226 A.D. 674 | N.Y. App. Div. | 1929
Order granting respondent’s motion to vacate and cancel of record notice of mechanic’s lien reversed upon the law and the facts, ■with ten dollars costs and disbursements, and motion denied, "with ten dollars costs. The acceptance of the notes by the lienor, in the absence of an agreement to accept same in payment and cancellation of the original indebtedness, does not deprive appellant of the right to file the lien. The question as to whether the notes were given and accepted upon an agreement not to file a mechanic’s lien is one of fact which cannot be determined in this proceeding and can be determined only upon the trial of an action to foreclose the- lien. (Happy v. Mosher, 48 N. Y. 313; Mott v. Lansing, 57 id. 112, 115; Matter of Froment, 125 App. Div. 647; Phoenix Iron Co. v. “ Hopatcong” & “ Musconetcong,” 127 N, Y,
