Kelsey v. Rourke

50 How. Pr. 315 | N.Y. Sup. Ct. | 1876

The following opinion was delivered by the referee:

Action to enforce or foreclose a mechanic’s lien, under chapter 489, Laws of 1873.

Notice to effect lien was filed in the office of the clerk of Albany county, August 11, 1874.

Notice and bill of particulars, verified in proceedings to enforce or foreclose the lien, were served on Palmer, owner, and Ackerman, a claimant, August 9, 1875; and were, on August 10,1875, delivered to the sheriff of Albany county to be served on Rourke, contractor, but not served on him until September 2, 1875.

Rourke moves for dismissal, on the ground that the action to foreclose this lien was not brought until after the expiration of one year after the filing of the notice.

First. I am of the opinion that an action to foreclose or enforce a mechanic’s lien, under chapter 489 of the Laws of 1873, is not an action under the Code; and that the provisions of the Code are not applicable thereto, except so far as made applicable by the act itself, which, by section 14, is only after the action has been commenced, issue joined, and the cause put upon the calendar; thereafter, the action shall be governed and tried, in all respects, as issues joined in actions upon contracts; and if judgment be for the claimant, it is to be enforced as provided by this act, and if against him, it is to be enforced as in other actions. The statute has its own limitation of time for retaining and enforcing the lien obtained, and its own provisions for commencing proceedings, and must be strictly followed, and the proceedings must rest entirely upon it (54 New York Reports, 228).

Section 471 of the Code provides that part 2 of the Code (which includes that portion thereof relating to actions and the commencement of them), shall not affect “any special statutory remedy not heretofore obtained by action; ” and prior to the Code the enforcement of a mechanic’s lien was by special proceedings under the statute giving the lien, and not by action, although, as now, some portions of the proceedings were conducted as in an action (See act of 1844, chap. 305 ; 4 Edm. Stat., p. 669).

The court of appeals have held, in Hallahan agt. Herbert et al. (57 New York Reports, p. 415), that the proceeding under this act to enforce a lien is not an " action ” within the Code, but is a special proceeding (See, also, Grant agt. Vandercook, 57 Barb., 165). Such being the case, section 99 of the Code does not apply to these proceedings and their commencement, notwithstanding, in the act, the proceeding is designated as an action.

We then come to the provisions of the act itself. .

The provisions of the mechanics’ lien law are of a purely statutory and extraordinary nature, and the provisions for their enforcement must be strictly construed (Roberts agt. Fowler, 3 E. D. Smith, 632; Grant agt. Vandercook, 57 Barb., at p. 167; Benton et al. agt. Wickwire, 54 New York R., at p. 228).

Second. By section 22, it is provided “ that the lien created by the filing of the notice shall continue for one year thereafter; but if, within such year, proceedings are commenced under this act, to enforce or foreclose such lien, then such lien shall continue until judgment is rendered thereon,” &c. Beyond all question, the lien ceases at the expiration of one year from the time of filing the notice in the office of the county clerk, unless, within the year, proceedings are commenced, under this act, to enforce or foreclose such lien. The reasoning in Grant agt. Vandercook and Benton agt. Wickwire (supra), fully supports this conclusion. The only proceedings provided, or that can be commenced under this act, to enforce or foreclose the lien, is the commencement of an action under section 6.

Third. Section 6 of the act of 1873 provides that the action shall be commenced by service of notice, &c., “ on the owner of the property, or such party in interest as aforesaid (as defined by section 1), or his agent, as well as upon each and every claimant by whom notice of lien shall have been previously filed, as well as upon any contractor,” &c.

I am of opinion that the action is not to be deemed commenced until service of the notice, &c., upon all the parties, the expression “ as well as ” having the same significance as “ also; ” and that an attempt to commence it by service upon one or more parties is not to be deemed a commencement thereof under this act. There is no provision in the act for its being so regarded. It is only by his own delay that a claimant may fail to get due service of the notice; &c., upon all the parties (and thereby commence proceedings under said act to enforce his lien) within one year from the filing of the notice. Section 9 provides for service by leaving a copy at his last place of residence, and publishing notice, in case the party is absent from the state, or keeps himself concealed therein.

Fourth. It must be held in this case, I think, that the claimant has failed to comply with the terms of the act in not serving the notice and bill of particulars verified upon the contractor, Bourke, within one year from the time his notice was filed in the county clerk’s office. This being so, the claimant has lost such lien as he may have obtained by the filing of his notice on the 31th of August, 1874, and there is no lien in existence to be enforced in this proceeding; and the proceeding being in rem (Grant agt. Vandercook, supra, p. 170), and as (under the opinion of the commission of appeals expressed in Benton agt. Wickwire, supra) a personal judgment cannot be rendered in a proceeding to enforce a lien in a case where the lien has ceased, the proceedings of the claimant, William T. Kelsey, must be dismissed with costs.