| New York County Courts | Oct 18, 1910
Plaintiff entered by default a judgment foreclosing its lien for the sum of $2,000. Defendant Shelvin Contracting Company moved to open its default and be permitted to establish its lien and its priority. The judgment was allowed to stand and the sale proceed, the rights as between plaintiff and the Shelvin Contracting Company being reserved and referred.
The referee reported that the Shelvin Contracting Company had a valid lien for $860 entitled to priority over that of the plaintiff. The order of reference was made August 2, 1910. The reference continued to August 20, 1910. During the trial plaintiff conceded that the amount due and unpaid to the Shelvin Contracting Company on its mechanic’s lien was the sum of $860. Witness Shelvin testified to the same thing. In its proposed findings plaintiff requested the referee to find and the referee found:
“That said Shelvin Contracting Company actually did work for and furnished materials for said buildings of the amount of eight hundred and sixty ($860) dollars.”
_ The referee also made certain findings at the request of the plaintiff, which are not included in the formal report. Plaintiff contends that it is necessary for the purpose of appeal that the findings found at its request be included in the report. Such is not the law. See Brenner v. Man. Ry., 191 N.Y. 333" date_filed="1908-03-03" court="NY" case_name="Bremer v. Manhattan Railway Co.">191 N. Y. 333, 84 N. E. 59; Elterman v. Hyman, 192 N. Y. 113, 84 N. E. 937, 127 Am. St. Rep. 862. Plaintiff further contends that an inspection of the buildings made since the report of the referee shows that $860 is an excessive figure for the work and the material of the Shelvin Contracting Company, and that as to this item the matter should be re-referred. No excuse is offered as to why this discovery was not made before the close of the hearing. It is not new evidence. The evidence was completely available at the time of hearing. Due and orderly practice requires that this matter be not reopened. The question of law as to the priority of the liens is of great practical importance. As to that question this court agrees with and adopts the opinion of the referee as its opinion.
Motion to vacate denied. The report in all respects confirmed and the findings of fact contained in plaintiff’s proposed findings confirmed. Judgment entered accordingly.