Welde v. Henderson — 25 N.Y. St. Rep. 511

Majority

p. 511

Charles Welde, App’lt, v. Sarah H. Henderson et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Mechanics’ lien—Notice of lien—Summons—Laws 1873, chap. 489.

In proceedings to foreclose a mechanics’ lien conducted under Laws 1873, chap. 489, the notice of the lien contains all the elements of a summons, and gives the court jurisdiction of the action, and the damages hy default can he assessed hy the clerk.

2. Same—Ebboneous assessment.

An erroneous assessment of damages would justify a motion to vacate the judgment, hut not to treat it as a nullity.

3. Same—Existing bights—Laws 1885, chap. 342; 1873, chap. 489.

Laws 1885, chap. 342, repealed the act of 1873, hut saved the rights of lienors existing at the time of its enactment.

Appeal from a judgment dismissing the complaint on a. trial before the court, without a jury.

This is an action in ejectment to recover possession of certain property which appellant claims to have purchased under foreclosure of a mechanics’ lien.

The appellant filed a notice of lien October 20,1884, in the Westchester county clerk’s office, for $515.32.

p. 512

On June 17, 1885, he commenced proceedings to foreclose his lien, following in such foreclosure proceedings the provisions of chapter 489, Laws of 1873.

In such proceedings he served a notice to foreclose, took an assessment of damages before the clerk, who signed judgment in appellant’s favor for the amount of his claim, etc., and issued an execution, under which a sale was had, at which sale appellant bid in the property for seventy-five dollars, and received a deed from the sheriff.

The defendant seeks to vacate the judgment, on the grounds that he never has been served with summons; that plaintiff assessed the damages before the clerk, instead of before the court or a referee, and that judgment was entered without application to the court.

Earley & Prendergast, for app’lt; PL. O. Henderson and W. O. Reddy, for resp’ts.

It was held by this court, upon an appeal from an order denying a motion to set aside the 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 of 1873. This was the law existing when the lien was filed, and chapter 342, Laws of 1885, which repealed it, saved the rights of lienors existing at the passing of the act of 1885 (section 26). Fitzpatrick v. Boylan, 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 as a nullity.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

Pratt, J., concurs; Dyhman, J., not sitting