ROBERTS a. FOWLER

ROBERTS a. FOWLER. New York Common Pleas ; Special Term, March, 1857. Mechanic’s Lien.—Right of Assignee. An assignee of a claim for work and labor or material furnished towards the erection of a building, cannot file a notice and thereby create a lien, under the Mechanic’s Lien Law. The act confers only a personal right upon the contractor, laborer, or person furnishing materials, and not a right upon his assignee. Proceedings to foreclose a mechanic’s lien. This was an action by Edward Eoberts, as assignee of a contractor, upon a building contract, against Baltis M. Fowler. The assignment upon which the plaintiff claimed purported to vest in him the claims held by his assignor against the defendant ; and also, “ all rights, securities, liens, and remedies consequent upon or incident thereto.”. The cause being called on for trial, was submitted to the court upon the question, whether an assignee could create and enforce a lien .under the Mechanic’s Lien Law;—if the court should be of the opinion that he could, then a reference wa£ to be ordered. Cummins, Alexander & Green, for plaintiff. —I. The contract upon which the claim arose, was made after passage of the lien law, and the law was therefore part of the contract. That law gives certain remedies, and if the claim be assignable, the remedy should go with it also. II. The statute is remedial, and should be favorably construed (Donaldson v. Wood, 22 Wend., 401). III. The lien created is an equitable lien upon a fund, and no injury can be done to any one by the claim of plaintiff. IV. The Legislature has given the right of assigning choses in action; and had it been intended to except any rights or remedies incident thereto, or proper for their security, they would have been expressly mentioned. Y. The exclusion of assignees from the right to lien would involve a construction repugnant to justice and equity. The same rule would exclude assignees under assignments for benefit of creditors, executors, administrators, heirs, &c. VI. The object of the Legislature should also be looked at. That object was not arbitrarily to give a personal privilege to certain persons, and refuse it to others who were in justice and equity equally entitled to it; but it was to charge the property which was not by the common law chargeable with the debt. (See opinion of the chancellor, Donaldson v. Wood, 22 Wend., 397.) The lien is to have “ an operation somewhat in the nature of an attachment of the fund in the securer’s hands” (Miller v. Moore, 1 E. D. Smith, 741). The lien is akin to that given by the common law to artisans upon materials in their possession for labor bestowed on them, and is a favored lien both in law and equity (2 Kent's Comm., 634, citing 3 Boss. & Pull., 494; 4 Carr. & P., 152). VII. This court has intimated a construction in Crystal v. Flannely (2 E. D. Smith, 539), which extends the right to alien as against representatives. Edward Pierrepoint, for defendant. —I. The statute under which this claim is sought, is a peculiar local statute, unknown to the common law, and granting special privileges to a special class. II. Such being the statute, it must be construed strictly. III. The assignee has no right to file a lien; no one has, except as the statute gives it. IV. The statute gives no rights of this kind to the assignee, and consequently he has no such rights. [MAJORITY — Ingraham, F. J.] Ingraham, F. J. —The question submitted to me in this case is, whether the assignee of a claim for work, labor, or materials furnished towards the erection of a building, can file the notice and thereby create a lien under the act commonly called the Mechanic’s Lien Law. We have heretofore held that the powers conferred by this act were of such a nature as to call for a strict construction of the act in enforcing them. Unless, therefore, the statute authorizes such a proceeding on the part of the assignee, there is no authority for him to claim from the owner of property money to which otherwise he has no right. A reference to the statutes, I think, disposes of this question. Section 1 authorizes the filing of a notice by any person who shall perform the labor or furnish the materials. Section 4 provides that any person who has furnished materials, or any contractor or laborer, may enforce or bring to a close such lien by serving a notice, &c. Section 5 requires notice of any effect to be served on such contractor, laborer, or person furnishing the materials. Section 6 confines the filing of the notice with the county clerk to the contractor, sub-contractor, laborer, or person furnishing materials. Throughout the whole act, the right to the lien and the right to enforce it, appear to be confined to the contractor, laborer, or persons furnishing materials : in no instance is the assignee of such claim recognized in connection with the creation or enforcing of the lien. In section 11, a different provision is made as to discharging the lien. That section provides that the lien may be discharged by filing a certificate of the claimant or his successors in interest ; and although this section recognizes a transfer of the claim, yet it confines such transfer to a time subsequent to the making the claim. The party is called the successor of the claimant. The claimant, as previously designated, is the party having the claim and filing the notice with the county clerk. The provisions of the Code, directing actions to be brought in the name of the party in interest, could not affect this question; the filing of the notice is an act previous to the commencement of the suit, and the act of 1851 was passed after the amended Code, and would control such a provision if contradictory thereto. There can be no other construction given to this statute other than as conferring a mere personal right on the contractor, laborer, or person furnishing materials, and not on his assignee. This construction of the act disposes of this action, and renders a reference unnecessary. Judgment ordered for the defendant.