McDonald v. Mayor of New York

68 N.Y.S. 462 | N.Y. App. Div. | 1901

McLaughlin, J.:

On the 29th day of July, 1895, the defendant Collins entered into a contract with the city of New York for regulating and grading Jerome avenue from Wolf place to One Hundred and Nineteenth street, in said city. Thereafter, and with the consent of the city, the plaintiff entered into a contract with Collins by which he agreed to sell and deliver to Collins 40,000 cubic yards of filling, and as much more as might be required, at the rate of twenty-five cents per cubic yard. The plaintiff performed his part of the contract, but a dispute thereafter arose between the plaintiff and Collins as to the number of yards delivered and the amount due therefor — the plaintiff claiming that Collins was indebted to him in the sum of $6,086.49. This was disputed by Collins, and he having neglected to pay the amount claimed by the plaintiff on the 6th of March, 1897, the plaintiff filed a notice of lien therefor upon the moneys due from the city to Collins, and this action was brought to foreclose said lien.

The learned justice sitting at Special Term, after a trial had before him, dismissed the complaint upon the merits, and from the judgment thereafter entered the plaintiff has appealed.

After a careful consideration of the record we are of the opinion that the complaint was properly dismissed. The plaintiff never acquired a lien, and, therefore, there was nothing to foreclose. It is true that he attempted to acquire a lien, but his effort in that direction was of no avail, inasmuch as the notice did not comply with the statute. The notice filed purports to have been signed by- “ John B. McDonald, by Pierre W. Briggs.” It is verified by Pierre W. Briggs, who swears “that he is the agent of John B. McDonald, the claimant mentioned in the foregoing claim, and that the statements therein Contained are true to his own ■ knowledge' or information and belief.”

Discussion is unnecessary to demonstrate that- this notice, to the extent of acquiring a lien upon any money due from the city to Collins, was ineffectual. The statute gave to the plaintiff the right to a lien for the amount due him from Collins, but this right he could only acquire hy complying with the statute. This he did not do. Chapter 410 of the Laws of 1882 was, at the time the notice of lien was filed, in full force and applied to and governed the subject-matter involved. Section 1825 of that chapter prescribed what the. notice of lien should contain, and, among other things, it required that the notice should be verified by the oath or affirmation of the claimant. This notice was not verified by the oath or affirmation of the claimant, and, therefore, the filing of it was of no effect, so far as it was sought to acquire a lien on .moneys due from the city to Collins. A notice of lien under this section cannot be verified by an agent. The act requires that it shall be . verified by the principal, the claimant, and that act cannot be delegated to another. This is the view entertained by the learned justice at Special Term, in which we fully concur. (Conklin, v. Wood, 3 E. D. Smith, 662 ; Keogh v. Main, 50 N. Y. Super. Ct. 183.)

It is, however, urged that an error was committed in dismissing the complaint; that even though the plaintiff did not have a valid lien, the court should have granted him a personal judgment against Collins for the amount due under their contract. We do not think so. Before a personal judgment can be obtained in an action brought to enforce a lien of this character, the lien must first be established. It is the existence of the lien which gives the plaintiff a right to resort to a court of equity for the enforcement of his claim. The proceeding to enforce a mechanic’s lien is a statutory one and can only be resorted to in a case which comes fairly within the provisions of the statute. The right to a personal judgment is merely incidental to the main purpose, which is to satisfy the debt out of certain specific property,'and if the property be not sufficient for that purpose, the lien having been established, out of other property of the defendant. But where a lien does not actually exist, a party cannot invoxe the equitable powers of the court upon the mere pretense of such existence, and thereby deprive his adversary of what he otherwise would be entitled to, viz., a trial by jury. To hold differently would be simply saying in another way that all demands on contracts, either expressed or implied, might be enforced in this way by simply making a false allegation that a lien had been acquired upon certain property. (Burroughs v. Tostevan, 75 N. Y. 567 ; Weyer v. Beach, 79 id. 409.)

Weyer v. Beach (supra) is directly in point. There, Judge Rapallo, delivering the opinion of the court, said: “ This point has several times been decided by this court. The proceeding is statutory and can only be resorted to in a case falling within the statute, that is, where a mechanic’s lien exists. The main object of the proceeding is to enforce the lien, and the power to render a personal judgment is merely incidental to the main purpose and to avoid the necessity of resorting to a separate action. But where no lien exists, this form of proceeding cannot be resorted to for the purpose of enforcing a mere personal contract between parties, and the.unfounded allegation of the existence of the lien does not authorize the substitution of this proceeding in place of the proper •common law action.”

The judgment appealed from is right and must be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and Hatch, JJ., concurred.

Judgment affirmed, with costs.