Shaw v. Wilke

Full title: JAMES A. SHAW, Appellant, v . HENRY E. WILKE, Respondent

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

Date published: Mar 9, 1910

137 App. Div. 513 (N.Y. App. Div. 1910)

121 N.Y.S. 745

Opinion

March 9, 1910.

Williams Conlon [ E.E. Conlon of counsel], for the appellant.

Henry E. Wilke, for the respondent.

KELLOGG, J.:

The complaint in Justice's Court alleged the filing of a mechanic's lien for twenty-three dollars and twelve cents for dressing and repairing lumber and wood used in the construction of a building upon the premises described. It showed the rendering of the service, the value thereof, and demanded judgment for the amount. It also alleged the filing of a lien on the 12th day of August, 1907, within ninety days after the completion of the work, and demanded a foreclosure of the lien. The action was begun in November, 1908. The County Court reversed the judgment in favor of the plaintiff for the value of the services, upon the ground that the court had no jurisdiction to enter judgment without a foreclosure of the lien, and that the lien did not survive the expiration of one year, relying upon Mowbray v. Levy ( 85 App. Div. 68).

Section 3412 of the Code of Civil Procedure provides that if the lienor shall fail for any reason to establish a valid lien, he may recover judgment in an action brought to foreclose the lien for such sums as are due him or which he might recover in an action on contract.

It does not seem to be material, therefore, for what reason the plaintiff is defeated in his claim of having a lien; if he alleges and shows a common-law liability he is entitled to judgment thereon, no matter what the cause of the failure to establish the lien is. ( Abbott v. Easton, 195 N.Y. 372.)

It is true that the expiration of the year was a complete defense to the plaintiff's action to foreclose his lien, but he alleged and proved a cause of action on contract and the justice properly gave him judgment therefor.

The judgment of the County Court is, therefore, reversed, and the judgment of the Justice's Court affirmed, with costs to plaintiff in this court and in the County Court.

All concurred.

Judgment of the County Court reversed and judgment of the Justice's Court affirmed, with costs to the plaintiff in this court and in the County Court.