46 N.Y.S. 457 | N.Y. App. Div. | 1897
The action was brought to foreclose a mechanic’s lien. There was no appearance or answer served by the defendants, and if the action was in fact commenced the defendants were in default. The defendants claimed that in fact the summons and complaint were not served and that no action has ever been commenced. In pursuance of this claim, the defendant corporation obtained an order to show cause why the notice of lien should not be discharged and canceled of record, together with the notice of pendency of the
The only matter before the court upon either motion was an application' to cancel the lien and discharge it'of record, together with the summons and complaint and lis pendens, and for such further relief as was consistent with such application, to which may be added a motion to confirm the referee’s report. As to it, there was nothing to confirm nor was confirmation necessary if there were, as its only office was to aid the conscience of the court. ■ No judgment was asked for nor was any authorized upon the application which was made. As there could be no final determination of any issue, none was presented upon which judgment could be based. (Code Civ. Proc. § 1200.) The authority to enter a judgment must rest upon an issue either of fact or law, and, of necessity, presupposes an existing action. In the- present case the only matter entitling the moving narty to any relief lay in the fact that there
The order of the learned judge below was .in part based upon the fact that there was no formal proof of service of the summons and complaint, as required by section 434 of the Code of Civil Procedure and by rule 18 of the Supreme Court. It is quite true that the proof was defective in certain technical requisites required by the rule. The residence and age of the affiant are entirely missing; but' these facts in substance appeared before the court from the papers submitted upon the motion. The opening statement of the affidavit made by the plaintiffs’ attorney is, that' he is the plaintiffs’ attorney and served the summons and complaint upon the defendant corporation and upon Gustav Hesse, one of the other defendants. The " court is presumed to know its officers and may take judicial notice that they are at least twenty-one years of age. The residence of the affiant is not given, but his office and post office address was appended to the summons and sworn to by the clerk in his office. These papers were before the court. In all other essential respects the affidavit of the plaintiffs’ attorney is in compliance with the rule respecting proofs of service, while it answers every requirement of the section of the Code above cited and constitutes good proof of service, for present purposes at least. We think that the view of the affidavit, upon which the court rested its decision,' was technical to the last degree. If it were fatal, the court should have required that the proof be supplied, in view of the fact that the omission was of formal proof rather than a defect of substance. We think that its formal character was sufficient in resistance of the motion.
For these reasons the judgment and order should be revérsed and the motion denied, without costs, and leave given to the defendants to serve an answer within ten days from the entry and service of the' order entered herein.
All concurred.
Judgment and order reversed and motion denied, without costs, and leave given to the défendants to serve an answer within ten days from the entry and service of the order to be entered herein.