Ferdinand Schaettler, Appellant, v. Thomas Gardiner, Jr., Respondent

Ferdinand Schaettler, Appellant, v. Thomas Gardiner, Jr., Respondent. Where the court has acquired jurisdiction of the subject-matter of an action or proceeding, it has jurisdiction to render judgment, and if error is committed, the judgment is voidable, not void, and the remedy of the party aggrieved is by appeal. It is only where a judgment is void that a party has an absolute legal right to have it set aside or vacated upon motion. An order, therefore, denying a motion to set aside a judgment in a case where the court below had jurisdiction, is not appealable to this court. (Argued January 24, 1872; decided January 30, 1872.) Appeal from order of the General Term of the Court of Common Pleas for the city and county of Hew York, affirming an order of Special Term denying motion to vacate judgment. This is a proceeding under the mechanics’ lien law of 1863, for the city of Hew York. (Laws of 1863, p. 859.) It was commenced in the court of Common Pleas on the 15th day of June, 1868, by the service by the plaintiff upon the defendant as contractor, and William H. Vanderbilt as owner, of a notice requiring them to appear and submit to an accounting. An order to plead was made on the same day, on plaintiff’s application. Previously to the service of this notice the defendant Gardiner had paid into court the amount of the lien to foreclose which this proceeding was commenced, and which payment was set up in defendant’s answer. On November 27, 1868, an order was made discontinuing the action as to Vanderbilt, and an order of reference was made of all the issues in the action. The trial was commenced before the referee and concluded on the 30th of Hay, 1870. He made his report in favor of the defendant. The report was served and filed, and notice thereof given. On 22d June, 1870, exceptions were filed by plaintiff. On 28th June, 1870, an order was made on the report and exceptions, confirming the report, and judgment was accordingly entered. On 11th July, 1870, a notice of appeal from said judgment was served. The plaintiff afterward commenced another action against defendant for the same cause of action set up in this proceeding. In October, 1870, an application was made to set aside the judgment entered in this proceeding, and from the order made at the General Term affirming the order made at Special Term, denying such application, this appeal is taken. J. F. Sa/woa/y for appellant. The mechanics’ lien, after one year, ceases absolutely. (Grant v. Vandercock, 8 Abb. N. S., 455; Matthews v. Daley, 7 Abb. N. S., 379; Poersche v. Keelenbergh, 6 Abb. N. S., 172.) Where lien is gone proceedings cannot be changed to one in personam. (Sinclair v. Fitch, 3 E. D. Smith, 677; Lewe v. Fairman, 3 E. D. Smith, 691; Quimby v. Sloan, 2 E. D. Smith, 594, 609; Randolph v. Leary, 3 E. D. Smith, 637.) Lien is necessary to admit of personal judgment. (Donnelly v. Libby, 1 Sweeney, 259.) Plea of no jurisdiction is available for plaintiff. (Haxford v. Bogardus, 40 How., 94.) General jurisdiction will not cure defect in a statutory proceeding. (3 N. Y., 511.) Alfred Roe for respondent. This order is not appealable. (Dunlap v. Edwards, 3 N. Y., 341; Humphrey v. Chamberlain, 11 N. Y., 274; Birdsall v. Birdsall, 41 How., 397; Tallmam, v. Herman, 10 How., 89.) It should be affirmed, unless it is shown the court had no jurisdiction. (Maltby v. Greene, 1 Keyes, 553.) The provisions of the statute were strictly complied with. (Laws 1863, p. 859, §§ 4, 5; Maltby v. Greene, 1 Keyes, 548.) The order dismissing as to Vanderbilt was proper. (Chamberlain v. O'Connor, 1 E. D. Smith, 665; Code, § 122; Brown v. Wood, 2 Hill, 579 ; Dudley v. Mayhew, 3 N. Y., 9.) Payment of money into court simply discharged the land from lien and substituted the money. (Sec. 10 of act; Dunning v. Clark, 2 E. D. Smith, 538.) A judgment in favor of plaintiff would have been proper, whether lien ceased or not. (Grogan v. McMahon, 4 E. D. Smith, 755; Barton v. Hermance, 8 Abb. N. S., 399.) [MAJORITY — Grover, J.] Grover, J. The order in question is. not appealable to this court. The appellant had not an absolute legal right to set aside or vacate the judgment upon motion, if the ground upon which he based it was sound. That ground was that the year having expired and the lien not having been continued had terminated before the making of the report by the referee, and that no proceeding could be had upon the reference or judgment rendered, after such termination of the lien. This, if true, would show that the judgment was erroneous, having been rendered illegally, but would not show it to be void. The court had acquired jurisdiction of the case, and had properly referred it for hearing and determination, and the referee had power to determine all questions litigated before him, and if in such determination any error was committed, the judgment entered upon the report would not be valid, but could be reversed upon appeal. The court having jurisdiction of the subject-matter had jurisdiction to render judgment, and if in this any error was committed, the judgment was only voidable, not void. This applies as well to the determination of the question whether proceedings could be had and a personal judgment rendered after the expiration of a year after the lien had attached, as to that of any other question involved in the litigation. It follows that the judgment is not void, even if the counsel for the appellant is right that the statute only authorized proceedings for a personal judgment within the year. The court had power to decide this question, and if error was committed in the decision, it should be corrected upon appeal from the judgment to the General Term, which appeal is provided for. by the act, and not by motion to set aside the judgment. Whether by the true construction of the act a personal judgment may not be rendered after the expiration of the year, where, as in the present case, the cause was partly tried within the year, is a question not now properly before the court and therefore not passed upon; but it may be remarked that the act is singularly defective unless it can be so rendered. But even if the counsel is right that such a judgment is void, an order denying a motion to vacate it is not appealable to this court. (Foote v. Lathrop, 41 New York, 358.) The appeal must be dismissed with costs. All concur. Appeal dismissed.