Opinion
December 27, 1961
In an action by a subcontractor (plaintiff, Baldwin Kitchen Cabinet Corp.) to foreclose a mechanic's lien filed by it on a remodeled home, the general contractor (defendant, A B Home Improvement Corp.) appeals from an order of the Supreme Court, Nassau County, dated January 12, 1961, which, inter alia, directed: (1) that upon the payment by the owner (defendant Artz) into court of the amount of a judgment entered in an action in New York County, in favor of the general contractor and against the owner, the said mechanic's lien sought to be foreclosed in this action shall be cancelled; and (2) that upon such payment the judgment in favor of the general contractor in the New York County action shall be discharged and cancelled. Order modified by striking out the last decretal paragraph which directs the cancellation of the judgment entered in New York County. As so modified, order affirmed, with $10 costs and disbursements to the general contractor, defendant A B Home Improvement Corp. The said last provision of the order, which directs the cancellation of the New York County judgment, is not authorized by the provisions of section 530 of the Civil Practice Act or section 20 Lien of the Lien Law; nor do we find any authority, statutory or otherwise, which sanctions the procedure adopted or the order made. If, on the facts presented, the owner is entitled to any relief with respect to said judgment, he should seek it in the action in New York County, and not in any collateral action or proceeding (see 1 Freeman, Judgments [5th ed.], § 305; Crouse v. McVickar, 207 N.Y. 213, 217-218; Knickerbocker Trust Co. v. Oneonta, Cooperstown Richfield Springs Ry. Co., 201 N.Y. 379, 384). Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.