Schwartz v. Lewis

123 N.Y.S. 319 | N.Y. App. Div. | 1910

Burr, Ji:

This action is brought to foreclose a mechanic’s lien. The complaint alleges that on October 2é, 1907, plaintiff entered into an agreement with defendant Lewis to furnish certain plumbing materials and perform the labor necessary to install the same upon premises belonging to said defendant for the sum of $1,300; that between October 24, 1907, and January 29, "1908, he performed said agreement; that there remains unpaid $600 on account of the agreed price; and that on April 18, 1908, a notice of lien was filed in the county clerk’s office. By amendment to the complaint on the trial it was further alleged that at the times mentioned plaintiff was a duly licensed plumber. Upon the trial the notice of lien -was offered in evidence, and thereafter the learned trial court refused to receive any evidence in support of any of the allegations of the complaint upon the ground that it affirmatively appeared from such notice that it was not filed within ninety days after the date of the final performance of the work or the final furnishing of the materials (Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 10), and thereupon directed judgment for defendants. From such judgment this appeal is taken.

The statute does not in express terms require that the notice of lien shall state that such period of time has not elapsed. (Id. § 9, as amd. by Laws of 1905, chap. 96.) Strictly speaking, it could not be done, for a notice of lien must be completed and verified before filing, and a considerable period of time might elapse after its verification and before its filing which would not affect its validity if it was filed within the statutory period.' It is necessary to state in the notice “ the time when the first and last items of work were performed and materials were furnished.” (Id. § 9.) This notice of lien purported to state each of these dates. It must be conceded for the purposes of this appeal that the fact was that the last material was furnished and the last work was performed on January 29,1908, for that is what the complaint alleged and what plaintiff offered to prove. Is the notice fatally defective because it states the last date to be January 29, 1907, instead of January 29,1908 ? We think not. The Lien Law is “ to be construed liberally to secure the beneficial interests and purposes thereof,” and “ A substantial compliance with- its several provisions shall be sufficient for the validity of a -lion and to give jurisdiction to the courts to enforce the same.” (Id. § 22.) If the notice had contained no statement as to the date when the last material was furnished or the last labor performed, it would have been invalid. ’ (Mahley v. German Bank, 174 N. Y. 499.) But when it purports to state the date of furnishing the last item of work and material, if an unintentional error in stating such dat„ is sufficient to vitiate the lien, then if this notice liad inadvertently stated such date to be January 28, 1908, when as matter of fact it was January twenty-ninth of. the same year, it would be bad. This is not the liberal construction which the statute contemplates. (Ringle v. Wallis Iron Works, 149 N. Y. 439.) If by any fair construction the statement can be read so as to show the date intended, and that date is substantially correct, effect will be given to the notice. (See New Jersey Steel & Iron Co. v. Robinson, 85 App. Div. 512, 517.) There is no claim that the date of the furnishing of the first item of labor and materials is not correctly stated. The finding of ■ the trial court is that beside the statement of the date contained in it the notice does not' contain any other statement from which it can be inferred when the said last item of work was performed and the said last item of • material was furnished. Suppose that the notice had simply read January 29, stating no year, could any one claim that he was not fairly apprised of its meaning ? The first item was furnished October 24, 1907. The lien was filed April 18, 1908. The last item must necessarily have been subsequent in point of time to the' first,' and prior in point of time to the filing. Therefore, the January referred to must have been some January intervening October, 1907, and April, 1908. January, 1908, was the only one. We may, therefore, reject the year after January as surplusage which does not mislead any one.' (Vitelli v. May, 120 App. Div. 448; Waters v. Goldberg, 124 id. 511.) The learned trial court seemed to proceed upon the theory that there was no power to amend the notice of lien. There is not. This is not a question of amendment; it is one of construction. What does the notice fairly mean %

The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.

Woodward, Jenks, Thomas and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.