174 N.Y. 499 | NY | 1903
The action was brought to foreclose a mechanic's lien. The controversy is between the plaintiff, the lienor, and a sub-contractor and the appellant, the German Bank, an assignee of the principal contractor, over the contract price for the work, which the owner admitted to be due and offered to pay into court. The plaintiff filed his notice of lien prior to the time when the appellant's order was filed in the county clerk's office as required by the statute. The plaintiff's claim is, therefore, superior to that of the appellant, provided that the notice filed by him was sufficient to give him a lien, and the sole question presented on this appeal is whether the notice sufficiently complied with the statute.
The Lien Law (Chap. 418, Laws of 1897) by section 9 requires the notice of lien to state among other things "The labor performed or to be performed, or materials furnished or to be furnished, and the agreed price or value thereof. 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." The notice filed stated that the plaintiff claimed a lien for the sum of $341.25, "the same being for work, labor and materials furnished as hereinafter mentioned, * * * said amount being the true price and value of said work done and materials furnished, after deducting the payments that have been made thereon. That * * * ninety days have not elapsed since the completion of the contract or the furnishing of said material, or the final performance of said work." The appellant contends that the notice is fatally defective in failing to state the agreed price or value of the labor and materials performed or to be performed or furnished or to be furnished, and in failing to state the time when the first and last items of work were performed *501
or materials were furnished. The learned Appellate Division in an opinion rendered on a previous appeal in this action (
The judgment should be reversed, and as the plaintiff cannot succeed on a new trial, the complaint must be dismissed, but without costs in any court, and the fund awarded to the appellant.
PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur.
Judgment reversed, etc. *502
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