Opinion
December 3, 1909.
John L. O'Brien [ Theodore Connoly with him on the brief], for the appellant comptroller. Mervyn Mackenzie, for the appellant Fitzgibbons Boiler Company.
James F. Mack, for the respondent.
The order from which the appeal was taken was evidently made on the theory that the notices that the material was delivered under a conditional bill of sale, by which title was not to pass until payment of the contract price, in effect, constituted a mechanic's lien, and it directs that they be discharged the same as if they were mechanics' liens, on the giving of the undertaking by the contractor who has a contract with the city made by the board of trustees of the Bellevue and allied hospitals for the performance of certain work at the Gouverneur Hospital. The Fitzgibbons Boiler Company furnished three boilers to a sub-contractor, which were delivered and installed in part performance of the contract work of Sheehan Co. The notices filed with the comptroller which have been ordered discharged, do not purport to be notices of mechanics' liens. They consist of three letters. The first is under date of July 12, 1905. It gives notice that the Fitzgibbons Boiler Company has an agreement, in writing, with Rossman Bracken, steam heating contractors, giving their office address, to furnish the three boilers designated in certain specifications, giving the purchase price, and that the boilers were installed in the Bellevue Hospital, Gouverneur branch, and that "under such contract it is especially provided that the title to the boilers shall not pass from our company until all sums due on the purchase price of the same are fully paid and satisfied." And it further states that Sheehan Co. are the general contractors. The second letter is dated March 7, 1906, and refers to the other, and gives notice that a payment of $4,452 has been made on account, leaving a balance of $1,113 unpaid, and again draws attention to the provision of its contract by which title was not to pass until the whole amount of the purchase price should be paid. The third letter is under date of December 11, 1907, and refers to the second letter and describes it as a letter "in regard to a conditional bill of sale," and states that the amount "of this conditional bill of sale was $5,565," and that there was a balance due and owing to the Fitzgibbons Boiler Company of $1,113, together with interest thereon, "before we relinquish our right and title." It will be noticed that no lien was claimed upon the fund due or to grow due to the contractor. There was no attempt to comply with the requirements of section 12 of the Lien Law (Gen. Laws, chap. 49; Laws of 1897, chap. 418, as amd.). None of the letters state the residence of the claimant, nor did the first letter state the amount due or to become due, but merely the contract price, without stating whether or not it had been paid. None of the letters stated the date when any part of the purchase price became due. Section 12 of the Lien Law, as amended by section 2 of chapter 37 of the Laws of 1902, which authorizes the filing of a notice of lien on account of a public improvement, provides with respect to the contents thereof as follows: "The notice shall state the name and residence of the lienor, the name of the contractor or sub-contractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due, a description of the public improvement upon which the labor was performed and materials expended, the kind of labor performed and materials furnished, and give a general description of the contract pursuant to which such public improvement was constructed." In no view can these letters be held to constitute valid notices of liens under the statute, and, therefore, the court was without authority to discharge them as if they were mechanics' liens. It is extremely doubtful whether the order of the court or the undertaking which it requires to be filed, as a condition of discharging the alleged notices of lien, would protect the city. The only possible theory upon which the city would be protected is that the Fitzgibbons Boiler Company had notice of the application for the order and might be bound by it. The boiler company, however, as well as the city, appeals, and its counsel argues that the undertaking would be void and not enforcible for its protection. We are of opinion that the rights of the Fitzgibbons Boiler Company, by virtue of the notices it gave to the comptroller, cannot be determined upon a summary application to the court. It does not, as already observed, assert a lien against any fund. It merely gives notice that it claims and will claim that the title to the boilers did not pass from it, and will not pass until the purchase price thereof is paid in full. Whatever its rights in the premises may be, inasmuch as it has filed no notice of a mechanic's lien and asserts no right under the Mechanics' Lien Law, the court was without authority, by virtue of the provisions of that law, to interfere with the notices which it gave the comptroller. There being no other authority for a summary application to the court in the premises the application should have been denied.
It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to each appellant, and motion granted, with ten dollars costs to the Fitzgibbons Boiler Company.
INGRAHAM, McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements to each appellant, and motion granted, with ten dollars costs to the Fitzgibbons Boiler Company.