Madden v. Lennon

52 N.Y.S. 8, 23 Misc. 704

Opinion

PEE OUBIAM.

The burden of proof rested upon the plaintiff of showing that there was something due from the owner to the principal contractor at the time of filing the lien, or that thereafter a sum became due from her to such contractor, which would be applicable to the payment of his debt to the plaintiff. Lemieux v. English, 19 Misc. Rep. 545, 43 N. Y. Supp. 1066; Keavey v. De Rago, 20 Misc. Rep. 105, 45 N. Y. Supp. 77; Van Clief v. Van Vechten, 130 N. Y. 571, 29 N. E. 1017. He has failed to sustain this burden, and the judgment rendered in favor of the respondent Anna J. Lennon, the owner of the premises affected by the lien, must therefore be affirmed.

Judgment affirmed, with costs.