Fogarty v. Wick

8 Daly 166

• Court: New York Court of Common Pleas
• Decided: December 2, 1878
• Status: Published

Opinion

Charles P. Daly, Chief Justice.

The notice filed does not contain several of the requisites of the notice which is now required by the act of 1875 to create a lien.

The notice does not contain statements which are indispensable under the 5th section of the act (L. 1875, c. 379). It does not state that the claim of $1122 is after deducting all just credits and offsets ; nor by whom the plaintiff was employed, or to whom he furnished the materials: nor the terms or conditions of the contract, or whether all the work or materials for which the claim is made was actually performed or furnished. No lien was created by the filing of such a notice, and no lien having been created, no court could acquire any jurisdiction to entertain any proceedings under it (Quimby v. Jones, 2 E. D. Smith, 609 ; Jones v. Walker, 16 Abb. Pr. N. S. 359 ; McGraw v. Godfrey, Id. 358). It has been held that where a lien was created by the filing of a proper notice, but the right to enforce the proceedings in rem was lost by the failure to have the lien renewed, that the court, having acquired originally jurisdiction, might,'as-between the parties, render a personal judgment, but this is not such a case.

The judgment upon the report of the referee will therefore have to be reversed.

Van Hoesen, J., concurred.

Judgment reversed.