85 N.Y.S. 308 | N.Y. App. Div. | 1903
This action was brought to foreclose a mechanic’s lien against one Henry E. Fox, as contractor, and the owners of certain real property situate in the city of New York. After the plaintiffs had filed their notice of' lien the respondent Happel also filed a notice of lien upon the same property. Thereafter the owners of the property upon which the liens were sought to be acquired deposited in the office, of the clerk of the county of New York a sum of money in excess of that claimed by the plaintiffs and thereupon their lien was discharged.
At the trial the only question litigated was whether the plaintiffs or the respondent Happel were entitled to the money which had been paid to the clerk — all the other defendants having defaulted and a personal judgment not being asked against the contractor Fox, as appeared from a concession made upon the argument of the appeal. The trial court held that the notice filed by the plaintiffs was invalid and dismissed the complaint, and from the judgment entered upon the decision to this effect plaintiffs have appealed.
We are of the opinion that the complaint was properly dismissed, because the notice of lien filed was insufficient under the Lien Law (Laws of 1897, chap. 418), So much of the notice as is involved in the question presented reads as follows:
“ To Thomas L. Hamilton, Esquire,
“ Clerk of the County of Few York:
“ Please take notice that we, Louis Bossert and John Bossert, * * * have and claim a lien for the principal and interest of the value and the agreed price of the labor and materials hereinafter mentioned. * * *
■ “ 4. The labor performed and the materials furnished and- to he furnished consists of wainscoting, closets, wardrobes, dressers, doors, jambs, sashes, frames, headlights, panels, backs, base trim and
*9 mouldings, columns and pedestals, mantel shelves and steps, and the
agreed price and value thereof is $611.86 Dollars.......$611 86
less amount allowed for material...................... 8 25
$603 61
“5. The amount. unpaid to the lienor for such labor orf and materials is six hundred and three and 61/100 ($603.61/100) dollars.”
Section 9 of the statute referred to requires that the notice filed shall state the name and residence of the lienor; the name of the owner of the real property against whose interest a lien is claimed, and the interest of the owner as far as known to the lienor; the name of the person by whom the lienor was employed, or to whom he furnished, or is to furnish, the materials, or, if the lienor is a contractor or sub-contractor, the name of the person with whom the contract was made; the labor performed or to be performed, and the materials furnished or to be furnished, and the agreed price or value thereof, and the amount unpaid to the lienor for such labor or materials ; the time when the first and last items of work were performed and materials were furnished; a description-of the property subject to the lien, and in addition a verification by the lienor or his agent to the effect that the statements contained in the notice are true to his knowledge, except as to the matters therein stated to be on information and belief, and as to those matters that he believes them to be true.
Section 22 of the statute referred to requires that the notice shall be liberally construed, but giving to the statements contained in the notice a liberal construction, it is impossible to determine therefrom how much is claimed for labor—how much for the materials furnished — or how much for materials to be furnished, and before a valid lien could be acquired these facts had to be clearly and definitely stated. The statute requires such information to be given. Here the person who prepared the notice followed the literal language of the statute, and this is insufficient, inasmuch as it does not give to the persons upon whose property a lien is sought to be acquired the required information.
. The case cannot be distinguished in principle from Bradley & Currier Co. v. Pacheteau (71 App. Div. 148) or New Jersey Steel
.The judgment appealed from, therefore, must be affirmed, with costs.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.
Judgment affirmed, with costs.
