I concur with Mr. Justice Dayton in affirming the judgment helow, solely because this court, since its inception, has acquiesced in the assumption by the district courts and by the Municipal Court of the right to declare the amount of a personal judgment obtained against a contractor a valid lien against the interest of the owner of the property; and I feel that such acquiescence has become a binding authority upon this court, until a higher appellate court has determined that it was erroneous. This court is an appellate court of constantly changing personnel; and I believe that its decisions will be considered binding upon the courts below only if those courts are assured that its decisions represent the views of the court rather than the views of the justices temporarily constituting the court. Especially upon points of practice, I feel that an orderly procedure requires that each term should follow the rulings of the preceding terms except, possibly, where it can be demonstrated with almost mathematical precision that such rulings are contrary to clear principle or higher authority.
If it were not for these considerations, I should unhesitatingly hold that the Legislature never intended to vest in the Municipal Court any jurisdiction to declare the amount of a judgment a valid lien against the interest of any person in real property, except in those cases where it also had a right to render personal judgment against such person. It seems to me quite clear that “ the defendant,” against whose interest the amount of the judgment may be declared a valid lien under subdivision 11 of section 1 of the Municipal Court Act, is only the,defendant against whom the court “ has power to render judgment for the sum due; ” nor am I in any way convinced that any court not of record has any greater jurisdiction under section 46 of the Lien Law. A careful examination of every case that I could find, in which the jurisdiction of courts not of record to enforce a mechanic’s lien has been considered, demonstrated, in my opinion, that any other decision tends only to involve the courts in difficulties and *138contradictions. In Keavey v. De Rago, 20 Misc. rep. 10-5, the court reached the conclusion that, although the gist of an action against an owner is the fact that he owes a balance under his contract to the contractor, yet a subcontractor bringing an action against an owner need not under the statute allege in his complaint that there is any balance owing. In Kotzen v. Nathanson, 33 Misc. Rep. 299, the court decided that, while a court not of record has no jurisdiction to adjust the equities amongst different lienors, it has authority to declare the amount claimed by any lienor a valid lien against the owner, apparently leaving the unfortunate owner in the position that, though he concededly owes only one definite sum of money, he may be compelled to pay that sum to different claimants, if they are successful in successive suits. Such considerations are cogent against a view that the Legislature could possibly have intended to pass a law giving such jurisdiction to the Municipal Court; and they seem to me controlling when the language of the Legislature must, in fact) be strained to show such an intent.
I, therefore, concur in affirmance only with great reluctance.
Giegerich, J., concurs on grounds stated by Justice Lehman.Judgment modified, and as modified affirmed, with costs.