Matter of Froment

New York Court of Appeals

Matter of Froment

77 N.E. 9, 184 N.Y. 568, 22 Bedell 568, 1906 N.Y. LEXIS 1485

CourtNew York Court of Appeals

DecidedMarch 13, 1906

StatusPublished

Cited by2 cases

This text of 77 N.E. 9 (Matter of Froment) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Matter of Froment, 77 N.E. 9, 184 N.Y. 568, 22 Bedell 568, 1906 N.Y. LEXIS 1485 (N.Y. 1906).

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Opinion

Werner, J.

The learned Appellate Division not only reversed the order made at Special Term, but dismissed the petitioner’s proceedings instead of granting a new trial. This, we think, was error, which requires a modification of the order appealed from to the extent of directing that a new trial be had. The learned court below obviously based its decision upon the findings of the referee, to the effect that all but two of the twenty items of materials comprehended within the claim upon which the petitioners assert their right to a lien were barred by the period of limitation fixed by the statute, and that the two items referred to, which were delivered within the statutory period, consisted of materials which were not used in the construction of the vessel against which the petitioners claim their lien. We do not now decide whether the Appellate Division properly construed the statute under which the petitioners claim their lien, for the case depends, in part at least, upon oral evidence which may be changed, and that consideration alone demands the granting of a new trial. (Dixon v. James, 181 N. T. 129.) Neither do we decide whether the petitioners’ claim is based upon a single and entire contract for the delivery of materials at successive periods, as to which the time for acquiring a statutory lien may be computed from the date of the last delivery of materials, or whether each delivery was made under a separate contract, under each of which it was necessary to file a distinct claim for a lien in order to escape the time limitation prescribed by the statute. These questions and others that might be suggested may or may not arise upon another trial, land they cannot properly be decided now.

*570 The order of the Appellate Division should be modified so as to grant a new trial, with costs to abide the event, and as so modified affirmed, without costs of this appeal to either party.

Cullen, Oh. J., O’Brien, Haight, Yann and Hiscock, JJ., concur; Willard Bartlett, J., not sitting.

Ordered accordingly.

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Werner, J.

The learned Appellate Division not only reversed the order made at Special Term, but dismissed the petitioner’s proceedings instead of granting a new trial. This, we think, was error, which requires a modification of the order appealed from to the extent of directing that a new trial be had. The learned court below obviously based its decision upon the findings of the referee, to the effect that all but two of the twenty items of materials comprehended within the claim upon which the petitioners assert their right to a lien were barred by the period of limitation fixed by the statute, and that the two items referred to, which were delivered within the statutory period, consisted of materials which were not used in the construction of the vessel against which the petitioners claim their lien. We do not now decide whether the Appellate Division properly construed the statute under which the petitioners claim their lien, for the case depends, in part at least, upon oral evidence which may be changed, and that consideration alone demands the granting of a new trial. (Dixon v. James, 181 N. T. 129.) Neither do we decide whether the petitioners’ claim is based upon a single and entire contract for the delivery of materials at successive periods, as to which the time for acquiring a statutory lien may be computed from the date of the last delivery of materials, or whether each delivery was made under a separate contract, under each of which it was necessary to file a distinct claim for a lien in order to escape the time limitation prescribed by the statute. These questions and others that might be suggested may or may not arise upon another trial, land they cannot properly be decided now.

*570 The order of the Appellate Division should be modified so as to grant a new trial, with costs to abide the event, and as so modified affirmed, without costs of this appeal to either party.

Cullen, Oh. J., O’Brien, Haight, Yann and Hiscock, JJ., concur; Willard Bartlett, J., not sitting.

Ordered accordingly.

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Bluebook (online)

77 N.E. 9, 184 N.Y. 568, 22 Bedell 568, 1906 N.Y. LEXIS 1485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-froment-ny-1906.

Opinion

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