29 N.Y.S. 517 | N.Y. Sup. Ct. | 1894
This action was brought to foreclose a mechanic’s lien upon premises owned by the appellant, situate in the village of North Tonawanda, Niagara county. The appellant had, by written contract, sold the land in question to the defendant Hewit, on condition that Hewit should build a factory upon the land. The plaintiffs and the respondents furnished labor and materials to Hewit, which were used in constructing the factory, all of which was known and consented to by the appellant. The plaintiffs and respondents, respectively, duly filed mechanics’ liens upon the premises. Notice thereof was duly given to appellant and the defendant Hewit. An action was commenced by the plaintiffs in the supreme court to foreclose their lien. It was stated in the complaint, after the proper allegations in reference to the plaintiffs’ lien, that the respondents had duly filed notices of liens against the premises. Judgment was demanded that the plaintiffs be adjudged to have a lien upon said building and appurtenances for the amount of their claim, and that the interest of the appellant and the defendant Hewit in the premises should be sold, and that, out of- the proceeds of the sale, the plaintiffs’ claim be first paid, and then that the claims of the respondents, so far as they shall establish valid liens upon the premises under their notices filed, be paid out of the proceeds, if there were moneys sufficient applicable thereto, and that the court settle and determine ' the equities of all the parties. The appellant interposed an answer, putting in issue the allegations of the complaint, and denying any knowledge or information sufficient to form a belief as to the alleged filing of the respondents’ liens. Each and all of the respondents interposed answers, alleging their several liens and the particulars in relation thereto, and asked for judgment for a sale of the premises and the payment of their respective claims out of the proceeds arising therefrom. The action was duly noticed for trial, by the respective parties serving notices thereof upon each other. It was placed upon the calendar by the parties, but, before it was reached for trial, the appellant adjusted and paid the plaintiffs’ claim, and received from the plaintiffs’ attorney a stipulation to the effect that the claim was settled; that the action would not be further prosecuted by the plaintiffs; and that, so far as the plaintiffs were concerned, the action might be discontinued without notice to them. After the said settlement was made, the court,- at the request of plaintiffs’ attorney and the attorney for the respondents, in the absence of the appellant’s attorneys, fixed a day for the trial of the cause. The appellant’s attorneys were notified that a day had been fixed for trial of the cause, and one of them, at the request of the respondents’ attorney, appeared in court, and was there informed by the presiding judge that a time had been fixed for the trial of the case. No objection was made by him at the time, but, on the day designated for the trial, he appeared in court; and, when the cause was moved for trial by the respondents, he, for the first time, objected to the trial proceeding, for the reasons that the claim of
It is the contention of the appellant that the respondents were not at liberty to try the action without having first served upon the appellant a copy of their answer. It is provided by the mechanic’s lien law (chapter 342 of the Laws of 1885) that a person who furnishes labor or materials for constructing a building may file his lien in the clerk’s office of the county. It must be verified. A copy thereof must be served on the owner of the premises. The claimant may institute an action to foreclose his lien. He is required to make all the parties who have filed notices of liens against the property, as well as those who are subsequent lienors or claimants, by judgment, mortgage, or conveyance, parties defendant. It is provided by section 6 of the act that, when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant who is a claimant within the provisions of the act. The claimants who are thus made defendants may answer, setting forth their claims, and the court in which the action is brought may settle and determine the equities of all the parties thereto, and decide as to the extent, justice, and priority of the claims of all parties to the action, and upon every counterclaim or set-off alleged therein, to the extent of the jurisdiction of the court. The manner and form of instituting and prosecuting such action to judgment, and an appeal from such judgment, shall be the same as in actions for the foreclosure of mortgages upon real property. As we have seen, the plaintiffs served their complaint upon the appellant and respondents, respectively; but neither the appellant nor the respondents served their answer upon one another.
The only question raised by this appeal is as to the jurisdiction of the court, under the circumstances, to proceed with the trial of the action, after a settlement of the plaintiffs’ claim, the respondents
We are of the opinion that the respondents were not required to •.serve their answers upon the appellant in order to be entitled to •try the action, but, if it should be held otherwise, we think this .order appealed from should be affirmed; for, as we have seen, the .appellant is not in a position to review the judgment. We can only ■consider the appeal from the order. The court had jurisdiction of -the subject-matter and of the parties. Issues for trial had been framed by the plaintiffs’ complaint, and by the several answers of the ■defendants. As stated, the appellant, after the settlement of the claim of the plaintiffs, appeared in court by its attorney, and consented to the fixing of a day for the trial of the action. Ho suggestion is made that the claims of the respondents, as found by the trial court, were not in all respects just and proper, so that no injustice in fact has been done to the appellant. An irregularity, •simply, is relied upon; and, to entitle a party to ask to have a judgment set aside for that reason simply, it should appear that he is -prejudiced by it in some way to his injury. Green v. Warren, 14 Hun, 434. This the appellant has failed to show. Ho merits were -sworn to by the appellant. The order appealed from should be -affirmed, with $10 costs and disbursements.
DWIGHT, P. J., concurs. HAIGHT and BRADLEY, JJ., concur in the result.