Boyd v. Stewart — 30 Abb.N. Cas. 127

Majority

p. 127

BOYD v. STEWART.

N. Y. City Court, Special Term ;

March, 1893.

Headnote

1. Mechanics' lien ; joreclosurel\ Under section 18 of the Mechanics’ Lien Actof 1885 (Z. 1885, c. 342)—providing that separate actions for, the foreclosure of several mechanic’s leins upon the same property may be consolidated by the court in which the first action is brought,—the N. Y. City court may consolidate a subsequent action for the foreclosure of a mechanic’s lien brought in the supreme court with an earlier action brought in the city court.

2. Constitutional law; the judiciary ] The jurisdiction conferred by the Mechanics’ Lien Act of 1885 (Z. 1885, c. 342, § 18) upon a court of record, in which the first action to foreclose a mechanic’s lien has been commenced to remove to itself subsequent actions to foreclose other mechanics’ liens on the same property, is not in conflict with the constitution Art. VI, § 6,^[1] when it operates to depriVe the supreme court of jurisdiction ; since the foreclosure of a mechanic’s lien was neither a common law nor an equity action, but of partly statutory origin.

Motion by defendant to consolidate several actions for the foreclosure of mechanics’ liens.

Section 18 of the Mechanics’ Lien Act (L. 1885, c. 342) provides, that, “ Any persons, firms, corporations or associations claiming liens upbn the same property may join in the same action, and when separate actions are commenced the court in which the first action was brought

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may, upon the application of the owner of the property,, or of any part thereof, or of any party to either action,, consolidate them. The provisions of this section shall not apply to actions commenced in courts not of record.”' Clarence N. Boyd brought an action in the N. Y. city court to foreclose a mechanics’lien against Mary M. Stewart and others. The defendant, Mary M. Stewart, the owner of the property, by this motion seqks to have two subsequent actions for the foreclosure of like liens on the same property,—one brought by John Sheehy in the city court and the other by Henry Iden in the supreme court against the same defendants,—consolidated with the action first mentioned.

Lewis L. Delafield (Hawkins & Delafield, attorneys),, for the motion.

Albert I. Sire, Hoadley, Lauterbach & Johnson, Benjamin Tuska, Isaac L. Sink, Earley & Prendergast, Seth R. Johnson and James N. C. Johnson (attorneys for the remaining parties to the several actions), in opposition to motion.

This is a motion to consolidate three actions brought to foreclose mechanics’ liens, and is made under section 18 of the Mechanics’ Lien Act of 1885 (chap. 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 action 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

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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 tl e 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 Constitutiq.ni of the State.

Motion granted.

Statutes and regulations cited

Judiciary Law p. 129