Argued April 29, 1872
Decided April 30, 1872
Anson Bingham for the appellant.
N.C. Moak for the respondents.
In Ely v. Holton ( 15 N.Y., 595), it was decided by this court that the effect of an amendment of a statute made by a subsequent statute declaring that such statute shall be amended so as to read as follows, retaining a part of the statute amended and incorporating therein new provisions, was not to repeal the part retained and re-enact the same, but that such part of the statute continued in force from the first enactment, and that the new provisions incorporated became operative from the time the amendatory statute took effect. It would follow that, where certain provisions of the original statute were omitted from the amendatory statute, such provisions were abrogated and ceased to form any part of the statute after such time. Applying these principles to the present case, it follows that the word "hereafter," in the first line of section 1, of chap. 402, p. 1086, Laws of 1854, being contained in the section as amended by chapters 588, p. 1355, Laws of 1869, continues to speak from the time of the passage of the act of 1854, and applies to and includes all labor and materials after that time; and that the new provision incorporated in amendatory statute, requiring notice to be filed in the office of the county clerk of the county in which the property was situate, took effect when the same became operative; and that the provision for filing notice in the office of the town clerk of the town, in the fourth section being left out of the section as amended, was abrogated at the same time. The amendatory statute took effect before the filing of the notice by the lienor in the town clerk's office. There was at that time no statute giving a lien upon filing notice in the town clerk's office. No lien was, therefore, acquired by filing the notice in that office. No notice was filed in the office of the county clerk, the place where it should have been filed, as the statute then stood, to acquire a lien. The order of the General Term reversing the judgment of the referee in favor of the lienor must be affirmed, and judgment final given for the owner upon the stipulation.
Order affirmed; judgment accordingly.