In re Bronitsky

121 N.Y.S. 422 | N.Y. App. Div. | 1910

Woodward, J.:

Harry Annisli, a laborer, under the provisions of the Lien Law, filed a notice of lien in the office of the clerk of Kings county .on the 1st day of April, 1909, against one Bn bin, as owner, and against Joseph Bronitsky, as contractor, and affecting certain premises on Van Sicklen Place, borough of Brooklyn. Bronitsky, as contractor, instituted a proceeding for the cancellation of this notice by serving moving papers upon the lienor, the sole ground of such motion being that an ordinary action had been brought against him in the Municipal Court on the day that the lien was filed, and that such action had been determined in favor of Bronitsky, it being claimed that this action was for the identical services involved in the lien. On the motion coming on for argument the learned court at Special Term granted the same and appeal comes to this court.

There is no question as to the regularity of the notice of lien ; it seems to be assumed that the lienor had conformed to all of the conditions necessary to the fixing of his lien, and section 4 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38) provides that such “lien shall extend to "the owner’s right, title or interest in the real property and improvements existing at the time of filing the notice of lien.” There is no suggestion that Bn bin, the owner of the premises, was party to the Municipal Court action, and he. was not a "party to the motion to cancel the notice of -lien, and the mere fact that Annisli failed to establish a claim against Bronitsky in an action in the Municipal-Court does not necessarily show that he has not some rights under his lien as against the owner of the premises. But aside from this the statute which creates the lien provides how it may be discharged. By section 19 (as amd. by Laws of 1909, chap. 240, § 53, and Laws of 1909, chap. 427) it is provided that a “ lien other than a lien for labor performed or materials furnished for a public improvement specified in this article may be discharged as follows : * * * 3. By order of the court- vacating or canceling such lien of record, for neglect of the lienor to prosecute the same, granted pursuant. to section fifty-nine of this .chapter.” Section 59 provides': “ Before such order shall be granted a notice shall be served upon the lienor, either personally or by leaving it at his last known place of residence, with a person of suitable age, with directions to deliver it to the lienor. Such notice shall require the lienor to commence an action to enforce the lien, within a time specified in the notice, not less than thirty days from the time of service, or show cause at a Special Term of a court of record, * * * why the notice of lien filed should not- be vacated and canceled of record. Proof of such service and that the lienor has not commenced the action to foreclose such lien, as directed in the notice, shall! be made by affidavit, at the time of applying for such order.” It is not claimed that any action was takén in accord with the provisions above quoted ; the motion was made and granted solely upon the ground that in an action in the Municipal Court,- as is claimed for the same cause of action, the'defendant had a.judgment. But this is not a ground for canceling the notice of lien as provided by the statute, and when an affirmative statute, introductive of a new law, directs-a thing to be done in a certain manner, that thing may not, even though there are no negative words, be done in any other manner. (26 Am. & Eng. Ency. of Law [2d ed.], 529, and authorities cited in note 11; Raleigh & Gaston R. R. Co. v. Reid, 13 Wall. 269 ; Dudley v. Mayhew, 3 N. Y. 9, 16, and authorities there cited.) The Lien Law comes within the description; it provides a new right, and it prescribes the . manner in which the right may be extinguished and the records cleared, and there is no other way in which -this may be done unless under circumstances which might induce a court of equity to exercise its peculiar powers.

The order appealed from should be reversed, with costs.

LIibsohbeeg, P. J., Thomas, Rich and Cabe, JJ\, concurred. ■

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.