p. 415Headnote
Mechanic’s Lien.—Joinder oe Parties.The dismissal of a proceeding in the Marine Court instituted under the mechanic’s lien law, upon the ground that the contractor was not made an original party thereto, is erroneous.
The Marine Court has power to cause the contractor to be made a party, and to be brought in when his presence is necessary.
Appeal from judgment dismissing proceedings to foreclose a mechanic’s lien.
The plaintiff Lowber commenced an action in the New York Marine Court to foreclose a mechanic’s lien. His notice of lien was addressed to Winters and Childs. Childs was the owner of the premises sought to be,charged; Winters was the " contractor engaged in building ; Lowber was a material man. Due notice to close the lien was served on the defendant in the notice, Childs; but none was served on Winters.
On the return day Childs appeared by his attorney, and the notice and proof of service upon him and a bill of particulars having been filed by the plaintiff, the attorney of the defendant Childs. moved that the proceedings on the part of the plaintiff be dismissed, on the ground that the contractor Winters had not been made a party to the proceeding; that no notice or process had been served upon him to bring him into court.
The justice thereupon inquired of the attorney for the plaintiff if he wished to bring said Winters into court, and make him a party to the proceeding; which, the justice said, the plaintiff would be permitted to do if he wished. This offer being declined, thereupon on motion of the defendant’s attorney, the justice dismissed the proceedings with costs.
Charles P. Noit for the appellant,
contended that the act (Laws 1851, p. 953) does not require the contractors to be made a party; that the case of Sullivan a. Decker (1 E. D. Smith’s R., 699), relied on by the respondent, did not make the contractor a necessary party, but only a proper party.
p. 416S. Srnixay for respondent,
insisted that the circumstances gave no ground for appeal; that there was no judgment, but only a dismissal of a preliminary proceeding, or rather a refusai to act; and if error, it could only be corrected by man-damns or certiorari. That the case was not before the justice, the notice being wholly insufficient; but if it was, the judgment was correct; because the defendant Winters was a necessary party, and the Marine Court, he urged, is vested with no equity powers, by which to bring him into court.The opinions given by this court in Sullivan a. Decker, (1 E. D. Smith, 599), do not warrant the judgment rendered in the Marine Court in this action; and the decision in Foster a. Skidmore (Ib., 719) is, so far as this court is concerned, conclusive that such judgment was erroneous. The plaintiff had taken the very steps which the statute prescribed, and the court thereby obtained jurisdiction of the matter and should have proceeded therein.
I do not discover any defect of power in the.Marine Court to make any order which may be essential to carry into full execution the jurisdiction which the statute itself has conferred upon them, by authorizing the proceedings to be had in that court; and in this respect it is not material whether the foreclosure be deemed a strictly legal or an equitable proceeding. Besides, section 64, subdivision 15, of the Code of procedure, makes the provisions of the code, respecting parties to actions, applicable to the justice’s courts, and section 68 in like manner, makes section 64 apply to the Marine Court. Section 121 of the Code, in terms provides that when a complete detez-mination of the controversy cannot be had without the presence of other parties the court must cause them to be brought in. It seems to me that in this the Marine Court have ample power to cause a contractor to be summoned, and that it should have been done. But further, it appears by the notice to bring the lien to a close, that the contractor was made a party defendant, and if one defendant only had been served, still the proceedings should not have been dismissed,—the defendant might have been brought in, as in cases where only one of two defendants is served.
The judgment must be reversed.