Hyperlawhypertext legal database Smith v. Cantrell 41 N.Y. Super. Ct. 466

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Smith v. Cantrell

41 N.Y. Super. Ct. 466 9 Jones & S. 466 Court N.Y. Super. Ct. Decision date 1876-11-20 English

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p. 466
CHARLES G. SMITH, Plaintiff and Appellant, v. MARY A. CANTRELL, Defendant and Respondent.
Before Sedgwick and Speir, JJ.
Decided, November 20, 1876.

Headnote

MECHANICS’ LIEN, DISCHARGE OF.
Bond, filing of,—under section 18, act of 1875, cha/p. 379, what liens cannot he discharged thereby.
Liens on which proceedings were commenced before July 1, 1875, cannot be.
Appeal from order giving defendant leave to file a bond, for the purpose of discharging a mechanic’s lien, by virtue of section 18 of act of May 17, 1875.
Jefferson M. Levy, for appellant.
Henry H. Morange, for respondent.

By the affidavit in the papers on appeal, this proceeding to foreclose a mechanic’s lien was begun in the month of June, 1875. The act of May 17, 1875,—which provides for the discharge of a mechanic’s lien upon a bond being filled,—expressly enacts that its provisions shall not affect any proceedings taken before July 1, 1875. It is probable that this was not pointed out to the learned judge below, as it was only orally stated before the court on appeal, and is not upon the brief of appellant’s counsel. Its effect clearly is to preserve the mechanic’s lien in this case.

It is also suggested that the proceeding was in fact taken upon July 7, 1875. If this be so, it would be necessary to re-open the motion below, for in the

p. 467
present affidavits it is stated that the action was begun in June, 1875.

The order appealed from should be reversed, with ten dollars costs and disbursements to be taxed.