| N.Y. App. Div. | Oct 23, 1907
This (is an action to foreclose a- mechanic’s lien. The only refer-' ence in the notice of lien to the labor performed or the materials furnished was as-follows: “ 4. The labor performed .and -the mate; rials furnished' was the moving of a building from.'tlie north side oí Pacific Street and placing the same upon the premises hereinafter described and designated, and the agreed price thereof is Three thousand four hundred and sixty dollars.”- It is to be observed that the only claim stated was -for the moving of the building and the placing of it upon other premises. The complaint uvas somewhat-broader, claiming for the same moving and placing upon other premises, and in addition for the completing óf the erection thereof. The amount claimed to be due by the plaintiff and mentioned in the decision is $3,457.20, $3,000 of which,'however, is for the building itself, the .balance being for something else. It is evident that the. notice of lien is not valid to support a claim for the price of the building itself. It is held that' the statement in the notice of lien as provided for in subdivision 4 of section 9 of the Lien Law (Laws of 1897, chap. 418). must specifically and definitely state the labor performed or to be performed, or the materials furnished .or to be furnished. (Toop v. Smith, 181 N.Y. 283" date_filed="1905-04-18" court="NY" case_name="Toop v. . Smith">181 N. Y. 283; McKinney v. White, 15 A.D. 423" date_filed="1897-03-15" court="N.Y. App. Div." case_name="McKinney v. White">15 App. Div. 423.) This has not been done in this case as far as the building is concerned.
The judgment shoiild be reversed and. a new trial granted, costs to abide the event.
Jenks and High,-JJ., concurred ; Woodward and. Gáynor, JJ., dissented on the ground that no question was raised below of the sufficiency of the notice' of .lien, but that on the contrary the case was tried on the assumption that-the notice of lien was sufficient.
Judgment reversed and new; trial granted, costs to abide the final award of costs,