30 N.Y.S. 252 | New York Court of Common Pleas | 1894
On the 12th of April, 1893, the defendant Mathias Theriault made a contract with the defendant the mayor, etc., to do certain work and furnish certain materials for the latter in the alteration of a building near the foot of East Sixteenth street. Theriault made various subcontracts for doing portions of the work, and the contractors, not being paid on the completion of their work, filed liens against the property. Thereafter, the plaintiff and several other contractors commenced separate actions to foreclose these liens, and they were all consolidated in the above-entitled action. On the trial the defendants, other than the mayor, etc., contended that the plaintiff could not maintain its action, on the ground that it was a foreign stock corporation, and had not filed the requisite certificate at the time of making the contract and
Plaintiff seeks to avoid the force of this contention by claiming that only a single piece of work, to wit, the one in question, was proved to have been done by it in contravention of the law, and that one act does not fall within the prohibition. If this were well founded, I would be loath to hold against that view, especially as I' regard plaintiff’s claim a just one. But the complaint is so framed as to imply that the work done by it in this case was its ordinary business, and, besides, it avers that it did this work both as laborer and merchant, and the latter word, of .itself, imports “doing business,” within the meaning of the statute. Besides, the prohibition is as broad as language can make it. While the evidence shows that the plaintiff has been “doing business” in this state for many years,, an express provision was made for such cases in the act extending the time to procure the certificate until the 31st. of December, 1892.
Plaintiff also contends that, even if the contract made by it falls-within the prohibition, the only penalty provided by the act, and incurred by it, was that it could not maintain an action on such contract until it had procured the certificate, and, as it had done this before the action was commenced, it ought now to be allowed to prosecute it. The first difficulty with this contention is that the act itself forbids foreign stock corporations doing business without first procuring the certificate, thus making the contract illegal, and not enforceable in the courts of this state, as is clear from the provision regarding foreign corporations doing business within the-state at the time of the passage of the act; for it says that no such-corporation shall do business therein after December 31, 1892, until the certificate is procured, and expressly provides that contracts, made before that date “may be performed and enforced” after that.
Having arrived at this conclusion as to the first question presented, it would be unnecessary to examine whether or not the action could be maintained because it was not commenced within the time limited by law, were it not for the fact that this question is also raised as against the defendant Thompson. He filed a lis pendens in his own action January 27, 1894, but did not begin an action until long after that time, and has never served Mathias Theriault, the principal contractor. It has been repeatedly held by this court that actions to foreclose mechanics’ liens are not to be deemed commenced until the principal contractor has been served, or the process lodged with the sheriff, in good faith, for service. Henry v. Lynch (Com. Pl. N. Y.) 1 N. Y. Supp. 780; Smith v. Gault (May, 1883) 5 Month. Law Bull. 55; Kelsey v. Rourke, 50 How. Pr. 315. But Thompson was made a party defendant in several of the actions which have been consolidated with this, and has duly answered in this action; so I think he is entitled to recover on his answer. Section 17, Mechanic’s Lien Law 1883, as amended in 1885; McAllister v. Case (Com. Pl. N. Y.) 5 N. Y. Supp. 918; Danziger v. Simonson, 116 N. Y. 335, 22 N. E. 570; Moran v. Bank (Super. N. Y.) 9 N. Y. Supp. 715. As Jameson was allowed to appear and serve his answer without objection by the defendants, I think he, also, should recover. Various objections were made by plaintiff to the sufficiency of the notices of liens of the several defendants, but as it is now out of the case, and the insufficiency of the notices of liens is not urged by the defendants, as against each other, I do not deem it necessary to examine them, or to say anything on that point, further than that it would not be very safe for any of them to do so. The defendant Wines, not having answered, although he apparently received an order signed by the principal contractor, and on file with the comptroller, cannot participate in any judgment to be rendered in this action, as he has made no attempt to authenticate his order.
It was agreed on the trial that the various claims, if allowed, should be without interest or costs. My findings handed down herewith sufficiently express my views on the other questions in the case. Ordered accordingly.