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this provision shall not relate to advances made under an assignment to one or more persons or a corporation as trustee or trustees to which approval has been given as provided in section twentyseven of this chapter. (Repealed by L. 1911, ch. 450; re-enacted by L. 1911, ch. 873; amended by L. 1916, ch. 507, in effect July 1, 1916.)

Derivation: Lien Law, § 24, added by L. 1898, ch. 169, § 2.

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§ 26. Subordination of liens after agreement with owner.

In case an owner of real property shall execute to one or more persons, or a corporation, as trustee or trustees, a bond and mortgage affecting such property in whole or in part, or an assignment of the moneys due or to become due under a contract for a building loan in relation to such property, and in case such mortgage, if any, shall be recorded in the office of the register of the county where such real property is situated, or if such county has no register than in the office of the clerk of such county, and in case such assignment, if any, shall be filed in the office of the clerk of the county where such real property is situated; and in case lienors having mechanic's liens against said real property, or any part thereof, filed up to and not later than fifteen days after the recording of such mortgage or the filing of such assignment, and which liens have not been discharged as in this article provided, shall, to the extent of at least seventy-five per centum of the aggregate amount for which such liens have been so filed, approve such bond and mortgage, if any, and such assignment, if any, by an instrument or instruments in writing, duly acknowledged and filed in the office of such county clerk, then all mechanic's liens affecting such property or any part thereof, whether theretofore or thereafter filed and which have not been discharged as in this article provided, shall be subordinate to the lien of such trust bond and mortgage to the extent of the aggregate amount of all certificates of interest therein issued by such trustee or trustees, or their successors for moneys loaned, materials furnished, labor performed and any other indebtedness incurred after said trust mortgage shall have been recorded, and for expenses in

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connection with said trust mortgage, and shall also be subordinate to the lien of the bond and mortgage given to secure the amount agreed to be advanced 'under such contract for a building loan to the extent of the amount which shall be advanced by the holder of such bond and mortgage to the trustee or trustees, or their successors, under such assignment and from the date of the filing of such approval the respective mechanics' lienors, except those whose liens have been discharged as in this article provided, shall have no priority over each other with respect of their several liens, and their liens shall thenceforth be of equal priority, except that from the date of the filing of such approval all liens filed subsequent to the day preceding the day on which is commenced a trial in a court of record of an action to foreclose or enforce a mechanic's lien affecting such real property, shall be subordinate to the mechanics' liens filed prior thereto. The provisions of this section shall apply to all bonds and mortgages and all assignments of moneys due, or to become due under contracts for building loans, executed by such owner, in like manner, and recorded or filed, from time to time as hereinbefore provided. In case of an assignment to trustees under the provisions of this section, the trustees and their successors shall be the agents of the assignor to receive and receipt for any and all sums advanced by the holder of the building loan bond and mortgage under the building loan contract and such ^assignment. No lienor shall have any priority over the bond and mortgage given to secure the money agreed to be advanced under a building loan contract or over the advances made thereunder, by reason of any act preceding the making and approval of such assignment. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

§ 27. Subordination of liens after agreement with contractor.

In case a contractor shall execute to one or more persons, or a corporation, as trustee or trustees, an assignment in writing of the moneys due and to grow due under his contract with the owner of real property, or with the state, or with a municipal corporation, and in case such assignment is filed in the office of the clerk of the county where such real property is situated, or with the

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comptroller of the state, or with the financial officer of the municipal corporation; and in case lienors having mechanic's liens against said real property, or any part thereof, or upon the moneys of the state or of such municipal corporation applicable to the construction of the public improvement, and which liens are also against such contractor or any subcontractor under him, filed up to and not later than fifteen days after the filing of such assignment, and which liens have not been discharged as in this article provided, shall, to the extent of at least seventy-five per centum of the aggregate amount for which such liens have been so filed, approve such assignment by an instrument or instruments in writing, duly acknowledged, and filed in the office or offices where such assignment shall have been filed as hereinbefore provided, then all such mechanic's liens affecting such property or any part thereof, or such moneys of the state, or of such municipal corporation, whether theretofore or thereafter filed and which liens have not been discharged as in this article provided shall be subordinate to such assignment and from the date of the filing of such approval the respective mechanics' lienors, except those whose liens have been discharged as in this article provided, shall have no priority over each other with respect of their several liens and their liens shall thenceforth be of equal priority, except that from the date of the filing of such approval all liens filed subsequent to the day preceding the day on which is commenced a trial in a court of record of an action to foreclose or enforce a mechanic's lien affecting such real property or such public improvement, shall be subordinate to the mechanics' liens filed prior thereto. Such assignment, however, shall be valid only for an amount equal to the aggregate amount which may be paid or incurred by the trustee or trustees, or their successors, in completing such contract. The certificate in writing of such trustee or trustees or their successors, to the owner, or to the state, or to such municipal corporation, certifying the amount paid or incurred by him or them toward the completion of such contract shall be final and conclusive. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

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§ 28. Lien of certain judgments postponed.

Upon the filing of the written instrument or instruments of approval under section twenty-six or twenty-seven of this article, the lien of all money judgments and attachments affecting such real property, or the moneys due under a contract, and all claims and liens acquired in any proceedings upon any money judgment, shall be subordinate in like manner and to like extent as provided in said sections, respectively, for the subordination of mechanic's liens, and in that case all money judgments recovered upon claims for materials furnished, labor performed or moneys advanced for the improvement of such real property or for the public improvement, shall thenceforth be of equal priority with all mechanic's liens on such property, or on the moneys applicable to the construction of such public improvement, filed prior to the day on which is commenced a trial in a court of record of an action to foreclose or enforce a mechanic's lien affecting such real property or the moneys applicable to the construction of such public improvement; and any attachment issued or money judgment recovered upon a claim, which, in whole or in part, was not for materials furnished, labor performed or moneys advanced for the improvement of such real property or for the public improvement, shall be subordinate to all mechanic's liens thereon and shall also be subordinate to all judgments recovered upon claims for materials furnished, labor performed or moneys advanced for the improvement of such real property. (Added by L. 1916, ch. 507, in effect July 1, 1916.)

§29. Subordination of liens to subsequent mortgage.

In case an owner of real property against which, or any part of which, mechanic's liens have been filed, desires to obtain a loan. by executing and delivering a bond and mortgage affecting such real property, or any part thereof, as security therefor, and in case lienors having mechanic's liens against such real property, or any part thereof, filed prior to the recording of such mortgage, and which said liens have not been discharged as in this article provided, shall, to the extent of at least seventy-five per centum of the aggregate amount for which such liens have been so filed, by an instrument or instruments in writing, duly acknowledged,

designate and authorize one or more persons to consent to the execution and delivery of such bond and mortgage, and in case the consent in writing, duly acknowledged, of such person or persons to the execution and delivery of such bond and mortgage shall be filed in the office of the clerk of the county where such real property is situated, together with such instrument or instruments of designation, then all mechanic's liens affecting such real property, or any part thereof, whether theretofore or thereafter filed, shall be subordinate to the lien of such bond and mortgage to the extent of the full amount which shall be advanced thereunder and from the date of the filing of such approval the respective mechanics' lienors, except those whose liens have been discharged as in this article provided, shall have no priority over each other with respect of their several liens, and their liens shall thenceforth be of equal priority, except that from the date of the filing of such approval all liens filed subsequent to the day preceding the day on which is commenced a trial in a court of record of an action to foreclose or enforce a mechanic's lien affecting such real property, shall be subordinate to the mechanics' liens filed prior thereto. In case such person or person so designated and authorized shall so consent to the execution and delivery of such bond and mortgage but on condition that a sum of money be deposited with the clerk of such county, and such sum is so deposited, the county clerk, upon such payment, shall forthwith enter upon the lien docket, indexed to the name of the owner, the facts relating to such payment. A deposit of money made as prescribed in this section shall be repaid to such owner or his assignee upon the discharge or release of all mechanic's liens, judgments and attachments against the property. All deposits of money made as provided in this section shall be considered as paid into court and shall be subject to the provisions of the code of civil procedure relative to the payment of money into court and the surrender of such money by order of the court. The court shall in any action brought to foreclose any of such liens, or in any action brought to recover such deposit or any part thereof, direct the payment of such sum so deposited to the persons whose mechanic's liens,

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