Opinion
October, 1933.
Present — Lazansky, P.J., Kapper, Hagarty, Carswell and Davis, JJ.
Present — Lazansky, P.J., Young, Scudder, Tompkins and Davis, JJ. Settle order on notice. [See ante, p. 766.]
Motion for reargument granted.
On reargument judgment modified so as to sustain plaintiff's lien to the extent of $2,239.43 and interest, the amount due plaintiff for labor performed and materials furnished at the time of the filing of his lien, and as so modified unanimously affirmed, with costs to appellant; the proceeds of the sale under the lien to be credited in the personal judgment. It is undisputed that the above amount was all that was due plaintiff at the time he filed his lien. The balance of his claim was for labor performed and materials furnished subsequently thereto. His lien is, therefore, valid only to the extent above indicated. ( Preiser v. Pape, 217 App. Div. 760, and Genesee Lumber Coal Co., Inc., v. Bonarrigo, 233 id. 455, and cases cited.) Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made in conformity herewith.