Mulligan v. Vreeland — 34 N.Y.S. 990

Majority

p. 990

(88 Hun, 183.)

MULLIGAN et al. v. VREELAND et al.

(Supreme Court, General Term, Second Department.

June 14, 1895.)

Headnote

Mechanics’ Liens—Action to Foreclose—Bringing in New Parties.

In an action, by persons who had performed labor on a building for the contractor, to foreclose mechanics’ liens, the owner’s answer alleged that on a certain date the contractor assigned to one C., in payment for materials furnished and used in the building, all money due on or to become due on the second payment under the contract, and that thereafter the contractor abandoned the work, Held that, C. not being a necessary party to the determination of the claims of plaintiffs, it was error to make an order permitting plaintiffs to make him a defendant, and to have the trial opened for determination of the issue to be raised by the amended complaint. Pratt, J., dissenting. >

Appeal from special term, Westchester county.

Action by Peter Mulligan and others against Luther C. Vreeland and others. From an order allowing plaintiffs to make certain other persons defendants, defendant Vreeland appeals.

Reversed.'

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

A. L. Liverman, for appellant.

H. C. Griffin, for respondents.

This action was brought to foreclose a large number of mechanics’ liens upon the appellant’s property. There are 11 plaintiffs, each one of whom has filed a separate lien, and all of whom performed labor for one Roake, who was the contractor with the appellant for the erection of a dwelling house. The action was commenced in February, 1894. The appellant answered the complaint, and, among other things, alleged that on the 9th day of May, 1893, said contractor, by an instrument in writing, duly assigned to Claughey, Nichols & Co., in payment for material furnished and used in the construction of the dwelling, all moneys due and to grow due upon the second payment due under said contract, and that thereafter said contractor abandoned his contract, and failed and refused to complete the same. The date of said assignment was prior to the filing of all liens filed by the several plaintiffs with the exception of one. Thereafter, and on June 24, 1894, the action was referred, and the trial proceeded before the referee until February 11, 1895, when it was finally submitted to him for Ms decision, and on the trial said Claughey was sworn as a witness on behalf of the appellant. The order appealed from was granted upon the plaintiffs’ motion and against the objection of the appellant, and permits the plaintiffs to make said Claughey, Nichols & Co. defendants, and directs the submission to the referee to be set aside, and the trial reopened, and the issue raised or to be raised by the amended complaint to be determined in the action. The referee has made affidavit that he can render a complete determination of the controversy without the presence of any other parties than those now before the court, and it is apparent from the foregoing statement that Claughey, Nichols & Co. are not necessary parties to the determination of the claims asserted by the plaintiffs. Such being the fact, the order is unnecessary, and the trial should not be delayed.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

DTKMAN, J., concurs. PRATT, J., dissents.