Albany Builders' Supply Co. v. Eastern Bridge & Structural Steel Co.

• Decision Date: 17 April 1923
• Citation: 139 N.E. 565,235 N.Y. 432
• Parties: ALBANY BUILDERS' SUPPLY CO. v. EASTERN BRIDGE & STRUCTURAL STEEL CO. et al.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 432

139 N.E. 565

ALBANY BUILDERS' SUPPLY CO.

v.EASTERN BRIDGE & STRUCTURAL STEEL CO. et al.

Court of Appeals of New York.

April 17, 1923.

Action to foreclose a mechanic's lien by the Albany Builders' Supply Company against the Eastern Bridge & Structural Steel Company and others. From a judgment of the Appellate Division (202 App. Div. 61,195 N. Y. Supp. 416) affirming a judgment of the Special Term, plaintiff and certain defendants appeal.

Modified and affirmed.

Hiscock, C. J., dissenting in part.

Appeal from Supreme Court, Appellate Division, Third Department.

A. M. Sperry and W. E. Fitzsimmons, both of Albany, for appellant Albany Builders' Supply Co.

James V. Coffey, of Troy, for appellants O'Brien and Simpson.

P. C. Dugan, of Albany, for appellant National Commercial Bank & Trust Co.

William C. Gordon, of Troy, for respondent Eastern Bridge & Structural Steel Co.

John A. Stephens, of Albany, for respondents Kurtz and Wend.

Neile F. Towner, of Albany, for respondent Hyde.

CARDOZO, J.

One Hamil, a builder, made a contract with the city of Rensselaer in September, 1916, for the erection of a schoolhouse. He borrowed upwards of $31,000 from the National Commercial Bank & Trust Company of Albany, and delivered to the lender assignments of the money due or to grow due under his contract with the city. Notices of lien were afterwards filed for material and labor. The question is one of the relative priorities of bank and lienors. The bank filed its assignment with the city treasurer, but with no other officer of the city government.Some materialmen filed notices of lien with the city treasurer, and also with the city clerk and the president of the common council. The plaintiff and other materialmen filed notices of lien with the city treasurer and the city clerk. The trial judge held that the assignment was ineffective against valid liens of later date because of the failure to file either the original or a copy with any city officer other than the treasurer. He held, however, that the only valid liens were those filed both with the treasurer and with the president of the common council. As against invalid liens the assignment was effective. The bank and the excluded lienors appealed to the Appellate Division. That court unanimously affirmed. The bank and the plaintiff are appellants by permission here.

[1] 1. We concur with the courts below in their conclusion that the assignment is subordinate to later valid liens. The contract was one for a public improvement. Section 16 of the Lien Law (Consol. Laws, c. 33) is to the effect that an assignment of such a contract or of money due or to become due thereunder is invalid unless the assignment or a copy is filed within ten days ‘with the head of the department or bureau having charge of such construction,’ and with the financial officer of the city or other municipal corporation. This assignment was filed with ‘the financial officer’ of the city, i. e., the treasurer. It was not filed, however, with ‘the head of the department or bureau having charge of such construction.’ In the city of Rensselaer that department is the common council, and the head of the department is the president of the council.

‘The construction, repairing and remodeling of school buildings * * * and the award of contracts therefor shall be by, under and through the common council of the city.’ Rensselaer City Charter (Laws 1915, c. 69) § 286, subd. 6.

In respect of such matters, the common council of Rensselaer is not a legislative body. It is an administrative agency. Either this agency is the department in charge of the construction of the schoolhouse, or no department is in charge of it. But the statute (Lien Law, § 16) was framed on the assumption that some authority is in charge of every public improvement, municipal or state. To identify that authority is to identify the department or bureau to which assignees and lienors are required to repair. We are not dealing with terms of art, invested by long usage with a precise and unchanging connotation. We are dealing with a description which identifies the organ by characterizing the function. Courts have construed the statute broadly in promotion of its purpose. Under a contract to equip the Capitol and repair it, the state architect has been held to be the head of the ‘department’ having ‘charge of the construction.’ General Fireproofing Co. v. Keepsdry Construction Co., 225 N. Y. 180, 121 N. E. 768. The trustees of public schools have been held for like purposes to constitute a department or bureau of a city. Bell v. Mayor, etc., 105 N. Y. 139, 11 N. E. 495. These rulings, if they do not solve the problem now before us, define the method of approach. We think the assignment was not filed in accordance with the statute.

[2] 2. The validity of plaintiff's lien remains to be considered.

Notice of this lien was filed with the city treasurer. Lien Law, § 12. It was filed also with the city clerk. Its invalidity has been adjudged upon the ground that it ought to have been filed with the president of the council.

Under the charter of the city of Rensselaer, the city clerk is the clerk of the council, and the custodian of its records. Laws 1915, c. 69, § 47. A notice filed with him is filed with the common council...