Opinion
March 3, 1943.
Plaintiff Perlmutter brought suit to foreclose a mechanic's lien against two lots, each being subject to a prior mortgage held by defendant Port Jervis Real Estate and Loan Association. Plaintiff Siegel brought an action to foreclose a mortgage on the same property. These two actions have been consolidated. Defendant Kitias, a lienor, made a motion to open his default. Certain other lienors who did not appear at the trial joined in this motion. These lienors did not answer the foreclosure action but merely entered their appearances and demanded notice of surplus money proceedings. In the lien action these defendant lienors served answer upon plaintiff but did not serve the remaining defendants. This was in violation of the provisions of section 264 of the Civil Practice Act, and the lower court found that these defendants are in default in pleading as well as in appearance upon the trial. The court held that the provisions of the Lien Law (§§ 44, 45) require service of the answer as well as the making and filing thereof and that service upon codefendants is required as well as service upon the plaintiff. The motion was properly denied, and the order appealed from should be affirmed. Order affirmed, with ten dollars costs and disbursements to respondent Port Jervis Real Estate and Loan Association, and with printing disbursements to all respondents filing briefs. All concur.