Brandt v. Schmeckenbecher — 35 N.Y.S. 331

Majority

p. 331

(89 Hun, 406.)

BRANDT v. SCHMECKENBECHER et al.

(Supreme Court, General Term, First Department.

October 18, 1895.)

Headnote

Mechanic’s Lien—Extinguishment—Failuhe to Eneobce.

Under Laws 1885, c. 342, § 6, providing that, when a claimant is made a defendant to an action to enforce a lien, “such action shall be deemed an action to enforce the lien of such defendant,” the lien of one whb neither sues to foreclose, nor is made a party to an action by another claimant to foreclose within the year limited after the filing of his lien, is not revived by the fact that, after the expiration of the year, a demurrer to the complaint was sustained for defect of parties, whereupon plaintiff amended, making such claimant a party.

Appeal from judgment on report of referee.

Action by Frederick Brandt against George Schmeckenbecher and others to foreclose a mechanics’ lien. From so much of the judgment as dismissed the liens claimed by defendants Schmeekenbecher and others, said defendants appeal. Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Early & Pendergast, for appellants.

Philip L. Wilson, for respondent Brandt.

Milo J. White, for respondent Burton.

Complaint is made by the appellants of the decision of the learned referee in two respects: (1) Of the holding that the liens of the appellants had expired by operation of the statute; (2) of the necessary determination that the question whether the lien had expired was before the court for adjudication. The appellants filed their liens on the 1st and 2d days of October, 1891. They did not commence an action to foreclose them, or either of them, within one year after such filing, nor obtain an order of the court continuing such lien. This plaintiff commenced his action within the year, to wit, September 9, 1892, and, had he made these appellants parties defendant, they would be within the protection of the further provision of section 6 of chapter 342, Laws 1885, which reads:

“And when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant who is a claimant within the provisions of this act.”

But, having failed to do that, affirmative action on the part of these appellants within the year was necessary to longer continue the life of their liens. They failed to take any steps whatever, and (the presence of the straws at which they grasp on this appeal is due to the fact that the owner demurred to the complaint on the ground of defect of parties, in that other lienors, including these appellants, had not been joined as defendants. The demurrer was ■ sustained by an order made February 10, 1893, by which it was further provided that the plaintiff should be allowed to amend the summons and complaint by making the other lienors parties defendant. This was subsequently done, and service of such amended summons and complaint was made upon these appellants April 21, 1893.

p. 332

Because the appellants were necessary parties to a successful prosecution of plaintiff’s action, they urge that their omission should not work to their prejudice. But it will serve no good purpose to pursue that suggestion. It is sufficient to observe that the statute does not provide that the commencement of an action by a lienor shall be deemed an action by every other lienor to enforce his lien, but that such shall be its effect only as to a claimant made a party defendant. The language of the statute is clear and unambiguous. It does not admit of a construction which gives to the making and nonmaking of a claimant a party defendant, in an action to enforce a lien, precisely the same potency for continuing the life of his lien. As the lien of these appellants had expired before the summons was amended, the amendment could not have the effect of reviving the lien. That which the. statute declares to be dead, the court cannot, by order, restore to life.

The suggestion that the question of the running of the statute against the appellants? claims was not before the court seems to be without merit. It is distinctly presented by the answer of D. G-. Burton, one of the lienors.

The judgment should be affirmed, with costs to the respondent Burton. All concur.