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Castelli v. Trahan

77 A.D. 472 Court N.Y. App. Div. English

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p. 472
Ippolisto Castelli, Respondent, v. Henry J. Trahan and Modestino Russo, Defendants, Impleaded with Domenico Amedeo and Others, Appellants.

Headnote

Foreclosure of a mechanic’s lien—when a personal judgment is proper.
A personal judgment cannot be granted in an action to foreclose a mechanic’s-lien unless the plaintiff succeeds in establishing a valid lien.
Appeal by the defendants, Domenico Amedeo and others, 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 23d day of December, 1901, upon the report of a referee.
Ernest P. Seel/mcm and Antonio Macleo, for the appellants.
Henry M. Heymcmn, for the respondent.

This action was brought to foreclose certain mechanics’ liens for work and labor performed by the plaintiff and his assignor. It was tried before a referee, and there was a conflict of evidence upon the issues presented by the pleadings, which the referee has resolved in favor of the plaintiff, judgment being entered in his behalf. We are of. opinion that the findings of fact are supported by the evidence, and concur in the conclusions of law, iñ so far as they relate to the personal claim of the plaintiff.

It is, however, established by authority that in the absence of a

p. 473
valid lien there can be no personal judgment in actions of this character. (Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451 , 458, and authority there cited; McDonald v. Mayor, 58 App. Div. 73 , 75, and authorities there cited), and as the referee hasfound as a fact that the claim of plaintiff’s assignor was not a valid lien, it follows that the personal judgment against the defendantscannot be supported in so far as it is founded upon the lien of Raffaele Giordano.

The judgment must be modified in accordance with this opinion,, and as so modified affirmed, without costs of this appeal to either party.

All concurred.

Judgment modified in accordance with opinion per curiam, and. as modified affirmed, without costs of this appeal to either party.

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