Kirschner v. Mahoney

96 N.Y.S. 195

Opinion

MacLEAN, J.

The plaintiff failing to prove, as was necessary, an indebtedness by the owner to the contractor (Keavey v. DeRago, 20 Misc. Rep. 105, 45 N. Y. Supp. 77), in his action to foreclose a mechanic’s lien, was not entitled to judgment therefor (Madden v. Lennon, 23 Misc. Rep. 704, 52 N. Y. Supp. 8), and, the evidence being vague as to who is his debtor for goods sold and delivered, a personal judgment may not by modification be rendered, under the provisions of section 3412 of the Code of Civil Procedure. The judgment must therefore be reversed, and a new trial ordered.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.