Hyperlawhypertext legal database McAllister v. Case 7 N.Y.S. 600

← Cases

McAllister v. Case

7 N.Y.S. 600 Court N.Y.C.P. Decision date 1889-12-02 English

Delivered by Daly, J.

Contents

Majority

p. 600
McAllister v. Case et al.
(Common Pleas of New York City and County, General Term.
December 2, 1889.)

Headnote

Appealable Orders.
An appeal will be granted to the court of appeals from a decision of the general term of the common pleas that a person who has filed a mechanic’s lien under Laws N. Y. 1885, c. 348, § 6, and is made a party defendant to a foreclosure suit by another lienholder, need not file a lis pendens in order to continue his lien, as the act is general and the question may be controverted.
On application for leave to appeal to the court of appeals.
For opinion on the merits, see 5 S". Y. Supp. 918.
Argued before Larremore, C. J., and Daly and Van Hoesen, JJ.
John J. Hahn, Jr., for appellant. George A. Strong and Frederick M. Littlefield, for respondents.

The question in this case is whether a person who has filed a mechanic's lien, and is made a party defendant to an action brought by another lienor to foreclose, must file a notice of pendency of action in order to continue his lien. Chapter 342, Laws 1885, § 6. Our general term has held that he need not, ( 5 N. Y. Supp. 918 ,) and we are requested to permit an appeal to the court of appeals. As the act is general, and there may be a difference of opinion in the state on the question, I am in favor of facilitating its settlement by the court of last resort. All concur.