Welde v. Henderson

Barnard, P. J. It was held by this court upon an appeal from an order-denying a motion to set aside th’e 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 1873. This was the law existing when the lien was filed, and chapter 342, Laws 1885, which repealed it saved the rights of lienors existing at the passing of the act of 1885, § 26. Fitzpatrick v. Boylon, 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 is a nullity. The judgment should therefore be reversed, and a new trial granted, costs to abide the event. Pratt, J., concurs.