Jones v. Moores — 51 N.Y. St. Rep. 544

Majority

p. 544

Howard S. Jones, Resp’t, v. Robert L. Moores et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Mechanic’s lien — Not waived by accepting note.

The acceptance of a note by a contractor or material man does not destroy his lien.

Appeal from judgment in favor of plaintiff.

Action to foreclose a mechanic’s lien.

George F. Alexander, for app’lts; Salter S. Clark, for resp’t.

The plaintiff agreed with the defendants to furnish embossed cut and ground glass to be set and finished in the defendants’ houses. By the terms of the agreement when the work and materials were properly set and finished the defendants were to give their promissory note for the same three months from the date thereof. On the 20th of January, 1891, the work was completed to the satisfaction of defendants, and was accepted by them. On the 12th of January, 1891, the defendants gave the plaintiff a note for $500 at three months from date, and on the 21st of January, 1891, they gave the plaintiff another note for $125, being for the balance" due on the contract. Both notes word protested. On the 17th day of April, 1891, the plaintiff filed a lien on the premises. The only question presented is whether the giving and acceptance of the notes by the terms of the contract destroyed the lien. It was held by the court of appeals in Happy v. Mosher, 48 N. Y., 313 , that the taking of notes of a third person did not affect the lien except to defer its enforcement. It was held by the same court in the case of Mott v. Lansing, 57 N. Y., 112 , that work done upon a vessel upon the personal credit

p. 545

of the owner does not affect the right to a lien. That a lienor might give credit provided the lien was filed within the statute time. Both these cases were approved in King v. Greenway, 71 N. Y., 413 . In this case the lien was filed within the ninety-days given by statute, and the' debt became due within that time.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.