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In re Burstein

68 N.Y.S. 742 Court N.Y. Sup. Ct. Decision date 1901-02-20 English

Delivered by McADAM, J.

Contents

Majority

p. 742
In re BURSTEIN et al.
(Supreme Court, Special Term, New York County.
February 20, 1901.)

Headnote

Mechanics’ Liens—Discharge—Second for Same Work—Cancellation.
Where a contractor filed a lien for labor and materials, which was discharged on the day it was filed, a second notice of lien, subsequently filed on the same day, for the identical labor and materials, for the same amount, against the same owners and their property, will be canceled, on application, as a paper improperly filed.
Application by Louis Burstein and another for cancellation of a mechanic’s lien after deposit to cancel similar lien.
Granted.
Weschler & Burstein, for petitioners.
A. B. Schleimer, for respondents.

It is undisputed that on February 14, 1901, the contractor filed in the clerk’s office a notice of lien against the owners and their real property, claiming $1,000 by reason of the furnishing of the identical labor and materials for which he had on the same day filed a prior notice of lien for the same amount against the same owners and their property, which lien had been discharged at the time of the filing of the second notice. The application is therefore not one to discharge a mechanic’s lien, but to cancel a paper which has been improperly filed. The contractor’s conduct finds no warrant in the statute, and the court requires no- statutory authority to prevent such an unwarranted use of its records. The contractor’s second notice will therefore be canceled, with $10 costs.