Spratt v. Nicholson ( 1869 )

Brady, J.

Having decided that under the lien law of 1863 (Vide Carroll v. Coughlin, ante p. 179), an owner may compel the lienor to proceed with his lien, and if he fails to do so, the court may, by judgment in such proceeding, exempt the property affected from its operation, it must be held that the demurrer interposed in this case was well advised. The question, however, which otherwise would be presented, had not been passed upon in any adjudicated case when the demurrer herein was argued; and as this is an action in equity purely, and one which seemed necessary to give the plaintiff relief, I think the costs to be allowed the defendant, judgment being in his favor on the demurrer, should be limited to $10.

Ordered accordingly.