Rockland Lake Trap Rock Co. v. Village of Port Chester

92 N.Y.S. 631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1905
• Status: Published

Opinion

PER CURIAM.

This action was brought by the Rockland Lake Trap Rock Company for the purpose of foreclosing alleged mechanics’ liens filed by the plaintiff and various defendants (subcontractors, laborers, and materialmen) against funds in the hands of the village of Port Chester applicable to the payment of the contract price agreed to be paid under a contract entered into May 31, 1902, between the village of Port Chester and defendant Thomas J. McKenna, as contractor, for the regulating, grading, and macadamizing of Westchester avenue, in said village. The referee has found that the sum of $2,340.24 remained in the hands of the village, applicable to the construction of the said improvement, unpaid and due the contractor upon the said contract, and for extra work, which sum was subject to the payment of liens filed by parties to the action, and directed judgment against the village for the payment of such liens, in specified amount and priority, together with costs, but not exceeding the said sum of $2,340.24. From the judgment entered, the village appeals, and the plaintiff and certain defendant lienors appeal from so much of the judgment as limits the costs to the fund appropriated and available for the construction of the improvement.

The first question to be considered is whether the plaintiff’s notice of lien was filed in such a manner as to make it effective against the village of Port Chester. The lien law requires a notice to be filed with the head of the department or bureau having charge of the construction of the public improvement. This public improvement was made by the village of Port Chester, and the plaintiff and the other lienors, excepting Studwell, Stamboni, the American .Sewer Pipe Company, and Sherwood, served their notices upon Charles E. Lounsbury, chairman of the committee on roads and bridges of the village board of trustees. It seems to us quite clear that this committee was the head of the department or bureau having charge of the work in question, within the meaning of the statute, especially in view of the declaration of the statute itself that it is to be construed liberally in order to secure the beneficial interests and purposes thereof, and that a substantial compliance with its several provisions shall be sufficient for the validity of a lien. Lien Law (section 22, c. 418, p. 525, of the Laws of 1897). Thefour other lienors above named served their notices upon the president of the village, and no question is raised as to the propriety of such service.

The other objections to the judgment may be briefly considered. It is urged that some of the liens were improperly verified, but jt has been held that liens filed against a village on account of public impiovement do not require verification. Clapper v. Strong, 90 App. Div. 536, 85 N. Y. Supp. 748. The contention that, inasmuch as the contract was unjustifiably abandoned, none of the lienors can recover upon the contract, is answered by the fact that the lienors are not seeking to recover upon the contract, but upon their liens. The finding of the referee that the three Horton orders were invalid, because not filed in the office of the county clerk, is in accordance with section 15 of the lien law (page 521), which declares that no order shall be valid until “a copy of such order be filed in the office of the county clerk,” and in Brace v. City of Gloversville, 167 N. Y. 452, 60 N. E. 779, it is expressly held that this section applies to contracts for public improvements. We cannot assent to the proposition that, assuming these orders to have been invalid, their payment by the village before any lien was filed entitled the village to claim the benefit of such payment against a lienor. To so hold would be to make a plea of the payment of invalid orders available as a bar against the maintenance of otherwise valid liens.

As to the cross-appeals of the plaintiff and other lienors from that part of the judgment which limits the costs to the amount found due to the contractor, we think that the referee was bound by the provisions of section 3418 of the Code of Civil Procedure, which provides that, in an action to foreclose a lien on account of a public improvement, if the court finds that the lien is established, it shall render judgment directing the municipal corporation to pay over to the lienors entitled thereto “so much of the funds or money which may be due from the state or municipal corporation to the contractor, as will satisfy such liens, with interest and costs, not exceeding the amount due to the contractor.”

We think that the case was disposed of below without error affecting any substantial right of the appellants, and that the judgment should be affirmed.

Judgment affirmed, without costs o£ this appeal to any party.