120 N.Y.S. 415 | N.Y. App. Div. | 1909
The evidence fairly sustained the judgment against the railroad company, and no error is found to its prejudice.
It is clear that the .practice pursued by the court with reference to the defendants Burhans & Black Company and Currier was erroneous. It could not receive evidence of their liens over the objection that it was not within the pleadings and then refuse to consider such evidence in deciding the case. This procedure is not warranted by law and must destroy a judgment based upon it. (Ewald v. Poates, 107 App. Div. 242; Robinson v. N. Y. Elevated R. R. Co., 175 N. Y. 219.)
The court, therefore, erroneously found that neither the Burhans & Black Company nor Currier was' entitled to relief. Upon the facts found the Burhans & Black Company had a valid lien which was superior to the plaintiff’s lien, and the defendant Currier had a valid lien which was subsequent to the liens of the Burhans & Black Company and the plaintiff and prior to the other lienors. The judgment upon the facts found should have so provided. The court having found all of the facts in their favor and having committed an error of law in not giving them the benefit thereof, we may order the judgment which should have been granted at the trial upon the facts found. (Sayre v. State, 123 N. Y. 291; Bryant v. Turner, No. 2, 126 App. Div. 598.)
It would be useless formality, however for us to direct judgmént upon the facts found if the court erred in receiving the evidence upon which such findings are based. It, therefore, becomes important to determine whéther the trial court committed error in receiving evidence of such liens over the objection that it was inadmissible under the pleadings. Section 3402 of the Code of Civil Procedure, which was in force at the time, required that all parties other than plaintiff having liens shall be made parties, defendant, and section 3403 provides that the court may adjust and determine the equities of all the parties and the order of priority of different liens and determine all the issues raised by any defense or counter
All concurred, except Sewell, J., dissenting.
Judgment modified as per opinion, and as so modified affirmed, with costs to the plaintiff against the railroad company, and with costs to Burhans & Black Company and Currier to be paid by the respondents.