In re Schmidt , 43 N.Y.S.2d 465 ( 1943 )

Golden, J.

This is an application pursuant to section 59 of the Lien Law to require the Yonkers Lumber Corporation, Inc., to commence suit on its lien.

The affidavit of the acting treasurer of the lienor states, in opposition, that the only person in the corporation with any knowledge of the said lien or the services rendered in connection therewith is the president, who is also the majority stockholder; that he was inducted into the armed forces of the United States on January 28, 1943, and is at present located in a camp at Virginia, attending Officers’ Candidate School; and that inasmuch as he is not available and will not be available for some time the company is in no position to commence the action.

The court is of the opinion that the facts presented do not justify an outright denial of the motion. No doubt the company kept books and records and sufficient information can be acquired from the president, by mail or telephone, to enable the lienor at least to commence the action. As for the trial the lienor will not be remediless. It may either apply to have the action placed upon the Military Suspense Calendar (Rules of Appellate Division, Second Department, Special Rule Two, adopted May 26, 1941), or procure the deposition of its president. Accordingly the motion will be granted unless the action is commenced on or before September 1, 1943. Submit order.