Raven v. Smith

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: O'BRIEN
• Citation: Raven v. Smith, 148 N.Y. 415, 43 N.E. 63 (N.Y. 1896)
• Decision Date: 18 February 1896
• Parties: RAVEN v. SMITH.

148 N.Y. 415

43 N.E. 63

RAVEN

v.SMITH.

Court of Appeals of New York.

Feb. 18, 1896.

Appeal from supreme court, general term, Second department.

Action by John Raven against William R. Smith to foreclose a mechanic's lien. From various orders made by the county court after judgment for plaintiff, and after affirmance in the supreme court, and from certain orders made in the latter court, defendant appeals. Affirmed.

For former report, see 27 N. Y. Supp. 611.

James R. Bowen, for appellant.

Arthur J. Burns, for respondent.

O'BRIEN, J.

The notice of appeal in this case includes various orders made by the county court in the action after judgment and after affirmance in the supreme court and one or two orders made in the latter court. None of these orders are appealable to this court so far as they involved questions depending upon discretion; and all of them do, except the order made upon the defendant's application to set aside the judgment on the ground that the county court had no jurisdiction of the action. Assuming that this is an order affecting a substantial right made upon a summary application in an action, after judgment, it would be reviewable here. The question presented is whether a county court has jurisdiction in an action to foreclose a mechanic's lien where the property is situated in the county, but the defendant does not reside therein. There is no doubt with respect to the power of the legislature to confer jurisdiction in such a case upon that court. The general jurisdiction of that court is defined in section 340 of the Code of Civil Procedure, and, where its jurisdiction extends to other counties, its process or mandates may issue to that county, and be enforced. This section, however, does not specify all the cases over which the court has jurisdiction. It only defines the powers to be exercised in numerous specified cases in addition to that conferred by special statutes.

For the jurisdiction in actions to foreclose mechanics' liens, we must look to the statutes regulating that general subject. In this action there was no allegation in the complaint with respect to the residence of the parties, or any of them. It is alleged that the real estate affected by the lien was situated in the county of Westchester, and the claim that the plaintiff sought to enforce is stated at $247.54. It is found, however, as a fact, that, at the time of the commencement of the action, the defendant was not a resident of that county where the trial was had and the judgment entered. It will be seen from an examination of section 340, above referred to, that residence, as a foundation for jurisdiction, is not required in all cases, but applies to a single subdivision. The jurisdiction over actions to foreclose mechanics' liens is given by section 7 of chapter 342 of the Laws of 1885, which regulates the whole subject of mechanics' liens in the several counties of the state. The section referred to provides that, when a lien has attached in favor of a party by compliance with the several sections prescribing the necessary steps to be taken for that purpose, the claimant may enforce it ‘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.’ By the fifteenth section of the act, the claimant, failing for any reason to establish a valid lien, may, nevertheless, recover judgment against the party or parties to the action for such sum or sums as may appear to be due to him, and which he might recover in an action upon a contract against the said party or parties. The defendant's contention is that, since he was not a resident of the county, a common-law action against him by the plaintiff for the recovery of money would not lie in the county court, for want...