Majority
p. 8(23 Misc. Rep. 704.) MADDEN v. LENNON. (Supreme Court, Appellate Term. June 6, 1898.) Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.
Headnote
Mechanic’s Lien—Rights of Subcontractor.A subcontractor, in attempting to enforce his lien, has the burden of showing that there was something due to the principal contractor at the time of filing the lien, or that thereafter a sum became due which would be applicable to the payment of his debt to plaintiff.
Appeal from Eleventh district court.
Action by John Madden against Anna J. Lennon, impleaded with William F. Lennon. From a judgment dismissing the complaint with respect to Anna J. Lennon, she appeals.
Affirmed.
Earley & Prendergast, for appellant.
Jesse W. Ehrich, for respondent.
The burden of proof rested upon the plaintiff of showing that there was something due from the owner to the principal contractor at the time of filing the lien, or that thereafter a sum became due from her to such contractor, which would be applicable to the payment of his debt to the plaintiff. Lemieux v. English, 19 Misc. Rep. 545 , 43 N. Y. Supp. 1066 ; Keavey v. De Rago, 20 Misc. Rep. 105 , 45 N. Y. Supp. 77 ; Van Clief v. Van Vechten, 130 N. Y. 571 , 29 N. E. 1017 . He has failed to sustain this burden, and the judgment rendered in favor of the respondent Anna J. Lennon, the owner of the premises affected by the lien, must therefore be affirmed.
Judgment affirmed, with costs.
Cases cited
- Keavey v. De Rago 20 Misc. Rep. 105 p. 8
- Van Clief v. Van Vechten 130 N. Y. 571 p. 8