Kelley Lumber Co. v. Otselic Valley Railroad
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, .The Otselic Valley Railroad ¡Company and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of -the county of Madison on the 20th day of July, 1908, upon the decision of the court rendered after a trial at the Madison Special Term. The action was brought to foreclose a mechanic’s lien upon certain rights of way owned by the railroad company.
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Appeal by the defendants, .The Otselic Valley Railroad ¡Company and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of -the county of Madison on the 20th day of July, 1908, upon the decision of the court rendered after a trial at the Madison Special Term. The action was brought to foreclose a mechanic’s lien upon certain rights of way owned by the railroad company. The notice of lien was filed January 14, 1907. The plaintiff stated in the complaint,, after the proper allegations in reference to its lien,…
1Opinion of the Court
Kellogg, J.:
The evidence fairly sustained the judgment against the railroad company, and no error is found to its prejudice.
It is clear that the .practice pursued by the court with reference to the defendants Burhans & Black Company and Currier was erroneous. It could not receive evidence of their liens over the objection that it was not within the pleadings and then refuse to consider such evidence in deciding the case. This procedure is not warranted by law and must destroy a judgment based upon it. (Ewald v. Poates, 107 App. Div. 242; Robinson v. N. Y. Elevated R. R. Co., 175 N. Y. 219.)
The…
2Cases cited4 opinions
- Robinson v. New York Elevated RailroadNew York Court of Appeals · 1903
- Sayre v. . StateNew York Court of Appeals · 1890
- Bryant v. TurnerAppellate Division of the Supreme Court of the State of New York · 1908
- Ewald v. PoatesAppellate Division of the Supreme Court of the State of New York · 1905
3Cited by6 opinions
- Hartford Builders Finish Co. v. AndersonSupreme Court of Connecticut · 1923
- Atlantic Terra Cotta Co. v. Rubenfield Construction Corp.New York Supreme Court · 1926
- Edwards & Zuck, P.C. v. Cappelli Enterprises, Inc.Appellate Division of the Supreme Court of the State of New York · 2014
- Hammerstein v. HammersteinNew York Supreme Court · 1911
- Schweiger v. Empire Rollerdrome of Brooklyn, Inc.Appellate Division of the Supreme Court of the State of New York · 1942
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