George Colon Company v. Hassenpflug

Liens —• action to foreclose mechanic's lien — defense that notice of lien was not filed within required time and failure to complete work.

Appeal from a judgment, entered August 2, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff upon new findings. This action was brought to foreclose a mechanic’s lien filed against premises owned by Sarah B. Smith, now deceased, situated at Merriam and University (formerly Aqueduct avenues), in the borough of The Bronx, the city of New York. The complaint alleged that on March 24, 1913, Sarah B. Smith entered into an oral contract with the defendant Michael J. Fitzgerald, wherein he was to excavate the aforesaid premises for the erection of a building thereon, and upon completing the excavation he was to replace the sidewalk and leave the same in as good a condition' as when he started; that he had performed on his part and that a balance of the contract price remained unpaid. The defense was that the notice of lien was not filed within the time required by statute and failure to complete work. (See Colon v. Smith, 226 N. Y, 101.)