
    The Bogopoler Realty Company, Appellant, v. Charles Schwartzman, Otherwise Known as “ John ’’ Schwartzman and Rubin Kleinman, Respondents.
    (Supreme Court, Appellate Term,
    June, 1908.)
    Mechanics’ liens — Foreclosure — Parties and notice — Notice to appear — Summons — In Municipal Court of the city of New York.
    Municipal Courts — Procedure — Process — Summons in action to foreclose mechanic’s lien — In Municipal Court of the city of New York.
    The provisions of the Municipal Court Act, requiring the summons in an action to enforce a mechanic’s lien to be returnable not less than twelve nor more than twenty days after its date and to be served at least eight days before the return day, being inconsistent with the provisions of section 3404 jf the Code of Civil Procedure, control the practice in that court in such actions.
    Appeal by the plaintiff from judgment in favor of the defendants, rendered in the Municipal Court of the city of New York, second district, borough of Manhattan.
    Benjamin Patterson, for appellant.
    Charles S. Rosenthal, for respondent Kleinman.
   Greenbaum, J.

The complaint in this action was dismissed upon motion of the defendants, upon the ground that the summons was returnable in less than twelve days, and that less than eight days’ service thereof was made. The action was brought in the Municipal Court to establish a mechanic’s lien, and the only question to be determined upon this appeal is, whether the provisions of the Municipal Court Act, regarding the date of return and the service of the summons in such an action, that the return day must not be more than twelve days from its date, and, except in cases where an order of arrest is issued, must be served at least six days before the time of appearance (Mun. Ct. Act, § §7), or whether the provisions of section 3404 of the Code of Civil Procedure, that a summons in an action to enforce a mechanic’s lien, in a court not of record, must be returnable not less than twelve nor more than twenty days after its date, and must be served at least eight days before the return day, are to govern. Both sides to this controversy concede that prior to the passage of chapter 580, Laws of 1902, known as the Municipal Court Act, a plaintiff, seeking to enforce a mechanic’s lien either in the old District Court, or any other court in the State not of record which had jurisdiction to entertain such an action, was obliged to resort to the procedure laid down in chapter 23, title 2, of the Code of Civil Procedure, of which section 3404 is a part. Chapter 580 of the Laws of 1902 did not create a new court (Worthington v. London G. & A. Co., 164 N. Y. 81), but was intended to revise, codify and consolidate all the previous statutes governing the Municipal Court, and to continue such court under a new name, with all its former powers and such extended jurisdiction and other methods of practice as were deemed essential to an increased usefulness, and to meet the large amount of business transacted therein. We must assume that, where the Legislature inserted into that act new provisions, extending or enlarging or limiting the jurisdiction-of that court, it intended that the rules laid down in the act itself, for the enforcement of those provisions, should be applicable to such new enactments, equally with those contained in the former statute and continued in the act, unless an intent to do otherwise is expressly declared or plainly indicated therein. In the Municipal Court Act, the Legislature inserted a new subsection (subd. 11, § 1), which subdivision confers jurisdiction upon that court in express words as follows: “An action to enforce a mechanic’s lien on real property in which the court shall have power to render judgment for the sum due, * * * .and to declare the amount a valid lien against the interest of the defendant in the property described in the complaint, at the time of the filing of the lien, where the amount does not exceed five hundred dollars, exclusive of interest and costs, but said court cannot render judgment for the foreclosure and sale of the property.” Ho reference is made in this subdivision, nor elsewhere in the act, to chapter 23, title 3, of the Code. In the next subdivision, however, in which jurisdiction is conferred upon the Municipal Court to entertain summary proceedings, reference is made to the provisions of the Code; and it is declared in that subdivision that the jurisdiction of the court is “ under title 2 of chapter 17 of the Code of Civil Procedure,” thus indicating that the procedure in summary proceeding’s in a Municipal Court must conform with those laid down in that chapter of the Code. The omission to refer to chapter 23, title 3, of the Code is therefore significant. It would seem that, if the Legislature intended that the Code provisions should apply, rather than those of the Municipal Court Act, they would have so indicated by direct reference thereto. It must also be noted, that the Municipal Court Act provides that an action in that court must be commenced by the service of a summons (§ 26) and that the process of the court is limited to the territory embraced in the city of New' York (§ 9) ; while, by the provisions of section 3404 of the Code, an action must be commenced by service of a summons and a complaint <£ verified,” etc., and that such summons can be served ££ anywhere in the State.” The provisions of sections 9 and 26 of the Municipal Court Act are, therefore, in conflict with the provisions of section 3404 of the Code; and, in that respect, the provisions of the Municipal Court Act must control. Mun. Ct. Act, § 20. It follows that the practice as set forth in the Municipal Court Act must be followed in that court in actions of which that court has jurisdiction, unless the act itself clearly -indicates, by reference to the Code provision, that the practice set forth in the Code is to be adopted.

Gildersleeve and Giegerich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  