Weiss v. Kenney

City of New York Municipal Court

Weiss v. Kenney

59 Misc. 279, 112 N.Y.S. 287

DecidedMay 15, 1908

StatusPublished

This text of 59 Misc. 279 (Weiss v. Kenney) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Weiss v. Kenney, 59 Misc. 279, 112 N.Y.S. 287 (N.Y. Super. Ct. 1908).

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Opinion

Delehanty, J.

The law is well settled that, to entitle a claimant under the Mechanic’s Lien Law to the benefit of the statute, the notice of lien must comply substantially with all its requirements, and if there is not such a compliance no lien is acquired. McKinney v. White, 15 App. Div. 423 ; affd., 162 N. Y. 601. The criticism upon the notice of lien filed by the plaintiff herein is that it is impossible to determine therefrom how much is claimed for labor, how much for the materials furnished, or how much for the materials to be furnished. Each of these matters is stated in the alternative and, in the construction of similar statutes, the courts have uniformly held that such a statement is defective for the reason that it states neither the one fact nor the other and, in effect, operates as an exclusion of the statement of any fact. FTew Jersey Steel & Iron C’o. v. Robinson, 85 App. Div. 512; Bossert v. Fox, 89 id. 7; Alexander v. Hollander, 106 id. 404; Finn v. Smith, 186 N. Y. 465. I am forced, therefore, to hold that the notice in question fails to comply with section 9 of the Lien Law (Laws of 1897, chap. 418) • and that the filing thereof did not create a lien in plaintiff’s favor. Such being the case I am of the opinion that plaintiff is not entitled, as claimed, to maintain the action against Kenney, the owner of the premises, and to recover, under section 3412 of the Code of Civil Procedure, a judgment for the amount due him from Schweitzer, the contractor. As I construe that provision of the law, the lienor, if he fails for any reason to establish a valid lien, but does establish that a sum is due to him which he might recover in action upon contract, thereupon becomes entitled to a personal judgment ag’ainst the party to the action who is- liable therefor. The only party who is liable' to plaintiff, who is a subcontractor, is his principal, Schweitzer, the general contractor. Certainly there is no privity between plaintiff and Kenney, the owner. I conclude, therefore, that there should be judgment as follows: For plaintiff against defendant Schweitzer [281]*281for $150 and costs; for defendant Kenney, dismissing the complaint, with costs and adjudging the plaintiff’s lien invalid and directing its cancellation; that the liens of the defendants John G. McMillan, Henry H. Meise and James W. Sweeney be canceled of record for failure of said defendants to appear or answer herein; that the liens filed by the defendants E. M. Pritchard & Son Company and Church E. Gates & Co. are valid and enforceable against the premises in question, in the order named, for the agreed sum of $375, without costs. Present decision and findings accordingly on notice.

Ordered accordingly.

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Delehanty, J.

The law is well settled that, to entitle a claimant under the Mechanic’s Lien Law to the benefit of the statute, the notice of lien must comply substantially with all its requirements, and if there is not such a compliance no lien is acquired. McKinney v. White, 15 App. Div. 423 ; affd., 162 N. Y. 601. The criticism upon the notice of lien filed by the plaintiff herein is that it is impossible to determine therefrom how much is claimed for labor, how much for the materials furnished, or how much for the materials to be furnished. Each of these matters is stated in the alternative and, in the construction of similar statutes, the courts have uniformly held that such a statement is defective for the reason that it states neither the one fact nor the other and, in effect, operates as an exclusion of the statement of any fact. FTew Jersey Steel & Iron C’o. v. Robinson, 85 App. Div. 512; Bossert v. Fox, 89 id. 7; Alexander v. Hollander, 106 id. 404; Finn v. Smith, 186 N. Y. 465. I am forced, therefore, to hold that the notice in question fails to comply with section 9 of the Lien Law (Laws of 1897, chap. 418) • and that the filing thereof did not create a lien in plaintiff’s favor. Such being the case I am of the opinion that plaintiff is not entitled, as claimed, to maintain the action against Kenney, the owner of the premises, and to recover, under section 3412 of the Code of Civil Procedure, a judgment for the amount due him from Schweitzer, the contractor. As I construe that provision of the law, the lienor, if he fails for any reason to establish a valid lien, but does establish that a sum is due to him which he might recover in action upon contract, thereupon becomes entitled to a personal judgment ag’ainst the party to the action who is- liable therefor. The only party who is liable' to plaintiff, who is a subcontractor, is his principal, Schweitzer, the general contractor. Certainly there is no privity between plaintiff and Kenney, the owner. I conclude, therefore, that there should be judgment as follows: For plaintiff against defendant Schweitzer [281]*281for $150 and costs; for defendant Kenney, dismissing the complaint, with costs and adjudging the plaintiff’s lien invalid and directing its cancellation; that the liens of the defendants John G. McMillan, Henry H. Meise and James W. Sweeney be canceled of record for failure of said defendants to appear or answer herein; that the liens filed by the defendants E. M. Pritchard & Son Company and Church E. Gates & Co. are valid and enforceable against the premises in question, in the order named, for the agreed sum of $375, without costs. Present decision and findings accordingly on notice.

Ordered accordingly.

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Bluebook (online)

59 Misc. 279, 112 N.Y.S. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weiss-v-kenney-nynyccityct-1908.

Opinion

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