that such person or persons, upon or prior to the commencement of such action, shall give to such county, town or municipal corporation a bond to be approved by one of the justices of the supreme court, or the county judge of the county, in such penalty as the justice or judge approving the same shall direct, but not less than two hundred and fifty dollars, and executed by two or more sufficient sureties to be approved by said justice or judge, and conditioned to save said county, town or municipal corporation harmless from all costs, charges and expenses by reason of such action. Such bond shall be filed in the office of the county clerk of the county in which the action is brought, and a copy served with the summons in such action. This act shall not be so construed as to take away any right of action from any county, town or municipal corporation, or from any public officer.

§ 2. Section two of said act is hereby amended so as to read as follows:

of

§ 2. In case the waste or injury complained of consists in any officer Auditing or agent of any county, town or municipal corporation, by collusion fraudulent or otherwise auditing, allowing or paying, or conniving at the audit, claims. allowance or payment of any fraudulent, illegal, unjust or inequitable claims, demands or expenses against or by such county, town or municipal corporation, or by permitting a judgment or judgments to be recovered against such county, town or municipal corporation, or against himself in his official capacity, either by default or without the interposition and proper presentation of any existing legal or equitable defenses, the court may in its discretion prohibit the payment or collection of any such claims, demands, expenses or judgments, in whole or in part, or may enforce the restitution thereof if paid or collected, by the person or party receiving the same, or may adjudge and declare the colluding official personally responsible therefor, and out of his property the collection or repayment thereof so as to indemnify and save harmless the said county, town or municipal corporation from a part or the whole thereof, and in case of a judgment the court may in their discretion vacate, set aside and open said judgment with leave and direction for the defendant therein to interpose and enforce any existing legal or equitable defense therein, under the direction of such person as the court may, in their judgment or order, designate and appoint.

§ 3. This act shall take effect immediately.

Ch. 161, L. 1872, ante, vol. 9, p. 339, was repealed by ch. 245, L. 1880, ante. See Co. Civ. Proc., 1925.

CHAP. 437.

AN ACT to amend section sixteen of article third, chapter Elections. six, part first of the Revised Statutes.

PASSED May 27, 1880; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

art. 3, part 1, Rev. Stat.

SECTION 1. Section sixteen of article third, chapter six, part first Amending of the Revised Statutes is hereby amended so as to read as follows: § 16. In every succeeding year the same officers shall meet at the town clerk's office, on the first Monday of October, at ten o'clock in the forenoon, and form a board. They shall determine whether any alteration in the existing election districts be necessary or expedient,

and shall have power to make the same, subject to the same restrictions and limitations contained in the last preceding section; and shall, in like manner, make a certificate of such alterations, exhibiting the districts as altered, and their numbers respectively; which certificate shall be filed in the town clerk's office. Such alteration shall not take effect until after the then next general election, except in case of the alteration, erection or division of a town, or except such alteration of districts shall not affect any inhabited territory in a town, in which cases it shall take effect immediately.

Ante, vol 1, p. 122.

CHAP. 439.

Dairymen. AN ACT to amend chapter four hundred and fifteen of the laws of eighteen hundred and seventy-seven, entitled " An act for the protection of dairymen, and to prevent deception in sales of butter."

Amending ch 415, Laws 1877.

Manufacturer

and in case of export,

PASSED May 27, 1880; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section one of chapter four hundred and fifteen of the laws of eighteen hundred and seventy-seven, entitled "An act for the protection of dairymen, and to prevent deception in sales of butter," is hereby amended so as to read as follows:

§ 1. Every person who shall manufacture for sale, or who shall offer of oleo- or expose for sale, or shall export to a foreign country by the tub, firkin, margarine box or package, or any greater quantity, any article or substance in sembrand box blance of butter not the legitimate product of the dairy, and not made with name, exclusively of milk or cream, but into which the oil or fat of animals not produced from milk enters as a component part, or into which melted butter or any oil thereof has been introduced to take the place invoice as. of cream, shall distinctly and durably stamp, brand or mark upon the top and also upon the side of every such tub, firkin, box or package of such article or substance the word " oleomargarine" only where it can be plainly seen, in Roman letters which shall be burned on or painted thereon with permanent black paint, in a straight line, and shall be not less than one-half inch in length; and if for export shall also invoice the same and clear the same through the custom house as oleomargarine; and in case of retail sales of such articles or substance, in par cels, the seller shall in all cases sell or offer or expose the same for sale from a tub, firkin, box or package stamped, branded or marked as herein stated, and shall also deliver therewith to the purchaser a printed label bearing the plainly printed word " oleomargarine," only in Roman letters not less than one-half inch in length which shall be printed in a straight line; and every sale of such article or substance or export of the same by the tub, firkin, box or package, or in any greater quancannot be tity, not so stamped, branded or marked, and if exported, not invoiced and cleared through the custom house as oleomargarine, and every sale of such article or substance at retail in parcels that shall not be sold from a tub, firkin, box or package, so stamped, branded or marked or without delivery of a label therewith as above stated, is declared to plied with. be unlawful and void, and no action upon any contract shall be maintained in any of the courts of this State to recover upon any contract

Action

brought

on any contract when

provisions of act are not com

for the sale of any such article or substance not so stamped, branded, marked, labeled or sold.

§ 2. Section two of said chapter is hereby amended so as to read as follows:

violation

offering

§ 2. Every person who shall sell or offer or expose for sale, or Penalty export to a foreign country, or have in his or her possession for with intent to sell, by the tub, firkin, box, package or in any greater of act in quantity, any of the said article or substance required by the first sec- fol. tion of this act, to be stamped, branded, marked, and if exported, invoiced and cleared through the custom house as oleomargarine, as therein stated, that shall not be so stamped, branded, marked, and if exported, invoiced according to the provisions of this act, or in case of retail sales in parcels, every person who shall sell or offer or expose for sale any of said article or substance without selling, offering or exposing for sale the same, from a tub, firkin, box or package stamped, branded or marked as in said first section stated, or without delivery of a label as required by section one of this act, shall for every such offense forfeit and pay a fine of one hundred dollars, to be recovered, with costs, in any of the courts of this State having cognizance thereof in an action to be prosecuted by any district attorney in the name of the people, and the one-half of such recovery shall be paid to the informer, and the residue shall be applied to the support of the poor in the county where such recovery is had.

§ 3. Section three of said chapter is hereby amended so as to read as follows:

Penalty

in export

§ 3. Every person who shall sell or offer or expose for sale, or export for viola to a foreign country, or who shall cause or procure to be sold, offered tion of act or exposed for sale by the tub, firkin, box or package or in any greater ing quantity, any article or substance required by the first section of this act to be stamped, branded, marked, and if exported, invoiced and cleared as therein stated, not so stamped, branded, marked, and if exported, invoiced and cleared; or in case of retail sales in parcels, every person who shall sell or offer or expose for sale, or who shall cause or procure to be sold, offered or exposed for sale, any article or substance required by the first section of this act to be sold, offered or exposed for such sale from a tub, firkin, box or package stamped, branded or marked, and labeled as therein stated, contrary to the provisions of said section, shall be guilty of a misdemeanor; and upon conviction. shall be punished by a fine of not less than twenty-five dollars or more one hundred dollars or by imprisonment in the county jail for not less than five or more than thirty days, or by both such fine and imprisonment for each and every offense.

§ 4. This act shall take effect immediately. Ante, p. 433.

CHAP. 440.

AN ACT to provide for the protection of mechanics and Mechan.

others.

PASSED May 27, 1880; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

ics.

Oil wells,

SECTION 1. Any person who shall hereafter perform any labor in or persons about the sinking, drilling or completing of any oil well, or any well ing labor sunk or drilled for oil, or gas, or other volatile or mineral substances, on ave

performto have

Filing of notice.

County

clerk to make entry.

Labor

performed

on credit of contractor.

within the State of New York, or in sinking or drilling any water well, sunk or drilled for the purpose of drilling or operating any such oil well or other well as aforesaid, or who shall erect, build, or furnish any tank or other receptacle for oil, gas or water which shall be built, erected or furnished for any of the purposes aforesaid, or who shall perform any labor, or furnish any materials in or for the building or erecting of such tank or other such receptacle as aforesaid, or who shall furnish any materials for any of the purposes aforesaid, including tubing, casing, sucker-rods, packers or other appurtenances or appliances to any such well as aforesaid, with the consent of the owner, being such owner as in this section hereinafter described, shall, on filing with the county clerk of the county in which the property is situated, the notice prescribed by the next section of this act, have a lien for the value of such labor and materials upon such tank or other receptacle as aforesaid, and upon such well as aforesaid, and appurtenances, and upon the lot, premises, parcel or farm of land upon which the same shall be situated, to the extent of the right, title and interest of the owner of the property, whether owner in fee or of a less estate, or whether lessee for a term of years thereafter, or vendee in possession under a contract existing at the time of the filing of said notice, or any right, title or interest in real estate against which an execution at law may now be issued under the provisions of the statutes in force in this State, relating to liens of judgment and the enforcement thereof.

§ 2. Within sixty days after the performance and completion of such labor or the final furnishing of such materials, the contractor, subcontractor, laborer or person furnishing the same, shall file a notice in writing in the office of the clerk of the county where the property is located, specifying the amount of the claim and the person against whom the claim is made, the name of the owner or of the party in interest as aforesaid of the premises, lot, parcel or farm of land, together with a description of said lot, parcel or farm of land. The county clerk shall enter the particulars of such notice in a book to be kept in his office to be called the "lien docket," which shall be suitably ruled in columns headed "claimants," "against whom claimed," owners and parties in interest," amount claimed," and the date of the filing of the notice, hour and minute, what proceedings have been had, the names of the owners and parties in interest and the person against whom the claim is made shall be entered in said book in alphabetical order. A fee of ten cents shall be paid to said clerk on filing said notice, and no lien shall attach to said land, well, tank or other receptacle or appur tenances or appliances, unless said notice shall be filed by said clerk, and when so filed said notice shall thereafter operate as an incumbrance upon said property.

§3. Whenever the labor performed or materials furnished shall be materials upon the credit of any contractor who shall have made a contract furnished therefor with the owner of the property, or such party in interest as aforesaid, whether such contract shall be oral or in writing, or express or implied, or for any specified sum or otherwise, or on the credit of any sub-contractor or the assignee of any contractor or sub-contractor, the provisions of this act shall not oblige the owner or party in interest as aforesaid, to pay for or on account of any such labor or materials, any greater sum or amount than the price stipulated and agreed to be paid therefor by said contract, or the value of such labor and materials except as in the next section provided.

§ 4. At the time of the filing of said notice prescribed by the second

notice of

section of this act, the person filing said notice may serve upon the Service of said owner, or party in interest as aforesaid, a written notice specifying claim. the amount of the claim, the name of the person against whom the claim is made, and for what labor or materials the claim is made, which said notice shall be served, by delivering the same to such owner or party in interest as aforesaid personally, or if there shall be two or more of such owners or parties in interest, to either or any one of them, or by leaving the same at the place of residence of such owner or party in interest, or if there be two or more, of either or any one of them, or in case said owner or party in interest shall have no place of residence within the county where such property as aforesaid shall be situated, then by mailing said notice to said owner or party in interest, securely inclosed in a sealed envelope directed to said owner or party in interest at his post-office address, with the postage prepaid thereon, and from the time of the service of such notice as aforesaid, such owner or party in interest shall be liable to said claimant to the amount then due or owing to the contractor, sub-contractor or assignee of such contractor, sub-contractor, upon whose credit such labor shall be performed or materials furnished as herein before provided. And in Non-serany vice of case whether the notice above prescribed shall or shall not be served as notice. above provided upon such owner or party in interest as aforesaid, if such owner or party in interest as aforesaid shall pay, or cause to be paid, to any contractor, sub-contractor or assignee, or any other person, any to avoid money or other valuable thing for the purpose of avoiding or with in- provisions tent to avoid any of the provisions of this act, when the amount still of act. due or to grow due to said contractor, sub-contractor or assignee shall be insufficient to satisfy the demands made in conformity with the provisions of this act, the owner or other party in interest as aforesaid shall be liable to the amount that would have been due or owing to said contractor, sub-contractor or assignee, at the time of the filing of the notice in the second section of this act, in the same manner as if no such payment had been made.

Payments

5. Any contractor, sub-contractor, mechanic, laborer, or other person performing any work or furnishing any materials as above provided, or the assignee of any such person or persons, may, after such labor has been performed or materials furnished, and the filing of the notice provided by the second section of this act, when the amount of the claim exceeds fifty dollars, bring an action in the supreme court in the county in which the property is situated, or in the county court of said county, to enforce such lien, which action shall be commenced, Action to and the proceedings therein conducted, and judgment entered in the enforce same manner and to the same effect as in actions brought in said courts to enforce liens, provided by chapter four hundred and two of the laws of eighteen hundred and fifty-four, and the several acts amending the same, and the said courts shall have full power to adjust and enforce all the rights and equities between any or all of the parties to such actions, and enforce or protect the same by any of the remedies usual in said courts.

§ 6. When the amount of the lien claimed is two hundred dollars or under, the claimant may commence his action in a justice's court of the town or city in which the premises are located, which action shall be commenced, and the proceedings therein conducted and the judgment entered, and transcript filed in the same manner and with the effect as in actions commenced in justices' courts to enforce liens pursuant to said chapter four hundred and two of the laws of eighteen hundred and fifty-four, and the several acts amending the same.

lien.

4 Edm. 673.