a direct proceeding by virtue of the assessment to support a sale of the property or uphold a tax title. Matter of N. Y. C. & H. R. R. R. Co., 90 N. Y., 342. The provisions of this section are not in violation of the constitution. The money takes the place of land, and is subject to the same liens to which the land was before being taken. Matter of N. Y. C. & H. R. R. R. Co., 60 N. Y., 116. § 3379. Party in possession may stay on giving security.-At any stage of the proceeding the court may authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession, and may stay all actions or proceedings against him on account thereof, upon giving security, or depositing such sum of money as the court may direct to be held as security for the payment of the compensation which may be finally awarded to the owner therefor and the costs of the proceedings, and in every such case the owner may conduct the proceeding to a conclusion, if the plaintiff delays or neglects to prosecute the same. When the final award to any owner is less than fifty dollars, in proceedings to condemn a right of way, for telephone or telegraph poles and wires, the allowance of costs, if any, and the amount thereof not exceeding that prescribed by statute, shall be in the discretion of the court in any action or proceeding that may have been ormay hereafter be stayed, if the telephone or telegraph poles and wires, in such action or proceeding so stayed, shall have been erected for more than three years prior to the commencement thereof. [AM'D BY CH. 774 1900. In effect Sept. 1, 1900.] the 3380. When possession of real property given immediately.— When an answer to the petition has been interposed, and it appears to the satisfaction of the court that the public interests will be prejudiced by delay, it may direct that the plaintiff be permitted to enter immediately upon real property to be taken, and devote it temporarily to the public use specified in the petition, upon depositing with the court the sum stated in the answer as the value of the property, and which sum shall be applied, so far as it may be necessary for that purpose, to the payment of the award that may be made, and the costs and expenses of the proceeding, and the residue, if any, returned to the plaintiff, and, in case the petition should be dismissed, or no award should be made, or the proceedings should be abandoned by the plaintiff, the court shall direct that the money so deposited, so far as it may be necessary, shall be applied to the payment of any damages which the defendant may have sustained by such entry upon and use of his property and his costs and expenses of the proceeding, such damages to be ascertained by the court, or a referee to be appointed for that purpose, and if the sum so deposited shall be insufficient to pay such damages, and all costs and expenses awarded to the defendant, judgment shall be entered against the plaintiff for the deficiency, to be enforced and collected in the same manner as a judgment in the supreme court; and the possession of the property shall be restored to the defendant. § 3381. Notice of pendency of action to be filed. Upon service of the petition, or at any time afterwards before the entry of the final order, the plaintiff may file in the clerk's office of each county where any part of the property is situated, a notice of the pendency of the proceeding stating the names of the parties and the object of the proceeding, and containing a brief description of the property affected thereby, and from the time of filing, such notice shall be constructive notice to a purchaser, or incumbrancer of the property affected thereby, from or against a defendant with respect to whom the notice is directed to be indexed, as herein prescribed, and a person whose conveyance or incumbrance is subsequently executed or subsequently recorded, is bound by all proceedings taken in the proceeding, after the filing of the notice, to the same extent as if he was a party thereto. The county clerk must immediately record sah notice when filed in the book in his office kept for the purpose of recording notices of pendency of actions, and index it to the name of each defendant specified in the direction appended at the foot of the notice, and subscribed by the plaintiff or his attorney. § 3382. Practice in cases not provided for. In proceedings under this title, where the mode of manner of conducting all or any of the proceedings therein is not expressly provided for by law, the court before whom such procecedings may be pending, shall have the power to make all necessary orderand give necessary directions to carry into effect the object and intent of this title, and of the several acts conferring authority to condemn lands for publit use, and the practice in such cases shall conform, as near as may be, to the ordinary practice in such court. 3383. Repealing clause. So much of all acts and parts of acts as prescribe a method of procedure in proceedings for the condemnation of real property for a public use is repealed, except such acts and parts of acts as prescribe a method of procedure for the condemnation of real property for public use as a highway, or as a street, avenue, or public place in an incorporated city or village, or as may prescribe methods of procedure for such condemnation for any public use for, by, on behalf, on the part, or in the name of the corporation of the city of New York, known as the mayor, aldermen, and commonalty of the city of New York, or by whatever name known, or by or on the application of any board, department, commissioners or other officers acting for or on behalf or in the name of such corporation or city, or where the title to the real property so to be acquired vests in such corporation or in such city and all proceedings for the condemnation of real property embraced within the exceptions enumerated in this section are exempted from the operation of this title. [Thus amended by Laws 1890, chap. 247.*] § 3384. When act to take effect. This title shall take effect on the first day of May, one thousand eight hundred and ninety, and shall not affect any proceeding previously commenced. TITLE IL Proceedings for the sale of corporate real property. SECTION 3390. When proceedings pursuant to the provisions of this title to be taken. 3391. Proceedings to be instituted by presentation of petition; what to contain. 3392. Hearing of application. Notice, appointment of referee. 3393. Ord r; when application for, may be opposed. 3394. Insolvent corporation or association; notice to creditors. 3395. Service of n tices; how made. 339. Practice in cases not provided for. 3397. When act to take effect. 3390. When proceedings pursuant to the provisions of this title to be taken.-Whenever any corporation or joint-stock association is required by law to make application to the court for leave to mortgage, lease * The amendment by chapter 247, Laws 1893, was passed April 30, 1890, and went into effect immed ately. or sell its real estate, the proceeding therefor shall be had pursuant to the provisions of this title. 3391. Proceedings to be instituted by presentation of petition; what to contain. The proceeding shall be instituted by the presentation to the supreme court of the district or the county court of the county where the real property, or some part of it, is situated, by the corporation or associa tion, applicant, of a petition setting forth the following facts: 1. The name of the corporation or association, and of its directors, trustees or managers, and of its principal officers, and their places of residence. 2. The business of the corporation or association, or the object or purpose of its incorporation or formation, and a reference to the statute under which it was incorporated or formed. 3. A description of the real property to be sold, mortgaged or leased, by metes and bounds, with reasonable certainty. 4. That the interests of the corporation or association will be promoted by the sale, mortgage or lease, of the real property specified, and a concise statement of the reasons therefor. 5. That such sale, mortgage or lease has been authorized, by a vote of at least two-thirds of the directors, trustees or managers of the corporation or association, at a meeting thereof, duly called and held, and a copy of the resolution granting such authority. 6. The market value of the remaining real property of the corporation or association, and the cash value of its personal assets, and the total amount of its debts and liabilities, and how secured, if at all. 7. The application proposed to be made of the moneys realized from such sale, mortgage or lease. 8. Where the consent of the shareholders, stockholders or members of the corporation or association, is required by law to be first obtained, a statement that such consent has been given, and a copy of the consent, or a certified transcript of the record of the meeting at which it was given, shall be annexed to the petition. 9. A demand for leave to mortgage, lease or sell the real estate described. The petition shall be verified in the same manner as a verified pleading in an action in a court of record. As to requirements of petition on sale of real estate of religious corporations in first department, see rules of the general term of the supreme court, first district, March, 1862. Under the act to provide for the incorporation of religious societies, the trustees of such a corporation are authorized to act in its behalf in taking the steps required for effecting a såle of its real estate, and their acts are binding upon it, although it does not appear that they had the express sanction or authority of a majority of the corporation. The Madison Avenue Baptist Church v. The Baptist Church in Oliver Street, 46 N. Y., 131. Same case in 73 N. Y., 82, on a subsequent appeal. 3392. Hearing of application-Notice-Appointment of referen.Upon presentation of the petition, the court may immediately proceed to bear the application, or it may, in its discretion, direct that notice of the application shall be given to any person interested therein, as a member, stockholder, officer or creditor of the corporation or association, or otherwise, in which case the application shall be heard at the time and place specified in such notice, and the court may in any case appoint a referee to take the proofs and report the same to the court, with his opinion thereon. 3393. Order; when application for, may be opposed.-Upon the hearing of the application, if it shall appear, to the satisfaction of the court, that the interests of the corporation or association will be promoted thereby, an order may be granted authorizing it to sell, mortgage or lease the real property described in the petition, or any part thereof, for such sum, and upon such terms as the court may prescribe, and directing what disposition shall be made of the proceeds of such sale, mortgage or lease. Any person, whose interests may be affected by the proceeding, may appear upon the hearing and show cause why the application should not be granted. A provisional order may be made, e. g., an order that the sale may be made for a certain price and if a proper site for a new church can be obtained. Matter of Brick Presbyterian Church, 3 Edw., 155. The sale may be made by the trustees, or by an officer appointed by the court. De Ruyter v. St. Peter's Church, 3 N. Y., 240. It seems that the jurisdiction of the court to make an order for a sale depends upon the facts before it when the order was made, and that the order cannot be sustained by proof that the facts existed which justified the order, but which did not appear to the court at the time of the application. Wheaton v. Gates, 18 N. Y., 395. Where it appears from the application that the sale is sought for the purpose of distributing the proceeds among the pew-holders, the court has no jurisdiction to grant the application, and its order is inoperative. Madison Avenue Baptist Church v. Baptist Church in Oliver St., 46 N. Y., 140, citing Wheaton v. Gates, 18 N. Y., 395. Jurisdiction of the court to order sale by a religious society of its real estate, under Laws 1813, chap. 60, § 11, depends upon the facts before it at the time of making the order, and cannot be upheld by proof that facts which would have justified the order existed, but were not brought to its attention. Madison Avenue Baptist Church v. Baptist Church in Oliver St., 73 N. Y., 82. § 3394. Insolvent corporation or association; notice to creditors.— If the corporation or association is insolvent, or its property and assets are insufficient to fully liquidate its debts and liabilities, the application shall not be granted, unless all the creditors of the corporation have been served with ǝ notice of the time and place at which the application will be heard. § 3395. Service of notices; how made.-Services of notices, provided for in this title, may be made either personally or, in case of absence, by leav ing the same at the place of residence of the person to be served, with some person of mature age and discretion, at least eight days before the hearing of the application, or by mailing the same, duly enveloped and addressed and postage paid, at least sixteen days before such hearing. § 3396. Practice in cases not provided for.-In all applications made under this title, where the mode or manner of conducting any or all of the proceedings thereon are not expressly provided for, the court before whom such application may be pending, shall have the power to make all the neces sary orders and give the proper directions to carry into effect the object and intent of this title, or of any act authorizing the sale of corporate real prop erty, and the practice in such cases shall conform, as near as may be, to the ordinary practice in such court. § 3397. When act to take effect. This title shall take effect May first, one thousand eight hundred and ninety, and shall not affect any proceeding previously commenced. TITLE III. Proceedings for the enforcement of mechanics' liens on real property. JECTION 3398. Purpose of title; definitions. 3399. Enforcement of a mechanic's lien on real property. 3400. Enforcement of a lien under contracts for a public improvement. 3401. Action in a court of record; consolidation. 3402. Parties to an action in a court of record. 3403. Equities of lienors to be determined. 3404. Action in a court not of record. 3405. When personal service cannot be made. 3406. Proceedings on return of summons; judgment by default 3408. Executions. 3409. Appeals from judgments in courts not of record. 3410. Transcripts of judgment in courts not of record. 3411. Costs and disbursements. 3412. Judgment in case of failure to establish lien. 3413. Offer to pay into court. 3414. Preference over contractors. 3415 Judgment may direct delivery of property in lieu of money. 3416. Judgment for deficiency. 3417. Discharge of mechanics' lien by order of court. 3418. Judgments in action to foreclose liens on account of public improvements. 3419. Judgment in actions to foreclose a mechanics' lien on property of a railroad corporation. For Schedule Laws repealed, see chap. 419 of 1877. For Codified Law relating to Liens, constituting chap. 49 of the General Laws, see chap. 418 of 1897. 3398. Purpose of title; definitions.-This title is to be construed in connection with article one of the lien law, and provides proceedings for the enforcement of liens for labor performed and materials furnished in the improvement of real property, created by virtue of such article. The terms "real property," "lienor,' "owner," "improvement," "public improvement," "contractor," "sub-contractor," "material man" and "laborer," as used in this title, are defined by section two of such law. [ADDED BY CH. 419 OF 1897. In effect Sept. 1, 1897.] 3399. Enforcement of a mechanic's lien on real property.-A mechanic's lien on real property may be enforced against such property, and against a person liable for the debt upon which the lien is founded, by an action, by the lienor, his assignee or legal representative, in a court whch has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of such debt. [ADDED BY CH. 419 OF 1897. In effect Sept. 1, 1897.] 3400. Enforcement of a lien under contract for a public improvement.-A lien for labor done or materials furnished for a |