and the defendant is not entitled to costs under said section although the plaintiff, who failed to establish his lien, recovered a personal judgment less than an offer of judgment made by the defendant. Ball v. Doherty (1911), 144 App. Div. 277, 128 N. Y. Supp. 1014.

Where, in an action to foreclose a mechanic's lien, plaintiffs claim $891 and reject an offer of judgment for $500, and then one of $450, neither in form to permit the entry of a judgment in personam for any deficiency, and they finally recovered $585, they are the "prevailing party" within the meaning of this section of the Lien Law and entitled to costs, the amount of which is within the discretion of the court. Salerno v. Vogt (1912), 78 Misc. 64, 138 N. Y. Supp. 664.

Where the amount applicable to the payment of liens is insufficient to pay those concededly valid, the costs of an appeal from a judgment declaring appellant's lien invalid should be paid by him personally on the affirmance of the judgment. Riley v. Durfey (1911), 145 App. Div. 583, 130 N. Y. Supp. 297.

The plaintiff in an action to foreclose a mechanic's lien is entitled to an allowance of costs under section 3252 of the Code of Civil Procedure. McLaughlin v. Mendelson (1913), 160 App. Div. 57, 144 N. Y. Supp. 1073.

Under section 3253 of the Code of Civil Procedure an extra allowance of ten dollars is all that may be granted to the successful plaintiff. Greenberg v. Marsh (1917), 101 Misc. 18, 167 N. Y. Supp. 102.

ARTICLE XIII.

JUDGMENT.

(Fiero, Spec. Act., 3rd Ed., pp. 1333-1344.)

LIEN LAW, § 54. Judgment in case of failure to establish lien.

§ 57. Judgment may direct delivery of property in lieu of money.

§ 58. Judgment for deficiency.

§ 64. Award of personal judgment by court or referee.

Lien Law, § 54. Judgment in case of failure to establish lien.

If the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this article, he may recover judgment therein for such sums as are due him, or which he might recover in an action on a contract, against any party to the action.

Formerly Code Civ. Pro., § 3412. (B., C. & G. Consol. L., 2nd Ed.,

p. 4891.)

Prior to the statute if the plaintiff did not prove a lien, equity was without power to give judgment for the moneys due to him. Di Menna v. Cooper & Evans Co. (1917), 220 N. Y. 391, 395, modfg. (1913), 155 App. Div. 501, 140 N. Y. Supp. 680.

Under this section a lienor is entitled to a personal judgment if he establishes his cause of action, notwithstanding that he may fail to establish a valid lien. Spring v. Collins Building & Construction Co. (1908), 60 Misc. 239, 113 N. Y. Supp. 29; Weiss v. Kenney (1908), 59 Misc. 279, 112 N. Y. Supp. 287.

Right to personal judgment upon failure to establish lien.Where a party fails to establish a mechanic's lien because the notice thereof does not comply with the statute or the complaint does not state a cause of action to enforce the lien, he may, if the complaint states a cause of action for goods sold and delivered or labor performed, recover a personal judgment as in an action on contract. Weaver Hardware Co. v. Solomovitz (1917), 98 Misc. 413, 163 N. Y. Supp. 121.

Where, in action to foreclose a mechanic's lien a cross-answer, based on an entire contract and seeking to enforce a mechanic's lien thereunder, does not allege due performance as required by section 533 of the Code of Civil Procedure, it is insufficient to constitute a cause of action for goods sold and delivered or for labor performed under the contract and a personal judgment cannot be granted in case a valid mechanic's lien is not established. Weaver Hardware Co. v. Solomovitz (1917), 98 Misc. 413, 163 N. Y. Supp. 121.

If the mechanic's lien fails in a suit to foreclose it, the law permits a personal judgment against the contractor, but such judg ment can be taken only where the lien fails. Maltby & Sons Co. v. Boland Co. (1912), 152 App. Div. 596, 137 N. Y. Supp. 470. It is only where a party has filed a mechanic's lien that upon failure for any reason to establish the lien a money judgment may be given. Freidenrich v. Condict (1908), 124 App. Div. 807, 109 N. Y. Supp. 526.

Where plaintiff alleges that the defendant owner requested a tenant to make improvements and that with the owner's consent and knowledge the plaintiff contracted with the tenant to make the improvements and that at the special instance and request of the owner and the tenant the plaintiff performed certain extra

work and furnished certain extra materials of a certain reasonable value, he states a cause of action warranting a personal judgment against the owner for the extra work done, even though his lien fail by reason of the insufficiency of the notice. Mitchell v. Dunmore Realty Co. (1909), 135 App. Div. 583, 120 N. Y. Supp. 771, mod. (1910), 199 N. Y. 529.

Where a complaint in an action to foreclose mechanics' liens is insufficient in that it does not state whether any other action has been brought to recover any part of the lien debt, as required by section 1629 of the Code of Civil Procedure, the plaintiff may, nevertheless, recover a personal judgment for the sums due him, where the allegations of the complaint and proof are sufficient. The plaintiff should not be denied relief under such a complaint upon the ground that no demand was made for personal judgment. Prime v. Hughes (1916), 174 App. Div. 406, 159 N. Y. Supp.

1041.

Where a complaint alleges the filing of a mechanic's lien within the statutory time limit, the rendition of the service, the value thereof, and demands judgment for the amount and also a foreclosure of the lien, the plaintiff, although defeated on his lien, is entitled to judgment for services rendered upon proving the common-law liability no matter what his cause for failure to establish the lien. Shaw v. Wilke (1910), 137 App. Div. 513, 121 N. Y. Supp. 745.

does not affect plainWalde Asphalt Pav

Failure to establish a valid statutory lien tiff's right to recover a personal judgment. ing Co. v. City of New York (1908), 191 N. Y. 244; Fenichel v. Zicherman (1913), 154 App. Div. 471, 139 N. Y. Supp. 118; Ball v. Doherty (1911), 144 App. Div. 277, 128 N. Y. Supp.

1014.

Where a complaint is insufficient for the foreclosure of a mechanic's lien, but does contain all the essential elements of a cause of action for work, labor and services, and for materials furnished, the plaintiff may recover a money judgment. Schwartz v. Klar (1911), 144 App. Div. 37, 128 N. Y. Supp. 830.

Even though a mechanic's lien be fatally defective, the court may retain a suit of foreclosure for the purpose of rendering a personal judgment for work done and materials furnished, pursuant to the contract and for extra work, provided the plaintiff

is not in default. Jones v. Dodge (1910), 137 App. Div. 853, 122 N. Y. Supp. 815.

One who furnishes labor and materials to a subcontractor and has filed a mechanic's lien against the owner and his immediate contractor is not entitled to a personal judgment against another contractor with whom he had no relations. Zimmermann v. Loft (1908), 125 App. Div. 725, 110 N. Y. Supp. 499.

A personal judgment cannot be rendered, when at the time of the commencement of the action the plaintiff had not substantially performed his contract. Levin v. Hessberg (1909), 135 App. Div. 155, 119 N. Y. Supp. 1021.

In a suit to foreclose a mechanic's lien and also asking for personal judgment the plaintiff is entitled to have issues settled for a trial by jury. Di Menna v. City of New York (1913), 155 App. Div. 501, 140 N. Y. Supp. 680.

Lien Law, § 57. Judgment may direct delivery of property in lieu of money. If the owner has agreed to deliver bills, notes, securities or other obligations or any other species of property, in payment of the debt upon which the lien is based, the judgment may direct that such substitute be delivered or deposited as the court may direct, and the property affected by the lien can not be sold, by virtue of such judgment, except in default of the owner to so deliver or deposit within the time directed by the court.

Formerly Code Civ. Pro., § 3415. (B., C. & G. Consol. L., 2nd Ed., p. 4896.) Lien Law, § 58. Judgment for deficiency.

If upon the sale of the property under judgment in a court of record there is a deficiency of proceeds to pay the plaintiff's claim, judgment may be docketed for the deficiency against any person liable therefor, who shall be adjudged to pay the same in like manner and with like effect as in judgments for deficiency in foreclosure cases.

Formerly Code Civ. Pro., § 3416. (B., C. & G. Consol. L., 2nd Ed., p. 4897.)

A defendant sought to be charged with deficiency may set up a counterclaim arising out of another contract between him and the plaintiff. Valett v. Baker (1908), 129 App. Div. 514, 114 N. Y. Supp. 214.

Lien Law, § 64. Award of personal judgment by court or referee.

A court or referee in any action heretofore or hereafter brought may at any time award a money judgment in favor of any party. This shall not preclude the rendition of other judgments in the action. Any payment made on account of either judgment in favor of a party shall be credited on the other judgment.

Formerly Lien Law (L. 1897, ch. 418), § 64, as added by L. 1911, ch. 450. Repealed by L. 1911, ch. 873, and re-enacted by L. 1916, ch. 507.)

(Fiero, Spec. Act., 3rd Ed., pp. 1346-1349.)

The only statutory restrictions to an action upon a judgment for a sum of money, rendered in a court of record of this State, are contained in section 1913 of the Code of Civil Procedure. Saxe v. Peck (1910), 139 App. Div. 419, 124 N. Y. Supp. 14.

Section 1913 of the Code of Civil Procedure relates only to actions between original parties to a judgment, and does not affect an action brought by the personal representative of one in whose favor a judgment has been rendered. Koenig v. Wagener (1908), 126 App. Div. 772, 111 N. Y. Supp. 116.

Leave to sue upon a judgment should not be granted until it is about to expire for it does not serve to protect any right of the judgment creditor, and is prejudicial to the debtor in that he will be liable for additional costs. But where a defendant is sued for conversion of goods the court may grant him leave to bring an action to offset a prior judgment in his favor against the plaintiff on the acceptance of a draft accompanied by a bill of lading for the same goods, or to plead such judgment as a counterclaim to the action for conversion. Rando v. National Park Bank of New York (1910), 137 App. Div. 190, 121 N. Y. Supp. 1048.

A final decree in an action for divorce which provides for the payment of alimony by installments is a judgment for the payment of money within the meaning of section 1913 of the Code. Farquhar v. Farquhar (1916), 172 App. Div. 242, 158 N. Y. Supp. 194.

An assignee of a judgment may sue thereon although less than