Fenichel v. Zicherman

Appellate Division of the Supreme Court of New York

Fenichel v. Zicherman

154 A.D. 471, 139 N.Y.S. 118, 1913 N.Y. App. Div. LEXIS 4575

Appellate Division of the Supreme Court of the State of New York·Decided January 3, 1913·Published·Cited by 3 cases

Opinion

Per Curiam:

This is an appeal from a judgment entered in an action to foreclose a mechanic’s hen. The notice of hen did not comply [472]*472with the provisions of subdivision 6 of section 9 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), providing that the notice of lien shall state: “6. The time when the first and last items of work were performed and materials were furnished.” There was no statement in the notice of lien at bar as to when the last items of work were performed and the materials furnished. The lien, therefore, was invalid.

“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.” (Mahley v. German Bank, 174 N. Y. 499.)

The claim being for extra work, and hence unliquidated, the allowance of interest was error. A personal judgment, however, was proper to the amount of $608!50. The 19th finding of fact is modified by striking out the statement that the notice of. lien therein referred to set forth the time when tho last ' items of work were performed and the last items of materials furnished, and the 5 th, 6 th and 7tli conclusions of law are , reverséd, and so much of the 8th as limits the plaintiif to a personal judgment for any deficiency of the amount found due. that may remain due him after such sale; and the judgment .is modified by striking out the provisions for foreclosure of the lien and a sale of the property, so that it should provide for a personal judgment for the amount found due, without interest, up to the time of the judgment, and without costs at the Special Term, and as so modified affirmed by this court, without costs to either party.

Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Judgment modified as indicated in opinion, and as modified affirmed,, without costs. Order to be settled on notice.

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Per Curiam:

This is an appeal from a judgment entered in an action to foreclose a mechanic’s hen. The notice of hen did not comply [472]*472with the provisions of subdivision 6 of section 9 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), providing that the notice of lien shall state: “6. The time when the first and last items of work were performed and materials were furnished.” There was no statement in the notice of lien at bar as to when the last items of work were performed and the materials furnished. The lien, therefore, was invalid.

“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.” (Mahley v. German Bank, 174 N. Y. 499.)

The claim being for extra work, and hence unliquidated, the allowance of interest was error. A personal judgment, however, was proper to the amount of $608!50. The 19th finding of fact is modified by striking out the statement that the notice of. lien therein referred to set forth the time when tho last ' items of work were performed and the last items of materials furnished, and the 5 th, 6 th and 7tli conclusions of law are , reverséd, and so much of the 8th as limits the plaintiif to a personal judgment for any deficiency of the amount found due. that may remain due him after such sale; and the judgment .is modified by striking out the provisions for foreclosure of the lien and a sale of the property, so that it should provide for a personal judgment for the amount found due, without interest, up to the time of the judgment, and without costs at the Special Term, and as so modified affirmed by this court, without costs to either party.

Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Judgment modified as indicated in opinion, and as modified affirmed,, without costs. Order to be settled on notice.

Fenichel v. Zicherman, 154 A.D. 471, 139 N.Y.S. 118, 1913 N.Y. App. Div. LEXIS 4575 (N.Y. Ct. App. 1913).

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Opinion

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