Opinion
276 A.D. 1015 95 N.Y.S.2d 392 MacARTHUR CONCRETE PILE CORP. v. KEW QUEENS CORP. et al. Supreme Court of New York, Second Department March 6, 1950
The MacArthur Concrete Pile Corporation brought action against Kew Queens Corp. and the Eljay Contracting Corporation to foreclose a mechanics' lien for work, labor and materials furnished, and the Eljay Contracting Corporation filed a counterclaim and cross action against the other defendant to foreclose a mechanics' lien. The Special Term, Di Giovanna, J., 196 Misc. 426, 92 N.Y.S.2d 200, denied motion of the Kew Queens Corp. to dismiss the cross complaint and the motion to examine the Eljay Contracting Corporation by its secretary, and granted in part the motion of the Eljay Contracting Company to examine the Kew Queens Corp. before trial, and the Kew Queens Corp. appealed. The Appellate Division, memorandum by the court, held that the cross complaint, on its face, disclosed that the Eljay Contracting Corp. had no cause of action to foreclose a mechanics' lien.
Order modified, and, as so modified, affirmed.
Daniel P. Hays, New York City, Sydney C. Winton, New York City, on brief, for defendant-appellant.
Ben Charles Asher, New York City, for defendant-respondent.
Before CARSWELL, Acting P. J., and JOHNSTON, ADEL, WENZEL and MacCRATE, JJ., concur.
MEMORANDUM
Action by a subcontractor to foreclose a mechanic's lien, wherein the defendant general contractor served a cross complaint on the defendant owner to foreclose its mechanic's lien, or in the alternative for a money judgment. The general contractor moved to examine the owner before trial and the owner made a cross motion under Rule 112 of the Rules of Civil Practice to dismiss the cross complaint seeking foreclosure of the lien on the ground that the contract between said parties, which was incorporated in the complaint, provided for a waiver of lien by the contractor. In addition, the owner sought to examine the general contractor before trial. The owner appeals from the order which granted the motion for its examination and denied the cross motion.
Order modified on the law by striking from the second ordering paragraph, items 8, 9 and 10, and the last three ordering paragraphs, and substituting therefor:
‘ Ordered that the cross motion of the defendant Kew Queens Corp. to dismiss the counterclaim and cross claim of Eljay Contracting Corporation to foreclose a mechanic's lien be and the same in hereby granted, and it is further. ‘ Ordered that the cross motion of the defendant Kew Queens Corp. to examine the defendant Eljay Contracting Corporation be and the same is hereby granted to the extent that the defendant Eljay Contracting Corporation, by its secretary Louis Licata, appear and submit to examination at Special Term, Part II, of the Supreme Court, Kings County, Municipal Building, Joralemon and Court Streets, Brooklyn, New York, as to the payments made by Kew Queens Corp. to Eljay Contracting Corporation, the dates and the items of service and materials covered thereby, and the agreements and requests therefor and the dates thereof, and it is further. ‘ Ordered that upon such examination before trial the defendant Eljay Contracting Corporation produce its books, records, work sheets and time records relating to the matters upon which it is to be examined herein, for use pursuant to Civil Practice Act, § 296; and it is further ‘ Ordered that the respective examinations are to proceed on five days' notice to be given by each of the parties hereto.’ As so modified, the order is affirmed, without costs.
The provision in the contracts, whereby respondent waived its lien, complies with the requirements of Lien Law, § 34. On its face, the complaint discloses that the Eljay Contracting Corporation has no cause of action to foreclose a mechanic's lien, and the motion to dismiss that cause of action should have been granted. Lowe v. Lowe, 265 N.Y. 197, 192 N.E. 291. Defendant Eljay Contracting Corporation is entitled to proceed on its claim for a personal judgment, Lien Law, § 54, and to examine the defendant-appellant, save as to the items concerned with the foreclosure of the mechanic's lien. In view of the terms of the contracts as to extra work and the contract prices and the absence of any statement in the complaint as to the manner in which orders for extra work were given, or of any allegation as to the consideration for the agreement to pay a price above the contract price for the work and material covered by the contract, the appellate should be permitted to examine the respondent before trial.