In the Matter of Kim Kevin Corp., Respondent, v. A. & A. Gibel Co., Inc., Appellant, 20 A.D.2d 807

In a proceeding pursuant to

section 59 of the Lien Law, by the owner of certain premises, to cancel a mechanic’s lien because of the lienor’s failure to commence, within the time prescribed, an action to enforce the lien, the lienor appeals: (1) from so much of an order of the Supreme Court, Kings County, made September 4, 1963 upon reargument, as granted unconditionally the owner’s application to cancel the lien; and (2) from so much of an order of the same court, made October 29, 1963 upon further reargument, as adhered to the prior determination.

Appeal from order of September 4, 1963 dismissed, without costs, as academic; that order was superseded by the subsequent order of October 29, 1963. Order of October 29, 1963, insofar as appealed from, reversed on the law and the facts and in the exercise of discretion, with $10 costs and disbursements to the lienor; application to cancel the lien granted and the Clerk of the County of Kings is directed to cancel the lien of record, unless, within 20 days after service of a copy of the order entered hereon, the lienor shall commence an action to foreclose its lien.

In our opinion, it was an improvident exercise of discretion to cancel the lien unconditionally. Under the circumstances here, the lienor should be given a further period of 20 days within which to commence its foreclosure action, and the cancellation of the lien should be conditioned accordingly. Beldoek, P. J., Christ, Hill, Rabin and Hopkins, JJ., concur.