Summary
In Mahley, the Court of Appeals held, in 1903, that a notice of lien which failed to state when the first item of work was performed was insufficient.
Summary of this case from Bennett Bros. v. Bracewood RealtyOpinion
Argued March 30, 1903
Decided April 28, 1903
James O. Moore and Robert F. Schelling for appellant.
Wallace Thayer for respondent.
The action was brought to foreclose a mechanic's lien. The controversy is between the plaintiff, the lienor, and a sub-contractor and the appellant, the German Bank, an assignee of the principal contractor, over the contract price for the work, which the owner admitted to be due and offered to pay into court. The plaintiff filed his notice of lien prior to the time when the appellant's order was filed in the county clerk's office as required by the statute. The plaintiff's claim is, therefore, superior to that of the appellant, provided that the notice filed by him was sufficient to give him a lien, and the sole question presented on this appeal is whether the notice sufficiently complied with the statute.
The Lien Law (Chap. 418, Laws of 1897) by section 9 requires the notice of lien to state among other things "The labor performed or to be performed, or materials furnished or to be furnished, and the agreed price or value thereof. The amount unpaid to the lienor for such labor or materials. The time when the first and last items of work were performed and materials were furnished." The notice filed stated that the plaintiff claimed a lien for the sum of $341.25, "the same being for work, labor and materials furnished as hereinafter mentioned, * * * said amount being the true price and value of said work done and materials furnished, after deducting the payments that have been made thereon. That * * * ninety days have not elapsed since the completion of the contract or the furnishing of said material, or the final performance of said work." The appellant contends that the notice is fatally defective in failing to state the agreed price or value of the labor and materials performed or to be performed or furnished or to be furnished, and in failing to state the time when the first and last items of work were performed or materials were furnished. The learned Appellate Division in an opinion rendered on a previous appeal in this action ( 52 App. Div. 131) recognized these defects, but upheld the lien under the provisions of section 22, which enacts: "This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same." Full effect should be given to this provision, and so far as the appellant's first objection is concerned, we think that the statement that the value of the work was $341.25 after deducting the payments made on account thereof could be held a substantial compliance with the statute. So also the statement that ninety days have not elapsed since the completion of the contract or final performance of the work may be regarded as a statement that the last item of work or materials was performed or furnished within ninety days. But under the most liberal rule of construction we cannot find anything in the notice that even attempts to state when the first item of work was done or anything from which that time may be inferred. It is true that the particular advantage or object of requiring this fact to be stated is not readily apparent, but the statute has expressly required it. Errors in the notice may be disregarded and it is not necessary that the precise verbiage of the law should be followed. But the provision of the statute that the law shall be construed liberally does not authorize the courts to entirely dispense with what the statute says the notice shall contain. We are, therefore, constrained to hold the notice of lien insufficient.
The judgment should be reversed, and as the plaintiff cannot succeed on a new trial, the complaint must be dismissed, but without costs in any court, and the fund awarded to the appellant.
PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur.
Judgment reversed, etc.