Protective Union v. Nixon — 1 E.D. Smith 671

Majority

p. 671

The Protective Union of the City of New York v. William Nixon.

Headnote

In proceedings under the law for the better security of mechanics and others in the city of New York, passed in 1851, the plaintiffs’ recovery is limited to the amount of his claim, as stated in the notice filed under the sixth section of the statute, with interest and costs.

Special, Term,

February, 1853.

Before Ingraham, First J. ; all the members of the court concurring.

This was an action brought in this court, under the lien law of 1851, for materials furnished by the plaintiffs to a building owned by the defendant. The notice, filed under the sixth section, claimed $139 89, with interest. The usual proceedings were taken to join issue ; a complaint and answer were served; but the latter was returned by the plaintiffs’ attorney, for the want of a verification, and judgment was entered for the amount alleged to be due in the complaint, which exceeded by some twenty dollars the claim stated in the notice filed to create the lien.

The defendant then obtained an order to show cause why the judgment should not be set aside.

William Wordsworth, for the defendant.

p. 672

William M. Allen, for the plaintiffs.

It is not necessary to decide whether the plaintiffs’ proceedings have been regular, because the defendant does not, in his order to show cause, specify any grounds of irregularity as required by the 25th rule of the supreme court.

The plaintiffs have taken judgment for more than is due them in this action. Where the proceeding is under the lien law, the plaintiffs can recover no more than they claimed when they filed the paper to create the lien. The subsequent notice is to enforce the lien so created. By the notice filed, the amount claimed was $139 89, and this, with interest, was the extent which the plaintiffs could recover.

If the plaintiffs give notice in five days that they remit the amount of the judgment above $139 89, and interest, then this motion is denied, without costs, and without prejudice to a renewal of it, upon the merits, on such further affidavits as the defendant may think fit, showing a defence to the plaintiffs’ claim. If the plaintiffs do not remit, the judgment is set aside with costs, $10, to abide event.

Ordered accordingly.