Wright v. Roberts — 29 N.Y. St. Rep. 553

Majority

p. 553

Irving Wright, Resp’t, v. Harriet E. Roberts et al., App’lts. Sarah J. Hamill, Resp’t, v. Lewis Roberts et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

1. Mechanic's liens—Continuance on lien.

A formal order is not necessary to continue a lien already ripened into a judgment. The filing of a complaint is a sufficient notice of pendency of action for that purpose.

3. Same.

A summary motion to cancel a lien and restrain its enforcement is not authorized under the statute.

Appeal from orders denying motion to vacate mechanic’s liens and enjoin their enforcement

The liens were filed by sub-contractors in September and October, 1885, and judgment was recovered in April, 1886, directing a sale of the property to satisfy the liens. This judgment was affirmed by the general term ana the case is now pending in the court of appeals.

Gharks H. Phelps, for app’lts; J. S. Millard and L. T. Yale, for resp’ts.

The lien act of 1885 is, by § 25, declared to be a remedial act, and must be liberally construed to effectuate the object of the act. In this respect it differs from previous acts that courts have considered themselves bound to construe strictly.

It would not be a liberal rule that should require a formal order to continue a hen already ripened into a judgment And the filing of a complaint may well be held to be a notice of the pendency of an action. It is so at common law, and we are not aware that the effect of a common law lis pendens has been taken away by statute.

■ The act points out various ways by which a hen may be removed from the record, but the one pursued by the moving party here is not among them.

The loches of defendant affords another reason why the motion should be denied

Orders appealed from affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.