Protective Union v. Nixon

1 E.D. Smith 671

• Court: New York Court of Common Pleas
• Decided: February 15, 1853
• Status: Published

Opinion

By the Court. Ingraham, First J.

It is not necessary to decide whether the plaintiffs’ proceedings have been regular, because the defendant does not, in his order to show cause, specify any grounds of irregularity as required by the 25th rule of the supreme court.

The plaintiffs have taken judgment for more than is due them in this action. Where the proceeding is under the lien law, the plaintiffs can recover no more than they claimed when they filed the paper to create the lien. The subsequent notice is to enforce the lien so created. By the notice filed, the amount claimed was $139 89, and this, with interest, was the extent which the plaintiffs could recover.

If the plaintiffs give notice in five days that they remit the amount of the judgment above $139 89, and interest, then this motion is denied, without costs, and without prejudice to a renewal of it, upon the merits, on such further affidavits as the defendant may think fit, showing a defence to the plaintiffs’ claim. If the plaintiffs do not remit, the judgment is set aside with costs, $10, to abide event.

Ordered accordingly.