184 A.D. 355 | N.Y. App. Div. | 1918
Lead Opinion
This application was made under section 59 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38): “A mechanic’s lien on real property may be vacated and canceled by an order of a court of record. Before such order shall be granted, a notice shall be served upon the lienor, either personally or by leaving it at his last known place of residence, with a person of suitable age, with directions to deliver it to the lienor. Such notice shall require the lienor to commence an action to enforce the lien, within a time specified in the notice, not less than thirty days from the time of service, or show cause at a Special Term of a court of record, or at a County Court, in a county in which the property is situated, at a time and place specified therein, why the notice of lien filed should not be vacated and canceled of record. Proof of such service and that the lienór has not commenced the action to foreclose such lien, as directed in the notice, shall be made by affidavit, at the time of applying for such order.”
The statute itself requires that proof of the service of the notice and that the lienor has not commenced the action to foreclose as directed by the notice, shall be made by affidavit. All that the lienor was required to do under the notice served upon it was to commence its action within the time limited, or show sufficient cause why it had not done so. In Jackson Co. v. Haven (87 App. Div. 236) the lienor had served one of the defendants, but had failed to serve the owner in consequence of the inability of the process server to find him. This court held that failure to make the service was sufficiently excused and affirmed an order denying a motion to cancel the lien.
Therefore the lienor in the case at bar was not called upon to answer the irrevelant affidavit of the moving party attacking the validity of the lien. Nor upon this motion is this
The sole question, as I understand it, presented by this appeal is whether the delivery of the summons to the sheriff for service within the time limited by the notice to commence an action to foreclose was a compliance with said notice and equivalent to the commencement of the action.
Section 399 of the Code of Civil Procedure provides as follows: “ An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act, which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant, or one of two or more co-defendants, who are joint contractors, or otherwise united mdnterest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps, or last kept, an office for the transaction of business.”
It is contended that this provision does not apply to proceedings or actions under the Lien Law.
Hammond v. Shephard (50 Hun, 318), decided November, 1888, was an appeal from a judgment of foreclosure of a mechanic’s lien filed under the act of 1885 claimed to exist against premises of which the appellants were the owners.
The court held, Learned, P. J., writing, that while section 6 of the Lien Law (Laws of 1885, chap. 342) provided that the lien should not bind longer than a year after filing notice unless within that time an action is commenced to enforce the same, there was nothing in the act as to the manner of commencing actions; that as to the manner and form of instituting a foreclosure action, section 399 of the Code of Civil Procedure provided that an attempt to commence such an action by delivery of the summons to the sheriff is equivalent to the commencement thereof, and that it would be unreasonable to hold that the general rules which govern all other actions do not govern the actions to foreclose mechanics’ liens, and affirmed the judgment.
Gee v. Torrey (77 Hun, 23) was an action to foreclose a lien given by chapter 440 of the Laws of 1880, known as the Oil Well Mechanic’s Lien Act, under which a notice of lien had been filed and within six months thereafter the plaintiff had delivered to the sheriff for service a notice containing a statement of the facts constituting his claim and the amount thereof on the property of the defendants and requiring them to appear in person or by attorney within thirty days and answer, or in default a judgment would be taken against them for the amount claimed to be due. This notice was served after the expiration of six months from the filing of the notice of hen. The defendants in their answer set up the six months’ statute provided in section 10 of the act which provided that the hen should continue until the expiration of six months from the time of filing the notice unless sooner discharged, but if within such period proceedings were commenced to foreclose such lien then it should continue until judgment should be rendered thereon and for one year thereafter. The provisions of such section did not designate or specify what should be deemed a commencement of proceedings.
The General Term, Haight, J., writing, Dwight, P. J.,
The fire occurred on the 16th of January, 1892. On the ,14th of January, 1893, plaintiff’s intestate sent the summons in that action to the sheriff of Albany county by mail with instructions to serve it upon the Superintendent of Insurance. The summons was received in time, but the Superintendent was not then in Albany and the sheriff being in doubt as to the validity of the service upon a deputy or clerk postponed its service until his return on the seventeenth when it was personally served. The court said that the only question involved was whether section 399 of the Code of Civil Procedure applied to the limitation contained in the policy in suit. “ The Sole claim of the respondent is, that the provisions of section 399 have no application to the contractual limitation of the parties, and, hence, that the claim was barred when the summons was served. * * * That statute [Chapter 4 of the Code of Civil Procedure] was obviously intended to embrace the entire law upon the subject of the limitation of actions, including the manner of its application, the exceptions to its effect in special cases and the procedure for its enforcement. * * * These general provisions constitute essential and important elements of the statute. In their absence, its enforcement in many cases would be difficult or impossible, and in others would produce inequity and grave injustice. That they were intended to apply to all the limitations created by that statute, there can be no dóubt, and no good reason is perceived why they should
“ The language of section 399 is sufficiently broad to include the limitation in this case, as it declares that its provisions are applicable to each provision of the act which limits the time for commencing an action. When that section provides that a summons delivered to the sheriff of the proper county to be served is equivalent to the commencement of an action within the provisions of the act, it must have been intended to include limitations by contract, as that is one of its provisions limiting the time within which an action may be begun. Who, reading that statute, which plainly recognizes a limitation by contract, would for a moment suppose that the delivery of a summons to the sheriff of the proper county with the intent that it should be actually served, was not a commencement of the action in such a case? If it was not the purpose of this statute that it should apply to such a case, then its effect is to create a snare to the unwary party and practitioner.”
Conolly v. Hyams (176 N. Y. 403) was an action brought to foreclose a mechanic’s lien on real property situate in the city of New York. Notice of lien was duly filed on the 24th of January, 1889. Plaintiff commenced an action in the Court of Common Plea's to foreclose such lien on February 15, 1889. In that action the plaintiff was defeated for failure to produce a certificate from the architect for the performance of the work, and judgment was entered thereon dismissing the complaint on August 4, 1899. On appeal the Appellate Division on March 9,1900, modified the judgment by inserting the words “but not upon the merits” and affirmed it as modified. (47 App. Div. 592, 596.) On March 15,1900, the plaintiff commenced this action to foreclose the lien and recovered judgment therein. Cullen, J., writing the unanimous decision of the
Conolly v. Hyams (176 N. Y. 403) is cited and quoted from in Sharrow v. Inland Lines, Ltd. (214 N. Y.) where at
From these authorities I am convinced that it is the settled law of this State that in all actions or proceedings in a court of record the delivery of process to the sheriff of the proper county within the time limited by statute or by contract with the intention to have the same served is equivalent to the commencement of the action or proceeding within said time; that the lienor in the matter at bar complied with the notice requiring him to commence the action to enforce his lien, and that, therefore, the order appealed from was right and should be affirmed, with ten dollars costs and disbursements to the respondent.
Laughlin, Dowling and Shearn, JJ., concurred; Smith, J., dissented.
Dissenting Opinion
This application was made under section 59 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), which reads as follows:
“ A mechanic’s lien on real property may be vacated and canceled by an order of a court of record. Before such order shall be granted, a notice shall be served upon the lienor, either personally or by leaving it at his last known place of residence, with a person of suitable age, with directions to deliver it to the lienor. Such notice shall require the lienor to commence an action to enforce the hen, within a time specified in the notice, not less than thirty days from the time of service, or show cause at a Special Term of a court of record, or at a County Court, in a county in which the property is situated, at a time and place specified therein, why the notice of lien filed should not be vacated and canceled of record. Proof of such service and that the lienor has not commenced the action to foreclose such lien, as directed in the notice, shall be made by affidavit, at the time of applying for such order.”
“ That as heretofore indicated, the filing of the notice of lien by the Jeromel Realty & Construction Company was based on no valid claim whatsoever against the Selwyn Realty Corporation, but on the contrary the said Jeromel Realty & Construction Company has broken its agreements in the most vital respects and abandoned the contract to be performed by it, and had thrown on the owners, the debts of the Jeromel Realty & Construction Company and the necessity for re-financing the operation and obtaining a new contractor.”
In answer to this application the Jeromel Realty and Construction Company made no denial of the allegations that it has no valid claim whatever against the Selwyn Realty Corporation, or that it has broken its agreements in the most vital respect, or that it has abandoned the contract to be performed by it, but simply asserts that on March 9, 1918, there were delivered to the sheriff of the county of New York five summonses with direction that the same be served upon the respective defendants therein, and that the service fees of the sheriff were then paid. There is no allegation that service was directed to be made forthwith, or even with reasonable diligence. The sheriff might then hold these summonses, if this case be rightly decided, for sixty days before serving them, and thus commencing the action. The respondent, therefore, has chosen to rest entirely upon its legal rights and .upon the claim that the delivery of these summonses to the sheriff to be served constitutes a commencement of the action under section 399 of the Code of Civil Procedure.
That section is found in the “General provisions” under title 3 of chapter 4 of the Code of Civil Procedure, entitled: “ Limitation of the Time of Enforcing a Civil Remedy,” and known as the “Statute of Limitations.” Section 398 reads: “An-action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him.” .....
Section 399 then reads: “An attempt to commence an
On the other hand, to hold that section 399 of the Code applies to an action commenced under section 59 of the Lien Law well nigh emasculates the section. Its object is to enable a property owner to have canceled a lien filed for ulterior purposes. The filing of liens of necessity causes much embarrassment to the owners of property in their financial management of the property thereafter. Where a contract has been abandoned a new contract must be made. Generally it becomes necessary to bond that hen, sometimes at large cost, before the new contract can be made. When the lien filed is without merit and is filed to enforce a settlement or for other ulterior purposes, the hardship is greater. To protect an owner of property against such “ hold up ” liens, this provision was inserted in the Lien Law. The Statute of Limitations for the foreclosure of a hen is only a year. This statute permits an owner to serve notice upon the lienor to proceed to enforce his hen within a time named, not less than thirty days, or show cause why his hen shall not be canceled. If section 399 of the Code applies to an action thus commenced, the lienor is in effect given ninety days instead of thirty days in which to prosecute, his lien. The purpose of the section is then practically thwarted. When the purpose of the section is considered, and when the purpose
This motion was denied by the Special Term, not upon the ground that the action had been properly commenced under section 399 of the Code, but upon the authority of Jackson Co. v. Haven (87 App. Div. 236). In that case the lienor was ordered to show cause why his lien should not be discharged. He had within the thirty days prepared his summons and complaint, which were served upon one of the defendants. Efforts were made to serve it upon the owner (appellant), but in consequence of the failure to the process server to find him, service was not made. Failure to make that service was sufficiently excused, and in that case it appeared that the summons was actually served upon the owner before the application to discharge the lien. These facts are all absent from the instant case, for no attempt whatever seems to have been made to commence this action, other than the single act to put the summons in the hands of the sheriff for service. There is nothing in the record to show that service of the summons has yet been made. There is no claim that the defendant was not accessible at any time, and there was no attempt whatever on the part of the lienor to show any equities which could give the court any basis whatever for denying the relief upon equitable considerations.
For these reasons, I think the order should be reversed and the motion granted.
Order affirmed with ten dollars costs and disbursements.