In this case a motion made at special term to bring in other parties as defend*714ants, was denied. From the order so made, the defendants appeal.
I have not been able to adopt the views of the appellants on this subject; but as my brethren are of the opinion that the contractor is a proper party to be made defendant, it is not necessary for me to discuss the question at length. I shall only briefly state some reasons why I dissent from that conclusion.
1. There is no provision in the act itself for giving any notice to the contractor, either on filing the notice to create the lien, or on serving the notice to bring the lien to a close, for the purpose of making him a co-defendant. On the contrary, the provisions for judgment, in case of the default of the owner, and of proceeding to trial in case of the appearance of the owner, do not contemplate such contractor being a party.
2. Although this is called a proceeding to close a lien, still the statute is positive that it shall be governed and tried in all respects as upon issues joined in civil actions for the recovery of moneys in this court. There is no civil action for the recovery of money merely, in which third persons can be brought in to form distinct issues separate from other defendants, but they are always tried between the parties originally served, except in the case of parties jointly interested or jointly liable.
3. Because the proposed proceeding will greatly embarrass the trial of such cases, and defeat one of the ends contemplated by the legislature, in providing a speedy mode of trial for such claims.
4. Because there is no provision for any judgments to be rendered against a contractor in any such case, nor any mode by which he could be entitled to recover a judgment for his costs, if improperly made a party.
5. Because the validity of the plaintiff’s claim can be better tested in an action in which the contractor can be a witness, than one in which he is a party; and in such a case, he can by his testimony more effectually protect the owner, than if he were a party defendant. If the work was not done as *715claimed for by the plaintiff, or if the claim has been discharged by payments, those facts, in'many cases, can only be proved by the contractor himself; and I can find nothing in any part of the law from which I can infer any intent to make other persons than the owner defendants.
6. The present act differs from the acts of 1830 and 1844, in not providing that the payment by the owner shall be deemed a payment of so much of the debt due by him to the contractor ; and it also admits all the proceedings that were required in the former acts, for the purpose of adjusting the claims of the laborer or material man with the contractor, before the plaintiff can recover against the owner. If such omissions render the act unconstitutional, I do not consider the court bound by a species of legislation to adopt proceedings not contemplated by the act; it would be better to sustain the constitutionality of the law, by throwing upon the owner the obligation of guaranteeing all debts of his contractor in regard to his building, without reference to the state of the accounts between the owner and contractor, and leaving the owner afterwards to recover the same from the contractor in another form of action.
The difficulty under consideration was long since foreseen, and the subject was twice brought to the notice of the legislature, and in both cases an amendment of the law failed. Until that body shall provide the proper remedy, it appears to me that this court can only administer the law as they find it, and that we have no power to convert a civil action for the recovery of money, into an action for the foreclosure of a mortgage, and at the same time for the settlement of accounts between the laborer and contractor.
It may well be that the law does not give adequate protection to the owner. It certainly does not, if it makes him liable for more than he has agreed to pay to his contractor, or if a recovery against him for a debt which his contractor owes, cannot be deemed a payment by him to his contractor. Still the same answer returns, that the remedy is with the legislature and not with the court.
*716Note-—The order at special term was reversed, so far as it denied the application to add the contractors, Pullis and Brown, as defendants ; and so far as it denied leave to add a prior lien holder, Bulwinkle, it was affirmed. No costs of the appeal allowed to either party.