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Reedy Elevator Co. v. Monok Co.

189 A.D. 458 Court Second Department, Decision date 1919-11-14 English

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p. 458
Reedy Elevator Company, Respondent, v. The Monok Company and Felber Engineering Works, Defendants, Impleaded with Anna C. Farrell, Appellant.
Second Department,
November 14, 1919.

Headnote

Judgment — mechanic’s lien — case sent back for adjustment of other liens — prior judgment sustaining lien res adjudicata.
Where the court on an appeal from a judgment sustaining a mechanic’s lien sent the cause back for the adjustment of equities of other lienors, it did not reopen the question as to the amount and merits of the plaintiff’s lien, which had been determined.
Appeal by the defendant, Anna C. Farrell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1919, upon the decision of the court after a trial at the Kings County Special Term sustaining plaintiff’s mechanic’s lien for $250 with interest and costs, and awarding a personal judgment against the appellant.
George F. Alexander, for the appellant.
Harry Lesser, for the respondent.

After our reversal of the prior judgment the cause went back to adjust the equities ( 171 App. Div. 653 ). The opinion explained as the reason that “ other liens may be involved.” The Special Term was to adjust the equities under section 45 of the Lien Law. Such other lien was that of the Felber Engineering Works, which by its answer had made itself a necessary party (Lien Law, § 44) to any judgment in this action. The Felber Engineering Works had not appeared on that trial, but the record showed no proof of service of a notice of trial upon its attorney, so as to constitute it in legal default. (Hinkle v. Sullivan, 108 App. Div. 316 .) Of course, the silence of that lienor for over four years now may raise an inference that its hen has been satisfied or waived.

Such direction to adjust the equities in our former decision

p. 459
did not reopen the amount and merits of plaintiff’s lien, which had been already determined.

The judgment appealed from is, therefore, affirmed, with costs.

Present — Jenks, P. J., Mills, Rich, Putnam and Jay-cox, JJ.

Judgment unanimously affirmed, with costs.

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