Berger Manufacturing Co. v. City of New York

Platzek, J.

This action is brought to foreclose liens against the city of New York upon contracts for work and material supplied in the erection of a building for a municipal improvement. The facts in this case are substantially conceded. No actually material fact is controverted or disputed. A question of laiv as to which of the parties are entitled to the fund only is involved. The defendant Lewis F. Schoemaker & Co. claims that it is entitled to priority over all the other liens because its lien was first filed. It is contended by the other claimants, to the contrary,- that the lien of the Schoemaker company expired and became invalid by reason of its failure to commence an action to foreclose the lien within three months from the filing thereof or to secure an order extending the time so to do. The Schoemaker company lien was filed June 16, 1908, and was bonded June 22, 1908. No other steps were taken by this company to foreclose its lien within the statutory three months, nor was any order of the court made continuing the lien. Art. 1, § 11, Lien Law. It is urged by counsel for the Schoemaker company that where a lien for a municipal improvement has been discharged by the giving of an undertaking it is not necessary to commence an action to foreclose the lien within three months from the date upon which it is filed. I am persuaded upon an examination of the authorities, including Mertz v. Press, 99 App. Div. 443, cited and relied upon to sustain the validity of the Sehoemaker company lien, that its lien expired and became invalid for failure timely to commence an action to foreclose the same. Cloin v. Lippe, 121 App. Div. 466; Matter of 35th St. & 5th Ave. R. Co., 121 id. 626; Kelly v. Highland Const. Co., 133 id. 579. See also Milliken Bros., Inc. v. City of N. Y., 135 App. Div. 598. The form of decision and judgment submitted on behalf of plaintiff and the defendants other than the Schoemaker company substantially conforms to the facts and legal conclusions found and determined.

Judgment accordingly.