Mechanic's Lien of Boland v. Sokolski

New York Supreme Court

Mechanic's Lien of Boland v. Sokolski

56 Misc. 333, 106 N.Y.S. 766

CourtNew York Supreme Court

DecidedNovember 15, 1907

StatusPublished

Cited by1 cases

This text of 56 Misc. 333 (Mechanic's Lien of Boland v. Sokolski) 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

Mechanic's Lien of Boland v. Sokolski, 56 Misc. 333, 106 N.Y.S. 766 (N.Y. Super. Ct. 1907).

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Opinion

Giegerich, J.

The question is whether notice of justification of sureties upon an undertaking given to discharge a mechanic’s lien must be personal or whether it is sufficient to leave such notice at the place of residence of the lienor with a person of suitable age and to mail copies thereof to the lienor. The Legislature has power to say that th^s notice required as a condition precedent to the doing of an act may be given'by publication or by leaving‘it at the place of business or dwelling house of the party to be notified, but in the absence of such legislative provision such notice must be personal. Rathbun v. Acker, 18 Barb. 393; McDermott v. Board of Police, 25 id. 635; People ex rel. Niagara Bridge & Canandaigua R. Co. v. Lockport & B. R. Co., 13 Hun, 211; Mitchell v. Clary, 20 Misc. Rep. 595. Section 18 of the Mechanic’s Lien Law (Laws of 1897, chap. 418), which requires the service of notice in such a case as this, makes no provision for any substitute for personal service. Sections 796 and 797 of the Code of'Civil Procedure have no application because the notice in question is not a paper in an action. Kerr v. McGuire, 28 N. Y. 446, 453. The fact that the legislature in section 11 of the act provides that service of a copy of the notice of lien may be made by leaving it at the last known place of residence of the owner indicates that the omission of such a provision in section 18 with respect to a notice of the kind in question was intentional.

Motion granted, with ten dollars costs.

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Giegerich, J.

The question is whether notice of justification of sureties upon an undertaking given to discharge a mechanic’s lien must be personal or whether it is sufficient to leave such notice at the place of residence of the lienor with a person of suitable age and to mail copies thereof to the lienor. The Legislature has power to say that th^s notice required as a condition precedent to the doing of an act may be given'by publication or by leaving‘it at the place of business or dwelling house of the party to be notified, but in the absence of such legislative provision such notice must be personal. Rathbun v. Acker, 18 Barb. 393; McDermott v. Board of Police, 25 id. 635; People ex rel. Niagara Bridge & Canandaigua R. Co. v. Lockport & B. R. Co., 13 Hun, 211; Mitchell v. Clary, 20 Misc. Rep. 595. Section 18 of the Mechanic’s Lien Law (Laws of 1897, chap. 418), which requires the service of notice in such a case as this, makes no provision for any substitute for personal service. Sections 796 and 797 of the Code of'Civil Procedure have no application because the notice in question is not a paper in an action. Kerr v. McGuire, 28 N. Y. 446, 453. The fact that the legislature in section 11 of the act provides that service of a copy of the notice of lien may be made by leaving it at the last known place of residence of the owner indicates that the omission of such a provision in section 18 with respect to a notice of the kind in question was intentional.

Motion granted, with ten dollars costs.

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Bluebook (online)

56 Misc. 333, 106 N.Y.S. 766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mechanics-lien-of-boland-v-sokolski-nysupct-1907.

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