127 N.E. 253 | NY | 1920
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *361
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *362
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *363 "No assignment of a contract for the performance of labor or the furnishing of materials for the improvement of real property or of the money or any part thereof due or to become due therefor, * * * shall be valid, unless the contract * * * or a statement containing the substance thereof and such assignment or a copy of each * * * be filed within ten days after the date of such assignment of contract, or such assignment of money, * * * in the office of the county clerk of the county wherein the real property improved or to be improved is situated, * * * and no such assignment * * * shall have any validity until the same shall have been so filed. * * *." (Mechanics' Lien Law [Consolidated Laws, chap. 33], sec. 15.) *367
The duplicate original assignment by the John Peirce Company to the plaintiff was made and filed many months before any of the liens were filed. The appellants insist that the filing of said assignment was not a compliance with the statute as quoted. Such assignment to the plaintiff contains the date of the contract, the names of the parties thereto and the specific location where the building is to be erected. It shows that the contract provides for the erection of the building complete and that the assignment to the plaintiff is of all moneys due or to grow due thereon. The substance of the contract between the railroad company and the John Peirce Company so far as material under the Lien Law to any subcontractor, laborer or materialman, is stated in such assignment. The identity of the contract and its purpose were unmistakable. The defendants were thereby given warning that the entire amount to be paid to the John Peirce Company under the contract had been made payable to the plaintiff herein.
There is no question now between the parties as to any substantial fact affecting lienors in or relating to said contract not shown in the assignment. The filing of such assignment is sufficient to satisfy the purpose and intent of the legislature as expressed in section
Our conclusion that the filing of said assignment was a compliance with the provisions of section
The only other question requiring our consideration in this opinion relates to that part of the judgment which directs the payment to the appellant McClintic-Marshall Company on its said lien of the balance due *368 from the railroad company on said contract after paying the plaintiff and one other the amounts directed to be paid to them respectively as provided by the judgment.
The appellants Baker, Smith Company and Pietrowski Konop Company urge that the judgment directing such payment to the appellant McClintic-Marshall Company cannot be sustained because this action is not "to enforce another lien" and the said McClintic-Marshall Company failed to obtain an order within one year from the filing of its notice of lien or at any other time from a court of record or judge or justice thereof continuing such lien and that more than one year expired after the filing of said lien before the granting of judgment in this action.
It is provided by section
It is further provided by section
"2. By failure to begin an action to foreclose such lien or to secure an order continuing it, within one year from the time of filing the notice of lien, unless an action be begun within the same period to foreclose a mortgage or another mechanic's lien upon the same property or any part thereof and a notice of pendency of such action is filed according to law."
This is not an action to foreclose a mortgage and this court has decided that it is not an action to "enforce a lien" within the meaning of the Lien Law. (Philbrick Brother v. FlorioCo-operative Association,
We are of the opinion, however, that the McClintic-Marshall Company by appearing in this action and interposing an answer in which it alleges its lien on the real property described in the complaint as a defense and as a counterclaim and for the purpose of the foreclosure of its said lien and therein alleges all the facts necessary as in an original action for the foreclosure thereof, and demands affirmative judgment for the foreclosure of its lien, and it having filed a lis pendens also as in an original action to foreclose its lien and having served a copy of its said answer upon all the parties to the action more than twenty days before the trial, should be deemed to have commenced an action to foreclose such lien within the meaning of the Lien Law. (Mellin v. Athens Hotel Co.,
The provisions of section
The affirmative relief asked for by the McClintic-Marshall Company concerns the same general subject-matter as did the relief asked for by the plaintiff and in such case where the parties necessary for the determination of the questions thereby presented are before the court the new affirmative issues may be retained and determined to avoid a multiplicity of actions, even if the plaintiff's complaint is dismissed. (Coogan v.McCarren,
An affirmance of the judgment of the Appellate Division both as to the plaintiff and the defendant McClintic-Marshall Company, makes it unnecessary for us to consider the many other questions presented on this appeal affecting other parties thereto.
The judgment should be affirmed, with costs to the plaintiff against appellants and with costs to McClintic-Marshall Company against Otis Elevator Company, Baker, Smith Company and Pietrowski Konop Company.
HISCOCK, Ch. J., COLLIN, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Judgment affirmed.
