In proper case, an injunction may be
webb vs. Van Zandt 16 AbbOtts p. r., 314, note.)
The enOr's rights thus in theory reduced to pos
session, practical effect being given to them by the
Decree which works either conformation or such
Concurring however, do in the result, the order
should be affirmed.