72 N.Y.S. 233 | N.Y. App. Div. | 1901
This action was brought to foreclose a mechanic’s lien under the provisions of section 3404 of the Code of Civil Procedure, and the plaintiff’s evidence established the fact that there was a sum of money due to him for services rendered upon the premises. One of the defendants concedes that the sum was about fifty dollars, while the claim of the plaintiff is for sixty-eight dollars and fifty cents. While there is some question whether the defendant Sophronia Waldron is the present owner of the premises, there does not appear to be any doubt that she is the owner of record of the property, and that she has a present equity in the same. The case was heard without a jury, resulting in a judgment dismissing plaintiff’s complaint; but as the learned court made no memoranda of the reasons which prompted this disposition of the case We are unable to account for the judgment, except upon the theory that the learned court must have-reached the conclusion that it was without authority to foreclose a mechanic’s lien, on the ground that it was an equitable process, and, therefore, without the jurisdiction of the Municipal Court.
We are of opinion that the case of Kotzen v. Nathanson (33 Misc. Rep. 299) fully disposes of this question, and we can safely adopt the reasoning and conclusion of that case, which holds that the Municipal Court of the city of New York has jurisdiction to foreclose a mechanic’s .lien, the proceeding, as pointed out by the Code of Civil Procedure, being entirely different from that which prevails in a court of record, where the equities of all the parties are taken into consideration and disposed of in a single action. (See Code Civ. Proc. §§ 3398-3419.)
The judgment appealed from should be reversed and a new trial ordered, costs to abide the result.
Hirschberg, Jenks and Sewell, JJ., concurred; Goodrich, P. J., dissented.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. . .
