Billson Housing Corp. v. Harrison

• Decision Date: 22 August 1960
• Citation: 205 N.Y.S.2d 387,26 Misc.2d 675
• Parties: BILLSON HOUSING CORP., Plaintiff, v. William HARRISON and Nancy Lee Harrison, Defendants.
• Court: New York Supreme Court

Page 387

205 N.Y.S.2d 387

26 Misc.2d 675

BILLSON HOUSING CORP., Plaintiff, v. William HARRISON and Nancy Lee Harrison, Defendants.

Supreme Court, Special Term, Suffolk County, Part I.

Aug. 22, 1960.

Alfred B. Leeds, Babylon, for plaintiff.

J. Douglas Davis, Islip, for defendants.

BERNARD S. MEYER, Justice.

Motion to dismiss the complaint pursuant to Rules of Civil Practice, Rules 106 and 107 and for the cancellation of a lis pendens granted to the extent of cancelling the lis pendens; otherwise denied. Plaintiff is correct in its contention that the motion under Rule 107 is unsupported by defendant's papers and that the Rule 106 motion, not being addressed to the separate causes of action, but simply to the complaint as a whole (and there being no request in the order to show cause for other and further relief) must be dismissed because the second and third causes of action are sufficient.

Plaintiff is incorrect, however, in concluding that the sufficiency of the first cause of action to sustain an action to impress a lien upon real property may not be considered on the motion to cancel the lis pendens. Gokey v. Massey, 278 App.Div. 630, 102 N.Y.S.2d 581. Unless the complaint states a cause of action affecting real property, the lis pendens must be cancelled, Marpret Construction Corporation v. Hargust Land Corporation, 214 App.Div. 792, 210 N.Y.S. 465; St. Regis Paper Co. v. Santa Clara Co., 62 App.Div. 538, 71 N.Y.S. 82. The first cause of action alleges defendants' ownership of real property, a contract by defendants with plaintiff whereby plaintiff agreed to erect a house on said property for $12,750, completion of the house and payment of $11,206, the fact that plaintiff's work, labor and materials improved defendants' property and enhanced its value, that defendants are about to sell the property, and that defendants will be unjustly enriched unless plaintiff is decreed to have an equitable lien.

An equitable lien may be decreed upon proof of the expenditure of money in the improvement of real property by a person in a confidential relationship to the owner, Petrukevich v. Maksimovich, 1 A.D.2d 786, 147 N.Y.S.2d 869; Marum v. Marum, 21 Misc.2d 474, 194 N.Y.S.2d 327, or proof of an intention that the premises would be held as security for the obligation, DiNiscia v. Olsey, 162 App.Div. 154, 147 N.Y.S. 198; Conkling v. First Nat. Bank of Olean, 286 App.Div. 537, 145 N.Y.S.2d 682; see Towner v. Berg, 5 A.D.2d 481, 172 N.Y.S.2d 258. In the instant case, no confidential relationship is alleged, nor is it alleged that plaintiff is entitled to a contractual lien. On the facts alleged in the complaint, plaintiff's only claim to a lien is that its work, labor and materials having gone into the premises, the intention that the premises stand as security must be implied. This, of course, is the basis of and reason for the mechanic's lien provisions of the Lien Law, § 1 et seq., and as the attorney for plaintiff revealed on oral argument, plaintiff was entitled to and filed for a mechanic's lien but lost its lien by failure to comply with the Lien Law. It is, however, well settled that at common law, mechanics' liens were not recognized on either the law or the equity side of the court. South Fork Canal Co. v. Gordon, 6 Wall. 561, 571, 18 L.Ed. 894; ...