62 N.Y.S. 72 | N.Y. Sup. Ct. | 1899
On the 29th day of July, 1895, the defendant Charles W. Collins entered into a contract with the city of New York for regulating a portion of Jerome avenue. As considerable filling was required for the work, Collins made a contract with the plaintiff, bearing date December 2, 1895, under which the latter agreed to sell and deliver to him 40,000 cubic yards of filling and-as much more as might be required at the rate of 25 cents per yard. The material thus called for was supplied by the plaintiff, but a dispute has arisen with respect to the amount, and, consequently, as to the extent of Collins’ indebtedness to the plaintiff. On March 6, 18 97, the latter, claiming to be entitled to receive the sum of
Doubtless in the case of a lien against a public improvement filed under the Lien Law of 1897, the sections above referred to would authorize the court to render a personal judgment against defendants liable for the claim, but the lien in this case was filed under the provisions of the Consolidation Act, and this action was brought under the authority and subject to the limitations of such provisions. When the action was commenced, such a result as a personal judgment against any of the defendants was not possible, nor, where the lien was found to be invalid under the circumstances existing here, could any adjudication upon the merits of the claim be either necessary or proper; so that to hold that section 3412 of the Code, supra, became applicable to this case when the provisions of the Consolidation Act on the subject were repealed, would be virtually giving a retroactive effect to the section to the extent of injecting into a suit, which had been commenced long before it became applicable to such actions .in this city, another cause of action. I am satisfied that such a construction of the statute is quite inadmissible.
From what has been said it follows that there must be judgment for the defendants, dismissing the complaint, with costs to the defendants Collins and Moran.
Judgment for defendants, dismissing complaint, with costs.