46 A.D. 256 | N.Y. App. Div. | 1899
The complaint was sufficient to state a, cause of action for the foreclosure of plaintiff’s lien. The objections, thereto are extremely technical, and, if it were necessary, we might regard the complaint as amended upon this appeal in accordance with the proof, for the purpose of supporting the judgment. The fact that the plaintiff furnished the material which is the subject of the lien to the contractor engaged in the construction of the house for the defendant Souther, is not the subject of' dispute, nor is the validity of the lien in anywise attacked. The real point in issue between the parties was as to whether the defendant had paid to the contractor the contract price for the construction of the building before the plaintiff filed his lien. We may assume, for present purposes, that the evidence was insufficient upon which to find that anything remained due and unpaid from the defendant Souther to the contractor at the time when the lien was filed, if the mortgage which was to be given is to be regarded as a payment. The court below has found that the , mortgage was given, not as payment of part of the contract price, but as security, and such finding has support in the evidence. While the contract is not set out in the pleadings, nor was it proved upon the trial, yet the agent of the defendant Souther who executed the same testified that the mortgage was given to secure the payment of the money; and this .finds further corroboration in the acts of the parties thereafter, for after the filing of the lien the defendant Souther paid to the assignee of the mortgage the amount of the same, and this was evidently in fulfillment of the. contract, as it was paid shortly after its completion, and there was talk at that time of settling up all claims and liens upon the property. If the mortgage was given as security for the payment of the contract price, the giving of the mortgage ill the first instance did not constitute a
By virtue of the provisions of the Lien Law (Laws of 1897, chap. 418), no lien is to be extended beyond a year after notice of the lien has been filed, unless an action is commenced to foreclose the lien and a notice of the pendency of such action is filed in the county clerk’s office, or the lien is extended by order of the court. It is to be observed that the notice of pendency is of the existence of the action. It would seem, therefore, that the complaint is not required to state the filing of a notice the purpose of which is to give notice that an action is pending. The notice is improper until the action is begun; and, if
All concurred.
Judgment reversed and_ new trial granted, unless the plaintiff within twenty days pay or discharge the mechanic’s lien of William Roles, in which case the judgment is affirmed, without costs.