Reedy Elevator Co. v. Monok Co. — 171 A.D. 653

Majority

p. 653

Reedy Elevator Company, Appellant, v. The Monok Company and Felber Engineering Works, Defendants, Impleaded with Anna C. Farrell, Respondent.

Second Department,

February 11, 1916.

Headnote

Mechanic’s lien — unrecorded conveyance — when mechanic’s lien takes priority — presumption as to continued title of original owner — foreclosure.

A mechanic’s lien duly filed takes priority over a prior conveyance of the realty if the same was not recorded before the filing of the lien.

Hence, a lienor may consider the ownership of the original owner as continuing even though a grantee has taken possession under an unrecorded deed, and may name the original owner as defendant in a suit of foreclosure.

p. 654

Appeal by the plaintiff, Reedy Elevator Company, from so much of a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Kings on the 14th day of June, 1915, as dismissed the amended complaint, on the merits, as against the respondent, upon the decision of the court after a trial at the Kings County Special Term.

Harry Lesser, for the appellant.

George F. Alexander, for the respondent.

Plaintiff sued to foreclose a mechanic’s lien upon property in Brooklyn, for installing an electric freight elevator under its contract made September 28, 1912, with the Monok Company, then the owner. The elevator was put in on March 18, 1913. On June fifth, following, the Monok Company sold the premises to defendant Anna C. Farrell by conveyance duly executed and delivered, followed by the grantee’s taking possession, but without recording her deed. Meanwhile, on June 12, 1913, plaintiff filed its notice of hen in due form, in which it specified the Monok Company as owner, and as the one by whom plaintiff had been employed. Though defendant Farrell was a bona fide owner in possession, she failed to record her conveyance until July 16, 1913, over a month after plaintiff’s notice of lien.

Although the remedy by early Mechanics’ Lien Acts was so defective that the lienor took the risk of being defeated by an unrecorded conveyance (Quimby v. Sloan, 2 Abb. Pr. 93 , [1855]), because the title reached was only the interest of the contracting owner as it existed when the notice of lien was filed (Cox v. Broderick, 4 E. D. Smith, 721), later statutes have enabled the lienor to rely on the title as it stands on record when the lienor files his notice. (Laws of 1863, chap. 500, § 1; Laws of 1875, chap. 379, § 4, as amd. by Laws of 1879, chap. 509; Laws of 1885, chap. 342, § 5, as amd. by Laws of 1896, chap. 915; Gen. Laws, chap. 49 [Laws of 1897, chap. 418], § 13; now Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 13.) Even the validity of a conveyance on record is conditioned

p. 655

upon a proper acknowledgment so as to warrant recording the instrument. (Lemmer v. Morison, 89 Hun, 277 .) Such lien now has priority “over a conveyance, judgment or other claim against such property not recorded, docketed or filed at the time of filing the notice of such lien.” (Laws of 1909, chap. 38, § 13.) Hence, for the purpose of plaintiff’s lien, the apparent ownership of the Monok Company continued, and was a valid subject of lien on June twelfth, when its notice of lien was filed, notwithstanding the unrecorded conveyance to defendant Farrell.

The judgment of dismissal should, therefore, he reversed, with costs of this appeal. As other liens may be involved, the cause is remitted to the Special Term to adjust the equities under section 45 of the Lien Law, and to render judgment of foreclosure and sale.

Jenks, P. J., Thomas, Stapleton and Mills, JJ., concurred.

Judgment reversed, with costs of this appeal, and case remitted to the Special Term to adjust the equities under section 45 of the Lien Law, and to render judgment of foreclosure and sale.

Statutes and regulations cited

Lien Law p. 655