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Castelli v. Trahan

78 N.Y.S. 950 Court N.Y. App. Div. Decision date 1902-12-02 English

Judges Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

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p. 950
CASTELLI v. TRAHAN et al.
(Supreme Court, Appellate Division, Second Department.
December 2, 1902.)

Headnote

1. Mechanic’s Lien — Foreclosure—Personal Judgment.
Where, in an action to foreclose a mechanic’s lien for work and labor, plaintiff fails to show a valid lien, he cannot on the same complaint, and without amendment, have a personal judgment for the debt.
¶ 1. See Mechanics’ Liens, vol. 34, Cent. Dig. § 628.
Appeal from special term.
Action by Ippolisto Castelli against Henry J. Trahan and others. Judgment for plaintiff, and defendants appeal.
Modified.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
p. 951
Ernest P. Seelman, for appellants.
Henry M. Heymann, for respondent.

This action was brought to foreclose certain mechanics’ liens for work and labor performed by the plaintiff and his assignor. It. was tried before a referee, and there was a conflict of evidence upon the issues presented by the pleadings, which the referee has resolved in favor of the plaintiff; judgment being entered in his behalf. We are of opinion that the findings of fact are supported by the evidence, and concur in the conclusions of law, in so far as they relate to the personal claim of the plaintiff. It is, however, established by authority that in the absence of a valid lien there can be no personal judgment in actions of this character (Dudley v. Congregation Third Order St. Francis, 138 N. Y. 451 , 458, 34 N. E. 281 , and authority there cited; McDonald v. City of New York, 58 App. Div. 73 , 75, 68 N. Y. Supp. 462 , and authorities there cited); and, as the referee has found as a fact that the claim of plaintiff’s assignor was not a valid lien, it follows that the personal judgment against the defendants cannot be supported in so far as it is founded upon the lien of Raffaele Giordano.

The judgment must be modified in accordance with this opinion, and, as so modified, affirmed, without costs of this appeal to either party.

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