5 Daly 321 | New York Court of Common Pleas | 1874
Abham & Scueletas, having filed a notice of lien against a building of which the defendant Boyd is the owner, instituted proceedings to foreclose their lien, by serving the formal notice upon the owner Boyd and upon the defendant Stone, who had a lien upon the building, which was prior to theirs.
On the day named in the notice of foreclosure, both Boyd and Stone appeared, and the usual order was made by the judge that Abham & Scueletas file their complaint as in an ordinary action, and that the owner Boyd and the defendant Stone serve their answers. Boyd served an answer denying that Ward, the person with whom Abham & Scueletas had contracted, had any claim against him or against the building, and Stone served an
The plaintiffs Abham & Scueletas appear to have been satisfied with Boyd’s answer to their complaint, for they took no further steps in the matter, but suffered the year to expire without obtaining any order for the continuance or redocketing of their lien, by which omission, whether intentional or otherwise, their lien was at an end.
Stone served his answer upon the attorney of Abham & Scueletas. It was not an answer which created any issue between him and the plaintiffs, but was simply a statement of his claim, under the fifth section of the act of 1863, and which, by the provisions of that section, should have been filed in court, or with the clerk (L. 1863, c. 500, §§ 4, 5). This he omitted to do, and in consequence of this omission, the owner Boyd, having heard nothing of his answer, supposed that the whole proceeding was at an end, after Abham & Scueletas had failed to continue their lien within the year.
This answer, which was in effect the setting up of a claim arising under another lien, and asking that the defendant Boyd’s interest in the building might be sold to satisfy it, should have been filed, because, by the provisions of the act, any person interested has five days after it is filed to make objections to it. The act declares that each and every person or persons who have filed liens shall be parties to and have notice of the proceeding, and when such a party is brought in, he becomes, if he intends to have his particular lien enforced, an actor, and must thereupon file his claim, that the owner or any other person interested may take issue upon it, if he wishes to contest it. It will not suffice to serve it in the form of an answer upon the party who instituted the proceedings. He may have no interest in it, and whether he has or not, it is not a notice to the owner, or other parties who may have an interest, and may wish to contest the claim. This, as I have said, Stone omitted to do, but
In this order Boyd at first acquiesced, for he served an answer to Stone’s statement or claim, setting up, substantially, the same defense to it as he had set up to the claim of Abham & Scueletas. He afterwards, however, applied for a reargument of the motion, which the judge denied, and this appeal is brought as well from that' decision as from the order granting the reference.
Ho appeal will lie from the refusal of the judge to order a reargnment. It was simply a matter resting in his discretion, and whatever right of appeal the defendant Boyd has, is limited to a review of the order granting the reference.
The objections taken to it are that Stone had never become a party to the proceeding, not having filed his claim within the time fixed by statute, and that when the order for a reference was made, the whole proceeding was at an end, by the failure of Abham & Scueletas to continue their lien.
The failure of Abham & Scueletas to continue their lien, could not affect other parties who had filed liens, and had been made parties to the proceedings. On the contrary, the statute plainly contemplates that their rights are to be administered in the proceeding which has been commenced, and to which they have been made parties. When they are notified of the proceeding to foreclose, it is not necessary for them to institute a distinct proceeding for the foreclosure of their own lien; and
The statute declares that the persons who are made parties shall file their claim within ten days after service upon them of notice of the proceeding. The court acquires jurisdiction by the service of the notice to foreclose by the party who institutes the proceeding, and has then all the powers given to the court named in the notice for the adjustment of the rights of all parties. The proceeding is then in the nature of a civil action brought for the foreclosure of a lien, in which all- the equitable powers exist and all the equitable remedies may be applied, which are incident to such actions. This is obvious from various passages in the statutes, and indeed, without so construing the proceeding, it would be impossible to administer the remedy (Hubbel v. Schreyer, 4 Daly, 362; Doughty v. Devlin, 1 E. D. Smith, 629). We have never regarded the provision in the statute, that persons made parties shall file their claims within ten days from the time of the service of notice upon them, as precluding the court from allowing them further time, if necessary. Indeed, we long ago established the rule that when the parties appeared pursuant to the notice to foreclose, that the party who instituted the proceeding, should have ten days to serve his complaint, and the other parties ten days thereafter to put in their answers. This was found to be indispensable for the ordinary conduct of the action and the creation of the issues which the court might have to try. In fact, in this court, where a very large number of these cases are constantly pending, it is a very rare circumstance for the parties to come prepared upon the return day of the notice to file and serve a statement of their claims, and the practice is almost universal to enter an order upon that day that the party who instituted the proceeding file and serve his complaint in ten or twenty days, and that all the other parties have twenty days after the service of it to file and serve their answers if they
J. F. Daly and Loew, JJ., concurred.
Order affirmed.