in a subsequent action of ejectment brought by the purchaser at the lien foreclosure sale, to dismiss the complaint, on the ground that no summons in the lien proceedings had been served on defendant.
2. Same—Statutory Provisions.
Where a lien was filed while Laws 1873, c. 489, was in force, the subsequent proceedings are properly had under that act, though they are begun after the enactment of Laws 1885, c. 342, which repealed the act of 1873, but saved the rights of lienors then existing.
3. Same—Assessment op Damages—Errors.
Under the act of 1873, the damages on default could be assessed by the clerk, and an erroneous assessment would not make the judgment a nullity.
Appeal from special term, Westchester county
Ejectment by Charles Welde against Sarah H. Henderson and others, her tenants, to recover certain lots of land in the village of Unionport, of which defendant Henderson was the owner prior to the proceedings hereinafter mentioned. In October, 1884, plaintiff duly filed a notice of mechanic’s lien against the premises for $515.32. In June, 1885, he brought an action to foreclose the lien; the notice thereof being personally served on defendant Henderson. She failing to appear, plaintiff on July 20, 1885, obtained judgment by default for foreclosure of the lien and against her personally for deficiency, the damages being assessed by the clerk. Execution was issued on that judgment, under which the premises were duly sold to plaintiff, September 19, 1885. On December 10, 1885, defendant Henderson moved to vacate and set aside the judgment, and all proceedings in the action, including the sale, on the grounds that she had never been served with summons, and had never appeared in the action except specially; that plaintiff' had assessed the damages before the clerk of court instead of before the court or a referee; and that judgment had been entered without application to the court. This motion was denied at special term, and the decision affirmed on appeal to the general term in May, 1886. 10 Civ. Proc. R. 217 Defendant Henderson
did not redeem from the execution sale, and in December, 1886, the sheriff executed a deed of the premises to plaintiff, under which he now claims. The court in this action of ejectment excluded evidence of the judgment, and all proceedings in the lien action, and dismissed the complaint. Plaintiff appeals.
Argued before Barnard, P. J., and Pratt, J.Barley & Prendergast, for appellant.' H. C, Henderson and Wm. O. Reddy, for respondents.
It was held by this court upon an appeal from an order-denying a motion to set aside th’e judgment in Welde v. Henderson that the notice of lien contained in itself all the elements of a summons, and that by it the court got jurisdiction of the action. This motion was made after-judgment and sale of the property, and the decision is binding upon this court. The proceedings were properly conducted under chapter 489, Laws 1873. This was the law existing when the lien was filed, and chapter 342, Laws 1885, which repealed it saved the rights of lienors existing at the passing of the act of 1885, § 26. Fitzpatrick v. Boylon, 57 N. Y. 443 . Under the act of 1873, no summons was needed, and the damages by default could be assessed by the clerk. If the proceedings had been .under the act of 1885, an assessment made erroneously would not make void the judgment. The court had jurisdiction of the subject-matter- and of the parties, and an erroneous proceeding in it would justify a motion to vacate the judgment, but not to treat it is a nullity. The judgment should therefore be reversed, and a new trial granted, costs to abide the event.
Pratt, J., concurs.