In re Sperry

254 A.D. 819, 5 N.Y.S.2d 249, 1938 N.Y. App. Div. LEXIS 7763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1938
• Status: Published

Opinion

Order modified by providing that the lien be canceled unless the lienor-respondent shall, within ten days, serve upon the owners a properly itemized statement in accord with the memorandum, and as modified affirmed, without costs of this appeal to either party. Memorandum: Appellants challenge the correctness of two orders made at Special Term on March 11, 1938, one denying their application for an order canceling and setting aside a mechanic’s lien for failure of the lienor-respondent to furnish an itemized statement pursuant to section 38 of the Lien Law, and the other denying appellants’ motion — in an action brought to foreclose respondent’s lien — for a further bill of particulars. Examination of the several verified statements furnished by the lienor discloses that, when collectively considered, the information, therein furnished, fails to comply with the order which was granted on December 31, 1937, in the proceeding under section 38 of the Lien Law and is insufficient to meet the requirements of a bill of particulars in the foreclosure action. The items set forth in the verified statement of January 5, 1938, should be further itemized by specifying the items of skilled and unskilled labor, the number of hours thereof and rate per hour, and by specifying the various kinds of materials, and the quantity and cost of each. (See Cleary v. Ott, 149 N. Y. Supp. 893, not reported in the official series.) Such statement, if properly itemized, will also supply the further information to which appellants are entitled under their demand for a bill of particulars. The order in the proceeding under section 38 should be modified, without costs, by providing that the lien be canceled unless the lienor-respondent shall, within ten days after service of a copy of the order to be hereon entered, serve upon the owners a properly itemized statement as hereinabove indicated. The order denying appellants’ motion for a further bill of particulars should be reversed, with ten dollars costs and disbursements, and the motion should be granted directing that respondent, within ten days, serve a further bill of particulars which shall set forth (1) a detailed statement of the provisions of the oral contract alleged, in paragraph fifth of the complaint, to have been entered into between the parties, (2) a detailed statement which shall specify the items of labor performed by the respondent and the cost thereof, and (3) a detailed statement of the items of materials furnished by the respondent and the cost thereof. All concur. (The order denies a motion to cancel a mechanic’s lien.) Present —■ Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.