Schaettler v. Gardiner

4 Daly 56

Opinion

By the Court.

*—Joseph F. Daly, J.

—The effect of the ceasing of the lien for want of an order renewing it under §11, of the Mechanics’ Lien Law, chapter 500, Laws of 1863, is to destroy all recourse of the lienor to the particular property described in the lien. This has been settled in this court. The proceeding, so far as the owner of the property is concerned (if he is not personally liable to the lienor for the debt), is at an end, and the proceeding should be dismissed as to him.

But as between the lienor and the contractor personally liable to him, the ceasing of the lien does not affect the proceóding if the issue joined, and the judgment claimed by the lienor, depend, not upon the lien, but the merits of the claim npon which it was’founded, if the court have jurisdiction of the proceeding.

The plaintiff cited the defendant to appear in this court by personal service of the notice required by the lien law. Pursuant to such notice, the defendant appeared. Pleadings were served joining issue upon the merits of the claim. That issue was indispensable in the proceeding to enforce the lien against the building, even if it were not made indispensable by the plaintiff’s demand for personal judgment against the contractor. By the service of such notice, by the appearance of the parties in court, submitting to its order, and pleading, all which took place before the lien ceased, by the expiration of the year, and all which proceedings were had under express authority of the lien law, the court acquired full jurisdiction of the controversy between the parties. Jurisdiction having been acquired, the judgmentrendered was regular. This view has been held in the Court of Appeals (Maltby v. Green, 3 Abb. Ct. App. Dec.; 1 Keyes, 548), in a proceeding under the Erie County Mechanics’ Lien Act (chap. 305, laws of 1844). And a decision arriving at the same result has been made in this court at special term (Barton v. Herman, 8 Abb. Pr. N. S. 399). This view is perfectly consonant with justice. It would not be fair to permit the plaintiff to avoid the effect of a judgment against him upon the merits, after a full and protracted trial of issues raised by him, necessary to his demand, in a proceeding of his own commencing, and in a tribunal of his own choosing.

As to the second point—it would seem to be proper to dismiss the proceedings as to the owner, after the lien had been removed by the deposit of the amount with the county clerk by the contractor, under the Act. The owner had no possible interest after that in the proceeding, and the lienor had no rights against the owner but was left to the fund in the clerk’s hands for the satisfaction of his lien.

Upon the third point—my view is, that rule 32 (now rule 39), does not apply to a reference “ of the issues ” in a lien proceeding, and that the exceptions are not to be heard first at special-term.

The order of special term appealed from should be affirmed.

Order affirmed.

Present, Daly, Ch. J., Larremore and J. F. Daly, JJ.