Alexander v. Hollender

106 A.D. 404, 94 N.Y.S. 796, 1905 N.Y. App. Div. LEXIS 2599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Patterson, J.:

The principal question involved in this appeal is not a new one, but has been settled by authority. The plaintiff is a sub-contractor, and sued to enforce a mechanic’s lien upon property of which the defendant HoIIender was the owner, and as to which property Philip Goerlitz was the contractor to do certain work. At the trial • of the cause a notice of lien was offered in evidence, by the plaintiff and marked as an exhibit, but it is not printed in the record as an exhibit. There was, however, annexed to the complaint a copy of the notice of lien, which the plaintiff claimed was filed and it was made a part of his complaint. In that notice it is stated that “ The labor performed and to be performed, and the materials furnished and to be furnished, consists* of electrical apparatus, wiring and equipment and labor of Nos. 149 West 125th Street and 152 to' 158 West 126th Street, Borough of Manhattan, New York City, and the agreed price and value thereof is Four thousand five hundred and ninety-four 50/100 dollars ($4,594.50).”

At the close of the plaintiff’s case the defendant’s counsel moved to dismiss the complaint as to the defendant HoIIender, on the ground that the plaintiff had failed to prove his cause of action. Included in that cause of action to foreclose the lien was the element or factor of a proper and sufficient notice of lien having, been filed. That the notice was insufficient lias been held by this court and by the Court of Appeals. (New Jersey Steel & Iron Co. v. Robinson, 85 App. Div. 512; Bossert v. Fox, 89 id. 7; Bradley & Currier Co. v. Pacheteau, 71 id. 148; mod. and affd., 175 N. Y. 492.)

It is claimed by the respondent that, notwithstanding the insufficiency of the notice of lien, he was entitled to maintain the action against Hollender, the owner of the premises, and to recover .under section 3412 of the Code of Civil Procedure a judgment for such suni as was due him or which he might recover in an action on .contract against any party to the action. But under the proof, as we read the record, the plaintiff has not brought himself within the ■ provisions of that section of the Code of Civil Procedure, for the reason that he failed to establish that there was anything due, at any time before or after the notice of lien was filed, from the owner Hollender to the contractor Goerlitz.

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

O’Brien, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

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