Gallagher v. Karns ( 1882 )

HaediN, J.:

Chapter 440 of the Laws of 1880 (3 R. S. [7th ed.], 2440) provides, viz.: “ Any person who shall hereafter perform any labor in or about the sinking, drilling or completing of any oil well, or any well sunk or drilled for oil or gas or other volatile or mineral substances within the State of New York, * * * shall on filing with the county clerk of the county in which the property is situated the notice prescribed by the next section of. this act home a lien for the value of such labor and materials upon such tank or other receptacle as aforesaid, and upon such well as aforesaid and appurtenances, and upon the lot, premises, parcel or farm of land upon which the same shall be situated to the extent of the right, title and interest of the owner of the property.” * * *

Section 2 provides for the filing -of a notice in the county clerk’s office of the county where the property is situated. Section 4 provides for serving notice of the claim upon the owner. Section 5 of the act provides for bringing “ an action in the Supreme Court in the county in which the property is situated * * * to enforce such lien. Which action shall be commenced and the proceedings therein conducted and judgment entered in the same manner and to the same effect as in actions brought in said courts to enforce liens provided by chapter 402 of the Laws of 1854, and the several acts amending the same; and the said courts shall have full power to adjust and enforce all the rights and equities between any or all of the parties to such actions, and enforce or protect the same by any of the remedies usual in said courts.” (1.) Torpedoing comes within the provisions of the act. (2.) Proofs made at the Special Term showed a compliance with the provisions of the act to the extent of creating a lien in favor of the plaintiff. (3.) Under the last part of section 5 the court may “ enforce ” the “ equities ” of the plaintiff by any of the remedies usual in the court. Liens and equities arising thereout are enforced in this court by the remedy reached through the instrumentality of a receiver, wherever and whenever such liens and equities are in danger and liable to fail without such instrumentality. (Code of Civil Pro., 713.)

Under section 5 of the act from which we have quoted, it must be assumed that the remedy to enforce the lien given by the act, is “ an action.” The section differs from the statutes under which the court held that the remedy to enforce a mechanic’s lien, in Sallaban v. Herbert (57 N. Y., 409), was a special proceeding. In the case in hand the court had power to appoint a receiver pendente lite. (Sec. 5, supra Webb v. Van Zandt (16 Abb. Pr., 314, in note); Poerschke v. Kedenburg (6 Abb. [N. S.], 177); (Gauhn v. Mills (2 Abb. N. C., 114.)

Facts were shown to the Special Term which called for its exercise of discretion as to the appointment of a receiver, and we are satisfied with the direction which the discretion took, and we therefore should affirm the order.

Smith, P. J., concurred; Haight, J., not sitting.

Order affirmed, with ten dollars costs and disbursments.