105 N.Y.S. 586 | N.Y. App. Div. | 1907
This case comes before the court■ upon an agreed statement of facts under'section 1279 of the Code' of Civil Procedure.
The plaintiffs filed a notice of mechanic’s lien against certain
The premises in question are situated on the southwesterly corner of Broome and Mangin streets, in the city of New York, and have a frontage of fifty feet on Broome street and seventy-five feet on Mangin street. The notice of lien was filed on the 5th of October, 1906, and there then stood upon the premises a building not quite completed, which had one entrance upon Mangin street. The action to foreclose was commenced on October 26,1906, in the City Court of the city of New York, and a notice of pendency of action duly filed on that day.' Thereafter the plaintiffs obtained' an order amending the summons and complaint by adding additional parties defendant, and an amended notice of pendency of action was filed on the 21st of November, 1906. Intermediate the filing of these notices two other notices of mechanics’ liens were filed against the premises, one on October twenty-ninth and the other on November twenty-first. Neither of these claimants was made party to the foreclosure action, and all of the defendants defaulted.
The defendant objected to taking the title ivpon several grounds, first, because the description of the premises in 'the notice of lien filed was. insufficient within the meaning of the Mechanics’ Lien Law to sustain the judgment directing the'sale. The point of his objection in this respect was this : The notice of lien filed described the property as “ Situated in the 13th Ward of the Borough of
The statute (Laws of 1897, chap.' 416) provides (§ 9, subd. 7) that the notice of-lien shall state:, “The property subject to the . lien with a description thereof sufficient for identification, and if in a city, or village, its' location^ by street and number, if known.” The notice here filed -did -not give the street number, nor,'.in my - opinion, did it describe sufficiently for identification the lot which was sold. In a populous city like New York I do not think good title, can be given, to a lot'fifty feet in width on the foreclosure of a lien when the notice of lien describes the lot as about twenty-five feet in width. The judgment of foreclosure, in pursuance of which a sale is had, has - for its foundation the notice of lien upon which its validity " depends. It is true the -statute is remedial and is -to receive a liberal construction, but this does not authorize the court . to entirely dispense with what the statute says the notice must contain. . (Mahley v. German Bank, 174 N. Y. 499.)' To hold under the facts here presented that good title to the lot. in question can be. -given by the. referee is to disregard the notice and supplement it by extrinsic proof, and I do not-see how that can be-done. (Armstrong v. Chisolm, 100 App. Div. 440.)
There certainly is sufficient doubt about the. question so that a purchaser ought not to be compelled to take the.title. The right to specific performance is to be granted or withheld upon consideration of all the circumstances and in the exercise of a sound discretion. , The general rule is that a purchaser will not be compelled to take a doubtful title or one which ‘he inay be obliged to defend by litigation. (McPherson v. Schade, 149 N. Y. 16; Vought v. Williams, 120 id. 253; Abbott v. James, 111 id. 673.) . “ The pui> chaser is entitled to a marketable title.. A title ■ open to a reason
Other objections are raised which would require serious consideration, but having reached the conclusion that the defendant should have judgment, it is unnecessary to pass upon'.them.
The defendant is entitled to judgment relieving him from accepting the deed offered by the referee, and also for $150 paid by him, besides costs.
Ingraham and Lambert, JJ., concurred; Clarke and Houghton, JJ., dissented on the ground that .the plaintiffs in their opinion were entitled to judgment.
J udgment ordered for defendant, with costs.