184 N.Y. 568 | NY | 1906
The learned Appellate Division not only reversed the order made at Special Term, but dismissed the petitioner's proceedings instead of granting a new trial. This, we think, was error, which requires a modification of the order appealed from to the extent of directing that a new trial be had. The learned court below obviously based its decision upon the findings of the referee, to the effect that all but two of the twenty items of materials comprehended within the claim upon which the petitioners assert their right to a lien were barred by the period of limitation fixed by the statute, and that the two items referred to, which were delivered within the statutory period, consisted of materials which were not used in the construction of the vessel against which the petitioners claim their lien. We do not now decide whether the Appellate Division properly construed the statute under which the petitioners claim their lien, for the case depends, in part at least, upon oral evidence which may be changed, and that consideration alone demands the granting of a new trial. (Dixon v. James,
The order of the Appellate Division should be modified so as to grant a new trial, with costs to abide the event, and as so modified affirmed, without costs of this appeal to either party.
CULLEN, Ch. J., O'BRIEN, HAIGHT, VANN and HISCOCK, JJ., concur; WILLARD BARTLETT, J., not sitting.
Ordered accordingly.
