McGuckin v. Coulter — 33 N.Y. Super. Ct. 328

Majority

p. 328

HENRY McGUCKIN, Plantiff and Appellant, v. JULIA A. COULTER, Defendant and Respondent.

Headnote

Mechanics’ Lien.—Power of General Term to restore. On reversing a special term order discharging a mechanics’ lien, and vacating an order continuing the lien, the general term may include in the order of reversal, an order requiring the county clerk to restore the lien and the record of the order continuing it.

p. 329

Before Barbour, Ch. J., Monell and Freedman, JJ.

The facts will be found in the preceding case of McGuckin v. Coulter.

The court, at special term, granted an order discharging a mechanics’ lien of record, and vacating an order, made pursuant to statute, continuing such lien. The general term, upon appeal, reversed the special term order. It now appears that the county clerk, pursuant to the special term order, discharged the lien of record; and we are asked to amend the general term order, which merely reverses the order appealed from, by ordering the clerk to restore the lien to the record, and also the order continuing such lien.

I have no doubt that this should be done. The court has the power to make restitution (Chamberlain v. Choles, 35 N. Y. 477 ), and the plaintiff should be put where he was before the special term deprived him of his lien.

The motion should be granted. The order of the general term should be amended so as to require the county clerk to restore the lien, and also, the record of the order continuing the same

Cases cited

Chamberlain v. Choles 35 N. Y. 477 N.Y. p. 329