I believe that the respondents have brought themselves within the protection of the statute. The fund upon which they seek to impress their lien is “ the sum earned and unpaid on the contract at the time of filing the notice of lien.” (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 4, as amd. by Laws of 1916, chap. 507.) While it may be difficult to find any equitable basis on which the contractor or subcontractor should be subjected to a greater risk or liability than an owner, yet the fact remains that the Legislature has chosen to differentiate between them in what seems to me clear and unmistakable language. Section 2 of the Lien Law (as amd. by Laws of 1916, chap. 507) defines an owner and as well a contractor and a subcontractor, and the terms are not interchangeable. The Legislature must be credited with as full a knowledge of their difference in meaning as the courts possess, and must be deemed to have distinguished them accurately and knowingly.
I favor the affirmance of the judgment appealed from, with costs.
Mebbell, J., concurred.
Judgment in so far as appealed from reversed, with costs, and liens of the respondents dismissed, with costs. Order to be settled on notice.