In re Selwyn Realty Corp.

Headnote

Matter of Selwyn Realty Corpn., 184 App. Div. 355 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 3, 1918, which affirmed an order of Special Term denying a motion to vacate a mechanic’s lien. The

notice of lien was filed on December 10, 1917. On February 5, 1918, the owner, Selwyn Realty Corporation, served upon the lienor, the respondent' herein, a notice “ to commence an action to enforce the alleged hen * * * not later than Monday, March 11th, 1918,” or to show cause at Special Term on March 12, 1918, why the hen should not be vacated and canceled of record. On. March 9, 1918, the henor lodged with the sheriff of New York county summonses in an action to foreclose the hen, with instruction's that the same be. served upon the respective defendants therein named. Petitioner alleged that service had never been made. The Appellate Division held: “It is the settled law of this state that in ah actions or proceedings in a court of record the delivery of process to the sheriff of the proper county within the time limited by statute or by contract, with the intention to have the same served, is equivalent to the commencement of the action or proceeding within said time; that the lienor in the matter at bar complied with the notice requiring him to commence the action to enforce his lien, and that, therefore, the order appealed from was right and should be affirmed.”