Hammond v. Shepard

3 N.Y.S. 349, 57 N.Y. Sup. Ct. 318, 19 N.Y. St. Rep. 848, 50 Hun 318, 1888 N.Y. Misc. LEXIS 637

• Court: New York Supreme Court
• Decided: November 20, 1888
• Status: Published

Opinions

Learned, P. J.

Section 6, c. 342, Laws 1885, provides that the lien shall not bind longer than a year after filing notice, unless within that time an action is commenced to enforce the same. Section 8 says that the manner and form of instituting and prosecuting any such action shall be the same as in actions for foreclosure of mortgages upon real property. This section, as I think, makes the practice as to these actions similar to that of actions of foreclosure. There is nothing said in the act as to the manner of commencing these actions when they are in courts of record. Provision is made as to such actions brought in courts not of record by sections 9,10 et seq., and these direct as to service of summons. As to actions in courts of record, we must therefore be left to the Code. Mow, the question is, in a court of record, what is the commencement of an action of this kind? The act does not say that the •service of the summons is the commencement, or that anything else is the commencement. It only says that an action is to be commenced within a year, and the manner and form of instituting it are to be those of a foreclosure action. Turning, then, to the Code, to inquire as to the manner and form óf instituting such an action, we find section 399, providing that an attempt to commence such an action of foreclosure by delivery of the summons to the sheriff, with intent, etc., is equivalent to the commencement, so far as affects the limitation of time imposed on such action of foreclosure. It is ¡true that section 414 excepts from the provisions of that chapter cases where another limitation is imposed. But we are not inquiring as to the limitations imposed on actions to enforce liens or an action to foreclose mortgages. We are only inquiring as to the manner and form of instituting mortgage foreclosure, in order that such form and manner may be followed in actions to enforce liens. And certainly the provisions of section 399 apply to actions to foreclose mortgages. They are part of that manner and form which are .applicable to actions to enforce liens. The time of limitation is different, but the mode of commencing, in respect to the limitation, is the same in these actions and in jthose. It would, I think, be unreasonable to hold that the general rules which govern all other actions do not govern these. Mow, in regard to these actions in courts not of record, section 9 specially states how the .action is to be commenced, viz., by personal service, except as provided by section 10. This is in accordance with section 2876 of the Code. And the silence in this statute as to the mode of commencement in courts of record, .and its reference to actions of foreclosure, leave us to apply the provisions of the Code. "Unless positively forbidden, we ought to apply the same uniform •system to all actions, these included. There is no reason for any distinction, and I think none was intended. I therefore think the judgment should be in . all respects affirmed, with costs.

Ingalls, J., concurs.