Alexander v. Costello

Appellate Terms of the Supreme Court of New York

Alexander v. Costello

59 Misc. 491, 110 N.Y.S. 1033

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1908

StatusPublished

This text of 59 Misc. 491 (Alexander v. Costello) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alexander v. Costello, 59 Misc. 491, 110 N.Y.S. 1033 (N.Y. Ct. App. 1908).

Pincite

Opinion

Per Curiam.

The action was brought to foreclose a mechanic’s lien. The notice of lien recites that the “ agreed

[492]*492price or value ” of the labor performed and materials furnished is $1,175. The validity of the lien cannot be upheld, since this statement in the disjunctive is not in compliance with the law. Siegel v. Ehrshowsky, 46 Misc. Rep. 605. Further, the complaint alleges that the labor was performed and materials furnished at the request of the defendant. The proof fails to support this allegation, but shows that the contract was made with one Thomas Costello, the defendant’s husband, as contractor.' The notice of lien states that the name of the person with whom plaintiff’s contract was made was Thomas F. Costello. The contractor is not joined as a party, and the complaint contains no allegation that any sum was actually due to the contractor. There is no contractual relation established between the owner and the lienor to support a personal judgment; and, as has been shown, the lien is fatally defective.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Gildersleeve, Dayton and Gerard, JJ.

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

Free access — add to your briefcase to read the full text and ask questions with AI

Per Curiam.

The action was brought to foreclose a mechanic’s lien. The notice of lien recites that the “ agreed

[492]*492price or value ” of the labor performed and materials furnished is $1,175. The validity of the lien cannot be upheld, since this statement in the disjunctive is not in compliance with the law. Siegel v. Ehrshowsky, 46 Misc. Rep. 605. Further, the complaint alleges that the labor was performed and materials furnished at the request of the defendant. The proof fails to support this allegation, but shows that the contract was made with one Thomas Costello, the defendant’s husband, as contractor.' The notice of lien states that the name of the person with whom plaintiff’s contract was made was Thomas F. Costello. The contractor is not joined as a party, and the complaint contains no allegation that any sum was actually due to the contractor. There is no contractual relation established between the owner and the lienor to support a personal judgment; and, as has been shown, the lien is fatally defective.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Gildersleeve, Dayton and Gerard, JJ.

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

Cite This Page — Counsel Stack

Bluebook (online)

59 Misc. 491, 110 N.Y.S. 1033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-costello-nyappterm-1908.

Opinion

Related

Cite This Page — Counsel Stack