123 N.E. 739 | NY | 1919
On the third day of February, 1916, the defendants Vito Picarreto, Christofore Tarricono and Guiseppe Gammorrello caused to be filed in the office of the clerk of Monroe county in the state of New York a notice of claim and lien for the sum of $500, the unpaid price of work and labor performed upon the real property in question. These men were carpenters.
The defendant Fred M. Wooster and Charles A. Mott were copartners in the hardware business in the town of Webster, doing business under the firm name and style of Wooster Mott, and which business, since the death of Charles A. Mott, has been continued by the said Wooster and the defendant Elizabeth Mott, as executrix. *471
On the 24th day of February, 1916, Wooster Mott caused to be filed in the office of the clerk of Monroe county a notice of claim and lien on and against the property here in question for the sum of $2,377.58, the unpaid price for lumber, hardware and mason supplies furnished to the owner for the building being erected.
It was determined by the trial court that the Wooster Mott lien took precedence over the Picarreto lien because the notice filed by the carpenters was not in the form prescribed by law in that the said notice of lien did not state the total amount of the contract price and did not state the value of the work already performed under such contract. Tarricono and Gammorrello assigned all their rights under the lien to the defendant Picarreto.
The Appellate Division reversed this finding of the trial court, finding that the Picarreto lien "complied in form and substance with the requirements of the Lien Law."
This opinion need only touch upon the sufficiency of the notice and the requirements of the statute.
Section 9, subdivision 4, of the Lien Law (Cons. Laws, ch. 33), as it existed at the time of this lien and prior to the amendment by Laws of 1916, chapter 507, provided that the notice of lien should state "the labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof." In this case the notice should have stated what carpenter work had been performed by Picarreto and his associates and the agreed price or value thereof. The notice failed to state the latter requisite, the price of the labor performed or the value thereof. At this part of the notice it read: "That the labor performed is all carpenter work upon said houses as per said contract; two of said houses ready for plastering and third house completed for plastering except five partitions. That the labor to be performed is completion *472 of said houses as per contract. That the amount unpaid to said lienor for such labor is five hundred dollars ($500)."
Is it fatal to this lien that the notice failed to state the agreed price of the labor performed or the value thereof? The statute says that this must be stated, and Finn v. Smith
(
The Picarreto lien was, therefore, void as found by the trial court, the notice not being in the form described by law.
It is said, however, that the defendants Wooster and Mott are not in a position to contest the validity of this prior lien in that the issue was not raised upon the trial or by pleading.
The complaint referred to the respective liens and asked that the plaintiff's mortgage be foreclosed and these liens forever barred from any right in the mortgaged premises. Wooster Mott by their answer alleged that the plaintiff's mortgage was void for fraud, set forth their lien and also that of Picarreto, and in the demand for judgment asked "that the validity and priority of the liens of the other defendants herein be determined and adjudged." The allegation regarding the Picarreto lien was simply a statement of the fact that the three carpenters filed a mechanic's lien against the said real property on the 3d day of February, 1916, a copy of which was annexed to the answer as Exhibit A. Nowhere did Wooster Mott in their answer admit that the lien was a valid lien, or acknowledge its priority: on the contrary, they asked the court to pass upon its validity and priority. The respondent Picarreto, in his brief, *473 says that cross answers were properly served among the defendants, but that in no part of said answer of Wooster Mott is the validity of the respondent's lien controverted. When Picarreto's attorney received the Wooster Mott answer he must have read what I have here stated, that the court was asked to determine the validity of his lien and whether it took precedence over that of Wooster Mott. On the trial the respective parties gave evidence as to the nature of their liens, work performed and materials furnished, and offered in evidence as exhibits the notice of the liens as filed. We think that within section 521 of the Code of Civil Procedure there was thus an issue raised between Wooster Mott and Picarreto regarding the validity of the liens and that the court was justified in thus treating the matter. In fact no point was raised upon the trial that under the pleadings the Picarreto lien was admitted by Wooster Mott and that its priority could not be contested.
Even if this were not so we think that in this case the court was called upon to determine the validity of all liens and their priority. Section
The court is not obliged to hold that a mechanic's lien is valid when upon its face it clearly is invalid and no lien, simply because no issue has been raised regarding it. Where a complaint, as in this case, seeks to foreclose a mortgage and makes a mechanic's lienor a party under an allegation that he claims to have some interest in the property, and the defendant answers setting forth his lien, which upon its face is void, the court in giving judgment must so find irrespective of the answers of other defendants. A mechanic's lien never comes into existence unless the notice upon which it is founded substantially complies with the statute which authorizes *474
the creation of such liens. (Toop v. Smith,
The plaintiff's appeal should be dismissed, with costs, and the judgment of the Appellate Division in favor of respondent Picarreto should be reversed and that of the Special Term affirmed, with costs in this court and the Appellate Division to the appellant.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN and McLAUGHLIN, JJ., concur.
Judgment accordingly.