Huxford v. Bogardus

40 How. Pr. 94 | N.Y. Sup. Ct. | 1870

Learned, J.

Under this mechanic’s lien law the claimant, by filing his notice with the proper clerk, acquires a lien, which (unless sooner discharged,) continues one year. (Sect., 1, 4, 20.) The lien then ceases. (Freeman agt. Cram, 3 N. Y., 305 ; Grant agt. Vandercook, 2 Albany Law Journal, 52.) In order to make this lien available, this same statue authorizes the commencement of an action “ to enforce said lien.” (Sect. 6.) This action, after issue joined, is to be “governed, and tried in all its respects, as upon issues joined, and judgments rendered in other actions arising on money demands upon contracts” (Sect. 14.) Costs and disbursements are to be allowed to either party upon the principles, and by the same rules as in actions on contract. ( Sect. 16.) It may be important to bear in mind that the creation of the lien is a matter entirely distinct from the action to enforce; just as distinct as the execution of a mortgage is from the action to foreclose.

The cases of Grant agt. Vandercook, has decided that, notwithstanding the commencement and pendency of the action, the lien ceases at the expiration of the year; and that, therefore, after it has ceased, the court has no right to enforce it. And the general term in that case set aside a judgment recovered in favor of the plaintiff, after the lien had ceased, with costs.

The motion now before the court presents this question: A plaintiff at the commencement of his action has ( or may be supposed to have) a good cause of action; before the conclusion of the trial that cause of action ceases by its own limitation, known to the plaintiff at the commencement of the action. What should be the verdict or report of the referee and what the judgment?

It seems to me that the plaintiff must be nonsuited, and that the defendant is entitled to costs.

The argument of the plaintiff’s counsel in this case is that the court has no jurisdiction, and therefore, no power to net. And this is based on some language used in the opinion in the case of Grant agt. Vandercook. But I think, that the court must have used the words, “ without jurisdiction” in that opinion with the meaning that the cause of ' action had ceased, and that hence there was nothing for the court to enforce. I do not think that the question of jurisdiction, in the strict meaning of that word, was before the court, and I am quite sure it was not passed upon.

Suppose, for instance, that a plaintiff should commence such an action as this, after the expiration of the year. Could not the defendant appear and answer and recover costs ? Or suppose that a plaintiff should commence an action to foreclose an alleged mortgage, and it should appear on the trial that no such mortgage had ever existed 5 while it is true that in a certain loose sense, we might say that the court had no jurisdiction to enforce a mortgage which had no existence, yet, there could be no doubt that the court could award costs to the. defendant.

It may be said that it is a hardship on the plaintiff to award costs against him. But it must be remembered that the defendant may have a good defense to this claim on the merits, which he might have shown, if the action had been disposed of during the year. And it would be dangerous, in case the plaintiff should fear that he could not succeed on the merits, to permit him to escape costs by failing to perfect judgment within the year.

When the plaintiff begins his action, he knows that he must perfect a judgment, if at all,'within the year from the commencement of the lien. It must be at his peril, if he fail within that time to secure his rights.

I may remark that possibly, upon good cause shown, the court might allow a plaintiff in circumstances like the present to discontinue without costs ,• as in case of a discharge in bankruptcy after the commencement of the action, and the like. But that question is not before me.

I must deny the motion, with $10 costs.