Abelman v. Myer

106 N.Y.S. 978 | N.Y. App. Div. | 1907

Miller, J.:

This action is .brought to foreclose a mechanic’s lien and to set aside a conveyance of the real property involved, which the complaint alleges was made by the defendant Finkelstein to her brother, the defendant Flyer, with intent to defraud the plaintiff. Tlié complaint was dismissed for an alleged defect in the notice of lien. The only question presented on this appeal is whether the notice of lien, construed as the statute requires, substantially complied with the requirements of section 9 of the Lien Law (Laws of 1897, chap. 418).

The statement of the name of the owner against whose interest the lien was claimed and of the interest of such owner was in the following language, viz.: “ The name of the owner of the real property "against whose interest therein a lien is claimed, Katie Finkelstein or Julius Myer, and the interest of said owner as far as known to the lienor,, is the fee.” This statement Was held to be bad for being in the alternative. The argument is made that such a statement is not the affirmation of any fact, and should be treated precisely as though no name had been stated. The respondents cite cases which held that a statement, in the alternative, of labor performed or to be performed or materials furnished or to be furnished, was not a compliance with subdivision 4 of said section 9. (Bradley & Currier Co. v. Pacheteau, 71 App. Div. 148 ; 175 N. Y. 492; New Jersey Steel & Iron Co. v. Robinson, 85 App. Div. 512; 178 N. Y. 632; Bossert v. Fox, 89 App. Div. 7; 180 N. Y. 546; Armstrong v. Chisolm, 100 App. Div. 441.) But the reason for the rule declared in those cases has no application to the question before us. The statute requires the lienor to state explicitly or by plain inference- the value or the agreed price .of the labor performed or materials furnished at the time of the filing of the lien. (Finn v. Smith, 186 N. Y. 465.) Hence a statement in the alternative of the labor performed or to be performed, etc., is not an affirmation of any fact required to be. stated. The fact may be either the one or the other, whereas the statute requires an explicit statement of what the fact is. The statute plainly contemplates that a mistake-may be made in the statement of the name of the owner, hence the following curative provision of said section 9, subdivision 7, viz.: “ A failure to, state the name of the true owner or contractor, or a mis description of the true owner, shall not affect the validity of the lien.” It has been held that the word." failure ” -as used in the said provision means an unsuccessful attempt, not an intentional omission, to name the true owner (De Klyn v. Gould, 165 N. Y. 282), but the Court of Appeals plainly intimated in that case that, if the .lienor in good faith attempted t.o name the true owner, the lien" woiild be good against such owner even though his name were not mentioned. The rule applicable to a pleading or to the statements in affidavits, which are prerequisite to the granting of provisional remedies and the like, should not be- applied to a notice of lien filed under the Mechanics’ Lien Law. A statement.of the name of the owner against whose interest the lien is claimed is required for purposes of identification. Under the notice in the case at bar the" county clerk would be required to enter in his docket both nam'es given, and if either was the owner any one making a search would ascertain that a lien was claimed against the owner. Had the statement 'been in the conjunctive it would undoubtedly be held good,- and one name could be. rejected as surplusage. When a party is required to'state precisely .what the-fact is, a statement in the alternative is bad because it neither affirms the one' thing nór the other. But as wé have seen, the Lien Law does not require, the lienor to state at his peril the name of the true owner, because it recognizes the fact that notices sometimes have to be filed with expedition and that it may not always be possible td ascertain who is the true .owner; lienee it only requires the lienor to do the best he can. In the statement before us the lienor said in effect that he did not know whether the ownqr was Katie Finkelstein or Julius Myer, but that it .was one or the-other,' and that he claimed a lien, against-the interest of whichever one turned out to be the true owner; • and it .seems to me that we cannot hold the statement bad without disregarding the purpose of the statute and .the requirement that it be construed liberally to secure such purpose. (See § 22.)

The respondents also contend that the notice was defective for not stating the kind of labor performed and of materials furnished and" the amount of labor performed and materials -furnished at the time of the filing of the notice'of lien. We think it is plainly to he inferred from the entire" notice that the- lienor had furnished'all the labor and materials in the construction of the dwelling house in question, and that such construction was completed at the time of the filing of the notice.

The interlocutory judgment, in so:far as appealed from, should be reversed.

Hirschberg, P. J., Woodward, Jemes and Booker, JJ., concurred.

Interlocutory judgment, in so far as appealed from, reversed and new trial granted, costs to abide the final award of costs. ■