Opinion
January, 1899.
Wendt, Berry Edson (Henry Wendt, of counsel), for appellant.
William J. Kelly, for respondent.
It is necessary for the defendant upon this motion to show that the claim of the third party has some reasonable foundation, and that the defendant will incur a hazard by paying. That they claim the same thing. Bassett v. Leslie, 123 N.Y. 396; Stevenson v. N.Y.L. Ins. Co., 10 A.D. 233; Baltimore O.R.R. Co. v. Arthur, 90 N.Y. 234.
Defendant's affidavit states that the action is for a balance due for use of horses and teams, and for services rendered in connection with work done on the defendant's property at Montauk Point, in Suffolk county. It states that Sirignano claims that he cared for and fed the horses, and that this balance now sued for is really due him.
The plaintiff and Sirignano are not claiming the same money.
Defendant is a debtor to the plaintiff for work done on its property, and the plaintiff owes Sirignano for caring for and feeding horses. The facts as set forth do not establish a lien on the money at common law, and he has no mechanic's lien under the statute.
The order appealed from should be reversed, with costs, and the motion denied, without costs.
McCARTHY and OLCOTT, JJ., concur.
Order reversed, with costs, motion denied, without costs.