In re Cohen

209 A.D. 413 | N.Y. App. Div. | 1924

Jaycox, J.:

From an order canceling and discharging a mechanic’s lien, the lienor appeals. The learned judge at Special Term wrote an opinion from which it appears that the basis of the motion and the decision was that the lienor had previously filed another lien which, prior to the filing of the second hen, had been discharged under section 59 of the Lien Law for lack of prosecution. (See 122 Misc. Rep. 451.)

The following facts are undisputed: A hen was filed; it was discharged as above stated and within the statutory period this new hen was filed, and these are all the facts necessary for our consideration upon this appeal.

I find nothing in the statute which denies to a mechanic the right to file a second lien when the first hen has been discharged. That the lienor has this right, I think, has already been decided. (Clarke v. Heylman, 80 App. Div. 577.) In that case it was said: “ There is no provision of the Lien Law which prevents a person furnishing materials' or labor in the erection of a building upon real property from filing more than one hen upon such property. * * * I know of no provision of the Lien Law which would prevent the person filing the last hen from enforcing it and abandoning the hens filed during the performance of the contract. There is nothing in the statute which provides that successive liens may not be filed for the same work or that a notice of hen filed upon the completion of the contract is void because other notices of hens have been filed for a portion of the work done under the contract.” This case is cited with approval in Berger Mfg. Co. v. City of New York (206 N. Y. 24) upon the very point of the right to file a new hen “ when the prior one has been lost by delay in its enforcement.”

I think it is also equally clear that the court was without power to grant the motion. I find that this has also been decided, first, by this Appellate Division, and second, by Mr. Justice Benedict at Special Term. In the Appellate Division, speaking for the unanimous court, Mr. Justice Woodward said: “ 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 hen 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 [citing authorities]. 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.” (Matter of Bronitsky, 136 App. Div. 672. See, also, Matter of Ruderman, 179 N. Y. Supp. 452.)

The order should be reversed on the law, with costs, and the motion denied, with ten dollars costs.

Kelly, P. J., Rich, Manning and Young, JJ., concur.

Order reversed on the law, with costs, and motion denied, with ten dollars costs.