Otis Bros. & Co. v. Voorhis

49 How. Pr. 273, 1875 N.Y. Misc. LEXIS 77

Opinion

J. F. Daly, J.

The statute (Laws qf 1863, chap. 500, section 5) prescribes the notice to he given in order to commence proceedings to foreclose the lien, and"requires that it shall state “ the liens and times of filing, and he served upon all persons having filed notices of lien,” &c. The liens thus required to be stated, with times of filing clearly refer to those liens filed by others than the claimant commencing the ' proceeding. The omission to state such liens and times of filing is not a merely formal -defect or irregularity, but a failure to comply with the statute in matter of substance, and cannot be cured by amendment, but is jurisdictional and fatal to the proceeding if not waived by a general appearance. As to all parties, therefore, who have not entered shell appearance, these proceedings must be dismissed. No costs.