Webb v. Van Zandt
New York Court of Common Pleas
Appeal from an order denying a motion to strike out defences as irrelevant and frivolous. This was a proceeding under the Mechanics’ Lien Law, instituted by James Webb against Wynant Van Zandt, to enforce the builder’s lien for the erection of a house, under a contract by which the plaintiff was to have been paid in three several instalments—two at different stages of the work, the third on the completion of the house; the lien claimed, also, to include a demand for the…
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Appeal from an order denying a motion to strike out defences as irrelevant and frivolous. This was a proceeding under the Mechanics’ Lien Law, instituted by James Webb against Wynant Van Zandt, to enforce the builder’s lien for the erection of a house, under a contract by which the plaintiff was to have been paid in three several instalments—two at different stages of the work, the third on the completion of the house; the lien claimed, also, to include a demand for the value of certain extra work. The owner interposed several defences, of which two were attacked in the motion from which this…
1Opinion of the CourtHilton, J.
The defences are not so clearly irrelevant or frivolous as to justify their being stricken out on a motion, unless we are willing to declare that the more formal remedy by demurrer, intended for cases like this, should be abandoned.
As to the first defence, its invalidity has never been determined by any court, and although I am not prepared to hold it valid, yet I will not upon a summary motion declare it in*193valid, nor, in the present case, examine it as upon a demurrer, as I understand the well-settled rule, applicable to all motions of this kind, to be whether the court can upon a mere…
2Cases cited1 opinion
- Jackson ex dem. Ireland v. HullNew York Supreme Court · 1813
3Cited by8 opinions
- Marean v. StanleyColorado Court of Appeals · 1894
- Erickson v. RussNorth Dakota Supreme Court · 1911
- Power v. Onward Construction Co.New York Supreme Court · 1903
- Lawatsch v. CooneyNew York Supreme Court · 1895
- Pierce v. Kinney, New York County Courts1912
3 more not listed; retrieve them via the Exa API.