A & E Plumbing, Inc. v. Budoff , 413 N.Y.S.2d 776 ( 1979 )

Herlihy, J. (dissenting).

Inaccuracy in amount of lien, if no exaggeration was intended, does not void such mechanic’s lien. Willfulness also must be shown (see Goodman v Del-Sa-Co Foods, 15 NY2d 191, 194; Yonkers Bldrs. Supply Co. v Luciano & Son, 269 NY 171, 176; Aeschlimann v Presbyterian Hosp., 165 NY 296, 304; E-J Elec. Installation Co. v Miller & Raved, 51 AD2d 264, 265).

The court that saw the witnesses and heard the testimony and evidence was in a much better situation to assess the credibility and the veracity of the witnesses and there is no fair basis in this record for overruling its decision. The court, on this record, was not required to find, as a matter of law or fact, that the plaintiffs made a willful exaggeration.

The judgment should be affirmed.

Mahoney, P. J., Sweeney and Staley, Jr., JJ., concur with Kane, J.; Herlihy, J., dissents and votes to affirm in an opinion.

Judgment modified, on the law and the facts, by deleting so much thereof as found a valid mechanic’s lien and directed foreclosure thereof, and by directing entry of judgment in the sum of $17,742 with appropriate interest against the defendants herein, and, as so modified, affirmed, without costs.