Baxter v. Bryant , 149 N.Y.S. 527 ( 1914 )

Blackmar, J.

There is no provision of law that an action to enforce a mechanic’s lien in the Municipal Court must be brought in the borough or county where the property is situated. The action is not an action in equity to foreclose the lien but is an action to enforce the lien only, in which judgment may be entered and execution issued against the interest of the owner in the property which is subject to the lien. The action is an action in a court not of record and is subject to the provisions of section 25 of the Municipal Court Act as to the district in which the action may be brought.

Section 46 of the Lien Law prescribes that an action to enforce a mechanic’s lien in a court not of record shall be commenced by the personal service upon the owner of a summons and verified complaint. The complaint alleges that the defendants James S. Bryant and J. Wilson Bryant are the owners of the premises. As appears by the return, the -complaint was verified. There are annexed to the return two copies of the complain t, the original being verified and a copy from which the signatures of the notary and the affiant are omitted. We may, therefore, assume that the original complaint was duly verified and that, by mistake, a defective copy was served upon the defendant James S. Bryant. James S. Bryant appeared and answered to the merits without raising the question of jurisdiction. J. Wilson Bryant was not served but appeared voluntarily and answered' to the merits, but set up the defense that the court had no jurisdiction. The question of the jurisdiction of the court is twofold: First, has the court jurisdiction over the subject-matter? Second, has it jurisdiction over the persons of the defendants ? In this- case, the court has undoubted jurisdiction over the subject-matter. This jurisdiction is not made to depend upon any conditions whatever. It is, however, provided that the action must be commenced by the service of a summons and a verified complaint on the owner. That means that the jurisdiction of the person must he acquired in such manner. The copy served upon the defendant James S. Bryant was not complete in that it did not appear to be verified. The court, therefore, did not obtain jurisdiction over him by this service; but, notwithstanding this, he appeared generally in the action and answered, thereby submitting to the jurisdiction of the court. Mun. Ct. Act, § 26. There is no reason why a voluntary appearance is not as much a submitting to the jurisdiction of the court, when such jurisdiction can be obtained only by service of the summons and verified complaint, as when it can be obtained by the service of the summons only.

As to the defendant J. Wilson Bryant, he appeared voluntarily without service of papers and thereby submitted to the jurisdiction of the court. He cannot voluntarily appear generally, and at the same time claim that he is not subject to the jurisdiction of the court. His appearance was not a special appearance for the purpose of raising that question, but was a general appearance accompanied by an answer to the merits. Schillinger v. Herrmann, 35 Misc. Rep. 280. This is not like a case where the jurisdiction of the court depends upon residence or place of business of the defendant. Section 46 of the Lien Law prescribes, not a condition of jurisdiction, but the manner only in which jurisdiction over the defendant may be obtained.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Kelly and Kapper, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.