16 Misc. 383 | N.Y. App. Term. | 1896
The questions which were argued upon this appeal are, (1) whether or not, in an action to foreclose a lien, claimed pursuant to the provisions of the Mechanics’ Lien Law (chap. 342, Laws of 1885),.' the District Courts in the city of Hew York acquire jurisdiction of- an executor or administrator defendant, it being urged for the appellants that, for the purposes of such an action, the previous inhibition of jurisdiction in actions against executors or administrators (Code Civ. Pro., §§ 3215, 2863; Risley v. Phenix Bk., 83 N. Y. 318, 337; Davidsburgh v. Knickerbocker Life Ins. Co., 90 id. 526, 530) was removed by section 9 of the Mechanics’ Lien Law, which is as follows.: “An action to foreclose a lien, provided for in this act, m¿y be brought in a court not of record which would have jurisdiction to render a judgment in an action
The action was one in behalf of certain subcontractors against the owner of the premises and the administrator of the deceased contractor to foreclose a hen, the amount of the. alleged hen being less than $250. - It was conceded that the notice of hen was filed after the decease of the;contractor, and the court below thereupon directed the dismissal of the complaint with regard to both defendants, the grounds stated for such dismissal, at the time, involving the negative of the questions above alluded to. The record, however, presents only the first of such questions for our consideration.
Nothing in the Mechanics’ Lien Law (chap. 342, Laws of 1885) evinces legislative intention, by authorizing the prosecution of an action to foreclose a hen in courts not of record, to remove the inhibition of subdivision 5 of section 2863 of the' Code of Oivil Procedure (see, also,. § 3215), and subdivision 3 of section, 1286 of the Consolidation Act (chap. 410, Laws of- 1882), against the exercise of jurisdiction by the District Courts in the city of New York in actions brought against an executor or administrator as such. Such inhibition, therefore, being special and local in its operation, upon well-settled rules of statutory construction, prevails against the provisions of a general law .with-regard to which it is not plainly repugnant.' Van Denburgh et al. v. Village of Greenbush, 66 N. Y. 1, 3; 23 Am. & Eng. Ency. of Law, 422, and cases collated in note 3. It follows that the action was properly dismissed as against the defendant administrator.
Obviously, the judgment appealed from was several with regard to the defendants. • In so far as it proceeded from the want of jurisdiction it.was in favor of the defendant administrator and rightfully rendered. He could not litigate the validity of the lien claimed in the court below; and in so far as the judgment determined the lien to be invalid it .was in favor of the defendant ■owner. From the last-mentioned judgment no appeal appears to have been taken,, the notice of appeal being directed to the defendant administrator only. The defendant owner did not, so far as appears from the record, participate in this appeal, and without an appeal from the judgment in his favor any inquiry on our part
The judgment in favor of the defendant administrator and respondent is affirmed, with costs.
Daly, P, J., and McAuam, J. concur.
Judgment affirmed, with costs.
