The referee finds that on divers days from the first day of July, 1851, until about the month of March, 1852, the plaintiff performed labor and furnished materials in painting, glazing, varnishing and graining the house mentioned in the complaint.
*674At the time of the commencement of the work, the act of 1844 for the better security of mechanics and - others erecting buildings and furnishing materials therefor in the city and county of New York (Session Laws, 1844, page 339), was in force. The second section of that act required the incipient measures to effect the lien created, to be taken within twenty days after the making of the contract or commencing the performance of such labor or the furnishing of said materials. The act of 1844 was repealed by the act of 1851, passed on the 11th of July in that year (Session Laws, 1851, p. 953), and the plaintiff omitted to take any proceedings to perfect or acquire the lien secured by the act of 1844 within the twenty days allowed thereby. The act of 1851 took effect twenty days after its passage, no different time being therein prescribed (1. Rev. Stat. 157), and the plaintiff within the six months after the performance of his work as prescribed by that act, filed his lien.
It is urged against the plaintiff’s recovery in this action, which is a proceeding to enforce that lien, that the contracts having been made prior to the act of 1851, that act has no application to it, because it would alter the rights of the parties to the contract so as to impair its obligations, would be retro-active, and would take the property of the owner without' due process of law. I think this objection cannot be sustained. “ A state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future, and it must reside in every state to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community.” (Bronson v. Kinsie, 1 How. U. S. R. 311, per Taney, Ch. J.; M'Cracken v. Haywards, 2 ibid. 608.)
The statute in question does not in any sense relieve the party contracting from the performance of his agreement, or deprive the employer of any existing right to enforce it in all respects, or take the property of the owner without due process of law; and I cannot understand in what aspect the case presents itself for the application of these constitutional objections. The remedy is changed, it is true, and a lien created upon the building, *675which is the result in part or in whole of the labor performed, or toward the construction of which the materials are furnished; but nothing more, and to this extent the power of the legislature cannot now be doubted. I think, however, that under the act of 1851, the recovery must be limited to the work done or materials furnished after it took effect, and that the plaintiff cannot enforce any lien thereunder, for any work done or materials furnished prior to August 1st, 1851, on which day that act took effect.
The first section does not apply to work performed or materials furnished under contracts only made thereafter, but as well to work done or materials furnished thereafter by virtue of any-existing contract. It cannot have been the intention of the legislature to abrogate the law of 1844, and by the passage of the act of 1851 to deprive the mechanic and material man of the protection designed, where the contract was made but not entirely performed when the latter act was' parsed.
For these reasons, I think that it cannot be held that the plaintiff acquired no rights under the act of 1851, because his contract was made when that act was passed, either upon the phraseology of the statute itself, or the intention of the legislature. Tliis question has, however, already been presented to this court for consideration, and disposed of in accordance with the views here expressed. (Sullivan v. Brewster, 1 E. D. Smith, 681; Donaldson v. O’Connor, ib. 695; and Miller v. Moore, ib. 739.)
The notice of lien filed, and on which this action is predicated, alleges that the plaintiff has a “ claim against John M. Gatlin, and Catharine Ann, his wife, amounting to the sum of $923, and that the claim is made for and on account of work, labor and materials done and furnished towards the erection, completion and furnishing of a certain four story and basement brown stone front house ; and that such work, labor and materials were done and furnished in pursuance of a contract or agreement with the said John M. Gatlin, which building is owned by Catharine Ann Gatlin,” etc., etc.
It is insisted that the notice is defective, because the contract *676was not stated to have been made with the owner, and because it does not appear on the. face of the notice, that it was made with the owner. The complaint, however, alleges that Catharine Ann is the owner, and that the defendant, John M. Catiin, in making the contract, acted as her agent. These allegations are not denied by the answer, and are therefore admitted to be true.
The first section of the act of 1851 provides that, “ Any person who shall hereafter, by virtue of any contract with the owner thereof, or Ms agent, in conformity with the terms of such contract, perform any labor or furnish materials, shall, upon filing the notice proscribed in the sixth section thereof, have a lien,” etc. .
The sixth section referred to provides that “ within six months after the performance of such labor, or the furnishing of such materials, the contractor, etc., shall serve a notice in writing upon the county clerk, specifying the amount of the claim, and the person against whom the claim is made, the name of the owner of the building, and the situation of the building by its street and number, if the number be known.” It will be perceived on a perusal of that section that it does not require a statement of the name of the person with whom the contract was made, but of the person against whom the claim is made, and the name of the owner of the building. The notice filed contains these particulars, and is not vitiated by making a claim against the defendant, John M. Catiin, who, acting as agent, incurred no liability. That was unnecessary, and may be rejected as surplusage.
Whether this be so or not, however, it is evident that the statute was complied with, and the notice sufficient. I concede that if the person against whom the claim is made is neither the owner, his agent, nor his contractor, the lien would fail in his action. But such is not the case here.
The person against whom the claim is made beside the owner is admitted to be the agent of the owner,' and to contracts by such an agent, as we have seen, the act extends. See section 1.
Whether Mrs. Catiin had power to make a contract which *677would bind her as if a feme sole, it is not necessary for the purposes of this appeal to determine. The labor performed and materials furnished were for the benefit of her separate estatq and established a claim resting in contract which a court of equity would enforce. (Dyott v. North American Coal Co., 20 Wendell, 570-573.) The proceeding to enforce-a lien is of an equitable character, per Ingraham, First J. in Owens v. Ackerson, 1 E. D. Smith, 691, and embraces such a claim. See, also, Randolph v. Leary, special term of this court, March, 1857, and cases cited.(a)
The finding of the refereee as to the value of the work and materials is not against the weight of evidence, and cannot therefore be disturbed. The proof was peculiar, but sufficient to enable him to arrive at a fair valuation.
In reference to the suggestion that the plaintiff’s recovery should be limited to work done and materials furnished, after the act of 1851 took effect, it may be proper to remark that there is nothing in the referee’s report which will warrant us in determining what amount, if any, was allowed to the plaintiff for such work and materials. The amount reported due is so much less than the amount claimed as to justify a presumption that nothing was in fact so allowed. For these reasons, we cannot modify the judgment.
Judgment affirmed.
Ante, p. 637.