Raven v. Smith — 54 N.Y. St. Rep. 94

Majority

p. 94

John Raven, Resp’t, v. William R. Smith, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Mechanic’s lien—Grading building lots within the statute.

The grading of building lots is within the provisions of the first section of the mechanic’s lien law of 1885, and a lien can be acquired for such work.

2. Same—County court has jurisdiction of action to foreclose.

The county court of the county in which the property is situated has jurisdiction of an action to foreclose a mechanic’s lien, although the defendant is not a resident of that county.

3. Same—Bar—Pendency of former action.

The pendency of an action between the same parties for breach of the contract under which the work was done, and for the work for which the lien was filed, is not an obstacle to the maintenance of an action to foreclose the lien.

Appeal from judgment of the county court of Westchester county in favor of plaintiff, in an action to foreclose a mechanic’s lien.

The lien was filed February 29, 1892. After the filing of the lien an action was brought in the supreme court for damages for the breach of contract under which the labor was done for which the lien herein was filed, and for the services rendered for which the lien was filed. The summons and complaint in that action were served on defendant June 9,1892. On July 20,1892, plaintiff was served with a notice signed by defendant requiring-him to commence, an action to foreclose the said lien, or show cause at a special term of the supreme court, to be held at the court house in Brooklyn on the 26th day of August, 1892, at ten o’clock, why the said notice of lien should not be canceled. Thereupon this action was brought.

On the trial of the action three questions were litigated, as follows:

First. That the county court has not jurisdiction of the action, in that the defendant is a resident of New York city and not of Westchester county.

Second. That there was another action pending at the same time between the same parties for the same cause.

p. 95

Third. That because of the character of the work done the plaintiff can have no lien.

James R. Bowen, for app't; Frederick W. Clark, for resp’t.

This is an appeal by the defendant from a judgment of the county court of W estchester county in favor of the plaintiff against the defendant in an action to foreclose a lien in favor of the plaintiff for grading building lots.

The action is prosecuted under chapter 342 of the Laws of 1885, and the first section of that act provides for a lien .to any person who shall perform labor or service in altering or repairing any “building or building lot.”

The claim of the plaintiff falls directly under this provision, and the contention of the defendant that no lien could be acquired is destroyed by the statute.

It is also contended that the county court had no jurisdiction over the action, but the seventh section of the act provides that the claimant may enforce his claim against the property mentioned in the lien, and against the person liable for the debt, by a civil action in a court of record in the city or county where the property is situated which would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien.

This provision includes this case, and the objection is baseless.

The other suit pending between these parties is not for the same relief as this, and presents no obstacle to the maintenance of the present action. The judgment should be affirmed, with costs.

Barkard, P. J., and Pratt, J., concur.