I concur fully in all the conclusions to which the chief justice has arrived in his opinion, and without entertaining doubt on the question suggested by him, that the lien of the plaintiff Hubbell is limited to the items of his account supplied within three months prior to the filing of his notice of lien (December 28, .1870), amounting to one hundred and seventy three dollars and forty-seven cents. The subsisting mechanics’ lien law, applicable to this city (Laws of 1863, ch. 500), by section 6, only authorized the filing of a notice and creation of a hen “within three months after the work is - done, or materials furnished.” Had all the materials of Hubbell’s claim been furnished under an entire contract, for certain materials or all such as were required by their plans and specifications for the erection of the building, it would probably have deferred the plaintiff’s compensation therefor, until his contract was completed, and have attached the right of -lien to articles that he had supplied on such contract, more- than three months prior to the filing of the notice of lien ; but I find nothing in the evidence warranting the conclusion that Hubbell furnished the materials for which his claim is made, upon an account running for seven months, upon any such entire agreement. Prior to May 23, he had been selling materials to Holt, the contractor, and being dissatisfied by reason of the difficulty in obtaining payment, refused to sell him any more, and so stated to Schreyer, the owner, who thereupon, as the testimony warrants the finding of the referee, agreed with plaintiff “to pay for such material as should thereafter be furnished by plaintiff in and about the erection of buildings.” There is no suggestion, however, in the testimony, of any agreement, ex*312press pr implied, between plaintiff and the defendant Schreyer, that the former should furnish any specific kind, quality , or quantity of building materials, or at any specific prices, or on any credit which prevented Hubbell from demanding immediate payment for the materials he furnished, or which prevented either party from declining to deal with the other in reference to the matter. It was but the opening of a running account which either might discontinue at pleasure, and possessed none of the characteristics of an entire contract for all materials necessary to the completion of the building, according to the plans and specifications. In the absence of any agreement of this precise character, each item of the account constituted the subject of an independent contract, against which the statute of limitations would run from the day of delivery of each article ordered and delivered (Ang. on Lim., § 148). The rule of law against the splitting up of demands, growing out of matter of account accruing from time to time on credits as applied for, into separate suits, is one to prevent the oppression of the debtor by his being subject to a needless mutiplicity of suits (Guernsey v. Carver, 8 Wend. 493 ; Corvin v. Corvin, 15 Id. 557, as explained in Secor v. Sturges, 16 N. Y. 548). It in no way segregates the items into an entire cause of action so as to debar the operation of the statute of limitations against the earlier items, against which the prescription ran.
The mechanics’ lien law, being in derogation of common law rights, must be strictly construed, as to all essentials necessary to the creation of the lien.* The operation of section 6, allowing the filing of the lien “within three months after the work is done or the materials furnished,” is not, as in ordinary statutes of limitation, the imposition of forfeiture of the remedy or *313right of recovery, by cutting the items of account, against which the proscription runs (Kimble v. Brown, 7 Wend., 222 ; Palmer v. Mayor, &c. of N. Y., 2 Sandf. 222, and cases cited), but is permissive, and affords a right through compliance with a condition precedent by which the lien may be acquired. While regarding the .provision as only affording the remedy for work done or materials furnished within three months prior to the filing of the notice.of lien, I can perceive no difficulty in the workman or material-man, whose claim rests in a current account, filing successive notices of lien, as each successive period of three months is about elapsing, for the claims that have accrued during those times. Even this would be in no respect a splitting up of a claim on a current account, nor obnoxious to any recognized principle condemning such a proceeding, but would be merely ensuring the collateral security for the current credits, as the act assumes to provide (§ 3), by successive liens afforded either contractor, sub-contractor, workman, or material-man, according to their respective rights, or to either, for current or separate claims, the liens as to which may be successive, and become the subject of adjustment in the action contemplated by the act for foreclosure and adjustment as to the rights of all the parties.
While such a construction requires a prompt assertion of claim by way of lien, it also protects the owner and others interested in the property from stale claims and latent liens. Besides, the decision of the court of appeals in Spencer v. Barrett, 35 N. Y. 94, in my opinion is controlling upon the point. Except in the difference of time fixed by the Kings county act, then under review, requiring the notice of lien to be filed within sixty days after the materials are furnished, I can discover nothing in principle to distinguish from this.
*314The limitation of Hubbell’s lien to articles furnished, as per his account, within three months of the filing of Ms notice of lien, to wit, after September 23, 1870, is upon principle and authority.
Judgment as to Muldoon reversed.
Judgment as to Hubbell reduced to one hundred and seventy-three dollars and interest.
See also Roberts v. Fowler, 4 Abb. Pr., 263 ; S. C., 3 E. D. Smith, 632.