Muglerv.Castleton Hotel and Realty Co.

Appellate Division of the Supreme Court of New York, Second DepartmentJun 17, 1915
168 App. Div. 492 (N.Y. App. Div. 1915)
168 App. Div. 492153 N.Y.S. 1025

June 17, 1915.

Arthur B. Hyman, for the appellant.

Harry E. Herman, for the respondent.


Plaintiff's practice was wrong in moving again at the Special Term in Kings county to refer the issues after the court had refused to grant a reference when the cause was called at the Special Term in Richmond county. Two motions for the same object cannot be made upon the same state of facts where the first has been denied without leave to renew. ( Hall v. Emmons, 9 Abb. Pr. [N.S.] 370, 372; Childs v. Childs, No. 2, 144 App. Div. 168. See Nichols Pr. § 635.) The language that the court declined to refer "and will leave the parties where they were, and they can thus try their case whenever the condition of the Equity Calendar in Richmond County permits," showed no reservation of a right to renew this motion for a reference. On the merits, also, the order should not stand. The complaint alone and not matters raised in an answer determines if the cause is referable. ( Steck v. Colorado Fuel Iron Co., 142 N.Y. 236.) This complaint was the usual one by a building contractor against the owner in a mechanic's lien suit. It had two claims, for a balance of the contract compensation and a further demand for extras. These are not a long account under the Code of Civil Procedure (§ 1013).

Liens on real property enforced in a court of record follow the Code provisions for mortgage foreclosure. (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 43.) On the other hand statutory liens on vessels may be tried by a justice without a jury or "may be referred by such justice to a referee, to hear and determine." (Lien Law, § 97.)

The reason for this contrast is obvious. Liens by mechanics on buildings, being presumably to realize the means to pay wages, are designed to be speedy and inexpensive in enforcement so as to reach a prompt determination of all claims filed against the property with the costs resting in the discretion of the court. (Lien Law, § 53.) Except by consent, such issues are not subject to the exceptional and costly mode of trial before a referee, unless clearly involving a long account between the parties in the legal sense of that term. ( Cassidy v. McFarland, 139 N.Y. 201.)

The order of reference should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, a disposition which leaves the cause still pending for trial and subject to be disposed of at the Richmond County Special Term.

JENKS, P.J., THOMAS, STAPLETON, MILLS and PUTNAM, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, a disposition which leaves the cause still pending for trial and subject to be disposed of at the Richmond County Special Term.