Fitzpatrick v. . Boylan

57 N.Y. 433

• Court: New York Court of Appeals
• Decided: May 5, 1874
• Status: Published

Opinions

Earl, C.

I think it appears, clearly, that the plaintiff was defeated at the trial term, upon the- sole ground that no-order of court continuing his lien had been made, and no new docket made in the office of the county clerk stating the-tact that such order was made. Hence, the only question for pur consideration is, whether he was properly defeated upon that ground.

The plaintiff filed notice of his lien on the 7th day of February, 1863, as required by section 6 of chapter 573 of the Laws of 1851, and commenced proceedings to enforce his lien on the sixth of May thereafter; and hence, by section 12 of that chapter, the lien was continued until judgment was rendered, which superseded the lien and took its place. On the 5th day of May, 1863, was passed chapter 500, ‘¡An act to secure the payment of mechanics, laborers and persons furnishing materials toward the erection, altering or repairing of buildings in the city of Hew York.” Section 11 of that act provides, that, “ liens shall, in all eases, cease after one year, unless, by order of court, the lien is continued, and a new docket made stating such fact.” It was under this section that the plaintiff was defeated; and whether he was-properly defeatéd or not, depends upon whether or not that act shall be construed as having retroactive as well as prospective operation. I think that act must have prospective operation only. Section 1 expressly provides that the liens to be created under that act are for work and materials thereafter to be done and furnished; and the entire proceeding prescribed by the act is to enforce the liens created under the act. The last section provides that the act shall take effect on the 1st day of July, 1863; and section 2 provides that all former acts giving liens, in the city of New York, are repealed, “ except so far as may be necessary to carry into effect liens acquired before this act takes effect.” The clear purpose of the act was to provide a new system as to these liens, and to repeal the old one as to all liens to be thereafter created, but to continue it in force as to all existing liens. This construction is sanctioned and required by the rule of law that every statute shall be construed as having prospective operation only, unless its express letter or clearly manifested intention requires that it should have retroactive effect; and that, if all the language .of the statute can be satisfied by giving it prospective operation it shall have such operation only. (Calkins v. Calkins, 3 Barb., 306; Johnson v. Burrell, 2 Hill, 238; Fairbanks v. Wood, 17 Wend., 329; Berley v. Rampacher, 5 Duer, 188; Trist v. Cobens, 19 Abb., 143; Dash v. Van Kleeck, 7 John., 499; Jackson v. Van Zandt, 12 id., 168; Sayre v. Wisner, 8 Wend., 662; Palmer v. Conly, 4 Denio, 376; Hackley v. Sprague, 10 Wend., 114.)

The learned judge, therefore, erred, at the trial term, in defeating plaintiff, upon the ground specified by him, and the judgment must be reversed and new trial granted, costs to abide event. v