Reeve Service Corp. v. Raab

Appellate Division of the Supreme Court of New York

Reeve Service Corp. v. Raab

64 A.D.2d 826, 407 N.Y.S.2d 314

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 13, 1978

DocketAppeal No. 2

StatusPublished

Cited by1 cases

This text of 64 A.D.2d 826 (Reeve Service Corp. v. Raab) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Reeve Service Corp. v. Raab, 64 A.D.2d 826, 407 N.Y.S.2d 314 (N.Y. Ct. App. 1978).

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—Order and judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: Plaintiff, a building contractor, sued the defendants for an alleged breach of a contract to construct a house. The court, after hearing the proof without a jury, found that plaintiff had abandoned the job without justification and dismissed the complaint. The record fully supports such determination. The court, however, erred in awarding the defendants $3,000 on their counterclaim pursuant to section 39-a of the Lien Law for willful exaggeration of plaintiff’s mechanic’s lien. Plaintiff’s action was to recover a debt, not to foreclose a mechanic’s lien. It is well settled that the "remedy afforded to lienees by section 39-a of the Lien Law is available only when the lienor seeks to enforce his lien.” (Finger v Roth Bros. Regal Rest. Supply Corp., 2 Mise 2d 944, 945; Joe Smith, Inc. v Otis-Charles Corp., 279 App Div 1, affd 304 NY 684.) (Appeal from order and judgment of Onondaga Supreme Court —construction contract.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Schnepp, JJ.

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—Order and judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: Plaintiff, a building contractor, sued the defendants for an alleged breach of a contract to construct a house. The court, after hearing the proof without a jury, found that plaintiff had abandoned the job without justification and dismissed the complaint. The record fully supports such determination. The court, however, erred in awarding the defendants $3,000 on their counterclaim pursuant to section 39-a of the Lien Law for willful exaggeration of plaintiff’s mechanic’s lien. Plaintiff’s action was to recover a debt, not to foreclose a mechanic’s lien. It is well settled that the "remedy afforded to lienees by section 39-a of the Lien Law is available only when the lienor seeks to enforce his lien.” (Finger v Roth Bros. Regal Rest. Supply Corp., 2 Mise 2d 944, 945; Joe Smith, Inc. v Otis-Charles Corp., 279 App Div 1, affd 304 NY 684.) (Appeal from order and judgment of Onondaga Supreme Court —construction contract.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Schnepp, JJ.

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64 A.D.2d 826, 407 N.Y.S.2d 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeve-service-corp-v-raab-nyappdiv-1978.

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