Freda v. Montauk Co.

26 Misc. 199, 55 N.Y.S. 748

• Court: City of New York Municipal Court
• Decided: January 15, 1899
• Status: Published

Opinion

O’Dwyer, J.

It is necessary for the defendant upon this motion to show that the claim of the third party has some reasonable foundation, and that the defendant will incur a hazard by paying. That they claim the same thing. Bassett v. Leslie, 123 N. Y. 396; Stevenson v. N. Y. L. Ins. Co., 10 App. Div. 233; Baltimore & O. R. R. Co. v. Arthur) 90 N. Y. 234.

■ Defendarit’b 'affidavit states" that the action is for a balance dué for- -use-'of horsfes' and" teams/- and -fór-services -rendered -in conneotion with work done on the defendant’s property at Montáuk Pointy fn Suffolk county. It'"states that Sirignano claims thát he cared "for and fed the horses, 'and that this balance now siied-for is really ‘due him. • ' ' ’ -

‘' ■ The plaintiff and Sirignano áre not claiming the same money.' Defendant is a debtor to the plaintiff for work done on its property, 'and'" the plaintiff owes Sirignano fot caring for and feeding hors'es.' The facts'as set forth do riot establish ia lien.-oh "the" rb.on.ey at common law, and he has no mechanic’s lien under the statute.

The order appealed from should be reversed, with costs, and the motion denied, without costs. •’•S' " . "" ■ '.....

McCarthy and Olcott, JJ., concur.

Order reversed, with costs, motion denied, without costs.