Reeves v. Seitz, 62 N.Y.S. 101

62 N.Y.S. 101 | N.Y. App. Div. | 1900

Per Curiam : ^*

This action is brought by the plaintiff, a materialman, against the defendant Seitz as owner and the defendant Goeb as contractor, to foreclose a mechanic’s lien. There is no dispute as to the. quantity or value of the goods furnished by the plaintiff. ■ The amount of plaintiff’s claim is $373.33. A notice of lien was filed in the clerk’s office on September 19, 1898. Previous to this date the defendant Goeb had sued the defendant Seitz for a balance due on the contract in excess of the amount of plaintiff’s claim. That case came on for trial in the Municipal Court of the city of New York on September nineteenth. During the progress of the trial, but before any decision was made or judgment rendered, a copy of the notice of lien was sqrved on the defendant Seitz, which he presented to the justice holding court. Nevertheless the trial proceeded, and judgment was rendered in favor of Goeb, which Seitz immediately paid. .

The - first objection to the plaintiff’s recovery is that the paper served on Seitz was not a true copy of the notice of lien filed in the clerk’s office. The notice filed contained the signature of the claimant at the foot of the lien, and also the signature of Reeves to the verification. The copy served contained neither signature. In these respects, of course, the ¡laper served was not an exact copy of the paper filed ; but by section 22 of the Lien Law of 189'T (Chap. 418) it is directed that the act shall be construed liberally to secure its beneficial interests and purposes, and that a substantial compliance with its several provisions shall be sufficient. If, therefore, the notice served contained all that was requisite under the statute to constitute a valid notice of lien, it was sufficient; and whatever the notice filed contained in addition to the statutory requirements should be regarded as surplusage. It was not necessary that the notice of lien should he signed (Moore v. McLaughlin, 66 Hun, 133), nor was it necessary that the affidavit of verification be signed by the affiant. (Jackson ex dem, Kenyon v. Virgil, 3 Johns. 540.)

The second objection is the payment of the judgment recovered by the contractor .Goeb. This payment was not made until after the defendant Seitz had notice of lien, nor was it a compulsory payr ment. On the service of the notice of lien the defendant Seitz should have applied for an amendment of his defense ora postponement or stay of the action. Had the trial court denied relief in these respects, he could have sought it by appeal, or it may be that he might have applied to a court of equity to restrain the enforcement of the judgment. The plaintiff was not a party to the suit in the Municipal Court, nor could the justice holding it summarily dispose of his rights by expressing the view that the notice of lien was invalid. "When Seitz chose to acquiesce in that view' and not resist the recovery of the judgment, the payment of that judgment cannot be allowed to defeat the plaintiff’s claim.

The judgment appealed from should be affirmed, with costs.

All concurred. ■

Judgment'affirmed, with costs.

* This opinion was written by Mr. Justice Cullen before his designation as an . associate judge of the Court of Appeals, and is adopted by this court.' The decision of the court was rendered after such designation was made.