68 N.Y.S. 497 | N.Y. Sup. Ct. | 1900
This is a motion for an order discharging a mechanic’s lien filed by Louis Kotzen on September 7, 1900, in the office of the clerk of this county. On October 13, 1900, notice was served on said Kotzen requiring him to commence an action to foreclose the said lien within thirty days, or to show cause on November 14, 1900, why an order should not be made canceling the lien, as provided for in section 341Y of the Code of Civil Procedure. On November 13, 1900, an action to foreclose said lien was commenced in the Municipal Court of the city of New York, fifth district, borough of Manhattan. It is claimed that the commencement of this action was not a compliance with such notice, upon the ground that the Municipal Court has no jurisdiction of actions to foreclose mechanics’ liens. The question whether that court has such jurisdiction was passed upon by the Appellate Term of the first department in the case of McConologue v. McCaffrey, 29 Masc. Rep. 139; 60 N. Y. Supp. 279, and by the Appellate Division of the second department in the case of Smith v. Silsbe, 53 App. Div. 462; 65 N. Y. Supp. 1083; and it was held that it did not. These decisions were placed upon the ground that the Constitution provides that the Legislature shall not confer upon any inferior or local court of its creation any equity jurisdiction; that the Municipal Court is not a mere continuation of the District Courts of the former city of New York and the Justices’ Courts of the city of Brooklyn, but an entirely new and inferior local court not of record created by the Legislature; that the power to entertain an action for the foreclosure of a mechanic’s lien involves the exercise of equity jurisdiction, and that, therefore, the court has no jurisdiction of such an action; and it had previ
Motion denied, with ten dollars costs.