Mulligan v. Vreeland — 69 N.Y. St. Rep. 51

Majority

p. 51

Peter Mulligan et al., Resp’ts, v. Luther C. Vreeland, Impleaded, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed June 14, 1895.)

Headnote

Parties—Mechanic's lies'.

A person, to whom, the contractor has assigned a payment to become due under the contract between the owner and contractor, is not a necessary party to an action by a laborer for the,, contractor to foreclose a mechanic’s lien.

Appeal from an order, allowing plaintiffs to make certain other persons defendants.

A. L. Liverman, for app’lt; H. C. Griffin, for resp’ts.

This action was brought to foreclose a large number of mechanic’s liens upon the appellant’s property. There are eleven plaintiffs, each one of whom has filed a separate lien, and all of whom performed labor for one Boake, who was the contractor with the appellant for the erection of a dwelling house. The action was commenced in February, 1894. The appellant answered the complaint, and among other things, alleged that on the 9th day of May, 1893, said contractor, by an instrument in writing, duly assigned to Claughey, Nichols & Co., in payment for material furnished and used in the construction of the dwelling, all moneys due and to grow due upon the second payment due under said contract, and that thereafter said contractor abandoned his contract, and failed and refused to complete the same. The date of said assignment was prior to the filing of all liens filed by the several plaintiffs with the exception of one. Thereafter, and on J une 24, 1894, the action was referred, and the trial proceeded before the referee until February 11, 1895, when it was finally submitted to him for his decision, and on the trial said Claughey was" sworn osa witness on behalf of the appellant. The order appealed from was granted upon the plaintiff’s motion and against the objection of the appellant, and permits the plaintiffs to make said Claughey, Nichols & Go. defendants, and directs the submission to the referee to be set aside, and the trial re-opened, and the

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issue raised or to be raised by the amended complaint to be determined in the action. The referee has made affidavit that he can render a complete determination of the controversy without the presence of any other parties than those now before the court, and it is apparent from the foregoing statement that Claughey, Nichols & Co. are not necessary parties to the determination of the claims asserted by the plaintiffs. Such being the fact, the order is unnecessary, and the trial should not be delayed.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

Dykman, J., concurs. Pratt, J., dissents.