2 E.D. Smith 583 | New York Court of Common Pleas | 1855
This action was brought to foreclose a lien, under the mechanics’ lien law, for work done on certain buildings belonging to the testator.
There are several questions raised in the case, in regard to the form of the proceeding, which it is unnecessary to discuss, as the case must be disposed of on more general grounds.
The action is against the executors of the owner. The lien
There may be cases where such a proceeding can be instituted against executors, such, for instance, as that of a devise by the testator of his real estate to his executors; but, without title to the property of the testator on which the lien exists, no such proceeding can be maintained against the executors of the deceased owner. In the present case the will is not proven, and there is no evidence to show that the executors have any interest in the land, by devise or otherwise. The plaintiff’s case against them was not, therefore, made out, and the complaint should have been dismissed.
There is also another objection to the plaintiff’s recovery. Larkin, the owner, died 14th July, 1854. The notice to create the lien was filed on 2d September, 1854, and was neither filed nor served upon the owner, at any time before his death. The lien law provides for filing the notice, and gives a lien to the extent of the right, title and interest of the owner at the time of filing the lien. Such lien can only be created by virtue of a contract made with such owner. If no lien has been created prior to the death of the owner, and the title has passed to another, whether by purchase, devise or otherwise, no lien can be acquired against such subsequent owner, by proceedings founded on claims arising under a contract with the deceased owner.
Judgment .reversed.