Holley v. Van Dolsen

55 How. Pr. 333

• Court: New York Supreme Court
• Decided: March 15, 1878
• Status: Published

Opinion

Vast Vobst, J.

I think the action of the plaintiff is well brought. It affords a proper and convenient means of testing and disposing of the interests involved, and the various claims interposed as liens upon the plaintiff’s property.

The defendants, Van Dolsen, Amott and Cochran, acquired no liens upon the plaintiff’s land, in pursuance or by virtue of them claims filed. There was nothing due Da Cunha under his contract with the plaintiff at the time of filing the claims of the defendants; and his abandonment of the work, and .allowing the same to be completed by the plaintiff with his own means, left nothing remaining in Da Cunha’s favor to which the liens could attach so as to affect either land or buildings, the latter having been constructed with the plaintiff’s money.

The land belonged to the plaintiff, and the interest of Da Cunha therein, at best, was equitable only, to be enforced by him, in the event that he fulfilled his part of the contract. This he failed to do.

Da Cunha was not the agent of the plaintiff; he was struggling to acquire rights and property in himself. In that he failed completely.

It was proper to make these defendants parties to this pro-ceeding. They claimed an interest adverse to the plaintiff’s. 'This appears by the pleadings.

It is a rule in equity, that all persons should be made parties, whose presence is necessary to á complete judgment, with respect to the interests involved, as disclosed by the pleadings (Green agt. Millbank, 3 Abb. N. C., 155).

The clear and able opinion of Bobutsoh, J., in Burbridge agt. Morcy (54 Sow., 446), which I follow, is adverse to the claims of these defendants.

There should be judgment for the plaintiff for a sale of the premises, but as to the defendants, Yan Dolsen, Arnott and Cochrane, the plaintiff is not entitled to costs

Q