Bradwood Realty, Inc., Application of
| Decision Date | 07 April 1963 |
| Parties | Application of BRADWOOD REALTY, INC., a New York Corporation with offices at 1299 Union Road, West Seneca, New York, Petitioners, for an Order Summarily Cancelling, Vacating and Discharging of Record an Alleged Notice of Lien dated |
| Court | New York Supreme Court |
Jack I. Morris, West Seneca, for petitioners.
Joseph M. Nasca, Buffalo, for respondent.
This is an application by Bradwood Realty, Inc., for an order summarily cancelling, vacating and discharging of record a Notice of Lien dated April 7, 1963, and filed by Transit Paving, Inc., Respondent herein.
The litigants herein entered into a contract relative to the performance of certain work, labor and furnishing of materials in a subdivision known as Toby Hill Subdivision, consisting of paving, installing of storm sewers, sanitary sewers, water mains, street curbing, including any and all necessary rock excavation, and an adequate sewer system.
Prior to the making of this agreement Petitioner conveyed the streets in said subdivision to the Town of West Seneca, for a consideration of 'One and on more Dollars.'
The court has not been informed of what arrangement was made with the Town relative to paving, etc.; however, it is not denied that Petitioner, the owner of the lots in the subdivision, contracted with Respondent for the improvements above mentioned.
Respondent alleges performance of its contract; a dispute with Petitioner; and the lien followed. Said lien covering the entire subdivision.
The question before the court is whether or not a mechanic's lien may be filed against the 'Toby Hill Subdivision', as a result of improvements being made in the streets in part of the subdivision, where the fee of the streets has been deeded to the Town of West Seneca, prior to commencement of construction of any improvements in the subdivision?
In Woolf v. Schaefer, 103 App.Div. 567, 93 N.Y.S. 184 (1st Dept. 1905), the court held that a notice of mechanic's lien could be filed against an entire tract, embracing different lots, where there was no separate contract for furnishing material to be used on the different lots, and where it was not shown that the owner holds title to the lots by virtue of separate conveyances or descriptions, or that they did not in fact constitute but a single parcel.
In Johnson v. Ocean View Cemetery, 198 App.Div. 854, 191 N.Y.S. 128, the court pointed out that the purpose of avenues, paths, alleys and walks in cemeteries were recognized to be to improve the cemetery grounds, and where the entire cemetery was benefited by paving a plaza and laying out and surfacing roads, the entire property benefited at the time and under a common use was subject to a mechanic's lien for the improvement.
In Kenney v. Apgar, 93 N.Y. 539, the Court of Appeals held that a sidewalk of a building, although on the 'street' right of way, was an appurtenance to the building within the meaning of the Lien Law.
The court in Petition of Palumbo, 225 N.Y.S.2d 98, Sup.Ct. Westchester Co., 1962, stated after citing Kenney v. Apgar, supra, that there was no New York authority holding that a street is an appurtenance, and on the basis of Coenen and Mentzer v. Staub, 74 Iowa 32, 36 N.W. 877, and McClintic-Marshall Co. v. Ford Motor Co., 254 Mich. 305, 236 N.W. 792, 77 A.L.R. 807, concluded that a public street was not an appurtenance to abutting real property and a mechanics lien could not be filed against real property for work performed under contract with the owner of real property for filling of an excavation in the street.
If the court in the Palumbo case, supra, despite the holdings in Woolf v. Schaefer, 103 App.Div. 567, 93 N.Y.S. 184, supra, Johnson v . Ocean View Cemetery, 198 App.Div. 854, 191 N.Y.S. 128, supra, and Kenney v. Apgar, 93 N.Y. 539, supra, sought authority from another Jurisdiction it might well have chosen Ladue Contracting Co. v. Land Development Co., 337 S.W.2d 578, St. Louis, Court of Appeals, Missouri.
In the Ladue case, the lienor had graded and paved a street in a subdivision and 'turn-around' at the end of the street and driveways for each of twelve houses on contiguous lots on said street.
In said case the court stated (337 S.W.2d p. 582):
The court continued (p. 584):
'The entire purpose of the mechanic's lien law is to guarantee 'effective security to...
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