146 N.Y.S. 1056 | N.Y. App. Div. | 1914
Lead Opinion
This is an action to foreclose a mechanic’s lien. The controversy presents attack and counter attack by various of the alleged lienors upon the ground of fatal defects in many of the liens. There are four liens which we will discuss, because upon the question of their validity the court is not in agreement. Two are filed by the plaintiff Barrett, one by the White Plains Trim Company and one by the Lieberman & Sanford Company. All the liens save these are valid.
The defect asserted to exist in the two notices of lien filed by the plaintiff Barrett arises from the statement contained in the notices, that “the time when the first item of work was performed or materials furnished was on the 20th day of May, 1910,
The corresponding requirement of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 9, subd. 6) reads: “ The notice of lien shall state: "x" * "x* The time when the first and last items of work were performed and materials were furnished.” The criticism is that the statement in the notice is in the disjunctive. The authority for the condemnation is the line of cases beginning with Bradley & Currier Co. v. Pacheteau (71 App. Div. 149; 175 N. Y. 492), in which liens were condemned because, owing to statements made in the alternative, facts which the statute required to be stated were not definitely stated. The reason for the rule declared in those cases has no application to the question in this case. ‘ ‘ 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.” (Abelman v. Myer, 122 App. Div. 470, 471.) The information as to the labor performed or the materials furnished, and the agreed price or value thereof, is for the purpose of apprising the owner so that he may, upon inquiry, ascertain whether the materials have been actually furnished or not, and the value of the same. (Vogel v. Luitwieler, 52 Hun, 184, 189.) The object of the provision requiring the notice to state the time when the first and last items of work were performed and materials were furnished is, so far as the latter requirement is concerned, to establish whether the labor was performed or the materials were furnished during the' progress of the work, or whether ninety days had elapsed since the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or of materials furnished. (Lien Law, supra, § 10.)
A lien is available to four classes: Contractors, sub-contractors, laborers or materialmen. (Lien Law, supra, § 3.) Sec
In the notices filed it appears that the lienor was a material-man and that what he furnished was trim — sash, door, trim and other building material and mill work — and any reference in his notice to labor should be considered as labor incidental to the manufacture of his material. (Felgenhauer v. Haas, 123 App. Div. 75, 76; Martin v. Gavigan Co., 107 id. 279, 283; Clarke v. Heylman, 80 id. 572, 576.) The entire notice maybe considered in construing any particular part of it, and where it appears in the notice that the lienor is a materialman, and that what he asserts is a lien for the principal and interest for the value or agreed price of materials, he is not required to state separately the time when the first and last items of work were performed, and any reference to items of work contained in his statement, made in an attempted compliance with subdivision 6 of section 9 of the Lien Law, may be ignored as surplusage. (Vitelli v. May, 120 App. Div. 448, 450; Schwartz v. Lewis, 138 id. 566, 568; Felgenhauer v. Haas, supra.) “As to the time and dates of work done and materials furnished for which a lien is claimed, all that is required is such certainty as will enable those interested to discover during what period the materials were delivered or the work [was] done so as to individuate the transaction.” (27 Cyc. 182; cited with approval in Hurley v. Tucker, 128 App. Div. 580, 584; affd., 198 N. Y. 534.)
We determine that the two notices of lien filed by the plaintiff Barrett are free from defect; and as the only objection against the hen filed by defendant White Plains Trim Company is a similar alleged defect, we pronounce it valid also.
The Lieberman & Sanford Company notice provides:
“ (4) The labor performed was setting iron and glass doors, iron stair, bronze saddles, iron lamps, iron ladder. The labor to be performed is to set wrought iron grilles, and quarter-inch plate glass indoors. The material furnished was iron entrance doors, iron stairs, bronze saddles, iron lamps and iron ladder. The material to be furnished is quarter-inch plate glass in entrance doors. The agreed price and value of said labor is Ten Hundred Seventy and T%V Dollars, The
“(5) The amount unpaid to the lienor for such labor and material is Seven Hundred and Fifty dollars.
“ (6) The time when the first items of work were performed was April 11, 1911, and the time when the first items of material were furnished was April 11, 1911. The time when the last items of work were performed was December 5, 1911, and the time when the last items of material were furnished was February 27, 1912.”
The contract as to the labor was entire, as was the contract for the material, and it is exactly stated when the first items of work were done and the first items of material were furnished, and when the last item of work was done and the last item of material furnished. The items of labor to be performed and the items of material to be furnished are clearly stated. The statute (§ 9, subd. 4) requires that the notice shall state “ The labor performed or to be performed, or materials furnished or to be furnished, and the agreed price or value thereof.” In Toop v. Smith (87 App. Div. 241) the notice did not state what materials were furnished or what work was done. No specifications or drawings appeared in or in connection with the notice of lien. Attention is not directed to the omission to state the price. The decision was affirmed in 181 New York, 283, where, after a reference to the contents of the notice, Judge Werner wrote: “We think this recital will be scanned in vain, either (1) for any statement of labor performed, (2) or to be performed, (3) or materials furnished, (4) or to be furnished.” Then the opinion tends to the concession that, if the specifications and drawings had been attached to the notice, there would have been a substantial compliance with the statute. Finn v. Smith (supra) held that “under the statute any notice of lien must state either explicitly or by plain inference the value or the agreed price of the labor-performed or materials furnished at the time of filing thereof.”
A notice is not to be denounced as defective if under certain circumstances it may be declared valid. The lien is restricted
The defendant Hudson Trust Company makes a claim on the moneys due, which constitute the fund out of which the liens are payable. The amount of its claim would practically exhaust the fund. The validity of its claim is presented for adjudication by virtue of an assignment which reads:
“For and in consideration of the sum of Twenty-Five Thousand ($25,000.00) Dollars, lawful money of the United States, paid by the Hudson Trust Company, 39th St. & Broadway, Manhattan Borough, City of New York, to John V. Schaefer, Jr., & Co., the said John V. Schaefer, Jr., & Co., hereby assigns all right, title and interest to the extent of Twenty-Five Thousand ($25,000.00) Dollars in the balance and final payments as per statement herewith attached which will become due under contract between said John V. Schaefer, Jr., & Co., and the Hebrew Sheltering Guardian Society of New York (Orphan Asylum) for the erection of twenty-eight (28) buildings at Pleasantville, New York, and hereby authorizes and directs the said Hebrew Sheltering Guardian Society of New York (Orphan Asylum) to pay the said Hudson Trust Company the said sum of Twenty-Five Thousand ($25,000.00) Dollars and to deduct the said amount from the said final payments and balance of contract when same becomes due and owing to the said. John V. Schaefer, Jr., & Co. from said Hebrew Sheltering Guardian Society of New York (Orphan Asylum) under the terms of said contract, and the said John V. Schaefer, Jr., & Co. does hereby make, constitute and appoint the said Hudson Trust Company its attorney in fact with full power and authorizes it to collect and receive from the said Hebrew Sheltering Guardian Society of New York (Orphan Asylum) said sum of Twenty-Five Thousand ($25,000.00) Dollars to execute and deliver a proper receipt for said amount in the name of the said John V. Schaefer, Jr., & Co.
“JOHN V. SCHAEFER, Jr., & CO.,
“John V. Schaefer, Jr.,
“ President.”
Burr, Thomas and Stapleton, JJ., concurred; Jerks, P. J., dissented in part in separate memorandum, with whom Rich, J., concurred.
Dissenting Opinion
(dissenting in part):
I dissent in part. I think that the controlling policy of consideration was well expressed by Bartlett, J., in Lemmer v. Morison (89 Hun, 279): “As these are matters of purely statutory creation and regulation, it seems to me that a strict adherence to the letter of the law is more conducive to justice than a looser construction with the uncertainties which it would necessarily involve.” The express requirement of a statute cannot be dispensed with because ‘£ the particular advantage or object” of a requirement is not “readily apparent.” (See Mahley v. German Bank, 174 N. Y. 501.) And the liberal construction prescribed even by the terms of the very statute itself does not, to my mind, authorize the entire dispensation of an express provision thereof. (Id.)
I think that the first notice of lien filed by the plaintiff is bad. The provision thereof “That the time when the first item of work was performed or materials furnished was on the 20th day of May, 1910, and the time when the last item of such work was performed or materials were furnished was the 7th day of February, 1912,” is defective for the reason that the alternative expressions indicated by the word “ or ” state neither one fact nor the other. (Bradley & Currier Co. v. Pacheteau, 71 App. Div. 148; affd. as to this feature, 175 N. Y. 492, and approved in Finn v. Smith, 186 id. 465; Abbott v. Easton, 195 id. 375. See, too, New Jersey Steel & Iron Co. v. Robinson, 85 App. Div. 512, 516; affd., 178 N. Y. 632, and approved in Finn v. Smith, supra.) This objection obtains jn the plaintiff’s second notice and in the notice of the White Plains Trim Company. In Bradley & Currier Co. v. Pacheteau (supra) it is said: “The liberal construction provided for in the statute assumes that the statute has, at least in form, been complied with, and that was not done here. To give this notice any
Rich, J., concurred.
Judgment affirmed, without costs.