Rafter v. Sullivan

New York Supreme Court

Rafter v. Sullivan

13 Abb. Pr. 262

CourtNew York Supreme Court

DecidedNovember 15, 1861

StatusPublished

Cited by2 cases

This text of 13 Abb. Pr. 262 (Rafter v. Sullivan) 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

Rafter v. Sullivan, 13 Abb. Pr. 262 (N.Y. Super. Ct. 1861).

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Opinion

Brown, J.

—To create a lien upon real property for labor > done or materials furnished, under the act of the 17th of April, 1854, and the act of the 14th of April, 1858, the laborer or contractor must serve the notice in writing upon the town clerk of the town where the real property is situated, within the time limited hy the fourth section of the first-mentioned act. The city of Brooklyn is not one of the civil divisions of the State known as a town, nor has it any officer known as town clerk, or who performs duties resembling those assigned to the clerks of the several towns throughout the State. The county clerk’s office, and the office of the city, might have been appropriate and convenient places to file notices to create liens under the acts named; but the Legislature has not thought fit to designate them for that purpose. And no one would, after reading the two acts, think of looking in either of these offices for notices designed to create liens and charges upon real property. The proceeding is strictly special-, and in derogation of the rules of common law. It must follow strictly the rules prescribed by the statute, or the lien will not be created, and the lands charged with the payment of the debt. Iam therefore brought to the conclusion that the acts referred to do not apply to the city of Brooklyn.

To create a lien under the act of the 8th of June, 1853, in regard to the county of Kings, the notice must be filed with the county clerk, and a copy thereof served upon the owner, as specified in the fourth section of that act. These requisitions have not been complied with in the present case. Indeed, I understand the lien is claimed to have been created under the provisions of the two first-named acts, and not under that last referred to.

I am, for these reasons, of opinion that claimant’s proceedings in this case must be dismissed, and he left to pursue his usual common-law remedy for the recovery of whatever may be found due to him from the owner.

. Judgment for defendant.

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Brown, J.

—To create a lien upon real property for labor > done or materials furnished, under the act of the 17th of April, 1854, and the act of the 14th of April, 1858, the laborer or contractor must serve the notice in writing upon the town clerk of the town where the real property is situated, within the time limited hy the fourth section of the first-mentioned act. The city of Brooklyn is not one of the civil divisions of the State known as a town, nor has it any officer known as town clerk, or who performs duties resembling those assigned to the clerks of the several towns throughout the State. The county clerk’s office, and the office of the city, might have been appropriate and convenient places to file notices to create liens under the acts named; but the Legislature has not thought fit to designate them for that purpose. And no one would, after reading the two acts, think of looking in either of these offices for notices designed to create liens and charges upon real property. The proceeding is strictly special-, and in derogation of the rules of common law. It must follow strictly the rules prescribed by the statute, or the lien will not be created, and the lands charged with the payment of the debt. Iam therefore brought to the conclusion that the acts referred to do not apply to the city of Brooklyn.

To create a lien under the act of the 8th of June, 1853, in regard to the county of Kings, the notice must be filed with the county clerk, and a copy thereof served upon the owner, as specified in the fourth section of that act. These requisitions have not been complied with in the present case. Indeed, I understand the lien is claimed to have been created under the provisions of the two first-named acts, and not under that last referred to.

I am, for these reasons, of opinion that claimant’s proceedings in this case must be dismissed, and he left to pursue his usual common-law remedy for the recovery of whatever may be found due to him from the owner.

. Judgment for defendant.

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Bluebook (online)

13 Abb. Pr. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rafter-v-sullivan-nysupct-1861.

Opinion

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