118 N.Y.S. 10 | N.Y. App. Div. | 1909
The decision of this controversy requires a determination of the •validity and priority of certain mechanics’ liens filed by appellants and respondents against real property in the city of Bochester. The
1st. Palmer Lumber Company (appellant), March 20,
1908, 9:27 a. m............................ $2,272 76
2d. Becker Glass and Paint Company (appellant), March
23, 1908, 9:06 a. m.........'................ 1,255 62
3d. Weaver, Palmer & Richmond (respondent),
March 23, 1908, 4:58 p. m.................. 1,750 00
4th. Warren Chemical and Manufacturing Company
(respondent), March 24, 1908, 11:10 a. m..... 1,123 57
5th. Charles P. Evans Company (respondent), March 24,
1908, 12:40 p.m........................... 2,415 15
6th. Beiter Paint Company (respondent), March 28,
1908, 11:59 a. m........................... 62 99
7th. Vogel & Binder Co. (plaintiff, respondent),
March 28, 1908, 12:00 m. .................... 1,670 34
8th. Warren Chemical and Manufacturing Company
(respondent), April 30, 1908, 11:17 a. m........ 1,123 57
The lien of Weaver, Palmer & Richmond, No; 3 above, consists of an order drawn by the Montgomerys against the owner, Genesee Amusement Company, directing the payment of the - sum of $1,750 out of the fund and duly accepted in wilting by the Genesee Amusement Company. No question seems to be made, either by appellants or respondents, that this was properly allowed by the trial court as a lien upon the premises. In liens Nos. 1, 2 and 4'the Genesee Amusement Company alone is named as owner. In lien No. 5, Harris and Hooker and Genesee Amusement Company are named as owners; and their respective interests in the premises is stated to be, as to Harris and Hooker, ownership in fee simple by deed to them recorded on or about December 12, 1907, and by them deeded to Genesee Amusement Company by unrecorded deed. Nos. 6 and 8 contained similar statements as to ownership. No. 7 names Harris and Hooker as owners and Genesee Amusement Company as a person in interest, the exact nature of which is unknown. Lien No. 8 represents the same claim and is for the same amount as lien No. 4 For some time
The trial court has found and the judgment as entered determines that appellants’ liens, Mos. 1 and 2 above, as well as the first lien of the Warren Chemical Manufacturing Company, Mo. 4 above, are invalid and void; and it further directs their cancellation and annulment of record. It is further found and determined that the other liens are valid, and appropriate direction-is given for their enforcement and payment.. Appellants do not'assail the validity of the other liens, but do insist that their liens are- valid, and having been filed first in time, are superior in right to those of 'the other lienors.
There can be little doubt that the appellants had the right to file their notices of lien directed to the Genesee Amusement Company as owner, and that the lien attached to such interest as the company had. as an owner, whatever that might be, except as their right to such lien may be modified by section 13 of the Lien Law (Laws of '1897, chap. 418) to which reference will be made hereafter. (Strauchen v. Pace, 195 N. Y. 167, 170.) In that case, the court -in discussing the effect, and. application -of sections 2 and 9 of this law, clearly states that a failure to name the true owner in the notice of lien and assert a claim against him eo nomine does not impair the effect of the notice for the purpose of impressing a lien upon whatever interest the party -named in and against whose interest a lien is therein stated to be claimed may have, provided only that interest, is one of those specified in section 2 of the act. The amusement company was in jiossession of the premises with the title thereto under its unrecorded deed-. Actual possession of real estate is notice “ to all the world of the existence of any right which the person in possession is able to establish,” and it does not seem material for the purpose of charging every one with such notice that such' rights or
The' amusement company being in possession of the premises claiming under a valid conveyance of title was not only an“ owner ” within the definition of an'“owner” in section 2 of the statute, but was, in fact, the owner of the premises. It follows that appellants’ liens attached to' that interest at least, and the finding of the trial court that these liens were invalid and void for any purpose was erroneous.
Respondents, however, insist that their liens have, by express provision of the statute, priority over appellants’ claims. The statutory provision to which we are referred as sustaining this claim is found in section 13 of article 1 of the Lien Law, which provides that “ a lien for materials furnished or labor performed in the improvement of real property shall have priority over a conveyance, judgment or other claim against such property not recorded, docketed or filed at the time of filing the notice of such lien.” We are not assisted in applying this provision of the statute to a determination of the rights of the several parties in this action by any direct authority construing it to which our attention has been directed. It would seem that the underlying purpose of this provision was to relieve the lienor from the possible result of having his lien, otherwise perfect, as a claim upon • the real estate it describes made ineffectual by some .secret transfer, or other incumbrance, upon the property, which was asserted to prevent the lien’s attaching, to the property, or reducing its value or extent. It should be borne in mind that appellants’ liens attached to the interest of the Genesee Amusement Company in the property, whose title was as to “ all the world ” that of an owner of the fee. Record of its deed was not necessary for the purpose of giving notice as to it of the title it claimed and had. Appellants’ liens attached to that title. Their liens were duly filed. It is only as to conveyances, judgments or other claims, not recorded, docketed or filed, that the statute in terms applies to subordinate them to subsequent liens.properly filed against the property. Any purchaser, or mortgagor, of the premises taking title from the amusement company
The judgment should be reversed on the law and facts and a new trial granted, .with costs to the- appellants to abide the event.
All concurred, except’ McLennan, P. J., who dissented upon the ground that the word “ owner ” as -used in the statute means the owner as disclosed by record, and that a lien filed against such owner is superior to one filed against the owner under an unrecorded deed.
Judgment reversed and new trial ordered,, with costs to appellants • to abide event upon questions of law;and fact.