In re Blumberg

133 N.Y.S. 774 | N.Y. App. Div. | 1912

Jenks, P. J.:

This appeal is from an order of the Special Term that denies a motion to vacate an order for the discharge of a mechanic’s lien upon execution of an undertaking. On August 23, 1911, the lienor assigned the lien to Lena Greenbaum. The assignment stated that her residence was “at 2140 Crystal Street, in the City of Chicago, State of Illinois,” and was indorsed “George C. Schnitzer, 26 Court St., Brooklyn, N. Y.” On August 30, 1911, the owner of the premises obtained an order ex parte at Special Term that determined the amount of a bond to be given to discharge the lien, and directed that a copy of the bond with notice of justification of the sureties be served upon the claimant and assignee, Lena Greenbaum, “ by depositing in the General Post Office of the Borough of Brooklyn, County of Kings and State of New York, a copy of such notice of such bond contained in a securely postpaid wrapper, together with a copy of this order, directed to said claimant and assignee, Lena Greenbaum, at No. 2140 Crystal Street, City of Illinois, and State of Chicago ” (sic). The undertaking was filed on August 30, 1911, and on that day the attorney for the owner made affidavit that he had served a copy of an annexed notice of justification and undertaking and a copy of the order “fixing the amount of the undertaking upon Lena Greenbaum, the claimant and assignee of the Mechanic’s Lien herein, by depositing the same in the General Post Office of the Borough of Brooklyn, County of Kings, and State of New York, in a securely postpaid wrapper addressed to said Lena Greenbaum, to wit — No. 2140 Crystal Street, City of Illinois and State of Chicago {sic), which is a direct mail communication between said points. ” On September 6, 1911, the Special Term made an order upon the approval and filing of the bond that discharged the hen. On November 28 an attorney who appeared for the said Lena Greenbaum specially to vacate the order and to reinstate the mechanic’s lien, moved for that relief, but the motion was denied on December 29,1911. 'Theretofore a motion had likewise been made to vacate the order of September 6 and to reinstate the lien, which had been denied on December 23,1911.^* An affidavit of Lena Greenbaum was submitted to the effect that she never had received any notice of justification and that she was not aware at any time before October 19, 1911, that the lien had been bonded, discharged and canceled of record, when she was informed by an attorney of the city of New York, whom she had retained, of these facts. That attorney by affidavit sustained her as to the source of her information. The question of the power of the court was presented.

The provisions for notice of justification of the sureties are contained in section 19 of the Lien Law. The general provision is as follows: “A copy of the undertaking, with notice that the sureties will justify before the court, or a judge or justice thereof, at the time and place therein mentioned, must be served upon the lienor or his attorney, not less than five days before such time.” This contemplates personal service upon the lienor or his attorney. (Matter of Sullivan, 31 Misc. Rep. 1, and cases cited; affd., 53 App. Div. 637; Nichols N. Y. Pr. 647, and cases cited.) There is no contention that such service was made in this proceeding. The further provision for service is as follows: “If the lienor cannot be found, or does not appear by attoihey, such service may be made by leaving a copy of said undertaking and notice at the lienor’s place of residence, or if a corporation at its principal place of business within the State as stated in the notice of lien, with a person of suitable age and discretion therein, or if the house of his abode or its place "of business is not stated in said notice of hen and is not known, then in such manner as the court may direct. The premises, if any, described in the notice of lien as the lienor’s residence or place of business shall be deemed to be his said residence or its place of business for the purposes of said service at the time thereof, unless it is shown affirmatively that the person serving the papers or directing the service had knowledge to the contrary.” Respondent contends, “ It is apparent from the context of Section 19, Subdivision 4, Mechanic’s Lien Law, 1909, and the circumstances surrounding the case at bar, that it was legal and proper ” for the court to direct the said service by mail. And his argument is that as the assignee and lienor is a resident of Chicago, 111., with no place of abode within the State where service could be effected, it was legal and proper to direct service “in such manner as the court may direct.” The expression “ apparent from the context [of the statute] and the circumstances surrounding the case ” is that used by the Court of Appeals in Steinhardt v. Bingham (182 N. Y. 329). I cannot see aught in the context of the statute that avails the respondent. As I have said, when the statute is silent as to the character of service, it must be personal. When it prescribes the method of service, that method must be strictly pursued. (Reg v. Meath, 2 Ir. Rep. 21; Allen v. Strickland, 100 N. C. 225; Phillips Mech. Liens, § 321.) The latter provision quoted is limited to cases when the lienor cannot be found or does not appear by attorney (which seems to be this case, if it is within the purview of the provision at all), and the service is to be made by leaving a copy of said undertaking and notice at the lienor’s place of residence with a person of suitable age and discretion therein. And it is only under the further condition that if the house of the honor’s abode is not stated in said notice of lien, and is not known, any discretion as to the manner of service is conferred on the court. We may infer from the terms of the order, although the papers of application are not in the record, that it rests upon the showing that the residence of the lienor was known. Moreover that fact appears in the assignment of the lien. “ The circumstances surrounding the case” would not justify departure from the terms of the statute, which are plain. It may well be that it is more convenient to reach this assignee by mail, but the argument of convenience has no place when the statute is clear and explicit. In Putnam v. Longley (11 Pick. 487) the court say: “It is said that this construction will be attended with great inconvenience, especially where the creditors are numerous, and could not have been intended by the Legislature. The argument from inconvenience may have considerable weight upon a question of construction where the language is doubtful; it is not to be presumed, upon doubtful language, that the Legislature intended to establish a rule of action which would be attended with inconvenience. But where the language is clear, and where of course the intent is manifest, the court is not at liberty to be governed by considerations of inconvenience.” We must take into consideration that this is a proceeding for the benefit of the owner of the premises, and that, therefore, he should be held to strict observance of the statutory requirements thereof. (Phillips Mech. Liens, § 303a.) The lienor here is virtually brought into court by the notice in question for the opportunity of exercising the substantial right to examine into the validity of the undertaking which lifts the lien, and it would follow that the statute that provides for such notice must he followed in “ every essential particular.” (Seymour v. Judd, 2 N. Y. 464, cited in Merritt v. Village of Portchester, 71 id. 309, 311; Endl. Interp. Stat. § 435.) Service in this case can be made in the State of Illinois in the manner prescribed by the statute, inasmuch as the lien is primarily a charge upon land within the State over which our courts have complete control. (Phillips Mech. Liens, § 331, and cases cited.) And so it could he made through the mails if the statute had so provided.

I think that the order must he reversed, with ten dollars costs and disbursements, and the motion to reinstate the lien must be granted, with ten dollars costs.

Thomas, Carr and Woodward, JJ., concurred; Burr, J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion to reinstate lien granted, with ten dollars costs.

* See 149 App. Div. 926. — [Rep.