Opinion
October 8, 1951.
Appeal by the lienor from an order which granted an application to vacate and cancel a mechanic's lien and an undertaking furnished in connection therewith, and to discharge the surety thereunder, for failure to commence an action to foreclose the lien. Order reversed on the law, with $10 costs and disbursements, and the application denied, without costs and without prejudice to the making of a new application for the same relief on proper notice. The notice served by respondent failed to comply substantially with the requirements of section 59 Lien of the Lien Law. It failed to require the lienor to commence an action to enforce the lien, within a time specified in the notice, not less than thirty days from the time of service of the notice and to require the lienor to show cause at Special Term at a time and place specified therein, why the notice of lien should not be vacated. ( Matter of Drake Constr. Corp. [ Kenn Equipment Co.], 274 App. Div. 809.) Carswell, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.