| N.Y. App. Div. | Dec 2, 1902
This action was brought to foreclose certain mechanics’ liens for work and labor performed by the plaintiff and his assignor. It. was tried before a referee, and there was a conflict of evidence upon the issues presented by the pleadings, which the referee has resolved in favor of the plaintiff; judgment being entered in his behalf. We are of opinion that the findings of fact are supported by the evidence, and concur in the conclusions of law, in so far as they relate to the personal claim of the plaintiff. It is, however, established by authority that in the absence of a valid lien there can be no personal judgment in actions of this character (Dudley v. Congregation Third Order St. Francis, 138 N.Y. 451" date_filed="1893-06-06" court="NY" case_name="Dudley v. Congregation of the Third Order of St. Francis">138 N. Y. 451, 458, 34 N. E. 281, and authority there cited; McDonald v. City of New York, 58 App. Div. 73, 75, 68 N. Y. Supp. 462, and authorities there cited); and, as the referee has found as a fact that the claim of plaintiff’s assignor was not a valid lien, it follows that the personal judgment against the defendants cannot be supported in so far as it is founded upon the lien of Raffaele Giordano.
The judgment must be modified in accordance with this opinion, and, as so modified, affirmed, without costs of this appeal to either party.