Norris v. Nesbit — 33 N.Y. St. Rep. 603

Majority

p. 603

Henry D. Norris, Resp’t, v. William H. Nesbit et al., App’lts.^[1]

(Court of Appeals,

Filed October 21, 1890.)

Headnote

Appeal—Mechanic’s Lien.

The effect of an action to foreclose a mechanic’s lien is simply to collect plaintiff’s money demand out of real estate, and where the claim falls below $500 it is not appealable to this court. It is not an action affecting the title to real estate, or an interest therein.

Appeal from judgment of the general term of the New York common pleas, affirming judgment for plaintiff entered on report of referee.

De Witt 0. Brown, for app’lts; William Stone, for resp’t

The mechanic’s lien in process of foreclosure in this action was for a claim of $419.20, and hence the amount in controversy' fell below the figure specified by § 191 of the Code of Civil Procedure as a condition of the right to have a further review by this court.

Nor does the action affect the title to real property, or an interest therein, within the sense in which that language is to be taken, and in which it has been construed in this court. Wheeler v. Scofield, 67 N. Y., 311 ; Nichols v. Voorhis, 74 id., 28; Trevett v. Barnes, 110 id., 500; 18 N. Y. State Rep., 533. No action can be deemed to affect the title to real estate merely because it relates to real estate. Whether it be brought for an injury to real property, or to enforce the collection of a claim thereout, it is not included in the category of actions which have for their object the determination of title. The judgment in this action could not change the title to real estate, or be conclusive evidence against the true owner. Its effect is simply to collect the plaintiff’s money demand out of real estate. He claims no title to it,

p. 604

and, as to these appellants, whatever their title and interests, the result of - the action is to enforce payment out of the real estate, notwithstanding their defenses, leaving the legal or equitable relations subsisting between them and the defendant Schmidt, who was the record owner of the property when the debt of plaintiff’s, assignors was contracted, to be determined in some proper action, or in such way as the parties might take for that purpose.

The appeal should be dismissed, with costs.

All concur.