Belfer v. Ludlow

Headnote

Mechanics’ Lien.

Plaintiff contracted to do the glazing in eight houses, which work was performed and a mechanic’s lien filed. Prior to the filing of the lien all the houses had been sold except three, on one of which a mortgage had

been given. On foreclosure of such mortgage plaintiff was made a party defendant, but withdrew his answer on its being stipulated that the foreclosure should not affect his lien. The property .sold for less than the mortgage, and the assignee of the mortgage also took the other two houses. In an action to foreclose the lien, plaintiff recovered for the amount of glazing done on these three houses. Held, that the judgment was right.

Appeal from a judgment entered on the decision of Justice Pratt The action was brought to foreclose a mechanic’s lien. The plaintiff contracted with the defendant Ludlow and one Holt to do the glazing in eight houses on the southerly side of Bush-wick avenue between Wierfield street and Halsey street in the city of Brooklyn for the sum of $875. The glazing in the two corner houses was worth $150 each, and in the six inner houses was worth eighty-five dollars each. The lien covered all the eight houses.

The plaintiff was paid $150 when the work was finished, but made no special application of the payment On the 16th day of May, 1888, the plaintiff filed a notice of mechanic’s lien with the clerk of Kings county. Prior to the filing of the lien all the houses had been sold and conveyed to bona fide purchasers except two of the inner houses and the house on the southeasterly corner of Wierfield street and Bushwick avenue. A mortgage given on May 7, 1888, to secure $2,000 and assigned to the defendant Byan was foreclosed by Byan on the Wierfield street house and the plaintiff was made defendant in the foreclosure action.

His answer therein was withdrawn on a stipulation being given that the judgment therein should not be res adjudicata against him in an action to foreclose his lien. The property was sold for less than the amount of the mortgage to Byan, who also took deeds of the other two pieces of property.

Plaintiff recovered judgment against defendant Ludlow for the balance due on his contract and for a foreclosure and sale of the three houses for the glazing done upon them, with interest, amounting to $314.20.