Hall v. Pettigrove

17 N.Y. Sup. Ct. 609

• Court: New York Supreme Court
• Decided: May 15, 1877
• Status: Published

Opinion

DykMAN, J.: •

Tbis is an appeal from a judgment entered upon tbe report of a referee, in an action to foreclose a mechanic’s ben. Tbe facts of tbe case are undisputed. , They are, that tbe defendant Pettigrove was in possession of tbe premises under a contract of purchase, and made a contract with tbe plaintiff to repair tbe building thereon for $3,286, and gave tbe plaintiff a mortgage upon certain other land to secure tbe amount. After tbe work was done, tbe plaintiff filed tbe necessary notice to effect bis lien, and then foreclosed bis mortgage, and reabzed from it $1,025, which be deducted from tbe contract-price for tbe repairs.

In tbis action, tbe defendant claims that tbe mortgage must be regarded as payment, or, at all events, a security of a higher nature than tbe original contract debt, and must be held to extinguish it.

It appears also in tbis case that there was a judgment entered against tbe defendant, Pettigrove, in tbe foreclosure suit, for deficiency for $2,678.86, and be now claims that as tbis is a ben upon tbe premises for tbe full amount due on tbe contract, and as tbe plaintiff has elected to take tbis personal judgment for tbe deficiency, tbe ben must be held to be extinguished.

This last position assumes that the judgment is a lien on this land, wbicb is not true, as tbe defendant bas not tbe title.

Tbe judgment in tbis action to foreclose tbe mecbanic’s lien gives more power and greater rights than a simple money judgment, and we think be is entitled to pursue all tbe remedies be bas until be realizes bis claim.

Judgment affirmed, witb costs.

Present — DyikmáN and Pbatt, JJ. BaeNAed, P. J., not sitting.