§ 3416. Judgment for deficiency. If upon the sale of the property under judgment in a court of record there is a deficiency of proceeds to pay the plaintiffs claim, judgment may be docketed for the deficiency against any person liable therefor, who shall be adjudged to pay the same in like manner and with like effect as in judgments for deficiency in foreclosure cases. Added by ch. 419 of 1897. § 3417. Discharge of mechanic's lien, by order of court. A mechanic's lien on real property may be vacated and cancelled by an order of a court of record. Before such order shall be granted a notice shall be served upon the lienor, either personally or by leaving it at his last-known place of residence, with a person of suitable age, with directions to deliver it to the lienor. Such notice shall require the lienor to commence an action to enforce the lien, within a time specified in the notice, not less than thirty days from the time of service, or show cause at a special term of a court of record, or at a county court, in a county in which the property is situated, at a time and place specified therein, why the notice of lien filed should not be vacated and cancelled of record. Proof of such service and that the lienor has not commenced the action to foreclose such lien, as directed in the notice, shall be made by affidavit, at the time of applying for such order. Added by ch. 419 of 1897. § 3418. Judgments in actions to foreclose liens on account of public improvements. If, in an action to enforce a lien on account of a public improvement, the court finds that the lien is established, it shall render judgment directing the municipal corporation to pay over to the lienors entitled thereto for work done or material furnished for such public improvement, and in such order of priority as the court may determine, to the extent of the sums found due the lienors from the contractors, so much of the funds or money which may be due from the state or municipal corporation to the contractor, as will satisfy such liens, with interest and costs, not exceeding the amount due to the contractor. Added by ch. 419 of 1897. § 3419. Judgment in actions to foreclose a mechanic's lien on property of a railroad corporation. If the lien is for labor done or materials furnished for a railroad corporation, upon its land, or upon or for its track, rolling stock or the appurtenances of its railroad, the judgment shall not direct the sale of any of the real property described in the notice of the lien, but when in such case, a judgment is entered and docketed with the county clerk of the county where the notice of lien is filed, or a transcript thereof is filed and docketed in any other county, it shall be a lien upon the real property of the railroad corporation, against which it is obtained, to the same extent, and enforcible in like manner as other judgments of courts of record against such corporation. Added by ch. 419 of 1897. UN PR TITLE IV. (Chapter 419 of 1897, adding this title and title III preceding this, provides that these titles shall be inserted in chapter 22. This is evidently an error.) Proceedings to enforce liens on vessels SEC. 3420. Enforcement of liens on vessels. 3421. Application for warrant. 3422. Undertaking to accompany application. *3423. Order to show cause; contents; service. 3424. Notice of service to be published and served. 3425. Proceedings upon return of order to show cause. 3427. Sale and proceeds. 3428. Notice of the distribution of the proceeds of sale. 3430. Contested claims. 3431. Trial of issues and appeal. 3432. Distribution of proceeds. 3433. Payment of uncontested claims. 3434. Court may invest proceeds; distribution of surplus. 3435. Application for discharge of warrant. 3436. Undertaking to accompany application for discharge. 3437. Discharge of warrant. 3438. Action on undertaking. 3439. Cost of proceedings. 3440. Sheriff must return warrant. 3441. Discharge of lien before issue of warrant. § 3419. Enforcement of liens on vessels. Liens on vessels, created by virtue of article two of the lien law, and not based upon a maritime contract, may be enforced as prescribed in this title. Added by ch. 419 of 1897. § 3420. Application for warrant. The lienor may make a written application to a justice of the supreme court, at chambers, in the judicial district in which the lienor resides or in a county adjoining such district, for a warrant to enforce a lien on a vessel and to collect the amount thereof. The application shall specify: 1. By whom and when such debt was contracted and for what vessel; and the name and residence of the owner of the vessel, if known. 2. The items composing the debt and the amount claimed. 3. That the debt is justly due the applicant over and above all payments and just deductions. 4. Any assignment or transfer of the debt which may have taken place since it was contracted. 5. When and where the notice of lien was filed. The application shall be verified in the same manner as a pleading in a court of record. Added by ch. 419 of 1897. § 3421. Undertaking to accompany application. Such application shall be accompanied by an undertaking in the sum of at least one hundred dollars, to be approved by such justice and filed So in the original. in the office of the clerk of the county where the notice of lien is filed, with at least one surety, who shall be a resident and freeholder within the state, to the effect that if it is finally adjudged that the applicant was not entitled to the warrant, he will pay all costs which may be awarded against him, not exceeding the amount specified in the undertaking, and any damages sustained by reason of the seizure of the vessel under such warrant, not to exceed fifty dollars. Added by ch. 419 of 1897. § 3422. Warrant; execution thereof. Thereupon, such justice shall issue a warrant to the sheriff of the county where such vessel may be, or, generally to the sheriff of any county, specifying the amount of the claim, and the names of the persons making the claim and commanding him to seize and safely keep such ship or vessel, her tackle, apparel and furniture, to satisfy such claim, if established to be a lien upon the vessel according to law, and within ten days after the seizure to make return of his proceedings under the warrant to such justice. The sheriff shall forthwith execute such warrant, and keep the vessel, her tackle, apparel and furniture to be disposed of according to law. In his return the sheriff shall state also whether he has seized such vessel by virtue of any other warrant, and if so, in whose behalf and for what sum such warrant was issued and the time of its receipt by him. Added by ch. 419 of 1897. § 3423. Order to show cause; contents; service. At the time of issuing such warrant the justice shall grant an order to show cause, why the vessel seized by virtue of such warrant should not be sold to satisfy the lien specified in the application. Such order shall be returnable not less than eight days after the service thereof, as required in this section, before the justice and at the time and place mentioned therein. It shall be directed to the master or other person in charge of the vessel seized and to the owner and consignee thereof, if known. A copy of such order and the application for the warrant shall be served personally upon the master or other person in charge of such vessel at the time of the execution of such warrant; and personally upon the owner and consignee of such vessel if a resident of the state, or if not a resident of the state, by mail addressed to such owner or consignee at his last known place of residence, within ten days after the execution of such warrant. Added by ch. 419 of 1897. § 3424. Notice of service to be published and served. Within three days after the issue of the warrant, the applicant shall -cause a notice to be published once in each week for two consecutive weeks, in a newspaper published in the county where the vessel was seized, stating the issuance of the warrant, the date thereof, the amount of the claim specified therein, the name of the applicant, and the time and place of the return of the order to show cause granted as prescribed in this title. If the vessel seized is used to navigate any of the canals or lakes of the state, a copy of such notice shall be served personally, or by mail, within ten days after the first publication, upon all persons who have filed claims or liens against such vessel by mortgage or otherwise in the office of the comptroller of the state. Added by ch. 419 of 1897. § 3425. Proceedings upon return of order to show cause. At the time and place mentioned in the order to show cause, the master or other person in charge of such vessel, the owner or con UN PR signee thereof or any other person interested therein, may apply and contest the claim of the lienor as contained in the application for a warrant, by filing with the justice an affidavit controverting any material allegation contained in the notice of lien or the application of the lienor. The issue so raised shall be tried as are other issues in a court of record, without a jury, before the justice granting the order at a time to be fixed by him, or they may be referred by him to a referee, to be heard and determined. Added by ch. 419 of 1897. 3426. Order of sale. An order may be made by the justice before whom the order to show cause was returnable, for the sale of the vessel, her tackle, apparel and furniture, in the following cases: 1. In case the master, owner, consignee or other person interested in the vessel does not appear upon the return day and contest the claim of the lienor, and proof is made of the service of the order to show cause and the application and of the publication of the notice and the service thereof, as required in this title, and due proof is made of the validity and amount of such claim; 2. In case a trial is had of the issues raised, and it is determined that the lien is valid and the amount claimed by the lienor or some part thereof is due. Such order shall direct the sheriff who seized the vessel to sell the same, and her tackle, apparel and furniture, to satisfy the liens established on the hearing, and pay the costs and expenses necessarily incurred in the proceedings as prescribed in this title. The rights of mortgagees, whose mortgages have been filed according to law, prior to the filing of the notice of lien, on account of which the order of sale is granted, shall not be affected by the sale of such vessel pursuant to such order. Added by ch. 419 of 1897. § 3427. Sale and proceeds. Within ten days after the receipt of the order of sale, the sheriff, unless the order be sooner vacated or the lien discharged, shall sell the vessel seized, her tackle, apparel and furniture, upon notice, and in the manner prescribed by law for the sale of personal property upon execution issued out of a court of record. He shall make a return to the justice granting the order, of his proceedings thereunder, and shall, after deducting his fees and expenses in seizing, preserving, watching and selling the vessel, pay into court the remaining proceeds of the sale. Added by ch. 419 of 1897. § 3428. Notice of the distribution of the proceeds of sale. The justice granting the order of sale, upon receiving such proceeds, shall order a notice to be published once a week for three successive weeks in the same newspaper in which the notice of seizure was published, requiring all persons having liens upon the vessel under article two of the lien law, and the master, owner, agent or consignee thereof, and all other persons interested therein, to appear before him, or a referee appointed by him, at the time and place specified in such notice, not less than thirty nor more than forty days from the first publication thereof, to attend a distribution of such proceeds. Such justice may appoint a referee to make such distribution. Added by ch. 419 of 1897. § 3429. Liens for which no warrants are issued. A person who has a lien under article two of the lien law, against the vessel so sold, and has made no application for a warrant thereon, may present to and file with the justice or referee at the time and place specified in the notice of distribution of such proceeds, a verified statement of the facts and allegations required to be stated in the application for a warrant. And thereupon such lien shall be determined with the same effect as if a warrant had been issued to enforce such lien. Added by ch. 419 of 1897. § 3430. Contested claims. The master, owner, agent or consignee of the vessel, or any person having an interest in the proceeds before final distribution thereof, may contest any claim made against the vessel or its proceeds, by filing with such justice a written answer, verified as a pleading in a court of record, designating the claims contested and controverting any material allegation of the notice of lien, application for a warrant or statement of lien, and setting up any other matter in defense thereto. A copy of such answer shall be served within five days from such filing, upon the person whose claim is contested, or his attorney. If the answer does not contain any matter of defense to the claim, it may be stricken out on motion of any person who has filed a notice of lien against the vessel. Added by ch. 419 of 1897. § 3431. Trial of issues and appeal. The issues raised by any such answer shall be tried in the same manner as issues are tried in a court of record without a jury, before such justice at a time and place to be fixed by him, or they may be referred by such justice to a referee, to hear and determine. An appeal may be taken from the decision of such justice or referee as in a civil action in a court of record. On such appeal the decision upon the law and the facts, may be reversed, modified or a new trial ordered. Costs, upon appeal, shall be allowed, as in the case of an appeal from a judgment in a court of record, and judgment may be rendered therefor. Added by ch. 419 of 1897. § 3432. Distribution of proceeds. Upon the determination of all the claims presented, the justice or referee shall make an order of distribution of the proceeds. The order shall direct the payment of the claims found to be subsisting liens upon such vessel or proceeds, with all costs, expenses and allowances, in the order of the priority of filing the notices of such liens, as provided in article two of the lien law. Such costs, expenses and allowances shall be in the discretion of the justice, except as otherwise provided in this title. Added by ch. 419 of 1897. § 3433. Payment of uncontested claims. Any uncontested claims, entitled to priority of payment over the claims which are contested, shall, on motion of the parties interested, be paid with costs, in the order of their respective priorities, without awaiting the determination of such contest. If at any time it is made to appear that after the payment of all prior uncontested claims and their respective costs, and after deducting an amount sufficient to pay all prior contested claims and costs, that there remains a surplus of proceeds applicable to the payment of any subsequent uncontested claims, such claims may, on notice to all the parties interested, be paid out of the surplus with costs, without awaiting the determination of such contest. Added by ch. 419 of 1897. UN P |