115 N.Y.S. 260 | N.Y. App. Div. | 1909
This appeal is from an order of the County Court denying a motion to cancel and. to discharge of record a mechanic’s lien and a Us pendens. The defendant who moved and who now appeals is the owner of the premises, 'He has not appeared generally.
The mechanic’s lien, was filed on May 4, 1907. The plaintiff deposes that he began this action for foreclosure on May 1,1908, by filing the summons and complaint with a Us pendens “ and by the ■service of a copy of the said summons and complaint upon the defendant Herman Hahn” on May 2,. 1908; that the defendant Hurley “ has also been served with a copy of the said summons and complaint .and that “ the defendant Thomas F. O’Neill was similarly served after the year had expired and subsequent to the 4th day of May, 1908.” Hurley was a mortgagee and Hahn was the contractor to whom the plaintiff was a sub-contractor. It does not appear that the lien was ever continued by order, or redocketed. To keep the lien alive the plaintiff must have begun his action to foreclose Within one year after the filing of his notice of the lien. (Lien Law [Laws of 1897, chap. 418], § 16.) An action is begun by service of a summons. Concededly he did not serve the owner until the lapse
I am of opinion, then, that the service of the summons and complaint on the contractor was not a beginning of the action against the owner. As the plaintiff did not begin his action of foreclosure, or secure an order to continue it within one- year from the time of filing his lien, the lieu was discharged. (Albro v. Blume, 5 App. Div. 309.) Section 18 of the Lien -Law is self-operative (Matter of Rudiger, 118 App. Div. 86), and hence no order of the court was required as to the lien.' I think, however,
The order should be modified accordingly, and as so modified affirmed, without costs.
Hirschberg, P. J., Woodward, Gaynor and. Miller, JJ., concurred."
Order of the County Court of Queens county modified in accordance with opinion, and as so modified affirmed, without costs.