Comfort-Craft Heating 7 Air Conditioning, Inc. v. Salamone

19 A.D.2d 760, 241 N.Y.S.2d 581, 1963 N.Y. App. Div. LEXIS 3279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1963
• Status: Published

Opinion

Appeal from an order of the Supreme Court which denied a motion to dismiss the complaint in an action to foreclose a mechanic’s lien. The complaint alleges that the plaintiff furnished materials and labor in connection with the construction of a building owned at the time by one Vincent R. Trieozzi, and that thereafter said Trieozzi conveyed the property to one Salamone -by a deed which contained a clause in compliance with section 13 of the Lien Law; that thereafter plaintiff filed its lien; that the grantee knew at the time of the eonvo3'anee to him of the materials and labor furnished by the plaintiff. There is no allegation of fraud and no allegation that the conveyance was made with intent to avoid the Lien Law. The mere allegation that grantee knew of the furnishing of the materials and labor b3r plaintiff is not enough. The grantee stands in the position of an innocent purchaser unless fraud or intent to avoid the Lien Law are alleged. (Lien Law, § 7; Servido'ne v. Hirsehmann, 268 App. Div. 347.) Order reversed, with $10 costs, and motion granted, with leave to plaintiff to replead within 20 da3rs after the entry and service of the order herein, if so advised. Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ., concur.