Mechanic's Lien. Mortgage Foreclosure. MECHANIC'S LIEN. 1. The person for whom the building was erected, and who contracted to pay for it, is "the owner," within the statute. Hence, on a lien for work on a public school building in the city of New York, the ward school officers, who select the site, and contract for the building; the board of education, under whose direction the school officers act in so doing, and who pay for the building; and the mayor, aldermen and commonalty of the city, who have the use of the building, and the right of its disposal after its use as a school ceases; are all proper parties to be joined as "the owner" of the building within the meaning of the statute. The statute requiring all suits in relation to school property to be brought in the name of the board of education, does not apply in such a case. (McMahon agt. Tenth Ward School Officers, 12 Abb., 129) 2. Where a building contract (in the city of New York) requires the rock upon the land to be blasted and removed, preparatory to building, powder and fuses necessarily used for that purpose come within the term "materials in building," within the meaning of the lien law of 1851. (Hazard Powder Co. agt. Byrnes, ante, 189. MORTGAGE FORECLOSURE. 1. The assignee of a junior mortgage, whose assignment is recorded, is entitled to notice upon the foreclosure by advertisement of a senior mortgage. If no notice is served upon him, the foreclosure and sale will not affect his rights. (Winslow agt. McCall, 32 Barb., 241.) 2. The death of a plaintiff in a mortgage foreclosure suit, after a regular judgment of foreclosure is entered, does not affect the power of the referee in going on and making a sale of the premises in pursuance of the decree or judgment, and executing a deed to the purchaser. (Lynde agt. O'Donnell, ante, 34.) 3. That is, it is not necessary in such case to revive the action and bring in the representatives of the deceased plaintiff, as parties. Where the decree provides for letting the purchaser into possession, he may rightfully invoke the aid of the court, Mortgage Foreclosure. to execute its judgment, and when necessary obtain a writ of assistance for that purpose. (Id.) 4. Where a tenant in common of the premises sold on foreclosure or partition, has not been properly served with process, the purchaser will not be compelled to complete his purchase. (Cook agt. Farnham, ante, 286.) 5. Where the statute, in reference to service of process on absent defendants, has not been strictly complied with, to wit, for the want of evidence that the residence of such defendants could not be ascertained "with reasonable diligence," the order of sale and proceedings are fatally defective. (Id.) 6. If a judgment of foreclosure is erroneous as to directions contained therein as to costs and the distribution of proceeds, the remedy is by appeal. (Barnard agt. Bruce, ante, 360.) 7. It seems, that where mortgage creditors, on a foreclosure of a junior mortgage, put in an answer and compel the plaintiff to prove his case, when their rights might have been properly protected by appearance on the reference to compute the amount due, they unnecessarily increase the costs, and may be properly called upon to pay the costs consequent thereon. (Id.) 8. In such case a direction in the judgment ordering the plaintiff's costs to be first paid does not prejudice the prior mortgage creditors. (Id.) 9. The omission of a purchaser of mortgaged premises to record his deed (although previously executed and delivered) until after the time of filing the notice of the pendency of the suit for foreclosure, will preclude him from all rights under it, as against a purchaser under the judgment in the foreclosure suit. (Ostrom agt. McCann, ante, 431.) 10. In an action for the foreclosure of a mortgage given for purchase money, the mortgagor, in possession of the premises, can not set up as a counter-claim that a part of the house on the lot and some of the fence did not stand upon the lot when conveyed, but belonged to some other person than the grantor, therefore the latter is liable in damages. (Burke agt. Nichols, ante, 459.) 11. A defect of title, where the purchaser remains in possession, cannot be set up as a defence to a foreclosure of the mortgage now, any more than before the Code. (Id.) See INJUNCTION, 11. 12. Mortgage Security. Motion. MORTGAGE SECURITY. 1. A mortgage of land to secure future advances, the limit of which is not defined, is good for the amount of the advances thus made, as against a creditor by judgment recovered before such advances became due. (Robinson agt. Williams, 22 N. Y. R., 380.) 2. The equities existing between the assignor and assignee of a chose in action, not negotiable, attend the title transferred to a subsequent assignee for value and without notice. The latter takes the exact position of his vendor. So held, where a mortgage was transferred by an assignee thereof, by an instrument absolute upon its face, but was taken in fact, as security for a much smaller sum than that due upon the mortgage, and the second assignee transferred it for full value to a third person, without notice. (Bush agt. Lathrop, 22 N. Y. R., 535.) 3. Where a mortgagor has parted with the fee of the mortgaged premises by a general assigment for the benefit of creditors, he may yet maintain an action to cancel and set aside the mortgage on the ground of usury. (Strong agt. Strickland, 32 Barb., 284.) 4. Where a bond and mortgage are executed by husband and wife on the wife's separate estate for the benefit of a third person, the mortgaged premises constitute the primary fund. The bond is not a debt against the husband or his estate; he being merely tenant by the curtesy is not bound to discharge the incumbrance. (Moore agt. Moore, ante, 211; court of appeals.) MOTION. 1. A renewal of a motion to open a judgment, cannot be entertained on the ground of additional matters offered in support of the motion, which matters were known to the party, when the original motion was made. (Pattison agt. Bacon, 12 Abb., 142.) 2. Where the plaintiffs, by permission, under an order of the court, (which was appealed from by defendants,) commenced Municipal Corporations. an action at law by the service of a new complaint, and by the same permission commenced a new action by the service of a summons and complaint, accompanied with a written notice, stating that the new action was commenced as a precautionary measure to prevent the defendants from setting up as a defence that no action had been commenced within twelve months after the loss, (on a policy of insurance,) and further stating that the complaint served with the notice, and the complaint previously served, were identically the same, and for the same claim or cause of action, and that the summons served with the notice was for the same cause of action as the summons in the action which had been tried, Held, that the defendants' notice of motion to strike out parts of the complaint as irrelevant, should have been served within twenty days after service of the complaint. Their excuse, that the written notice annexed to the complaint had misled them, by inducing a belief that the action was to remain in statu quo until after the decision of the appeal from the order, was not available to bring them within the provisions of Rule 50. (New York Ice Co. agt. Northwestern Ins. Co., ante, 234.) 3. Where a motion to vacate an order of arrest is made and denied, it cannot be renewed on any state of facts, without leave of the court. (Lovell agt. Martin, ante, 238.) 4. A motion cannot be renewed where all the additional matters sought to be set up were well known to the party when the original motion was made. He should have stated all that was necessary at the time to secure his success. (Pattison agt. Bacon. ante, 478.) MUNICIPAL CORPORATIONS. 1. Where the board of aldermen of the city of New York appointed by resolution a day for the election of a city officer, and at a subsequent stated meeting of the board, the resolution was rescinded and it was determined to go at once into the election, some of the aldermen being absent from the last meeting and having no notice of the election, held that the election was void. (People ex rel. Loew agt. Batchelor, 22 N. Y. R., 128.) Municipal Corporations. 2. It is not unconstitutional for the legislature to repeal or modify an act providing for the election of successors to local officers in the city of New York, so as in effect to extend the term of those then in office. (COMSTOCK, Ch. J., DENIO and CLERKE, Judges, dissenting.) (Id.) 3. The corporation of the city of New York have power to dis continue proceedings for regulating and opening streets and public places in the city, before the confirmation of the report of the commissioners, and without application to the court. And the same power is given (Laws 1859) to the board of commissioners of the Central Park in that city, in reference to proceedings taken by them. (Central Park Case, 12 Abb., 107.) 4. No member or committee of the common council of New York can make any contract, or enter into any obligation binding the corporation, unless the authority to do so has been distinctly conferred, or the act is subsequently ratified by an ordinance, act or resolution adopted in the manner prescribed by law. (Smith agt. Mayor, &c. of New York, ante, 1.) 5. The limitation upon the power of the common council to make contracts, imposed by the ninth and twenty-third sections of the amended charter of 1849, (Laws of 1849, p. 278,) applies only to those contracts relating to matters exclusively committed to the executive departments. (ld.) 6. The employment of coaches by members of the common council, while engaged in matters appertaining to their legislative duties, is neither embraced within the business of any one of the departments, nor an executive act. It is within the powers of the common council to make contracts of that nature. (Id.) 7. The passage of a resolution by the common council, directing payment of a bill for carriage hire previously contracted by individual members of it, is equivalent to an original authority, and the obligation thus recognized and entered into is binding upon the corporation. (Id.) 8. The powers of the common council brought into exercise, in forming and entering into covenants and stipulations, providing for cleaning the streets, public wharves and piers of the city, and sweeping the same, belong to and are part and parcel of its legislative and executive authority. (Britton agt. Mayor, &c. New York, ante, 251.) |