SUPREME COURT: COUNTY OF CHAUTAUQUA

____________________________________

CLYDE B. RODGERS

Plaintiff,

vs Index #H-12020

GENE L. MACK

Defendant.

______________________________________

FOLEY, FOLEY & PASSAFARO

(Albert W. Foley, Esq.

of Counsel) for Plaintiff

JOHN P. RICE, III, ESQ.

Attorney for Defendant

DECISION AND ORDER

GERACE, J.

The motion of plaintiff for an order restraining and

enjoining defendant, pending the determination of issues

in this action from any entry onto plaintiff's property

on Boutwell Road, for the purpose of cutting down and/or

removing trees from the Boutwell Road property, is

granted.

The federal tax liens against Roger Crumb takes

precedence over defendant's timber contract. The liens

were properly filed and on record; the liens attach on

property and rights to property real or personal. See 26

USC 6321. Also US v BROSNAN 36 US 237, 4 L Ed2d 1192.

Once a government tax lien is properly filed, no

subsequent recorded lien or claim may prevail against it;

and, the federal tax lien is not limited to property

owned by the taxpayer at the time it arises. See

HOUSEHOLD COAL and OIL DISTRIBUTORS INC. v NEDC, Inc 234

S2d 6.

Article 10-A of the Lien Law (Lien Law 240 et seq),

the enactment of the Uniform Federal Tax Lien

Registration Act, provides for the filing of Federal Tax

Liens in New York.

Here, the federal tax liens were filed in accordance

with the lien law and served on Roger Crumb, the

landowner, before the timber contract was signed and

filed with the Clerk. The defendant could have

discovered the liens if he had checked the records.

Furthermore, there is ample case law and statutory

authority that the contract for timber rights is a sale

of goods and not property rights. See 2-107 of the UCC.

The UCC provides that timber to be cut, is a contract for

the sale of goods. See 93 NY Jur2d Sales and Exchanges of

Personal Property, p 109.

The Federal Tax Lien Act of 66 conforms lien

provisions of IRC to UCC.

The interest in question must be perfected before

the filing of the tax lien. See 93 NY Jur2d Sales and

Exchanges of Personal Property, 38, 39, 56.

See OUTDOOR SCENES, INC. v ANTHONY GRACE & SONS, INC

443 S2d 583. Also, MARINE MIDLAND v GLEASON 62 AD2d 429.

The Court takes judicial notice of a Temporary

Restraining Order against Roger Crumb issued by this

Court prior to March 1994, restraining him from

transferring or encumbering any of his property during

his matrimonial dispute. He should not have entered into

the timber contract with defendant.

The Court declares that as to plaintiff, the timber

contract is void and of no effect.

Defendant has a right of action against Roger Crumb;

he has no right to the timber on plaintiff's property.

Counsel are directed to submit a proposed scheduling

order for the trial on the issue of damages, if any.

This is the Decision and Order of this Court. No

further Order shall be necessary, but, plaintiff may

submit a more definitive order setting forth the papers

on which this decision is based.

Dated: November , 1995

Mayville, New York

____________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.