Toop v. . Smith

73 N.E. 1113, 181 N.Y. 283, 1905 N.Y. LEXIS 735

• Court: New York Court of Appeals
• Decided: April 18, 1905
• Status: Published

Opinions

Webneb, J.

On the 24th day of February, 1898, the plaintiff entered into a contract with the defendant Smith, whereby the former agreed to furnish certain iron work for a building about to be erected by the latter upon the premises described in the complaint. The plaintiff entered upon the performance of this contract about April 1st, 1898. Before it had been completed, and on the 24th day of April, 1899, the defendant Smith conveyed the premises to the defendant Coope, and on the 21st day of September, 1899, Coope conveyed the premises' to the defendant Shuttlewortli, who conveyed the premises to the defendant Schiff on the 11th day of January, 1900. The plaintiff filed a notice of lien on the 22nd day of December, 1899, and in March,

1900, brought this action to foreclose the same, and to set aside as fraudulent and void the several conveyances referred to in the complaint. At Special Term these transfers were held to be fraudulent and void as to the plaintiff, and judgment was rendered establishing the validity of plaintiff’s lien and decreeing a foreclosure thereof. At the Appellate Division this judgment was "reversed and a new trial ordered. The order of reversal is silent as to the facts, and we must, therefore, assume that it is based solely upon questions of law. (Code Civ. Pro. sec. 1338.)

Two questions of law are presented. The first is whether the plaintiff’s notice of lien complies with the provisions of the Lien Law (L. 1897, ch. 418, sec. 9), and the second is whether the grantees of Smith, whose conveyances have been held to be fraudulent and void as to the plaintiff, are in a position to contest the validity of the latter’s lien. There was evidence to justify the finding of the trial court, that the deed from Smith to Coope and from Coope to Shuttlewortli, as well as the mortgage from Coope to Smith and its assignment to Shuttleworth, were fraudulent and void'as to the plaintiff, and this finding having been left undisturbed by the Appellate Division, these transferees have such a legal interest in the appeal before this court as to entitle them to defend against the plaintiff’s alleged lien on the ground of its invalidity. (Jackson v. Cadwell, 1 Cow. 622; Anderson v. Roberts, 18 Johns. 527.)

In addressing ourselves to the question whether plaintiff’s alleged lien is valid or not, we must hear in mind that this is not a court of equity in which the alleged fraud of the defendant owner and his transferees may be considered in determining whether the plaintiff’s notice of lieu shall be set aside, but a court whose jurisdiction is limited to the review of questions of law, and whose only duty in the case at bar is to decide whether- the purely statutory lien asserted by the plaintiff complies with the statute under which the notice was filed. Starting out with the premise that the statute is beneficial in character and is to be liberally construed, and that a substantial compliance with its provisions is sufficient to invest liens with validity and to give courts jurisdiction to enforce them, the first inquiry is, what does the statute require ? Section 9 provides that the notice of lien shall state: “ 1. The name and residence of the lienor. 2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor/ 3. The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials; or, if the lienor is a contractor or subcontractor, the person with whom the contract was made. 4. The labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials. 6. The time when the first and last items of work were performed and materials were furnished. 7. The property subject to the lien, with a description thereof sufficient for identification; and if in a city or village, its location by street and number, if known. A failure to state the name of the true owner or contractor, or a misdescription of the true owner, shall not affect the validity of the lien.”

We may assume, for the purposes of this discussion, that plaintiff’s notice of lien contains all of the requisites of the 9th section of the statute, except those enumerated in the 4th subdivision thereof, and we proceed directly to the scrutiny of that part of the notice which is criticised as not being in conformity with the provisions of that subdivision which requires the notice of lien to state “ the labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof.”

Plaintiff’s notice of lien recites that “ the labor performed and materials furnished, and the agreed price or value thereof is as follows: Under and by virtue of a contract partly written and partly oral made with the said Smith, Ooope and Shuttleworth above mentioned, according to specifications in writing and drawings of the improvements herein mentioned, on or about February 24th, 1898, April 25th, 1899, and September 25th, 1899.”

We think this recital will be scanned in vain, either (1) for any statement of labor performed, (2) or to be performed, (3) or materials furnished, (4) or to be furnished. The most liberal statutory construction that the imagination can suggest cannot validate this notice of lien unless it contains one or the other of these four requisites according to the facts upon which the plaintiff’s claim to a lien is based. Neither can the favorable findings of the trial court avail the plaintiff. N othing but a judicial repeal of the statute can help him, if his notice of lien is insufficient. It may be that if the specifications and drawings mentioned in the ijotice had been attached to the latter, there would have been a substantial compliance with the statute, but it seems to us there can be no doubt that a mere general reference to specifications and drawings that may not even be in existence at the time of filing the notice of lien cannot be a sufficient compliance with the subdivision of the statute under discussion. It is urged that the statute does not contemplate a statement of the kind or amount of labor performed or materials furnished by a lienor. We think that is precisely what the statute does require. Such a statement need not necessarily be a specific bill of particulars, but there must be such a general reference to the kind and amount of materials and labor furnished, or to be furnished, as to advise those who may have a legal interest in the subject of the character and extent of the demand upon which the claim to a lien is based. In other words, there must be a substantial compliance with the requisites of the statute.

Section 9 of the present Lien Law is a substantial re-enactment of section 4 of the statute of 1885 (Chap. 342) except as to subdivision 6, which requires a statement of the time when the first and last items of work were performed or materials furnished. That subdivision is new, as is also the arrangement and phraseology of the whole section, which is now separated into subdivisions, while section 4 of the act of 1885 was not so divided. Section 4 of the act of 1885 required a statement “ of the nature and amount of the labor and services performed or the materials furnished or to be furnished,” while the present statute requires a statement of “ the labor performed or to be performed, or materials furnished or to be furnished.” It seems obvious that it will require something more than a liberal construction of the statute to hold that there is any substantial difference between the above-quoted portion of section 4 of the act of 1885, and subdivision 4 of section 9 of the act of 1897. A statement “ of the nature and amount of the labor and services to be performed and materials furnished, or to be furnished,” is fairly the equivalent of a statement “ of the labor performed, or to be performed, and the materials furnished or to be furnished.” We think the two are so practically identical that the decisions of this court under either one are authoritative in construing the other.

In McKinney v. White (162 N. Y. 601, affmg. 15 App. Div. 423) the effect of section 4 of the act of 1885 was passed upon. The notice of lien in that case failed to state the nature and amount of labor and services performed, or of materials furnished or to be furnished, and this court held the notice insufficient. It is said that the case of Maliley v. German Bank of Buffalo (174 N. Y. 499) is an authority for holding that the notice of lien in the case at bar contains the requisites set forth in subdivision 4 of section 9 of the Lien Law of 1897; but we do not so read that case. The only question there decided was that the notice of lien did not comply with subdivision G of the statute now in force, which requires the notice to state the time when the first and last items of work were performed and materials delivered, and which provision, as above stated, was not in the statute of 1885.

We deem it unnecessary to further notice the argument that this court should not place a premium upon fraud by holding that the owner and his fraudulent grantees may nullify the lien of an honest contractor. The simple and conclusive answer to the suggestion is, that a mechanic’s lien never comes into existence unless the notice upon which it is founded substantially complies with the statute which authorizes the creation of such liens. E.ven a court of equity has not the power to breathe the breath of life into a notice of lien that is insufficient under the statute, much less a court whose function it is not to administer equity, but to make the law as stable and certain as may be.

The order óf the Appellate Division should be affirmed and judgment absolute ordered for defendants on the stipulation, with costs.