191 A.D. 711 | N.Y. App. Div. | 1920
The record presented to the court upon this appeal is very unsatisfactory, but we must dispose of the case upon that record. It contains the complaint and the answers of the defendant Giblin and the defendant, respondent, Gillespie, another lienor. There is no answer of the defendant, appellant, Naughton. It is alleged in the complaint, and found by the trial judge, that the defendant Giblin is the record owner of the property, although in her answer she denies the allegation of the complaint that she was the owner. We are bound on this appeal by the finding so made. She was a woman to whom the defendant Naughton had transferred the title without the knowledge of the materialmen, lienors. Naughton represented himself to be the owner, made the contracts, supervised the work and, upon the trial, asserted that it was his money which constructed the buildings. The whereabouts of the defendant Giblin were unknown; plaintiff was obliged to serve the summons upon her by substituted service. Upon the trial the county judge directed that she be produced in court for examination; the order was not complied with or excuse given for her non-attendance, but no action was taken in reference thereto. She was, at most, an undisclosed principal as the court has in effect found, but the case comes to this court upon the plaintiff’s allegation that she is an owner of the property and the court has so found. We are, therefore, bound to consider her answer attacking the validity of plaintiff’s lien.
There were no exceptions filed by either of the defendants, appellants, to the conclusions of law made by the trial judge, and no requests to find were presented by either defendant. We, therefore, look to the record to see whether there is any evidence to sustain the findings made by the trial judge, and
We are unable, however, to sustain the conclusion of the learned county judge as to the validity of the plaintiff’s lien. The defendant Giblin tenders that issue in her answer. The evidence shows that the plaintiff’s lien was originally filed and docketed September 30, 1912. It, therefore, continued in force until September 30, 1913. But on August 30, 1913, one month prior to the expiration of plaintiff’s hen, he procured an order from the County Court continuing the lien for one year from the granting of the order. (Lien Law, § 17.)
Judgment of the County Court of Queens county modified by reversing the findings of fact and conclusions of law therein contained so far as they establish the validity of the mechanic’s lien filed by the plaintiff, and by directing in place thereof that the plaintiff recover a personal judgment against the defendants Joseph Naughton and Antonio Boniello for the amount found due under said lien, to wit, $310.65, with interest from the 30th day of September, 1912, amounting in all to $426.69, in addition to the personal judgment against said Naughton and Boniello directed by the judgment appealed from, making in all a personal judgment in favor of the plaintiff against said defendants for the sum of $563.69 — and as so modified the judgment is affirmed, with costs to defendant, respondent, Gillespie. This court makes the following additional finding of fact: “ That the contractor Boniello, the plaintiff and the defendant Gillespie did not know of the alleged ownership of the interest in the premises by defendant Giblin until after the filing of their respective notices of lien.” The findings of fact, conclusions of law
Present — Jenks, P. J., Mills, Rich, Blackmar and Kelly, JJ.
Judgment of the County Court of Queens county modified in accordance with opinion, and as so modified unanimously affirmed, with costs to defendant, respondent, Gillespie. Settle order on notice before Mr. Justice Kelly.
Since amd. by Laws of 1916, chap. 507.— [Rep.