BROCKHURST COMPANY, INC. v. CITY OF YONKERS, 270 N.Y. 459 (1936)

1 N.E.2d 965

W.A. BROCKHURST COMPANY, INC., Respondent, v. THE CITY OF YONKERS et al., Appellants, and THOMAS McVICAR et al., Respondents, Impleaded with Another.

Court of Appeals of the State of New York.Argued March 9, 1936
Decided April 14, 1936

Appeal from the Supreme Court, Appellate Division, Second Department.

Page 460

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

Page 461

Leonard G. McAneny, Corporation Counsel (John J. Broderick
of counsel), for appellants.

Francis J. Duffy for plaintiff, respondent.

William R. Hogan for Clinton N. Hernandez, Inc., and Thomas Johnston, defendants, respondents.

Herman D. Furman for Joseph C. Ryan Sons, Inc., defendant, respondent.

Page 462

Robert T. Crane, Jr., for the Dextone Company, defendant, respondent.

Edward A. Fay for Thomas McVicar, defendant, respondent.

John Ewen and Clifford S. Bostwick for American Asphalt Tile Corporation, defendant, respondent.

Page 463

J.G. Fink for Fred L. Hewes, Inc., et al., defendants, respondents.

I.J. Beaudrias for Yonkers Builders’ Supply Company, defendant, respondent.

Maurice B. Rich for Oscar Ottoson Co., Inc., et al., defendants, respondents.

Walter B.J. Mitchell for Edward Campbell, defendant, respondent.

Per Curiam.

The judgments should be modified by disallowing the liens of Hernandez, Inc., and of Thomas Johnston, and as so modified affirmed, with costs to the successful lienors who have filed briefs against the city of Yonkers.

Section 62 of the Lien Law (Cons. Laws, ch. 33, as amd. by L. 1929, ch. 515) applies in terms only to a “lienor.” When Hernandez and Johnston came into the pending action as parties defendant, they were not lienors, nor were they lienors at any subsequent point of time. We find no distinction between liens filed before and liens filed after the commencement of an action so far as the application of the Lien Law, section 21, subdivision 2, is concerned. Some degree of diligence is still exacted from a party claiming the benefits of the Lien Law. He cannot rely wholly upon the solicitude of the courts to protect laborers and materialmen.

As to Ryan, Campbell, McVicar and Dextone liens, we think invalidation would be carrying technicality to an extreme. When they were made original parties defendant, it may be that their original liens had lapsed. Nevertheless, it cannot be said they were improperly joined. The plaintiff was not bound to determine the point at

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his peril. The status of each of those defendants was made sufficiently firm by the filing of new notices after the action was begun. Being already in the action, it would have been futile to make application under section 62.

The other lien requires no discussion.

The judgments should be modified in accordance with this opinion and as so modified affirmed, with costs to the successful lienors who have filed briefs against the city of Yonkers.

CRANE, Ch. J., LEHMAN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur; O’BRIEN, J., taking no part.

Judgment accordingly.