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Jacobs v. Feinstein

133 A.D. 416 Court Second Department, Decision date 1909-06-18 English

Delivered by Rich, J.:

Contents

Majority

p. 416
Lewis J. Jacobs, Appellant, v. James Feinstein and Others, Respondents.
Second Department,
June 18, 1909.

Headnote

.Lien — contract of conditional sale — Municipal Court — action to foreclose lien — money judgment — costs.
Where one delivered stoves to a contractor under contracts that they were to remain personal property until paid for, knowing that.they were to be used by such contractor in fulfilling a contract to install fixtures in houses belonging ■ to a third person, and the contracts were never filed and the owner paid the contractor without notice thereof, the vendor of the stoves, upon the contractor’s failure to- pay, cannot maintain an action to foreclose a lien upon them.
Where, in an action in the Municipal Court of the city of Mew York, the owner of the real estate and the contractor áre joined as defendants, the court has no power, under section 141 of the Municipal Court Act, to render .a money judgment against the contractor, unless it can render a judgment to foreclose the lien on the chattels.
Where the defendants appeared by different attorneys, who took part in the trial, and their answers were separate and separate motions were made by their .counsel to dismiss the complaint, costs should be allowed to each of them upon a judgment in their favor.
Appeal by the plaintiff, Lewis J. Jacobs, from a judgment of the Municipal Court of the city of New York in favor of the defendants, rendered on the 1.8th day of November, 1908, in an action brought to foreclose a lien upon chattels under the provisions of article 4 of the Municipal Court Act.
Charles L. Apfel, for the appellant.
Jacob L. Holtzmann. [Charles B. Law with him on the brief] and Thomas Sproull, for the respondents.

The defendant Morrison is a builder and the owner of several .vacant lots, upon which he purposed erecting houses. He contracted with his codefendants for the plumbing, including the furnishing and setting of a range in each of said buildings. The Feinsteins purchased of the plaintiff’s assignors twenty-six ranges under two separate contracts. Each of the two contracts under which the

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plaintiff’s assignors sold and delivered the ranges to the Feinsteins contained a clause providing that the ranges should remain personal property, and that the title thereto and ownership thereof should remain in the plaintiff’s assignors until they were fully paid for. They were delivered at the several houses in process of erection, arid attached to the water pipes and hot water heaters. They were never paid for. The plaintiff’s assignors knew when they contracted with the Feinsteins that thri ranges were to be used by the latter in performing their plumbing contract with Morrison, and- were to be placed in his houses. The contracts were not filed, and Morrison did not know of their existence until after he had performed his contract with the Feinsteins. Milicie v. Pearson ( 110 App. Div. 770 ) is decisive of the question presented by the judgment in favor of the defendant Morrison, and the judgment in his favor must be affirmed. (See, also, Andrews v. Powers, 66 App. Div. 216 ; Fitzgibbons Boiler Co. v. Manhasset Realty Corporation, 125 id. 764.)

The plaintiff contends that the court erred in rendering a judgment in favor of the defendants Feinstein, because of the provisions of section'141 of the Municipal Court Act authorizing a money judgment in actions to foreclose a lien on personal property, in which the summons is personally served upon a defendant who is liable for the amount of the lien, or for any part thereof. The Municipal Court is a court of limited jurisdiction, possessing no powers except such as are conferred by statute. The authority to render judgment in favor of a plaintiff in actions of this character is given by section 141, which is in article 4 of the act creating it, which provides that the final judgment, if in favor of the plaintiff, must specify the amount of the lien and direct a sale of the chattels to satisfy the same, by a marshal, and for the application by him of the proceeds, less his fees and expenses, to the payment of the amount of the lien, and that it must also provide for the payment of the surplus, if any, to the owner .of the chattels. ■ Then follows the clause upon which the appellant bases his contention: “If a defendant upon whom the summons is personally served, is liable for the amount of the lien, or for any. part thereof, it may also award payment accordingly.” This section vests no power in the court to render a money judgment, unless it can render a judgment

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to foreclose the lien on the chattel, and plaintiff’s contention in this respect cannot be sustained.

The only other question requiring consideration arises from the appellant’s contention that the Municipal Court allowed two separate bills of costs to be taxed, one in favor of each defendant. There is nothing in the record showing affirmatively that this was done. The return of the clerk shows that judgment was rendered for the defendants for sixty dollars costs. Assuming that this amount represents costs of thirty dollars to each defendant, I think that upon the case presented Such judgment was warranted. The interest of the defendant Morrison was not identical with that of his codefendants.. Had plaintiff succeeded,, he would have been entitled to a judgment against Morrison for the foreclosure of his lien, and against one or both of the other defendants for the value of the ranges. They appeared by different attorneys, who took part in the trial; their answers were separate, and'separate motions were made by their counsel to dismiss the complaint. The Municipal Court Act (§ 332) provides for costs to the prevailing party, if lie shall have appeared by an attorney at law, who files a verified pléading or a written notice of appearance. Section 3229 of the Code of Civil Procedure provides that a defendant is entitled to costs upon the rendition of final judgment, unless the plaintiff is entitled to costs, and a similar provision of the Code of Procedure (§ 305) received a construction entitling each of several defendants, whose interests were not identical,, who appeared by different attorneys and succeeded, to costs. (Delaware, Lack. & West. R. R. Co. v. Burkard, 40 Hun, 625 ; Olifiers v. Belmont, 15 Misc. Rep. 120 .)

The judgment of the Municipal Court must be affirmed, with costs to both defendants.

Woodward* Burr and Miller, JJ., concurred ; Hirsohberg, P. J., concurred in result.

Judgment of the Municipal Court affirmed, with costs to each respondent.

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