Christensen v. Martakis

— Order reversed, without costs, and application denied, without prejudice to the right of the respondents to raise the question of the timeliness of filing the second notice of lien upon the trial of any action brought to foreclose the lien. Memorandum: The subcontractor appellant had the right to file a second notice of lien after the first had been discharged for failure to commence an action within the appropriate time, providing that the second notice was filed within the time specified in section 12 of the Lien Law (Berger Mfg. Co. v. City of New York, 206 N. Y. 24; Matter of Cohen, 209 App. Div. 413). The only effect of the order of Justice McClusky was to discharge the first lien. It had no application to the second notice of lien. The question of whether the second notice was timely served and filed cannot be determined upon the affidavits contained in the record before us but must be decided upon testimony. This determination is without prejudice to the right of respondent to raise the question of timeliness in the foreclosure action. All concur. (Appeal from an order of Oneida Special Term granting an application of petitioners to cancel of record a public improvement lien filed with the Rome City School District.) Present- — McCurn, P. J., Williams, Bastow, Goldman and Halpem, JJ.