Toop v. Smith

84 N.Y.S. 326 | N.Y. App. Div. | 1903

Patterson, J.:

Plaintiff sued to foreclose a mechanic’s lien, and in the same action sought to.set aside certain conveyances of the real property against which the lien was filed. The court at Special Term determined that the conveyances were made with intent to hinder, delay and defraud creditors of the defendant Samuel W. B. Smith, with whom,' it was alleged in the complaint, the plaintiff originally contracted to furnish the materials and do the work for which the lien was asserted. The conclusion of the court concerning the fraudulent character of the conveyances was fully sustained by the evidence, which is in every material respect the same as that which was before this court in the case of St. John Woodworking Co. v. Smith (82 App. Div. 348), in which the same conveyances were held to be fraudulent and void. The record in this case, so far as it relates to that subject, contains precisely the same evidence that was before the court in the case referred to, and, indeed, the proof now before us was read from the record of the trial in that case.

But while the conveyances are adjudged to have been fraudulent and void, the question' remains as to the validity and enforcibility of the lien filed against the property. It was filed not only against Samuel W. B. Smith, but also against Herbert Ooope and Edwin Shuttleworth, to affect their interest which in the notice of lien is said to be, so far as known, that of owners in fee; and in the complaint it is alleged that although the contract for work and materials was originally made between the plaintiff and Smith, yet' he, the plaintiff, at the request of the defendants Ooope and Shuttle-worth, continued under the contract to furnish materials for the building in pursuance of the terms of such contract, and it was shown in evidence that materials were so furnished and that allegation of the complaint was supported by some proof.

The effort of the plaintiff, therefore, is to charge a responsibility upon the defendants Ooope and Shuttleworth in connection with the contract. The conveyances by which the title to the premises became vested in Shuttleworth are good as, against Smith, although the property is subjected to the claims of judgment creditors at whose suit they were declared to he fraudulent and void. (Jackson v. Caldwell, 1 Cow. 622 ; Anderson v. Roberts, 18 Johns. 527.) Coope and Shuttleworth, therefore, have an interest in defending against the lien, and it is open to them to question its validity.

The notice of lien filed by the plaintiff was insufficient. It failed to comply with the requirements of the 4th subdivision of the 9th section of the Lien Law. It is required by that subdivision that the notice of lien must state the labor performed or to be performed and the materials furnished or to be furnished, and the agreed price or value thereof. The notice of lien filed by the plaintiff does not contain such a statement. It merely states, .that “ the labor performed and the materials furnished and the agreed price or value thereof is as follows: Under and by virtue of a contract partly written and partly oral, made with the said Smith, .Coope and Shuttleworth, above mentioned,- according to specifications in writing and drawings, of the improvements herein mentioned, on or about February 24th, 1898, April 25th, 1899, and September 25th, 1899, and also for certain extra work and materials ordered by said Sliuttlewórth, all upon the building and premises situate as hereinafter -stated, fpr the sum of eiglity-nine hundred and eighty-seven dollars ($8,987.00) with interest on five thousand and ninety-one and 11/100 dollars from December 6th, 1899.” What materials were furnished and what work was done is nowhere stated, and no specifications or drawings appear in, or in connection with, the notice of lien.

It was held in McKinney v. White (15 App. Div. 423) that, to entitle a claimant to the benefit of the Mechanics’ Lien Law, its directions must be substantially observed, such compliance being necessary to confer jurisdiction upon the court, and also that the statute requires that the notice shall state the nature and amount of labor and services performed or of materials furnished or to be furnished. That case was affirmed by the Court of Appeals (162 N. Y. 601). Here, as there, we are unable to find a statement of the nature and amount of the labor and services performed, or the nature and amount of the materials furnished or to be furnished. The notice is absolutely silent, as to those matters. - There is no direct mention of the character of the work or the nature of the materials, and nothing is presented in connection with the notice by a reference to which that information could be obtained. The cases cited by the respondent to sustain the sufficiency of -the notice of lien do not apply. In Reeves v. Seitz (47 App. Div. 267) the intimation is plain that the notice contained all that was requisite under the statute to constitute a valid notice of lien; and in Vogel v. Luitwieler (52 Hun, 184) it was held only that, as between the parties to that action and in view of its circumstances, the omission to state in the notice of lien what were the materials and work for which the lien was claimed, did not affect the right of that particular plaintiff.

Unless the defendant Shuttleworth has no legal right to contest the validity of this lien it must be adjudged in this action that the notice was insufficient to bind him. We think that he was so situated. with reference to the property- as to entitle him to raise the question.

The judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.