Opinion
July 28, 1959
In an action to foreclose a purchase-money mortgage, the appeal is by a mechanic's lienor from an order granting a motion to strike out its answer and awarding summary judgment to respondent. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, there is an issue of fact as to whether the materials were delivered by appellant "with the consent or at the request of" respondent (see Lien Law, § 3). And, if appellant establishes its contention that respondent induced delivery of the materials, respondent would be estopped from asserting that its mortgage is prior and superior to appellant's lien ( Ash v. Honig, 62 F.2d 793, cert. denied sub nom. Suffern Nat Bank Trust Co. v. Ash, 288 U.S. 614). Wenzel, Acting P.J., Beldock, Murphy and Kleinfeld, JJ., concur; Ughetta, J., dissents and votes to affirm (cf. Bedford Lake Park Corp. v. Twelve Linden Corp., 8 A.D.2d 818).