7 A.D.2d 622 | N.Y. App. Div. | 1958
Judgment modified on the law and facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Certain findings of fact disapproved and reversed and new findings and conclusions made. Memorandum: The trier of the facts in this case has in substance found that the notice of lien filed by plaintiff was valid. Based upon such a finding it has been adjudged that the lien attached to and is a valid lien upon a sum of money deposited in court pursuant to section 20 of the Lien Law. The validity of the notice of lien was not seriously litigated upon the trial. In this court, however, appellant makes a vigorous attack upon the document on the ground that the notice was one for work, labor and services whereas the cause of action set forth in the complaint and the proof at the trial related solely to the rental of equipment. One member of the court is of the opinion that the notice of lien is valid but a majority reach a contrary conclusion. In any event, the court is unanimously of the opinion that inasmuch as the prayer for relief in the complaint asks for “ such other and further relief as to the court may seem just and proper ” a personal judgment should be granted in favor of plaintiff pursuant to section 54 of the Lien Law. (Cf. Noce v. Kaufman, 2 N Y 2d 347; Hawkins v. Mapes-Reeve Constr. Co., 82 App. Div. 72, 77, affd. on other grounds 178 N. Y. 236.) All concur, Kimball, J., not participating. (Appeal from a judgment of Oneida Supreme Court for plaintiff in an action to foreclose a mechanic’s lien.) Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ.
