Mushlitt v. . Silverman

50 N.Y. 360, 1872 N.Y. LEXIS 429

• Court: New York Court of Appeals
• Decided: November 26, 1872
• Status: Published

Opinion

Allen, J.

The act giving mechanics and others liens for labor and materials furnished in the construction of buildings in the county of Kings (Laws of 1862, chap. 478), in terms declares, that the lien shall be discharged by the omission of the lienor or claimant to file an affidavit of the issuing or service of the summons and complaint in an action to enforce the lien within thirty days after the day specified for the commencement of such action, in a notice which the owner is permitted to give, requiring an action to be commenced on or before a certain hour, on a day specified in such notice. (Act supra, § 7, sub. 4.) The act is so explicit in its terms that it admits of but one interpretation; and when the words of a statute have a definite and precise meaning, such meaning cannot be extended or restricted by conjecture, or under the guise or pretext of interpretation. It is not allowable to interpret that which has no need of interpretation. (McClus key v. Cromwell, 1 Kern., 593.) The natural and obvious meaning of the statute permits the owner to put the claimant in motion, to enforce his lien, by giving a notice specifying a time by which the action is required to be commenced. The action may perhaps be brought at any time during the continuance of the lien. But the claimant, to continue and preserve his lien beyond thirty days after the time specified in the notice for the commencement of the action, must file an affidavit that an action has been commenced; and if such affidavit is not filed, the lien is absolutely discharged.

When the act declares, as it does, that the lien may be discharged in any one of several methods, the happening of any of the events, or the performance of any of the acts mentioned, operate, per se, as a discharge, without the necessity of further acts by any person.

The lien claimed by the plaintiffs is the creature of statute, and depends solely for its validity upon the act creating it. The act is an innovation upon the common law, affecting property and rights of property, authorizing, as it does, property to be encumbered without or against the consent of the owner, and without a resort to legal process or judicial action. Such an act cannot be extended, in its operation and effect, beyond the fair and reasonable import of the words used; and the plaintiffs, asserting their lien, must bring themselves within its terms and the lien must be shown, not only to have been regular and valid in its inception, but to be a. continuing and existing lien under the statute. This they have failed to do.

The referee has found that the plaintiffs did not file the affidavit of the commencement of the action within the time prescribed by the act. As the statute prescribes that as the condition of the continuance of the lien, the courts cannot dispense with it, or relieve the party from the consequences of his omission.

The judgment must be reversed and a new trial granted, costs to abide event.

All concur, G-boveb, J., not voting.

Judgment reversed.