Armstrong v. Chisolm, 91 N.Y.S. 693

91 N.Y.S. 693 | N.Y. App. Div. | 1905

Patterson, J.:

This is an action to foreclose a mechanic’s lien. It was decided at the Special Term upon an agreed statement of facts,, from which it appears that the defendant Mary Chisolm was the owner of the premises against which the lien was filed. She contracted with Andrew J. Robinson, doing business under the name of Robinson & Wallace, for the performance of certain work and furnishing of certain materials and there was due from her to Robinson & Wallace the sum of $12,805, with interest. The plaintiff Armstrong had a contract with Robinson and there was duel the plaintiff upon that contract the sum of $1,907.94 for which the lien was filed. Various amounts were due other defendants, but it is unnecessary to refer to them particularly.

On March 7, 1900, the defendant Robinson made an assignment for the benefit of creditors to the defendant Charles N. Talbot. On March 9, 1900, Armstrong filed a lien against the premises, and in the notice of lien, among other things, it is stated as follows: “ (4) The labor performed was plumbing work in connection with alterations and the materials furnished or to be furnished, and the agreed price or value thereof, is galvanized iron pipe and fittings to be used throughout the building and improvements on the property hereinafter described, at the agreed price of Thirteen thousand one hundred and eighty-eight dollars ($13,188). (5) The amount unpaid to the lienor for such labor and materials is One thousand nine hundred and seven and T9T%- dollars ($1,907.94).”

The facts above stated, are sufficient to present the only question requiring consideration in this case. The appeal is by -the plaintiff, and upon the facts stated the justice.at Special Term held that the plaintiff was not entitled to a lien by reason of the defective character of the notice of lien, but he was allowed a personal judgment against the defendant Andrew J. Robinson.

The court below was correct in holding that the notice of Hen was defective. Similar notices have been condemned as being, insufficient. (Bradley & Currier Co. v. Pacheteau, 71 App. Div. 148; Bossert v. Fox, 89 id. 7; Satzinger v. Chebra Chai Odom Anshi Minsk, 91 id. 612; Westergren v. Pabst Brewing Co., 99 id. 623.) The case of New Jersey Steel & Iron Co. v. Robinson (85 App. Div. 512; affd., 178 N. Y. 632) announces the general principle involved, which is that a notice of a mechanic’s Hen, in order to be effective, must comply. substantially with all the requirements of the Lien Law (Laws of 1897, chap. 418) and that a notice which, in attempted' compliance with that law, states that “ the labor performed or to be performed or materials furnished or to be furnished ” is fatally defective, so far as it relates to labor and materials.

It is, however, suggested that in the case at bar that rul'e does not apply. It is admitted that if. the 4th paragraph of. the notice of lien, as above quoted, were all that is involved, the lien would hecessarily fail; but it is said that by the 5th paragraph of that notice it is .stated that the amount unpaid to the lienor “ for such labor and materials ” is a certain fixed sum and hence: it is insisted that that statement saves the notice and relieves it from the vagueness and uncertainty which arise only out of the statement of the 4th paragraph. In the New Jersey Steel & Iron Co. Case (supra) the notice of Hen referred to work, labor and materials, and it Was condemned by the court as being insufficient with respect to those two subjects, but it also referred to extra work, and it was sufficiently precise and exact with reference to that .extra work homing been performed to entitle the lienor to. his lien to that extent,, and the notice was held good pro tcmto-. But there is nothing in the 5th paragraph of the notice of Hen now before us which separates anything, so that any item of it could. be. made distinctively the subject of a valid lien under the form of the notice. This 5th paragraph simply states that the amount unpaid to the lienor for such labor and materials; that is, referring back to the 4th paragraph, labor and materials “ furnished or to be furnished; ” and the 5th paragraph, is as indefinite as the 4th. What could specifically be declared to be, under the 5th paragraph, the subject of . the lien % Is it for labor done or for materials to be furnished ? If there were a specification of the amount due for labor, then what is said in the New Jersey Steel & Iron Co. case might apply. But, in order to determine that, it would be necessary to ignore the notice as filed and resort to proof to amplify and change it. In other words, a new notice would be made by testimony—not by proof to sustain a lien, but by proof of what the lienor intended to express in his notice.

The notice is inherently defective and must be so regarded, if we are to follow the decisions made by the courts upon the subject. A notice of lien must be sufficient in and of itself, without reference to extrinsic proof, to supplement deficiencies in it, and, therefore, we think the judgment of the court below was right and should be affirmed, with costs.

O’Brien and Laughlin, JJ., concurred; Van Brunt, P. J., and Hatch, J., concurred in result.

Judgment affirmed, with costs.