82 N.Y.S. 959 | N.Y. App. Div. | 1903
• The decision is in the short- form authorized by section 1022 of the Code. The appeal by the defendant is upon the judgment roll alone, and, therefore, the decision that the plaintiff was never, entitled to any lien must stand. (Gardner v. N. Y. Mut. S. & L. Assn., 67 App. Div. 141; Matter of Health Department v. Weekes, 22 id. 110.) But the court gave personal judgment against the defendant for- $400 for services, and the defendant excepted1 to that part of the decision on' the ground of want of jurisdiction. The sole question, then, for review, is whether, in an action to foreclose, a
Upon his plea of statutory lien the plaintiff invokes the statutory remedy to enforce it, and only thus gains the ear of the equity court* Though that court decides that a mechanic’s lien was never avail» able, the suitor nevertheless insists that he is entitled to a common-law judgment because the statute providing for the enforcement of •such lien incidentally permits it. If in.such a case it does afford such remedy, then I think it is unconstitutional in that it deprives his adversary of a jury trial. The distinction to be kept in mind is that the court of equity has determined it could never have acquired jurisdiction in this case. The equity court will not steal its jurisdiction from the law side of the court, but when it fairly belongs there it may retain it in order to do justice, even though it is necessary to give a personal judgment. The distinction is stated by O'Brien, J., in Dudley v. Congregation, etc., of St. Francis (138 N. Y. 451) and Parker, Ch. J., in McNulty v. Mount Morris Electric Light Co. (172 id. 410). That so drastic an application of the statute law would be unconstitutional is, I think, virtually the ground of the decision in McDonald v. Mayor (58 App. Div. 73; 170 N. Y. 409) and Altieri v. Lyon (13 N. Y. Supp. 617).
But I think that section 3412 of the Code of Civil Procedure is not so to be construed. Its terms are not a declaration that, although there could never be a lien, the plaintiff may proceed to personal judgment under the guise of a proceeding to enforce a lien. I construe the statute to mean that in a case where equity has jurisdiction, where a mechanic’s lien was permissible and was filed, and it appears on the foreclosure trial that in consequence of some technicality or informality the lienor must be defeated on his lien, the court may, nevertheless, in the interest of substantial justice, render a personal judgment. I think that' the fail
The-judgment should be reversed.
Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.
Laws of 1854, chap. 402, §20, as amd. hy Laws of-1871, chap. 188.— [Rep.