Reedy Elevator Co. v. Monok Co.

189 A.D. 458, 178 N.Y.S. 594, 1919 N.Y. App. Div. LEXIS 4694

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1919
• Status: Published

Opinion

Per Curiam:

After our reversal of the prior judgment the cause went back to adjust the equities (171 App. Div. 653). The opinion explained as the reason that “ other liens may be involved.” The Special Term was to adjust the equities under section 45 of the Lien Law. Such other lien was that of the Felber Engineering Works, which by its answer had made itself a necessary party (Lien Law, § 44) to any judgment in this action. The Felber Engineering Works had not appeared on that trial, but the record showed no proof of service of a notice of trial upon its attorney, so as to constitute it in legal default. (Hinkle v. Sullivan, 108 App. Div. 316.) Of course, the silence of that lienor for over four years now may raise an inference that its hen has been satisfied or waived.

Such direction to adjust the equities in our former decision did not reopen the amount and merits of plaintiff’s lien, which had been already determined.

The judgment appealed from is, therefore, affirmed, with costs.

Present — Jenks, P. J., Mills, Rich, Putnam and Jay-cox, JJ.

Judgment unanimously affirmed, with costs.