Wexler v. Schiff

149 Misc. 834, 268 N.Y.S. 143, 1933 N.Y. Misc. LEXIS 1755

Opinions

Per Curiam.

As to the sums received by the owner under the modified building loan agreement of July 28, 1932, to complete the improvement the $2,500 payment by defendant in behalf of the owner for an assignment to the owner of the existing second mortgage of $49,700, was made prior to the “ initial advance ” under the modified loan agreement (Lien Law, § 2), and the failure to include that item as a cost of improvement or otherwise under the modified contract entitles the plaintiff, a lienor improving the property subsequent to the modified agreement, to recover from the defendant as trustee (Lien Law, § 36) the amount of his lien.

Judgment and order affirmed, with ten dollars costs.

Levy and Callahan, JJ., concur.