
    Patrick Stanton et al., Appellants, v. August Gohler and William S. Haley, as Administrator of William H. Haley, Deceased, Respondent.
    (Supreme Court, Appellate Term,
    March, 1896.)
    1. Mechanic’s lien — District Courts can acquire no jurisdiction of ■ executors in action to foreclose.
    A District Court of the city of New York cannot acquire Jurisdiction of an executor defendant in an action to foreclose a mechanic’s lien.
    8. Same—Appeal.
    A judgment dismissing the complaint in such an action is several as to the different deiendants, and where the notice of appeal therefrom is directed only to one of them, the determination as to the others cannot be considered by the appellate court
    Appeal from a judgment of dismissal of the complaint rendered by the District Court in the city of Hew York for the Tenth Judicial District..
    Action by subcontractors against the owner and the administrator of the deceased contractor for the foreclosure of a lien claimed pursuant to the provisions of the Mechanics’ Lien Law (chap. 342, Laws of 1885), and for judgment for any deficiency.
    George W. Stephens, for appellants.
    Clarence D. W. Rogers, for respondent.
   Bischoff, J.

The questions which were argued upon this appeal are, (1) whether or not, in an action to foreclose a lien, claimed pursuant to the provisions of the Mechanics’ Lien Law (chap. 342, Laws of 1885),.' the District Courts in the city of Hew York acquire jurisdiction of- an executor or administrator defendant, it being urged for the appellants that, for the purposes of such an action, the previous inhibition of jurisdiction in actions against executors or administrators (Code Civ. Pro., §§ 3215, 2863; Risley v. Phenix Bk., 83 N. Y. 318, 337; Davidsburgh v. Knickerbocker Life Ins. Co., 90 id. 526, 530) was removed by section 9 of the Mechanics’ Lien Law, which is as follows.: “An action to foreclose a lien, provided for in this act, m¿y be brought in a court not of record which would have jurisdiction to render a judgment in an action upon a contract for a stun equal to the amount of the lien,” etc.; and (2) whether or not by a notice filed after the death of his contractor the subcontractor may acquire a valid hen.

The action was one in behalf of certain subcontractors against the owner of the premises and the administrator of the deceased contractor to foreclose a hen, the amount of the. alleged hen being less than $250. - It was conceded that the notice of hen was filed after the decease of the;contractor, and the court below thereupon directed the dismissal of the complaint with regard to both defendants, the grounds stated for such dismissal, at the time, involving the negative of the questions above alluded to. The record, however, presents only the first of such questions for our consideration.

Nothing in the Mechanics’ Lien Law (chap. 342, Laws of 1885) evinces legislative intention, by authorizing the prosecution of an action to foreclose a hen in courts not of record, to remove the inhibition of subdivision 5 of section 2863 of the' Code of Oivil Procedure (see, also,. § 3215), and subdivision 3 of section, 1286 of the Consolidation Act (chap. 410, Laws of- 1882), against the exercise of jurisdiction by the District Courts in the city of New York in actions brought against an executor or administrator as such. Such inhibition, therefore, being special and local in its operation, upon well-settled rules of statutory construction, prevails against the provisions of a general law .with-regard to which it is not plainly repugnant.' Van Denburgh et al. v. Village of Greenbush, 66 N. Y. 1, 3; 23 Am. & Eng. Ency. of Law, 422, and cases collated in note 3. It follows that the action was properly dismissed as against the defendant administrator.

Obviously, the judgment appealed from was several with regard to the defendants. • In so far as it proceeded from the want of jurisdiction it.was in favor of the defendant administrator and rightfully rendered. He could not litigate the validity of the lien claimed in the court below; and in so far as the judgment determined the lien to be invalid it .was in favor of the defendant ■owner. From the last-mentioned judgment no appeal appears to have been taken,, the notice of appeal being directed to the defendant administrator only. The defendant owner did not, so far as appears from the record, participate in this appeal, and without an appeal from the judgment in his favor any inquiry on our part concerning the conclusion of the court below that the notice of lien filed was a nullity would involve the decision of a moot case, a which we are not bound to assume. Bartemeyer v. Iowa, 18 Wall. (U. S.) 129.

The judgment in favor of the defendant administrator and respondent is affirmed, with costs.

Daly, P, J., and McAuam, J. concur.

Judgment affirmed, with costs.  