Hallagan v. Herbert

2 Daly 253

• Court: New York Court of Common Pleas
• Decided: June 15, 1867
• Status: Published

Opinion

By the Court.—Daly, F. J.

The statute declares that the notice to create a lien shall be verified before filing, in the same manner as a pleading is required to be verified by the Code (amendatory act of April 13,1855). We held, in Conklin, v. Wood (3 E. D. Smith, 662), that unless the plaintiff shows a a valid claim under a lien duly filed, he cannot succeed in an action under the statute. In that case, the judgment was reversed, because the notice served upon the county cleric was not verified in the manner prescribed by the Code. In the complaint in the present case, there is no averment that the notice was verified at all, whereas the verification of it before filing is essential to the creation of the lien. The demurrer is upon the ground that the amended complaint does not state facts sufficient to constitute a cause of action; and it does not, for the filing of a notice verified in the manner above stated, is one of the facts essential to the creation of a lien, and to the existence of a cause of action. The want of a verification, or of a sufficient verification, of the notice is, as was said in Conklin v. Wood, a defect which goes to the whole claim, and cannot be amended.

The judgment should therefore be reversed.