From Casetext: Smarter Legal Research

Di Menna v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Mar 7, 1913
155 App. Div. 501 (N.Y. App. Div. 1913)

Opinion

March 7, 1913.

Arnold Lichtig, for the appellant.

George E. Miner, for the respondent.


Action to foreclose a mechanic's municipal lien. The complaint, in addition to seeking a foreclosure of the lien, asked, in case of a deficiency, that the plaintiff have a personal judgment against the respondent. The answer of the respondent denied the validity of the lien, the amount due, and set up a counterclaim for which judgment was demanded in the sum of $11,671.41 for damages caused by plaintiff's alleged failure to complete his contract. Plaintiff replied to the counterclaim and denied its material allegations. After issue had been joined, and before the cause was noticed for trial, the plaintiff moved to settle the issues for trial by a jury. The motion was denied and he appeals from the order.

The plaintiff was entitled to a trial by jury if he so desired. (Code Civ. Proc. § 3412, as re-enacted by Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 54.) Any doubt which theretofore existed as to such right was settled by this court in Hawkins v. Mapes-Reeve Construction Co. ( 82 App. Div. 72; affd., 178 N.Y. 236). If the lien should fail, but he should otherwise establish the cause of action alleged, he would be entitled to a personal judgment. The practice to be followed in obtaining a trial by jury was pointed out in the Hawkins case. The rule there laid down was followed in the present case. (See, also, Steuerwald v. Gill, 85 App. Div. 605; Schwartz v. Klar, 144 id. 37.)

Plaintiff was not only entitled to have a jury trial as to whether he was entitled to a personal judgment in case his lien should fail, but also upon the issue raised by the reply to the counterclaim.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Issues to be framed on settlement of order. Order to be settled on notice.


Summaries of

Di Menna v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Mar 7, 1913
155 App. Div. 501 (N.Y. App. Div. 1913)
Case details for

Di Menna v. City of New York

Case Details

Full title:MICHAEL DI MENNA, Appellant, v . THE CITY OF NEW YORK and Others…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 7, 1913

Citations

155 App. Div. 501 (N.Y. App. Div. 1913)
140 N.Y.S. 680

Citing Cases

Di Menna v. Cooper & Evans Co.

Upon these pleadings the plaintiff moved that issues be stated for trial by jury. The Special Term denied the…