John H. Moran et al., Respondents, v. George K. Chase, impleaded, etc., Appellant

John H. Moran et al., Respondents, v. George K. Chase, impleaded, etc., Appellant. (Argued February 17, 1873; decided April 1, 1873.) Where a lien is filed under the provisions of the “ Mechanics’ Lien Law ” (chap. 478, Laws of 1862) for work done or materials furnished for a number of adjoining buildings, all owned by the same person; as against the owner, they can be treated as a single building, and a single proceeding may be instituted to enforce the claim against all of them. The terms of said act (§ 1) are sufficiently comprehensive to embrace a claim for flagging the sidewalk in front of a building. A statement in the notice of lien, that the claim was made against a third person, and that the work or materials were furnished at his request, does not vitiate proceedings against the owner, where the notice also states who is the owner, and it appears that the contract was in fact made with him. Where, upon the report of a referee in such proceedings simply directing a sale of the premises, a personal judgment against the owner is entered, the proper remedy is by motion to the Supreme Court to correct the judgment. The point cannot be raised upon appeal. Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. This action was to foreclose a mechanic’s lien for work and •' materials furnished to defendant Chase, and used in the erection of eleven houses in the city of Brooklyn. In the notice of lien filed it was stated that “ the person against whom the claim is made is S. B. Yreeland, and that the said work and materials so furnished was by and at the request of said S. B, Yreeland.” It was also stated that defendant was the owner, and it was admitted by the pleadings that the contract was made with him, and the work and materials furnished for him. A part of the claim was for flagging the sidewalk in front of the buildings. The referee found that there was due to plaintiff $1,369.56, and ordered judgment directing sale of the premises. In the judgment entered thereon was inserted a personal judgment against defendant Chase. James Fl/yrm for the appellant. The statute being in derogation of the common law must be strictly construed. (Roberts v. Fowler, 4 Abb. Pr., 265; Grant v. Dercook, 8 Abb. [N. S.], 455.) Plaintiff was a sub-contractor, and as such made out no cause of action. (Cox v. Broderick, 4 E. D. S., 721.) He could have no lien for work not embraced in the contract. (Foby v. Alger, 4 E. D. S., 719.) "Nothing would be due plaintiff under the contract until the whole work was completed. (McMillan v. Vanderlip, 12 J. R., 165.; Baker v. Higgins, 21 N. Y., 397; Noel v. Murray, 13 id., 167; Gibson v. Torrey, 46 id., 640.) Taking the notes waived Horan’s right to acquire a lien. (Hutchins v. Olcutt, 2 Vt., 554; Benneson v. Thayer, 23 Ill., 374.) The judgment m personam was unauthorized. (Grant v. Dercook, 8 Abb. [N. S.], 459-561; section 9, Lien Act.) Samuel Hand for the respondents. Plaintiff acquired a lien upon all the buildings to the extent of Chase’s title at the time of filing the notice. (McCauley v. Meldrum, 1 Daly, 396; Livingston v. Miller, 16 Abb. Pr., 371; Paine v. Boney, 4 E. D. S., 734.; section 9, Lien Law, 1862.) Plaintiff has a lien for the flagging done on the sidewalk in front of these houses. (McDermott v. Palmer, 4 Seld., 387; Donnelly v. Libby, 1 Sweeny,.286.) Plaintiff’s right to acquire a lien was not lost by taking the notes of defendant Chase. (Althouse v. Warren, 2 E. D. S., 657; Miller v. Moore, 1 id., 739.) A judgment m personam was authorized against defendant Chase. (§§ 5, 13, of Lien Law, 1862.) If unauthorized, a motion at Special Term to strike- out that portion of the judgment would be the proper remedy. (Grant v. Dercook, 8 Abb. [N. S.], 455, 456.) [MAJORITY — Rapallo, J.] Rapallo, J. The eleven buildings upon which the claimant asserted his lien are contiguous to each other, and, with the land on which they are erected, were, at the time the work was done and the lien filed, all owned by George K. Chase. He is the only appellant, and as against him there can be no good objection to treating them all as one building, and permitting the plaintiffs’ claim against all of them to be embraced in a single proceeding. The referee has found that the work and materials were done and furnished at the request of Chase and under contracts with him. Chase sets up in his answer that Yreeland contracted jointly with him as to three of the buildings. But this fact is not found by the referee. Consequently, even if it were material, we could not, without departing from the settled practice, make it a ground of reversal. We think that the terms of the act of 1862 are sufficiently comprehensive to cover a claim for flagging the sidewalk in front of the buildings. (Laws of 1862, chap. 478, § 1.) There is no finding which raises any question in regard to the $500 note for which credit is claimed by the defendant, unless it be the finding of the amount due the plaintiff. It was not proven that the note was taken as payment, and the fact that it was indorsed by Chase rebuts any presumption to that effect. The statement in the notice of lien, that the claim was made against Yreeland, and that the work, etc., were furnished at his request, does not, we think, vitiate the proceedings, it being also stated in the notice that Ohase was the owner, and it appearing both by the complaint and answer that he contracted with Moran for the work. The personal judgment entered against the owner is not warranted by the report of the referee and does not seem to be warranted by the statute. (Laws of 1862, chap. 478, § 13.) The proper remedy for this irregularity was by motion to the Supreme Court to correct the judgment so as to make it conform to the report. ISTo decision having been made upon the subject by the referee, there is no exception which can raise the point on appeal. The finding of the referee, that Rebecca and James C. Doty have a lien for $253.50, is excepted to, and there is no evidence whatever to support it, neither did those parties appear at the trial to establish their lien. The appellant has not specifically appealed from that part of the judgment; but as the counsel for the respondent, on the argument, expressed his willingness that the judgment, if erroneous in that particular, should be corrected, it should be modified by striking out the provisions which relate to that lien, and directing that the interest of Chase be sold to satisfy the plaintiff’s lien and costs, subject to all prior liens existing thereon, and as thus modified it should be affirmed with costs. All concur. Judgment accordingly.