Mozarsky v. Whinston Bros. , 228 A.D. 642 ( 1929 )

— Order canceling notice of lien, and order denying motion for reargument, affirmed, without costs. We follow Kingston v. M. S. Construction Corporation (249 N. Y. 533), being of the opinion that in its material respects the cases are not distinguishable. In the Kingston ease, while the affiant’s name does not appear at the inception of the verification, it does immediately indicate that the person sworn was the claimant named and mentioned “ in the foregoing notice of lien.” The motion for a reargument was properly denied, as the time within which to file a valid notice of hen had expired. (See Tygart Valley Brewing Co. v. Vilter Mfg. Co., 184 Fed. Rep. 845.) Lazansky, P. J., Rich, Kapper and Carswell, JJ., concur; Scudder, J., dissents.