Conklin v. Wood

3 E.D. Smith 662

• Court: New York Court of Common Pleas
• Decided: July 15, 1857
• Status: Published

Opinion

By the Court. Ingraham, First J.

The notice to create the lien in this case was not. verified as required by the statute.

By the act of 1855, it is provided that such notice shall be verified in the same manner as a pleading. It cannot be pretended that an affidavit that the statement of the balance is due, is a verification of all the facts stated in the notice—either of the plaintiff’s own knowledge or on information or belief. It does not verify the allegations that the contract was made, nor that the defendants had any interest in the land, nor the location of the premises ; all of which are as necessary to the validity of the lien as the statement of the balance. This defect is one which goes to the whole claim and cannot be amended.

It is suggested by the plaintiff that the defendant should have made the objection sooner. It is not obligatory on him to do so except on the trial.

Unless the plaintiff shows a valid claim under a lien duly filed, he cannot succeed in ’an action under this statute. A void notice furnishes no foundation for a judgment. The judgment should be reversed.

Judgment reversed.