Reeve Service Corp. v. Raab

—Order and judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: Plaintiff, a building contractor, sued the defendants for an alleged breach of a contract to construct a house. The court, after hearing the proof without a jury, found that plaintiff had abandoned the job without justification and dismissed the complaint. The record fully supports such determination. The court, however, erred in awarding the defendants $3,000 on their counterclaim pursuant to section 39-a of the Lien Law for willful exaggeration of plaintiff’s mechanic’s lien. Plaintiff’s action was to recover a debt, not to foreclose a mechanic’s lien. It is well settled that the "remedy afforded to lienees by section 39-a of the Lien Law is available only when the lienor seeks to enforce his lien.” (Finger v Roth Bros. Regal Rest. Supply Corp., 2 Mise 2d 944, 945; Joe Smith, Inc. v Otis-Charles Corp., 279 App Div 1 , affd 304 NY 684 .) (Appeal from order and judgment of Onondaga Supreme Court —construction contract.) Present—Moule, J. P., Cardamone, Simons, Hancock, Jr., and Schnepp, JJ.