Milliken Bros. v. City of New York

Scott, J.: Upon a former appeal in this action this court was of the opinion that the work out of which the claim arose had been substantially completed on October 8, 1906, the date upon which the final certificate of the architect had been signed, and the- building had been accepted and taken over by the city. It was consequently held that the claimant, respondent, had not acquired a valid lien because he had not filed a notice of lien until December 15, 1906, which we deemed to be more than thirty days'after the completion of the work. (135 App. Div. 598.) The Court of Appeals, upon the facts proven, reached a different conclusion as to the date of the ¡completion of the work, and consequently reversed the judgment and ordered a new trial. (201 N. Y. 65.) The evidence upon the new trial does not differ in any material respect from that presented upon the first trial, and, therefore, whatever our own views might be upon the evidence, if the matter were res nova, we feel constrained to yield to the authority of the Court of Appeals and affirm the judgment. The judgment should be affirmed, with costs. Ingraham, P. J.,, McLaughlin, Laughlin and Clarke, JJ., concurred. Judgment affirmed, with costs.