Furze v. City of New York

GIEGERICH, J. [1] The substantial question in this case is controlled by Martin v. De Coppet, 64 Misc. Rep. 385, 118 N. Y. Supp. 523. As all the other lienors were necessary parties by provision of the statute (section 44 of the Lien Law), the action was-not commenced until they were all served; none of them being united in interest. Martin v. De Coppet, supra, and cases cited. It may be-conceded that the lodging with the sheriff of the summons upon several of the defendants, followed by service upon them or their appearance within 60 days thereafter, was sufficient under section 399 of the Code of Civil Procedure, so far as those defendants were concerned, but that does not help the plaintiff’s case, because there-were still other defendant lienors who were not served until after the lien had expired. [2] The plaintiff in his brief seems to question the power of the court to entertain such a motion as this in advance of the trial, but he neither cites cases nor argues the point, and I can see no reason why the relief should not be given now, thus permitting the other, lienors, without further delay, to divide the fund in question in the manner agreed upon among them. The facts as shown upon this-motion are undisputed, and nothing that can happen hereafter can alter the respective rights of the parties on the point involved in this motion. Motion granted, with $10 costs. Settle order on notice.