Reports of Cases Decided in the Court of Appeals of the State of New York (Volume 140) - Tapa blanda

This historic book may have numerous typos, missing text or index. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. 1894. Not illustrated. Excerpt: ... N. Y. Kep.] • Statement of ease. upon an order made February 2, 1892, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action for the foreclosure of a mechanic's lies. The facts, so far as material, are stated in the opinion. Samuel II. Fnncher for appellant. The plaintiff, as assignee or purchaser of the claim of Oliver & Ogden against Horace Hill, was not authorized by chapter 342, Laws of 1885, to file a lien against this property. (Rollins v. Cross, 45 N". Y. 766; Menagh v. Whitwell, 52 id. 146; Stanton v. Westover, 101 id. 265; Dimon v. Hazard, 32 id. 65; Saunders v. Reilly, 105 id. 12; Colgrove v. Tattman, 67 id. 95; Millard v. Thorn, 56 id. 402; Savage v. Putnam, 32 id. 501; Morss v. Gleason, 64 id. 204.) The contractor Hill, having failed to perform his contract, and it being conceded by plaintiff that all the contract price had been paid by the owner to the contractor except the last payment of $925, which did not become due until the complete performance of the contract, the plaintiff cannot recover in this action. (Murphy v. Buckman, 66 N. Y. 297; Gitten v. Hubbard, 2 Hilt. 304; Graff v. Cunningham, 109 N. Y. 369; Kinney v. Apgar, 93 id. 539; Crane v. Grime, 60 id. 127; Wheeler v. Scofield, 67 id. 311; Kelly v. Bloomingdale, 139 id. 343.) The notice of lien is defective and void in that it fails to comply with the requirements of chapter 342 of the Laws of 1885 in this, that it does not set forth the nature and amount of the labor and services performed or to be performed. (Laws of 1886, chap. 382.) The notice of lien is defective and void in that it fails to state correctly the nature and kind of materials furnished. ( Vogel v. Luitweiler, 52 Hun, 184.) The rights of subsequent lien holders are i...