Reeve Service Corp. v. Raab

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

Opinion

—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.