Opinion
September 10, 1924.
Franz Neilson ( Wilbur F. Earp, of counsel), for the plaintiff.
Eidlitz Hulse, for the defendants New Amsterdam Casualty Company and AEtna Casualty and Surety Company.
By the procurement of an order from the County Court of Oneida county, the lienor claims to have complied with the provisions of section 18 of the Lien Law requiring the procurement of an order continuing the lien and conferring upon the County Court of the county in which such lien was filed or the county judge of such county authority to make such order. The lien was filed in Albany county. To sustain this contention he invokes the provisions of section 130 of the Civil Practice Act providing that an order in an action or special proceeding which can be made by the county judge out of court may be made by the county judge of any other county.
There is grave doubt whether the procurement of an order extending the lien is a special proceeding within the meaning of section 5 of the Civil Practice Act. It is hardly to be described as "a prosecution for the enforcement or protection of a right, the redress or prevention of a wrong or the punishment of a public offence," and the courts recognize that resort is frequently had to them in matters which are neither actions nor special proceedings. Matter of Attorney-General, 155 N.Y. 441; Matter of Murtaugh, 117 A.D. 302; 3 Fiero Particular Act. Proc. 3098.
Even if it be viewed, however, as a special proceeding, the Lien Law clearly contemplated that the proceeding should be had in the county where the lien was filed and the only effect of section 130 of the Civil Practice Act would be to give to the Oneida county judge the right to make the order in a proceeding brought in Albany county. Any other holding would lead to the impractical result that a proceeding could be brought in any County Court in the state to extend a lien filed in any other county.
Motion to dismiss complaint granted. Order signed.
Ordered accordingly.