11 N.E.2d 339 | NY | 1937
The application of section
In this action to foreclose a first mortgage by plaintiff Foxson against premises owned by defendant Elmus Building Corporation, a surplus remained. The respondents are lienors and the appellant Kneher is the holder *32 of a second mortgage. All the lienors respondent, except Union Tile Supply Corporation, furnished material or performed labor on the mortgaged premises prior to August 19, 1935, and on that date each possessed a claim on account of the improvement of the real property. On July 24, 1935, appellant Kneher and Elmus Building Corporation, the owner of the mortgaged premises, entered into a contract whereby appellant agreed to provide all the materials and perform all the work for the installation of the plumbing and heating. This contract includes a provision in the nature of a conditional sale whereby the parties agree that the entire apparatus shall remain personal property and that title shall remain in appellant Kneher until these chattels shall be fully paid for in cash. Appellant, not content with the security afforded by the agreement of July 24, 1935, obtained a mortgage dated August 19, 1935, and recorded August 20, 1935, as further security. The first item of labor performed and material furnished by appellant was October 1, 1935. Although other lienors supplied material and performed labor prior to the execution of the agreement of July 24, 1935, and the mortgage of August 19, 1935, no notice of lien was filed by any of them earlier than December 21, 1935.
Section
The order should be affirmed, with costs.
CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Order affirmed. *34