Hyperlawhypertext legal database North Side Hoisting Co. v. Wendover Bronx Co. 148 N.Y.S. 260

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North Side Hoisting Co. v. Wendover Bronx Co.

148 N.Y.S. 260 Court Argued June term, 1914, before SEABURY, BIJUR, and PAGE, JJ. Decision date 1914-06-18 English

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NORTH SIDE HOISTING CO., Inc., v. WENDOVER BRONX CO. et al.
(Supreme Court, Appellate Term, First Department.
June 18, 1914.)

Headnote

Mechanics’ Liens (§ 227[1] )—Notice—Verification.
An action to enforce a mechanic’s lien, which had been bonded by a surety company, would be dismissed as to the surety, where the notice of lien was not verified.
[Ed. Note.-—For other cases, see Mechanics’ Liens, Cent.. Dig. § 410; Dec. Dig. § 227.*]
Appeal from Municipal Court, Borough of the Bronx, Second District.
Action by the North Side Hoisting Company, Incorporated, against the Wendover Bronx Company and others. Judgment for plaintiff, and defendants appeal.
Modified and affirmed.
Argued June term, 1914, before SEABURY, BIJUR, and PAGE, JJ.
Paul Englander, of New York City, for appellants.
William A. Todd, of New York City, for respondent.

This action was brought to enforce a mechanics’ lien, which had been bonded. As the notice of lien is not verified, the

p. 261
complaint must be dismissed as to the surety, the United States Fidelity & Guaranty Company.

In the absence of proof that at the time of the filing of the notice any sum was due the contractor, under whom plaintiff claims, the only recovery possible is on the agreement of the defendants Wendover Bronx Company and Abraham Silverson “to pay the hoisting bill of not over $250.”

The judgment will therefore be modified, by reducing the same to $250, with appropriate costs in the court below, and dismissing the complaint as against the United States Fidelity & Guaranty Company, and, as so modified, affirmed, without costs of this appeal.