Joseph Leavy, Appellant, v. Mary C. Gardner, individually and as Executrix, Respondent

Joseph Leavy, Appellant, v. Mary C. Gardner, individually and as Executrix, Respondent. (Argued November 16,1875; decided November 23, 1875.) A proceeding to foreclose a mechanic’s lien under the mechanic’s lien law, for the city of New York, of 1863 (chap. 600, Laws of 1863), is not an action within section 131 of the Code. The proceeding abates upon the death of the defendant, and cannot be revived against his devisees or representatives. This was a proceeding to foreclose a mechanic’s lien upon premises in the city of New York, created under the act of 1863. (Chap. 500, Laws of 1863.) It was commenced against William Gardner, then owner of the premises, who, after the matter was at issue, died. Plaintiff thereupon, upon motion, obtained an order that the proceedings be continued against Mary C. Gardner, executrix and sole devisee of the deceased. The order was reversed by the General Term. Held, as above. (See Hallaban v. Herbert, 57 N. Y., 409.) Thomas H. Hubbard for the appellant. , Win. A. Huer for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for affirmance of order of General Term. All concur. Order affirmed.