This is an action to foreclose a mechanic’s lien. . The plaintiff was a laborer for the defendant Orio; Orio had a contract with the city of Yofficers, one of the other defendants, to pave a certain street within the limits of the city. The appellants, the defendants Chiangone and Delucio, were the bondsmen for Orio. Before the work under the contract was done Orio refused to complete, and assigned his interest in and rights under the contract to these bonds*405men, who undertook to complete the contract with the city of Yonkers. The defendant Raymond also had a claim for materials supplied for this work, but all of the parties agreed upon the trial that he should have his pay out of the money in the hands of the city yet unpaid to the contractor; and since the entry of judgment payment has been made to the defendant Raymond, agreeably to the understanding between all the parties. The other defendants are laborers who did the work for Crio and his assignees. Within the statutory time after the completion of the plaintiff’s work, he filed a notice of lien against the moneys then due to the bondsmen, to whom the contract had theretofore been assigned by the defendant Crio; it is claimed that there was a large amount of money in the city’s hands which was then due to the assignees of the contractor, and that the notice of lien was sufficient to impress upon those moneys a lien .in favor of the plaintiff to pay him for the labor he had performed. The plaintiff’s notice of lien was filed on November 12, 1904; the action was commenced .by the service of a summons on the defendant Chiangone on the 13th day of February, 1905, and on the defendant Delucio on the 21st day of February, 1905 ; but the date of the service of the summons upon the defendant, the city of Yonkers, is not stated in the papers. The complaint alleged that the action was commenced within ninety days from the filing of the plaintiff’s notice of lien.
The answer of the defendants Chiangone and Delucio denied that the action was commenced within ninety days from the filing of the plaintiff’s notice of lien ; the answer of the city admitted this allegation of the complaint in that it did not deny it. The referee has not found that the action was commenced within three months after the filing of the notice of lien. There is no finding in this respect either way. The other defendants, the laborers, went to trial without having served any answers upon the appellants. When, during the course of the trial, they were sworn to show the amount of the services they had rendered in the work on this street, the appellants objected to the evidence on the ground that there was no issue sufficiently raised in that respect in that these defendants had served no copy of their answer upon the appellants. These defendants, however, were allowed to file answers, and did so ; but such answers not only actually denied the allegation of the plain*406tiff’s complaint that the action was commenced within ninety days after the filing of the notice of the plaintiff’s lien, but also failed to allege in the interest of the pleaders that such was the case.
The judgment which was entered provided that out of the moneys due from the city to the appellants as assignees of the contract of*0.rio with the city,' there should be paid, first, the Raymond claim; every one agreed, however, that this was a proper payment, and no fault is found with the judgment in that respect; second, that the plaintiff should be paid the amount of his labor ; third, that the city of Yonkers should be paid for certain materials it furnished ; and fourth, that the thirty-eight laborer defendants be paid the amount of their work. , The real parties .who are adversely affected by this judgment are, of course, the assignees of the contract, and they alone have appealed from the judgment.
It seems to me that the claim the appellants make that the judgment must be reversed because it does not appear that the action was commenced within three months after the filing of the notice of lien,is sound. The statutory provision is as follows: “Duration of lien under contract for a public improvement.— If the lien is for labor done or materials furnished for a public improvement, it shall not continue for a longer period than three months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time. * * * ” (Lien Law [Laws of 1897, chap. 418], § 17, as amd. by Laws of 1902, chap. 37.)
The language of the statute under which the plaintiff and the laborer defendants claim to hold a lien against the moneys due from the city to the appellants is distinct in its provision that the lien shall have no validity beyond three months after filing unless an action is commenced to foreclose. Here we have an exception upon whose provision the plaintiff relies; the exception is embodied in the clause of the statute, and the plaintiff must plead and prove that he is entitled to its benefits, namely, that the action was begun within three months (Harris v. White, 81 N. Y. 532, 546; Rowell v. Janvrin, 151 id. 60, 67); the plaintiff has plead the exception, but the. allegation is denied by the appellants and even by the laborer defendants; no proof was offered to sustain the allegation and no finding was made in that respect by the referee. That the answer of the defendant, the City of Yonkers, admits the allega*407tion of the complaint does not save the situation, for the interests of the city and those of the appellants are adverse and, of course, one defendant cannot be bound or prejudiced by the allegations of a codefendant whose interests are adverse.
The time the action was commenced and hence the very validity of the lien, to foreclose which the action is brought, was an issue in the case raised by the pleadings and the burden was on the plaintiff ; there is no finding and no evidence to meet this burden, and hence the judgment must be reversed as far as the plaintiff’s claim is concerned ; the claims of the laborer defendants provided for in the judgment suffer from the same infirmity and as to them it must likewise be reversed, and the city’s claim is so closely allied, at least in its establishment, that it must fall with the balance of the judgment.
I advise that the judgment be reversed and a new trial ordered before another referee, costs to abide the event.
Judgment of the County Court of Westchester county affirmed, with costs.