Telfer v. Kierstead.

Henry D. Van Orden, for the defendants

D. & T. McMahon, for the plaintiff.

BRADY, J.-William Dennison agreed with the defendants, the owners of the premises described in the complaint, to erect a building thereon, and the plaintiff contracted with Dennison to do certain work and furnish certain materials towards such erection, and in conformity with the contract between defendants and Dennison. The plaintiff performed his agreement, and Denmison completed his contract, but died intestate before the plaintiff's lien was filed. The plaintiff's labor was performed, and the materials furnished, however, within six months prior to the filing of the lien. The defendants demur and insist that the Lien Law is a special statute, to be strictly construed; that it contemplates the existence of the contracting parties, and that the death of the contractor in effect repeals or abrogates the statute, and deprives the laborer or material man of his lien. That upon the death of the contractor his assets pass to the executor or administrator, and that the intervention of the lien cannot deprive his legal representatives of their power over his estate. The answer to this argument is, that the primary object of the legislature was to create, in favor of the laborer and material man, a lien upon the fund in the owners' hands, due to the contractor, and as to that fund to give him priority over every general creditor of the contractor, imposing only, as a condition, that within the time prescribed therefor he should file and serve the notice required by the statute. That condition has been performed, and the plaintiff's right thereupon became absolute. The contractor having finished the building, there was a balance due to him, which was subject to the plaintiff's inchoate right, and that right could be defeated only by the payment to the contractor of the balance, prior to notice of the lien. For these reasons I think the demurrer not well interposed, and that the plaintiff is entitled to judgment.

Ordered accordingly.

Brown v. Wood.

JACOB S. BROWN AND ANOTHER, CLAIMANTS, v. REUBEN R. WOOD, CONTRACTOR, AND OWEN O'CONNOR, owner.

In a proceeding to enforce a mechanic's lien, the service of the notice to appear and submit to an accounting, is in effect the commencement of a suit, and whether the owner appears or not on the day specified, the proceedings thereafter are as in an action.

The service of a defective bill of particulars constitutes no ground for dismissing the proceeding.

If the bill served is not sufficiently specific, the defendant may, before answering, require a further and more particular bill, under § 158 of the Code.

AT SPECIAL TERM, December 28, 1859.

Proceedings to foreclose a mechanic's lien. The claimant served upon the owner a notice in proper form, requiring him to appear in this court on this day, and submit to an accounting and settlement of the amount claimed to be due to the contractor. Attached to the notice was a bill of particulars of work and materials furnished towards the erection of a building owned by the defendant, "situate in the fourth ward, in the city of New York, on the west side of New Bowery, between James and Roosevelt streets." The bill was in the form following:

"Mr. Reuben R. Wood, contractor, and

Owen O'Connor, owner,

On the day specified in the notice, counsel for the respective parties appeared, and on behalf of the defendants it was asked that the proceedings be dismissed, upon the ground that the bill of particulars was indefinite and insufficient, and not in accordance with the provisions and requirements of the Mechanics' Lien Law.

Leopold v. Myers.

John H. McCunn, for the claimant.

Charles W. Kline, for the owner and contractor.

DALY, First Judge.-The service of the notice is in effect the commencement of a suit; for whether the owner appears or not upon the day named in the notice, the proceedings are conducted thereafter, and judgment entered up, as in an action. Reynolds v. Hamil, 1 Code R. (N. S.) 231; Smith v. Manice, id. 230. The bill of particulars may be served at any time within fifteen days after service of the notice. The statute does not declare what it shall contain, further than that it is to be a bill of particulars of the amount claimed. The bill served in this case, taken in connection with the notice, is specific as to the amount claimed, and that it is claimed for flagging and furnishing the blue stone used in and about the building described in the notice as the one upon which a lien has been effected. If the bill is not as specific or particular as would be required in an ordinary action, that is no ground for setting aside the proceeding, as, after the complaint is served, the defendants, before answering, may, under section 158 of the Code, require the plaintiff to furnish a further and more particular bill.

Motion denied.

ESTHER LEOPOLD, BY HER NEXT FRIEND HEYMAN LEOPOLD v. MORRIS MYERS.

The court will order the expenses of a guardian ad litem, or next friend, of an infant plaintiff, paid or incurred in prosecuting an action, to be reimbursed to him out of the amount recovered.

But this power will not be exercised after the moneys have been paid over to the infant or his general guardian.

It seems that the appointment, as guardian ad litem or next friend for an infant plaintiff, cannot be forced upon a person against his consent.

Leopold v. Myers.

The object of the appointment is, that there may be a responsible person before the

court, accountable for the costs of the defendant in the action.

He is not regarded as a party to the suit, his duty being merely to prosecute for the infant's rights; but he cannot be compelled to incur any expense in the prosecution.

He cannot compromise or settle the suit, nor is payment to him a legal satisfaction of the claim; and his duty ends when the case has been prosecuted to final judgment.

AT SPECIAL TERM, January 11, 1860.

Motion by the next friend of the infart plintin to compel the attorney, who was employed to prosecute the action, to pay the amount expended and incurred by the next friend in such prosecution. The action was brought to recover damages for a breach of promise of marriage. It appeared that the attorney who brought the action had been employed by the next friend for the purpose; that during its progress the next friend had paid and incurred considerable expense in respect to it, and $2,500 had been recovered. The money had been paid into the hands of the attorney, and he had paid it over to the general guardian of the infant, with knowledge that the next friend had not been reimbursed the inoneys he had so expended.

C. Bainbridge Smith, for the motion.

Samuel Williams, opposed.

HILTON, J.-A prochein ami, or guardian ad litem, for an infant party to an action, is a species of attorney, whose duty it is to prosecute for the infant's rights, and to bring those rights directly under the notice of the court, (Knickerbocker v. De Freest, 2 Paige, 304); but he can do nothing to the injury of the infant, and therefore cannot compromise or settle his suit, (Miles v. Kaigler, 10 Yerger's Tenn. R. 10), and a payment to him is not a legal satisfaction, unless ratified by the infant on obtaining his majority. Allen v. Roundtree, 1 Speer's (S. C.) R., 80. He is not regarded, for any purpose, as a party to the suit, and his duty

Leopold v. Myers.

ends when it is prosecuted to final judgment; (Brown v. Hill, 16 Verm. 673; Isaacs v. Boyd, 5 Porter's Ala. R. 388); and in The People v. N. Y. Com. Pleas, (11 Wend. 166), it was held that the only reason for his appointment was, that there might be a responsible person accountable for the costs of the action.

In early times the custom was to appoint officers of the court, but, as was said by Ch. J. WILLES in Slaughter v. Talbott, (Willes' R. 190), the practice was altered, for the reason that the court would not subject its officers to this liability for costs; and in awarding the attachment there ordered against the next friend for the costs of the suit, it was remarked by Mr. J. Fortesque Aland, that "the prochein amis may have satisfaction over against the infants, and generally they take security."

The same liability still exists, and it is enforced in the same manner. (Code, §§ 115, 316.)

The appointment as guardian, or next friend, for an infant plaintiff, cannot be forced upon any person against his consent, nor can he, after his appointment, be compelled to incur, in the prosecution of the suit, any liability other than for the costs of the adversary, if the infant fails in his action, and for which he has his remedy against the infant's estate by a proper proceeding; and he is not permitted to receive any property of the infant until he has given sufficient security, approved by a judge of the court, to account for and apply the same under the direction of the court, (Code, § 420), except such costs and expenses as may be allowed to him by the court out of the moneys recovered by the infant in the suit. (Rule 62.)

It appears, in this case, that the infant plaintiff recovered a judgment in her favor for over $3,000, and married during the pendency of the action. At its commencement, the defendant was arrested, and, in lieu of bail, deposited with the clerk of the court $2,500, which, after the judgment, was, by the order of the court, paid over to her attorney. While it was in his hands, she and her husband-who, it appears, had been appointed general guardian of her person and estate by the surrogate-joined in a notice to the attorney, forbidding payment of the money to any per