1 N.E.2d 965 | NY | 1936
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *461 The judgments should be modified by disallowing the liens of Hernandez, Inc., and of Thomas Johnston, and as so modified affirmed, with costs to the successful lienors who have filed briefs against the city of Yonkers.
Section
As to Ryan, Campbell, McVicar and Dextone liens, we think invalidation would be carrying technicality to an extreme. When they were made original parties defendant, it may be that their original liens had lapsed. Nevertheless, it cannot be said they were improperly joined. The plaintiff was not bound to determine the point at *464 his peril. The status of each of those defendants was made sufficiently firm by the filing of new notices after the action was begun. Being already in the action, it would have been futile to make application under section 62.
The other lien requires no discussion.
The judgments should be modified in accordance with this opinion and as so modified affirmed, with costs to the successful lienors who have filed briefs against the city of Yonkers.
CRANE, Ch. J., LEHMAN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur; O'BRIEN, J., taking no part.
Judgment accordingly.