(182 N.Y.S.) to him, as will not exceed the value of the devise or bequest made to him in the will." Rev. Stat. 1830, pt. 2, c. 6, tit. 1, art. 3, § 51. That statutory provision was finally embodied in section 27 of the Decedent Estate Law. Chapter 18, § 27, Laws of 1909, being chapter 13 of the Consolidated Laws. These progressive steps by statute thereby cured the two evils-first, by preventing the will from being declared void; and, second, by saving to the witness the share which he would have inherited, not exceeding the value of the provision made for him in the will, "in case the will was not established." [2] We come, now, to the question as to where the share of the witness, saved to him, shall come from. Shall it come exclusively from the shares of the other devisees and legatees, or shall it come from the unbequeathed residuary estate in cases where there is an unbequeathed residuary estate sufficient to pay it? In determining that question, it should be borne in mind that the residuary estate has been increased by the amount which, under the will, the testator attempted to give to the witness. Did the Legislature, by using the words, "he shall recover the same of the devisees and legatees," intend that this should be his exclusive remedy, or did the Legislature intend that, in case the unbequeathed residuary estate should prove to be insufficient to pay the amount to which the witness might be entitled, he might then recover the difference of the devisees and legatees? Having in mind the history of the statutes and the purposes for which they were enacted, it seems to me that the reasonable, equitable, and rational construction of the particular statute is that the witness should resort, first, to the unbequeathed residuary estate, and, if that proves insufficient, he may then recover from the devisees and legatees. Unless that construction be given to the statute, we must impute to the Legislature, in a case like the supposed case I have mentioned above, the intent to deprive the legatees and devisees of the shares provided for them, and of the intent to overthrow and make the will void, a purpose to prevent which the original statute was enacted. Surely the Legislature could not have intended any such result as that. [3] Attention has been called to certain rules of statutory construction, which it is claimed are offended by giving the statute the construction outlined above. Rules of statutory construction laid down by courts are only aids to be applied as they are available in the construction of statutes. In the construction of almost every statute which presents serious difficulties, certain rules of construction suggested by courts have to give way to other rules of construction, which are applied in the particular case in an effort to determine the legislative intent. In a case of this kind, courts must determine the evil which the statute attempted to correct, ascertain the steps by which the different statutes attempted to bring about a cure of the evil, and, with that knowledge in view, place such a construction on the statute as will work out as nearly as may be the purposes which the Legislature had in mind in enacting it. Under the method adopted by the surrogate, the persons named in the will receive the portions which the testator intended that they should receive, except the witness to the will, and she will receive the amount provided in the statute. The next of kin will not receive as much as they would if the witness should be required to collect her share from the legatees and devisees; but the testator did not intend that they should receive any part of her estate, as the will attempted to dispose of all of it. In cases where the witness is not the residuary legatee, a different rule would have to be adopted, and the share saved to the witness by the statute would have to be apportioned, and deducted "in proportion to and out of the parts devised and bequeathed," as required by section 27. That was the course adopted in the case of Mitchell et al. v. Blain et al., 5 Paige's Ch. 588, which case construed the statute which made provision for a child of the testator born after the execution of a will. The words of the statute construed in that case (2 R. S. 65, § 49) were nearly the same as the words of section 26, and substantially the same as the words used in the last sentence of section 27 of the Decedent Estate Law. The construction placed on the statute by the court below carries out the intention of the testator, and that is what the law requires, if it can be done without violating the statute. In the case of Caw v. Robertson, 5 N. Y. 125, in construing another phase of this statute, it was said: "The will of the testatrix should be carried out as far as possible." It is earnestly urged by counsel for the appellants, however, that the statute is so clear and unambiguous that there is no room for construction. In this I believe the learned counsel is in error. As already pointed out, the primary purposes of the statute were, first, to save the will, by making the legatee who witnessed it a competent witness; and, second, to save to such witness the share which he would have inherited "in case the will was not established," limited, however, to the amount attempted to be given to him under the will. That part of the statute is clear, certain, and definite. It bestows upon such a witness a very valuable right. The last sentence of section 27 attempts to give the witness a remedy by which the right may be enforced. It cannot be possible that the Legislature, in attempting to provide a remedy, intended to take away the very right which it had granted. That it might do so, if the statute be construed according to appellants' contention, is well illustrated in the supposed case referred to above. In the supposed case the legacy to Margaret E. Dwyer would be void, and, under appellants' contention, she could recover from the other legatees only $13. By limiting the right of a witness to recover the share saved to him "of the legatees * * * out of the parts * * bequeathed to them," the right granted to a witness by the statute might be destroyed. [4] It is an elementary rule of construction that a construction is favored which gives effect to every clause and every part of the statute, thus producing a consistent and harmonious whole. A construction which would leave without any effect any part of the language used should be rejected, if an interpretation can be found which will give it effect. Matter of New York & Brooklyn Bridge, 72 N. Y. 527, at page 530; People ex rel. Gilmour v. Hyde et al., 89 N. Y. 11, at (182 N.Y.S.) page 18; 36 Cyc. 1128. That part of section 27 which grants the right and saves the share to the witness is as clear and imperative as the part which provides a remedy. The general purpose of the act should not be defeated, because of a lack of harmony between the clauses. The clauses should be harmonized, so as to carry out the intent of the Legislature. People ex rel. Jackson v. Potter, 47 N. Y. 375; Blaschko v. Wurster, 156 N. Y. 437, at page 443, 51 N. E. 303. It seems to me clear that the statute should be construed so as to save the right granted to a witness by the statute-to save to him his birthright, as the courts have expressed it. That can be done by holding that the last sentence of section 27 provides a remedy, but that such remedy is not exclusive. If such construction expands or restricts the terms of said sentence, there is abundant authority to sustain such action. 23 Am. & Eng. Enc. of Law (1st Ed.) 308; Blaschko v. Wurster, supra. "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers." People ex rel. Attorney General v. Utica Insurance Co., 15 Johns. 358, at page 381, 8 Am. Dec. 243; Riggs et al. v. Palmer et al., 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819. The only case which I have been able to find which clearly construes the statute in question upon the point here involved is In the Matter of Smith's Estate, 1 Tuck. 83. In that case Surrogate Tucker said: "But he [the witness] is still entitled to the same distributive share as if his father had died intestate; and the valid legacies must each abate in proportion, if necessary, in order to make up the sum of this distributive share. * John B. [the son and witness] therefore takes one-fourth of the distributive assets, and the remainder is to be divided in satisfaction of the legacies, each of which, as it now appears, must abate." In that case the one-fourth share to which John B. was entitled was more than the assets of the estate after deducting the valid legacies; therefore the legacies were abated. The court below followed the same method followed by Surrogate Tucker. Both sides have cited the case of Du Bois v. Brown, 1 Dem. Sur. 317. The report of that case is so confusing that it is difficult to determine just what the surrogate decided. If the case is in conflict with the decision in the Matter of Smith's Estate, I prefer not to follow it. [5] The item of $500, directed by the testatrix to be paid for masses,. should not have been treated as a legacy, but as an expense, and deducted, in determining the net estate. That would reduce the share of Margaret E. Dwyer $125, and increase the share going to the next of kin by that amount. The decree should be modified in that respect, and, as so modified, affirmed, without costs. All concur. (191 App. Div. 711) REIMER v. NAUGHTON et al. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) 1. Appeal and error 1008 (1)—Findings supported by evidence as to ownership binding. Where the complaint alleged and the trial court found that a particular defendant was the owner of the realty against which a mechanic's lien was claimed, the court on appeal is bound by that finding, notwithstanding contrary implications, and must consider the objections by that defendant to the lien. 2. Mechanics' liens 265-Service on colienor alone within time limited not sufficient. Obtaining service in an action to foreclose a mechanic's lien on a colienor within the time required by Lien Law, § 17. without service on the property owners until after the expiration of such time, is insufficient to sustain the lien. 3. Mechanics' liens ~303 (2)—Personal judgment recoverable against contractor and principal after lien is lost. Under Lien Law, § 17, providing that failure to file notices of pendency of action shall not abate the action as to any personal liability for the debt, the claimant of a mechanic's lien can recover personal judgment against the contractor and the one who made the contract as apparent owner, though the action was begun too late to protect the lien. Appeal from Queens County Court. Action to foreclose a mechanic's lien by John B. Reimer against Joseph Naughton and Helen W. Giblin, impleaded with Earl A. Gillespie and others. Judgment for plaintiff against defendants Naughton and Giblin, and those defendants appeal. Findings and judgment modified, and, as modified, affirmed. Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and KELLY, JJ. Harold M. Phillips, of New York City, for appellant Naughton. R. McC. Robinson, of New York City, for respondent Gillespie. KELLY, J. [1] The record presented to the court upon this appeal is very unsatisfactory, but we must dispose of the case upon that record. It contains the complaint and the answers of the defendant Giblin and the defendant-respondent Gillespie, another lienor. There is no answer of the defendant-appellant Naughton. It is alleged in the complaint, and found by the trial judge, that the defendant Giblin is the record owner of the property, although in her answer she denies the allegation of the complaint that she was the owner. We are bound on this appeal by the finding so made. She was a woman to whom the defendant Naughton had transferred the title without the knowledge of the materialmen, lienors. Naughton represented himself to be the owner, made the contracts, supervised the work, and upon the trial, asserted that it was his money which constructed the buildings. The whereabouts of the defendant Giblin For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) were unknown. Plaintiff was obliged to serve the summons upon her by substituted service. Upon the trial, the county judge directed that she be produced in court for examination; the order was not complied with or excuse given for her nonattendance, but no action was taken in reference thereto. She was, at most, an undisclosed principal, as the court has in effect found; but the case comes to this court upon the plaintiff's allegation that she is an owner of the property and the court has so found. We are therefore bound to consider her answer attacking the validity of plaintiff's lien. There were no exceptions filed by either of the defendants-appellants to the conclusions of law made by the trial judge, and no requests to find were presented by either defendant. We therefore look to the record to see whether there is any evidence to sustain the findings made by the trial judge, and we find abundant evidence to sustain. such findings as to the contract for construction made by Naughton with the contractor, Bonillo, the purchase by the latter of materials from the respondents of the value found, delivery, use in the building, nonpayment, and that there was more money due from the owner to the contractor than was required to pay the materialmen. [2] We are unable, however, to sustain the conclusion of the learned county judge as to the validity of the plaintiff's lien. The defendant Giblin tenders that issue in her answer. The evidence shows that the plaintiff's lien was originally filed and docketed September 30, 1912. It therefore continued in force until September 30, 1913. But on August 30, 1913, one month prior to the expiration of plaintiff's lien, he procured an order from the county judge continuing the lien for one year from the granting of the order. Lien Law, § 17 (Consol. Laws, c. 33). This year would expire August 30, 1914. The plaintiff commenced this action to foreclose his lien on August 27, 1914, by service of the summons and complaint upon defendant Gillespie, a colienor. There is no proof in the record as to when the summons was served on defendants Naughton or Giblin, although plaintiff's counsel admitted at the trial that Giblin was not served until "long after we were in court." Service on defendant Gillespie, a colienor, was not sufficient compliance with the requirement of the statute (Lien Law, § 17) that the action should be commenced during the life of the lien, because Gillespie was not a joint contractor or otherwise united in interest with the owner. Code Civ. Proc. § 398; Martens v. O'Neill, 131 App. Div. 123, 115 N. Y. Supp. 260; Moore v. McLaughlin, 11 App. Div. 477, 42 N. Y. Supp. 256. And the plaintiff failed to file a notice of pendency of the action as required by Lien Law, § 17, until September 28, 1914, which was some time after the expiration of the continued. life of the lien under the order. Matter of Gabler, 57 Misc. Rep. 148, 107 N. Y. Supp. 542 (N. Y. Co. Special Term, Giegerich, J.). These matters were presented to the trial court by the answer of defendant Giblin, and by motions made on her behalf at the trial for dismissal of the complaint, upon the ground that the action was not commenced in time. We are constrained to hold that the learned |