Cattaberry v. Knox

45 N.Y.S. 272 | N.Y. App. Div. | 1897

Patterson, J.:

The claimant’s motion to set aside the order of March -1, 1897, vacating and canceling the record of the notice of lien should have been granted. The lien was discharged upon an ex parte application on which it was represented to the court that the lienor had failed to comply with the requirements of a notice served by the owner pursuant to the 5th subdivision of section 24 of chapter 342 of the Laws of 1885. Upon the motion to vacate the order discharging the lien, it was shown that the lienor had, within the time limited, that is to say, within thirty days from the time of the service of the notice, served a summons on the proper parties in an action to foreclose the lien. The court below evidently considered that it was necessary to constitute a proper action for the foreclosure of the lien to do something mqre than serve a summons, and relied upon section 6 of the act of 1885 as authority. That section only relates to the binding effect of the lien for a longer period than one year after a notice of the lien is filed, and provides that the lien shall expire at the end of a year, unless within that time an action has been commenced to enforce the lien and a notice of the pendency of the action filed with the county clerk. Section 8 of the law referred to enacts that the manner and form of instituting and prosecuting an action to foreclose a mechanic’s lien shall be the same as in actions for the foreclosure of mortgages upon real estate, except as otherwise provided. Actions for the foreclosure of mortgages on real property, are begun as any other actions are, namely, by the service of a summons. The Code of Civil Procedure specifically provides that an action is begun by the service of a summons. A notice of Us pendens in a foreclosure suit is required during the. course of proceedings before judgment , may be had by default, but the filing of a notice of Us pendens is not necessary to the institution of a- suit, nor was the service of a complaint necessary in this action to the commencement of a suit after notice given under the provisions of the 5th subdivision of section 24 of the Mechanics’ Lien Law. The provisions of section 9 apply only to an action to foreclose a lien in a court not of record. It was a sufficient compliance with the notice given by the owner to the claimant in this'casé that the latter- served the owner' and the contractor with a summons. That was the commencement of an action within the meaning of the Mechanics’ Lien Law, as well as within the meaning of the Code of Civil Procedure.

The order appealed from was wrong and must be reversed, with costs and disbursements, and the motion to set aside the order canceling the claimant’s lien be granted, with ten dollars costs, and the lien be restored with the same-effect as if the original order vacating the lien had not been entered.

Williams, O’Brien, Ingraham and Parker, JJ., concurred.

Order- reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.