Pacemaker Construction Corp. v. Heidi Construction Corp. , 208 N.Y.S.2d 1000 ( 1960 )

In a proceeding, pursuant to section 12-a of the Lien Law, to amend a notice of lien, the lienor petitioner appeals, as limited by its brief, from so much of two orders of the Supreme Court, Westchester County, dated, respectively, January 29, 1960 and July 7, 1959, as reduce to $14,587 the amount of the lien heretofore filed and as reduce to $16,000 the amount of the bond heretofore fixed by order of the court. Orders insofar as appealed from affirmed, with one bill of costs. The orders appealed from were made pursuant to section 12-a of the Lien Law. In the exercise of the judicial discretion accorded by the statute, the provisions in the orders complained of were apparently inserted as conditions to the granting of the relief sought by petitioner, so as to prevent prejudice to purchasers in good faith and to possible subsequent lienors or mortgagees of the property affected by the notice of lien. We see no abuse of discretion in the conditional direction that the amount claimed in the notice of lien be reduced for the purpose stated, so as to limit it to the amount which the petitioner, in its petition dated August 7, 1959, had conceded to be the balance “ allowable under its lien ”, and so as to exclude therefrom claims for labor and material which were coneededly not furnished for the improvement of the property described in the amended notice. Neither do'we find any prejudice to petitioner, nor abuse of discretion by the Special Term, by reason of a provision that the amount of the undertaking necessary to bond the lien should be reduced. The orders insofar as they so direct do not purport to amend the bond heretofore filed; and, as we construe the orders, they can have no effect except as the basis for an application by the owner (respondent), if so advised, to substitute a new undertaking in the reduced amount for that heretofore furnished. Nolan, P. J., Beldock, Kleinfeld and Pette, JJ., concur; Brennan, J., not voting.