Hoag v. Hillemeyer

1 N.Y. St. Rep. 549

Opinion

Barnard, P. J.

The motion to dismiss the action was properly denied. The plaintiff seeks to establish and foreclose a hen, under chapter 402, Laws of 1854, and the amendments thereto. It is provided by the act, as it now stands, as follows: “ Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of the claimant in the proceedings; but if within such year proceedings are commenced under this act to enforce or foreclose such lien then such hen shall continue until judgment is rendered therein and one year thereafter. Such hen shall also continue during the pendency of an appeal and for one year after the determination thereof.”

The claimant obtained a judgment, which was appealed from and reversed, with a direction for a new trial, costs to abide event.

This determination upon the appeal was made over a year ago June, and the case has not been yet reheard. The section- saves the proceedings until a judgment is rendered. None has yet been rendered. A faulty judgment was obtained, and that was set aside. The case is still one where “proceedings are commenced,” and the hen continued “until judgment is rendered;” that is, until a final judgment is rendered.

The appeal proceedings have no relevancy, except to prolong the period between the commencement of the proceedings and judgment therein.

The order should be affirmed, with costs and disbursements.

Cullen J.. concurs; Dykman, J., not sitting.