Martin v. Ambrose A. Gavigan Co.

95 N.Y.S. 14 | N.Y. App. Div. | 1905

Miller, J.:

The question to be determined in this case is the sufficiency of the plaintiff’s notice of lien, which, so far as challenged, is as-follows:

“ (3) The name of the person by whom the lienor was employed or to whom he furnished or is to furnish materials is Ambrose A. Gavigan Co., and the person with whom the contract was made is Ambrose A. Gavigan Co. The amount of contract was $30,200.

“ (4) The labor performed or to be performed consisted of all the carpenter work for and upon a building on the premises described below, and the materials furnished or to be furnished is^* the lumber, exterior wood work, timber, nails, window frames and other material specified in carpenter’s specifications, such work by contract to be paid for on every two weeks to the amount of 70 per cent thereof, and sutfh material to be paid for in the same way to the full value thereof. Said contractor has not paid as agreed. The total value of such work and material to date is $13,511.95.

" (5) The amount unpaid to the lienor for such labor and materials is $5,357.86.”

The corresponding subdivisions of section 9 of the Lien Law (Laws of 1897, chap. 418), prescribing what must be stated in the notice of lien, are as follows :

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“ 3. The name of the person by whom the lienor was employed or to whom he furnished or is to furnish materials;; or, if the lienor is a contractor or sub-contractor, the person with whom the contract was made.

4. The labor performed or to be performed or materials furnished or to be furnished and the agreed price or value thereof.

“ 5. The amount unpaid to the lienor for such labor or materials.”

■ The defendants insist, upon the authority of Bradley & Currier Co. v. Pacheteau (71 App. Div. 148); New Jersey Steel & Iron Co. v. Robinson (85 id. 512); Bossert v. Fox (180 N. Y. 546, affg. 89 App. Div. 7) ; Armstrong v Chisolm (100 id. 440, 442) and Toop v. Smith (181 N. Y. 287), that the notice of lien is fatally defective, and the referee has so held. If this case can be distinguished from the cases cited, the distinguishing feature will be found in the last sentence o± each of the paragraphs numbered 3 and 4. It is true that in stating the nature of the work and materials furnished the statement is in the alternative, “ performed or to be performed,” “furnished or to he furnished,” but I think a liberal construction of the last sentence of paragraph 4 requires the interpolation of the words “ performed and furnished” before “to date.” Thus read, the words “such woi’lc and material” must refer, not to the work “ performed or to be performed,” and “ the materials furnished or to be furnished,” but to the work already performed and materials furnished ' of the nature of - the work and materials thus generally described as “ carpenter work, * * * lumber, exterior wood work, timber, nails, window frames and other material specified in carpenter’s specifications.” It is clearly to be inferred from paragraphs 3 and 4 that the plaintiff had a contract to perform all the carpenter work on the building referred to, and' to furnish the “ lumber, exterior wood work, timber, nails, window frames and other material specified in carpenter’s specifications; ” that such contract amounted to $30,200, and while, of course, it does not appear what portion of the carpenter work had been done or what portion of the material contracted for had been furnished, I think it does clearly appear that the lien claimed related to so much of thp carpenter work on the building as had been performed at the time of the filing of the lien, and to so much of the lumber, etc., as had then been furnished, and that the total value thereof was $13,511.95, and it seems to me that this is sufficiently definite to advise any one of the nature and extent of the demand for which , the lien is claimed.

While the first part of paragraph 3 is stated in the alternative, I think that the statement that the “person with whom the contract was made is Ambrose A. Gavigan Co.,” substantially complies with ' subdivision 3 of said section 9 of the Lien Law,- and that the statement in subdivision 5 of the notice, that “ the amount unpaid to the lienor for such labor and materials is $5,357.86,” when read in connection with the statement that the total contract was $30,200, and that the value of the work and material to date is $13,511.95, clearly refers to the amount unpaid for the labor and materials furnished.

If we are to observe the command of section 22 of the Lien Law, it seems to me that we must hold that the notice in this case is a substantial compliance with the provisions of the statute liberally construed. Certainly, the lienor has stated the general nature of the work and materials, and I think has stated that the value of the work already performed and materials furnished of such general nature is $13,511.95, and that .of such sum there is unpaid the sum of $5,357.86. Reading the notice as we have, it might still be open to the objection that it does not separately state the value of the labor and materials, but I do not think this is required by the statute, and there is certainly authority for the proposition that it is not (Clark v. Heylman, 80 App. Div. 572), and I read the opinion in Mahley v. German Bank (174 N. Y. 499) to the same effect, although the case was actually decided upon another point.

Judge Werner, writing for a majority of the court in Toop v. Smith {supra) said'(p. 287): “It is urged that the statute does not contemplate a statement of the kind or amount of labor performed or materials furnished by a lienor. We think that is precisely what the statute does require. Such a statement need not necessarily be a specific bill of particulars, but there must be such a general reference to the kind and amount of materials and labor furnished, or to be furnished, as to advise those who may have a legal interest in the subject of the character and extent of the demand upon which the claim to a lien is based. In other words, there must be a substantial compliance with the requisites of the statute.” I think that this notice does contain such a general reference to the kind and amount of materials and labor furnished as to advise those interested of the character and extent of the demand, and, therefore, recommend a reversal of the judgment, and as there are questions of fact which seem to be in dispute, a new trial should be granted, costs to abide the final award of costs.

Hirschberg, P. J. Bartlett and Rich, JJ., concurred.

Judgment reversed, with costs to abide the final award of costs, and new trial granted before another referee to be appointed at Special Term.

* Sic.