59 - Vacating of a mechanic's lien; cancellation of bond; return of deposit, by order of court.

§  59.  Vacating of a mechanic's lien; cancellation of bond; return of  deposit, by order of court. A mechanic's lien notice of which  has  been  filed  on  real  property  or  a bond given to discharge the same may be  vacated and cancelled or a deposit made to discharge a lien pursuant  to  section twenty may be returned, by an order of a court of record. Before  such  order  shall be granted, a notice shall be served upon the lienor,  either personally or by leaving it as his last known place of residence,  with a person of suitable age, with directions  to  deliver  it  to  the  lienor.  Such  notice  shall require the lienor to commence an action to  enforce the lien, within a time specified in the notice, not  less  than  thirty days from the time of service, or show cause at a special term of  a  court  of  record,  or  at  a  county court, in a county in which the  property is situated, at a time and place  specified  therein,  why  the  notice  of  lien  filed  or  the  bond  given  should not be vacated and  cancelled, or the deposit returned, as the case may be.  Proof  of  such  service  and  that  the lienor has not commenced the action to foreclose  such lien, as directed in the notice, shall be made by affidavit, at the  time of applying for such order.