115 N.Y.S. 1148 | N.Y. App. Div. | 1909
The affidavits submitted on the present motion leave it somewhat doubtful whether or not the appellant Morton is entitled to enforce his lien as against the plaintiffs. The necessary findings to determine this question were not incorporated in the decision. Although, as between plaintiffs and the defendant Parker, we entertain no doubt as to the correctness of the conclusions arrived at by the court below, it cannot be finally determined what judgment should be entered until it is ascertained whether the appellant Morton is entitled, in order to protect his lien, t¿ enter a judgment in favor of the defendant Parker. It follows that, notwithstanding the correctness of the decision upon the principal question in the case, the judgment as entered must be reversed and a new trial granted, without costs in this court. Present — Ingraham, McLaughlin, Laughlin, Clarke and Scott. Jj. Judgment reversed and new trial granted, without costs in this court. Settle order on notice.
