Rafter a. Sullivan.

RAFTER a. SULLIVAN.

Supreme Ct., Second District; Special Term, November, 1861. MECHANICS' LIENS IN THE CITY OF BROOKLYN.

Chapter 402 of the Laws of 1854,-which provides a method of securing a lien in favor of any person performing labor in erecting, altering, or repairing any house, or furnishing materials therefor, in certain counties specified in the act, and made applicable to all the counties in the State, except New York and Erie, by Laws of 1858, ch. 204,-does not apply to the city of Brooklyn. To create a lien under Laws of 1853, ch. 335, providing for the better security of mechanics and others erecting buildings, performing labor, or furnishing materials therefor in the county of Kings, the notice required by that act must be filed with the county clerk, and a copy thereof served upon the owner, as specified in section 4 of that act.

Trial by the court.

The plaintiff was a carpenter and joiner, and had furnished materials and labor of the value of $420 in the construction of a house upon the premises of the defendant in Brooklyn. Within the time prescribed by the Mechanics' Lien Law (Laws of 1854, ch. 402), made applicable to all the counties of the State, except New York and Erie, in 1858, he filed a notice of lien against the property in the office of the county clerk of Kings county, and also in the office of the city clerk of Brooklyn. This action was brought to foreclose his lien. The plaintiff upon the trial made out a case entitling him to judgment if the act were applicable to the city of Brooklyn.

Thomas Brennan, for the defendant, claimed that as there was no town clerk's office in the city of Brooklyn, the general act was inapplicable, and the plaintiff's proceeding a nullity.

James W. Culver, for the plaintiff, insisted that the Legislature had intended the general act to apply to all the counties of the State except New York and Erie, which had been expressly excepted from the act. As, 1. By the fourth section of the act of 1854, the mode of describing the premises when located

Rafter a Sullivan.

in a "city" or "village" was pointed out. 2. That the city clerk's office was really the municipal town clerk's office. 3. That the statute was remedial, and should be liberally construed for the carrying out of its general object.

BROWN, J.-To create a lien upon real property for labor done or materials furnished, under the act of the 17th of April, 1854, and the act of the 14th of April, 1858, the laborer or contractor must serve the notice in writing upon the town clerk of the town where the real property is situated, within the time. limited by the fourth section of the first-mentioned act. The city of Brooklyn is not one of the civil divisions of the State known as a town, nor has it any officer known as town clerk, or who performs duties resembling those assigned to the clerks of the several towns throughout the State. The county clerk's office, and the office of the city, might have been appropriate and convenient places to file notices to create liens under the acts named; but the Legislature has not thought fit to designate them for that purpose. And no one would, after reading the two acts, think of looking in either of these offices for notices designed to create liens and charges upon real property. The proceeding is strictly special, and in derogation of the rules of common law. It must follow strictly the rules prescribed by the statute, or the lien will not be created, and the lands charged with the payment of the debt. I am therefore brought to the conclusion that the acts referred to do not apply to the city of Brooklyn.

To create a lien under the act of the 8th of June, 1853, in regard to the county of Kings, the notice must be filed with the county clerk, and a copy thereof served upon the owner, as specified in the fourth section of that act. These requisitions have not been complied with in the present case. Indeed, I understand the lien is claimed to have been created under the provisions of the two first-named acts, and not under that last referred to.

I am, for these reasons, of opinion that claimant's proceedings in this case must be dismissed, and he left to pursue his usual common-law remedy for the recovery of whatever may be found due to him from the owner.

Judgment for defendant.

Gurnee a. Odell.

GURNEE a. ODELL.

Supreme Court, First District; At Chambers, November, 1861. MODIFICATION OF INJUNCTION ORDER.-MOTION TO DISSOLVE IN

JUNCTION BY A PARTY CHARGED WITH DISOBEYING IT.

Where defendant had previously moved to dissolve an injunction, and his motion" had been denied, with leave to renew upon affidavits sufficient to clear him of misconduct, in disregarding the injunction, by removing the property in disobedience of it;-Held, that the order imposing this condition did not contemplate a literal purging of the contempt, or denial of the alleged breach of the injunction, but was intended merely to require the defendant to purge himself of a wilful contempt.

When the rights of the parties to an action are yet to be ascertained, the power of the court to grant injunctions ought not to be so employed as to work a possible injury to either.

Where, upon an undertaking insufficient to indemnify the defendant against loss, an injunction had been granted, forbidding him to move a canal-boat in his possession, and of which he claimed to be the owner, near the close of navigation, when freights were high, and a brief delay might have caused the loss of a trip;-Held, that the injunction should be modified so far as to permit the defendant to employ the boat in the usual and customary method upon the canals of this State, and upon the Hudson river, not removing the same out of the State.

Motion to dissolve an injunction.

This action was brought against the defendants Odell and Beavers, to reach an interest which it was claimed belonged to the defendant Beavers, in the canal-boat "John N. Gardner." The plaintiff was the assignee of a judgment-creditor of the defendant Beavers. An execution had been issued against Beavers, and returned unsatisfied. The plaintiff commenced the present action by alleging that three-fourths of the boat belonged to Beavers, but that it had been bought in the name of the defendant Odell, in order to hinder, delay, and defraud the creditors of Beavers. An injunction-order, restraining the defendants from removing or interfering with the boat, was served upon the defendant Odell. The boat was then lying at

Gurnee a. Odell.

the Commercial Wharf, in Brooklyn; freights were high, and there was barely time to make another trip to Buffalo, and return, before the close of navigation. The defendant Odell aoved to dissolve the injunction; the plaintiff produced affidavits charging Odell with having threatened to disregard the injunction, and with having removed the boat in pursuance of these threats. Mr. Justice Sutherland, who heard the motion, denied the same, with leave to renew upon affidavits sufficient to clear the defendant of his alleged misconduct. The defendant Odell renewed the motion, upon affidavits, showing that he had immediately moved to dissolve the injunction, and that he had removed the boat with the intention of returning it to New York, and disclaimed any disrespect to the court and its orders.

C. V. Santvoord, for the motion.-I. The plaintiff obtained an injunction on an affidavit of the plaintiff, without any complaint praying for an injunction. This was irregular. It must appear by the complaint that the plaintiff is entitled to the relief demanded. (See Code, 219; Hovey a. McCrea, 4 How. Pr., 31; Olssen a. Smith, 7 Ib., 481; Morgan a. Quackenbush, 22 Barb., 72; Walker a. Devereaux, 4 Paige, 229.)

II. An alleged contempt is not an objection to a motion to set aside for irregularity.

III. It is a general rule, that if the facts on which the complainant's equity rests are positively denied, the injunction must be dissolved. (Voorhies' Code, 313, n. 3, § 225.) In this case, not only are the facts denied, but the circumstances by which the defendant Odell acquired title to the boat in his own right as sole owner are fully detailed.

IV. The injunction should at least be modified so as to allow Odell to take care of and use his boat, restraining him only from selling, transferring, assigning, mortgaging, or removing it out of the jurisdiction of the court, until the further order of the court.

V. No contempt has been committed not satisfactorily explained. Odell was obliged to move his boat from where she lay, and taking her to Buffalo for a freight, under the circumstance of his expectation that the injunction would be modified, with the intention to return to New York, was not a violation

Gurnee a. Odell.

of the meaning of the injunction, any more than taking care of the boat would be.

VI. There can be no contempt where there is no prejudice. Although the Code gives the power of punishing disobedience of its orders to the judge, we must refer to the Revised Statutes as to the mode in which that power is to be exercised. (4 How. Pr., 371.) The Revised Statutes give such power only when the rights or remedies of a party in a cause or matter, depending in a court, may be defeated, impaired, impeded, or prejudiced. (3 Rev. Stat., 5 ed., 849.) And in such case it may be punished in the manner pointed out in the statute. (Ib., 850, § 3.) The only punishment to which the defendant in the case would probably be subjected, would be payment of the costs of the proceedings for contempt. (Sullivan a. Judah, 4 Paige, 444, 447.)

VII. The plaintiff, by his delay to move, so as to enable the defendant to purge his contempt, if he has ignorantly been guilty of any, has waived his right to set it up as a ground of objection to the motion.

Charles Edwards, opposed.

ALLEN, J.-The defendant Odell has leave to renew his motion to dissolve or modify the injunction-order in this cause, "after he shall have served affidavits in such action, sufficient to clear himself" of certain misconduct, alleged against him in the violation of the order.

As the removal of the boat from the place where she was at the time of the service of the injunction, and indeed from the harbor of New York, and sending her to Buffalo in the prosecution of the business in which she had been and was employed, was not denied or disputed, the conditions imposed as the terms of renewing the motion could not have contemplated a literal purging of the contempt, or denial of the alleged breach of the iujunction, but was intended merely to require the defendant to purge himself of any wilful contempt of this court. The defendant had not been adjudged guilty of a contempt, but was simply charged, by the affidavits in opposition to the motion, with disrespectful threats to disregard the injunction, and a subsequent disregard of it, apparently in pursuance of such threats.