Boyd v. Stewart

24 N.Y.S. 830, 30 Abb. N. Cas. 127

• Court: City of New York Municipal Court
• Decided: March 15, 1893
• Status: Published

Opinion

FITZSIMONS, J.

This is a motion to consolidate three actions brought to foreclose mechanic’s liens, and is made .under section 18 of the mechanic’s lien act of 1885, (chapter 342.) One of the said actions was commenced in the supreme court. The first action was commenced in this court. The plaintiff’s attorney, who opposes this motion, seems to question the right of this court to take to itself for trial the action pending in the supreme court, and also appears to doubt the constitutionality of the section above referred to. I feel no such apprehension. The section in question is purely of statutory creation. Section 18 of the act of 1885 provides that the court of record which first obtains jurisdiction of such an action may take to itself for trial, upon application of the owner or others interested, all subsequently commenced actions of like character, and consolidate them. As the first action was commenced in this court, which is a court of record, it is very plain that our powers are the same as if the first action was commenced in the supreme court In such event that court could take the action, and consolidate it with the action pending there. This is not a common-law action, nor is it an equity action. It is just what the statute proclaims it to be,—nothing more or less. It is, as before stated, purely of statutory creation; and therefore the jurisdiction of this court over the supreme court action is not affected by section 6 of the judiciary article (6) of the constitution of the state. Motion granted.