143 Misc. 911 | New York County Courts | 1932
The question in this case is whether foreclosure can be had on a mechanic’s hen where the copy of the notice of hen, and not the original, was filed. The action being against the owners of the realty on which the improvements were made, and the proof being that the improvements were made at the request of and under
I am holding that the filing of a copy of a notice of mechanic’s lien, instead of the original, is not sufficient comphance with the Lien Law, and does not create a hen on the premises against which the notice is intended. This has not been held before in any case called to my attention or which I have been able to find reported. The reverse was held in Italian Mosaic & Marble Co., Inc., v. City of Niagara Falls (131 Misc. 281), which was decided in 1928. My respect for the learned jurist who wrote the opinion in that case has compelled very serious consideration before arriving at a conclusion different from his.
Section 3 of the Lien Law (as amd. by Laws of 1930, chap. 859) says that a mechanic’s hen on real property arises at the time of filing a notice of hen as prescribed in that law. Section 9 thereof (as amd. by Laws of 1929, chap. 515) prescribes what the notice of hen is to contain, and says that the notice containing the prescribed particulars must be verified by the henor or his agent.
The Court of Appeals held, in 1928, that where the verification on the notice of hen was not signed by the henor, although he did sign the notice of hen itself, there was not sufficient comphance with the statute, and reversed the order of the Appellate Division that had reversed the dismissal at Special Term of the plaintiff’s complaint. {Kingston v. M. S. Construction Corporation, 249 N. Y. 533.) Subsequently, in 1930, the Court of Appeals affirmed a dismissal of the complaint in an action to foreclose a mechanic’s hen for practically the same reason. {Mozarsky v. Whinston Bros., Inc., 254 N. Y. 552.)
In the case of Italian Mosaic & Marble Co., Inc., v. City of Niagara Falls {supra) the learned referee rehed upon the authority of Kelley v. City of Syracuse (10 Misc. 306), which in turn rehed upon Smith v. Kerr (49 Hun, 29). But this last named case involved the service of an offer of judgment by the attorneys for the defendant upon the attorney for the plaintiff. Pleadings are, and have for a long time been, served upon an opposing attorney by service of copies thereof. The rule apphcable in such case cannot be used as an aid in the construction of a statute that prescribes a means for imposing a hen upon real property.
Section 10 of the Lien Law (as amd. by Laws of 1929, chap. 515)
I am mindful of the provision of section 23 of the Lien Law (as amd. by Laws of 1929, chap. 515) which says: “ This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial comphance with its several provisions shah be sufficient for the validity of a hen and to give jurisdiction to the courts to enforce the same.” This section has been cited in reported cases as supporting the view that the filing of a copy is sufficient.
But under that very section a substantial comphance with the provisions of the statute is necessary before a hberal construction can be given to the act. The copy of the notice may be enough to put all persons on notice of the claim being made for materials or labor, but the Legislature evidently intended that a hen should not actually be imposed on real property no matter what a materialman or laborer might claim, unless the verified notice of hen prescribed in section 9 is filed as provided in section 10. Section 9 says that “ a failure to state the name of the true owner or contractor, or a misdescription of the true owner, shah not affect the validity of the hen.” It, therefore, intended that a failure to comply with the other provisions of section 9 should render ineffective the notice as a hen on the real property. The notice of hen in each of the Court of Appeals cases that I have cited gave ah particulars and could certainly place ah persons on notice of the claim made by the person that filed it; yet the omission to sign the verification rendered the fifing inoperative as a hen. If the omission of the signature
Judgment will, therefore, be awarded the defendants. Submit proposed findings and decision in accordance herewith.