Mors v. Stanton

Headnote

An appearance of defendant by attorney, and upon the trial, in an action under the mechanics’ lien law of 185.4 for Westchester and other counties (chap. 402, Laws of 1854), is a waiver of any defect in the service of the summons, and binds defendant the same as in any other action.

This was an action brought under the lien law of 1854 (chap. 402, Laws of 1854), for work done by plaintiff for the contractors for certain repairs upon a church in Rensselaer county. Defendant was the superior of a religious order, having charge of the premises in question; it was deeded to him and “ his successors in office forever.” The grantor had previously executed a perpetual lease thereof to Bishop McOloskey, and the deed to defendant contained this clause: “ forever released and discharged from the rent reserved in a lease of said premises, dated,” etc., referring to said lease. Defendant moved for a nonsuit, upon the ground that he had no interest in the property subject to a lien; which motion was denied, and the jury gave a verdict for plaintiff. Held, that, to support the finding of the jury, it would be presumed that the lease was canceled with the assent of the lessee; or,

if otherwise, the clause, being repugnant to the granting portion of the deed, was inoperative, and that the lien was valid. Defendant appeared in the action by attorney, and, upon the trial, the summons and notice was served upon Rev. Thomas Galbery. Held, that defendant’s appearance was a waiver of all defects in service, the same as in other actions.