Opinion
June 16, 1916.
Lincoln B. Haskin, for the appellant.
Henry L. Maxson, for the respondent American Metal Ceiling Company, Inc.
George B. Stoddart, for the respondent George E. Christ.
By reason of the several perplexing questions attention was diverted, in the final adjustment of priorities of liens, from the claim of the Nassau Lumber Company that its lien was for material only, and that the lien therefor by the statute (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 56) was preferred to that of the plaintiff, earlier in date. ( Herrmann Grace v. City of New York, 130 App. Div. 531; affd., 199 N.Y. 600; Jackson v. Egan, 200 id. 496.) The learned counsel for the plaintiff urges that the Nassau Lumber Company did not make it appear that no labor was added by it to the material to adapt it to the improvement, and that the decision in Pittsburgh Plate Glass Co. v. Vanderbilt (143 N.Y. Supp. 609) is applicable. There the lienor "supplied doors and other trim manufactured for this particular improvement in accordance with special designs." In the case at bar the lumber company claims a lien for materials only, which consisted of "lumber, mason material, doors and sash." There is nothing in the notice, or the terms used, to suggest labor by the materialman for the purposes of fashioning the material to the particular improvement. The lien of the Nassau Lumber Company has priority. As it prevails upon the appeal, it should have the usual costs.
JENKS, P.J., CARR, MILLS and RICH, JJ., concurred.
The Nassau Lumber Company has the first lien. Judgment of the County Court of Nassau county modified on reargument in accordance with opinion by THOMAS, J., with costs to the appellant. Order to be settled before Mr. Justice THOMAS.