1 N.Y.S. 780 | New York Court of Common Pleas | 1888
The mechanic’s lien law that applies to this case is to be found in sections 1824, 1838, of the consolidation act. Lynch had a contract with the city of Hew York for doing certain public work for the city. The plaintiffs had a contract with Lynch, and were, with respect to the city, subcontractors. They filed liens the 26th and 29th of October, 1887, claiming Lynch was indebted to them. Lynch assigned to Bernard Mahon his claim against the city for moneys payable under his contract with the municipality. The plaintiffs, in January, 1888, began suit for the foreclosure of their liens. Their right of action was (1) against Lynch, and (2) against the city; they ■claiming, under the lien law, access to the money which the city owed to Lynch. Mahon was made a defendant, because he held an assignment, made by Lynch, of the-latter’s claim against the city, and it was necessary for the plaintiffs to procure an adjudication that their rights were paramount to that assignment. The city was adverse in interest to Lynch and Mahon, and Mahon was adverse in interest to Lynch, because it was for the advantage of the city to defeat or reduce the claim made by the contractor, and for the advantage of Mahon to maintain his right to the moneys which Lynch assigned to him. Of course, it may well be that the city actually conceded the validity of the claim made by Lynch, and that Lynch conceded that Mahon had all the rights that the assignment purported to convey; but, nevertheless, the parties were, in contemplation of law, adverse in interest, and not united in interest. The contest of the plaintiffs with Mahon could not arise until it had been shown that the city was actually indebted to Lynch, for if Lynch had no valid claim against the city, his assignment to Mahon amounted to nothing; Such being Mahon’s position, I think that the service of a summons upon him cannot be regarded as the commencement of the action against Lynch, or against the city. The plaintiffs’: claim was not against Mahon, but he was joined merely to remove an obstacle to their reaching their claim against Lynch and Lynch’s supposed debtor, the city. Mahon’s position is not unlike that of a judgment creditor of a mortgagor, who might be joined as a defendant in an