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Hill v. Flatbush Consumers' Ice Co.; Boer v. Schoolmaker

143 A.D. 559 Court Second Department, Decision date 1911-03-03 English

Delivered by Woodward, J.:

Contents

Majority

p. 559
Thomas A. Hill, as Trustee in Bankruptcy of the Estate of The Cyclopean Company, Bankrupt, Respondent, v. Flatbush Consumers’ Ice Company and Others, Defendants, Impleaded with Henry J. De Boer, Individually and as Trustee for James v. Schoonmaker, Appellant, and Edward J. McCabe Company, Respondent.
Second Department,
March 3, 1911.

Headnote

Lien—mechanic’s lien — foreclosure — sale of premises — improper ' description in complaint — appeal — when purchaser not relieved of purchase.
That the plaintiff in an action to foreclose a mechanic’s lien makes an error in pleading does not deprive the court of jurisdiction to foreclose subsequent liens of defendants which are properly pleaded and supported by evidence.
Where the complaint and Us pendens in an action to foreclose a mechanic’s lien did not properly describe the premises but all of the defendants who interposed answers described them properly and, the complaint haying been dismissed for failure to prove the necessary facts, the action proceeded to judgment as between the defendant lienors, including one holding a mortgage on the premises, and subsequently the property was sold under the judgment to the mortgagee, .he cannot be relieved of his purchase upon the theory that as the complaint did not properly describe the property there is a defect in the title.
Nor should he be relieved of the purchase because one of the defendants has appealed from the judgment, for that does not affect his rights.
Appeal by the defendant, Henry J. De Boer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of September, 1910, denying the said defendant’s motion to be relieved as purchaser from a bid made at a judicial sale under foreclosure, and to have the judgment in the action vacated and set aside.
_B. F. Norris [George W. Titoonib with him on the brief], for the appellant.
J. Power Donnellan, for the respondent Edward J. McCabe Company.

This action was brought to foreclose a mechanic’s lien upon the property of the Flatbush Consumers’ Ice Company, the remaining

p. 560
defendants being persons having liens and mortgages upon the property. The plaintiff, in filing the Us pendens required by the Lien Law (Gen. Laws, chap. 49 [Laws of 1897, chap. 418], § 16; now Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 17) and in his complaint, failed to properly describe the premises, but all of the defendants who were made parties, and who put in answers, described the premises properly in all of their papers. The plain tiff's complaint was dismissed, on the ground that he had failed to prove the necessary facts, and the action proceeded to judgment as between the several lienors, including Henry J. De Boer, who held a mortgage upon the premises. Subsequently the property was sold under the judgment, Henry J. De Boer, the mortgagee, becoming the purchaser. He now seeks to be relieved from his purchase upon the theory that the plaintiff’s complaint failed to cover the premises described in his own answer and that of the other defendants, and that there is, therefore, a defect in the title offered, He also urges that as one of the defendants has appealed from the judgment there is uncertainty as to the result of such an appeal.

We think the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], §§ 43-45), which revised the Code of Civil Procedure (§§ 3401-3403), contemplates that each defendant who is made a party must set up the facts showing his right to a lien upon the premises, and that the mere fact that the plaintiff makes an error in pleading does not rob the court of jurisdiction to foreclose the subsequent liens which are properly pleaded and supported by evidence. Each lien must depend upon its own separate facts, and no matter who puts the machinery in motion, each lienor has a right to have his case determined upon the facts which he has well pleaded and sustained, or by reason of the facts set up in the pleadings of those who are made nominal defendants, but who are as against the debtors, real plaintiffs. (Hinkle v. Sullivam, 108 App. Div. 316 .) In this case all of the defendants who appeared in .the action pleaded and sustained their liens, and the court had as complete jurisdiction of the entire premises as it would have had if the defendant Edward J. McCabe Company had appeared as plaintiff under the same allegation of facts. The court having jurisdiction, it was called upon to adjust the equities as between those who were parties to the action. The ease having gone to judgment,

p. 561
and the premises having been sold without any effort on the part of the defendants to prevent the sale, the mere fact that some one of the defendants has appealed from the judgment does not affect the rights of the appellant as the purchaser of the premises at a judicial sale. Whatever may be the result of the appeal, the sale was made in conformity to law, and the learned court at Special Term very properly refused to grant the relief demanded.

The order appealed from should be affirmed, with 'ten dollars costs and disbursements.

Jenks, P. J., Hirsohberg and Rich, JJ., concurred; Burr, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Statutes and regulations cited