Opinion
November 14, 1919.
George F. Alexander, for the appellant.
Harry Lesser, for the respondent.
Present — JENKS, P.J., MILLS, RICH, PUTNAM and JAYCOX, JJ.
After our reversal of the prior judgment the cause went back to adjust the equities ( 171 App. Div. 653). The opinion explained as the reason that "other liens may be involved." The Special Term was to adjust the equities under section 45 of the Lien Law. Such other lien was that of the Felber Engineering Works, which by its answer had made itself a necessary party (Lien Law, § 44) to any judgment in this action. The Felber Engineering Works had not appeared on that trial, but the record showed no proof of service of a notice of trial upon its attorney, so as to constitute it in legal default. ( Hinkle v. Sullivan, 108 App. Div. 316.) Of course, the silence of that lienor for over four years now may raise an inference that its lien has been satisfied or waived.
Such direction to adjust the equities in our former decision did not reopen the amount and merits of plaintiff's lien, which had been already determined.
The judgment appealed from is, therefore, affirmed, with costs.
Judgment unanimously affirmed, with costs.