In re the Wilaka Construction Co.

New York Supreme Court

In re the Wilaka Construction Co.

166 Misc. 185, 2 N.Y.S.2d 251, 1937 N.Y. Misc. LEXIS 1172

CourtNew York Supreme Court

DecidedOctober 27, 1937

StatusPublished

Cited by6 cases

This text of 166 Misc. 185 (In re the Wilaka Construction Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Wilaka Construction Co., 166 Misc. 185, 2 N.Y.S.2d 251, 1937 N.Y. Misc. LEXIS 1172 (N.Y. Super. Ct. 1937).

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Opinion

Shientag, J.

Motion to discharge the notice of mechanic’s lien is denied. The notice is not to be treated as one to which no verification has been attached or in which no signature appears (Matter of Passero & Sons, Inc., 237 App. Div. 638; Mozarsky v. Whinston Bros., Inc., 254 N. Y. 552; Kingston v. M. S. Const. Corp., 249 id. 533), but rather as one in which the verification is defective. In such a situation the court will not dismiss an otherwise valid lien. (Matter of Core Joint Concrete Pipe Corp. v. Paino Bros., Inc., 285 N. Y. Supp. 706; 247 App. Div. 746.) It is to be remembered that the Legislature has declared that the Lien Law “ is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same. (Lien Law, sec. 23.) ” (Gates & Co. v. Nat. Fair & Exposition Assn., 225 N. Y. 142, 155, 157.)

I hold that a filing of a copy of the notice with the comptroller was sufficient compliance with the statutory requirements. (Italian Mosaic & Marble Co., Inc., v. City of Niagara Falls, 131 Misc. 281.) The case of Terrell v. Meisenhelder (143 Misc. 911) takes too technical a view of the requirements of the Lien Law.

The motion to amend the notice of lien must be denied because of failure to give notice required by section 12-a of the Lien Law. This is without prejudice to renew after proper notice has been given.

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Shientag, J.

Motion to discharge the notice of mechanic’s lien is denied. The notice is not to be treated as one to which no verification has been attached or in which no signature appears (Matter of Passero & Sons, Inc., 237 App. Div. 638; Mozarsky v. Whinston Bros., Inc., 254 N. Y. 552; Kingston v. M. S. Const. Corp., 249 id. 533), but rather as one in which the verification is defective. In such a situation the court will not dismiss an otherwise valid lien. (Matter of Core Joint Concrete Pipe Corp. v. Paino Bros., Inc., 285 N. Y. Supp. 706; 247 App. Div. 746.) It is to be remembered that the Legislature has declared that the Lien Law “ is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same. (Lien Law, sec. 23.) ” (Gates & Co. v. Nat. Fair & Exposition Assn., 225 N. Y. 142, 155, 157.)

I hold that a filing of a copy of the notice with the comptroller was sufficient compliance with the statutory requirements. (Italian Mosaic & Marble Co., Inc., v. City of Niagara Falls, 131 Misc. 281.) The case of Terrell v. Meisenhelder (143 Misc. 911) takes too technical a view of the requirements of the Lien Law.

The motion to amend the notice of lien must be denied because of failure to give notice required by section 12-a of the Lien Law. This is without prejudice to renew after proper notice has been given.

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Bluebook (online)

166 Misc. 185, 2 N.Y.S.2d 251, 1937 N.Y. Misc. LEXIS 1172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-wilaka-construction-co-nysupct-1937.

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