Majority
p. 950(54 Misc. Rep. 297) O’BRIEN v. NEW YORK BUTCHERS’ DRESSED MEAT CO. et al. (Supreme Court, Special Term, New York County. May, 1907.)
Headnote
Mechanics’ Liens—Foreclosure—Reference.An action to foreclose a mechanic’s lien, is a suit in equity, and a trial on the main issue should be had before the court before a reference for examination of a long account.
Action by Michael J. O’Brien against the New York Butchers’ Dressed Meat Company and others to foreclose a mechanic’s lien.
Phillips & Samuels, for plaintiff.
Isaac Fromme, for the New York Butchers’ Dressed Meat Company. Creevey & Rogers, for the Vilter Mfg. Company.
It having been held by the court of last resort “that an action to foreclose a mechanic’s lien is a suit in equity” (Schillinger Fire Proof C. & A. Co. v. Arnott, 152 N. Y. 590 , 46 N. E. 956 ), this court may not direct the trial by a referee of the issues herein which will require the examination of a long account, and will not require the decision of difficult questions of law, for, as announced in Prince Line, Lim., v. Seager, 103 N. Y. S. 677 , 118 App. Div. 697 , "it is the rule in equitable actions that a trial of the main issue should first be had before the court.” But see Rowland v. Rowland, 141 N. Y. 485 , 488, 36 N. E. 504 .
Ordered accordingly.
Cases cited
- Prince Line, Ltd. v. John C. Seager Co. 103 N. Y. S. 677 p. 950
- Rowland v. Rowland 141 N. Y. 485 at 488, 36 p. 950