Barrett v. John v. Schaefer, Jr., & Co.

• Decision Date: 10 April 1914
• Citation: 146 N.Y.S. 1056,162 A.D. 52
• Parties: EDWARD P. BARRETT, Respondent, Appellant, v. JOHN V. SCHAEFER, JR., & CO., and Others, Defendants, Impleaded with HUDSON TRUST COMPANY, Appellant, and MARCELLO MEZZULLO and Others, Appellants, Respondents, and the TRAITEL MARBLE COMPANY and Others, Respondents.
• Court: New York Supreme Court

162 A.D. 52

146 N.Y.S. 1056

EDWARD P. BARRETT, Respondent, Appellant, v. JOHN V. SCHAEFER, JR., & CO., and Others, Defendants, Impleaded with HUDSON TRUST COMPANY, Appellant, and MARCELLO MEZZULLO and Others, Appellants, Respondents, and the TRAITEL MARBLE COMPANY and Others, Respondents.

Supreme Court of New York, Second Department.

April 10, 1914

APPEAL by the defendant, Hudson Trust Company, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 22d day of May, 1913, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the plaintiff and certain of the defendants from so much of said judgment as sustains the lien of the defendant the Traitel Marble Company, and decrees that the same be paid out of the proceeds of the sale of the property against which the liens of the various parties were filed.

The judgment decided that the assignment claimed in this proceeding by the defendant Hudson Trust Company was invalid but adjudged that the liens of the plaintiff and of all the other defendants in this action, except the defendants George A. Butt and another, were valid, and that the premises covered by the liens should be sold to satisfy them.

COUNSEL

Victor E. Whitlock, for the appellant Hudson Trust Company.

Henry R. Barrett [Henry W. Eaton and Floyd M. Grant with him on the brief], for the plaintiff.

Norbert Heinsheimer, for the respondent Traitel Marble Company.

Wilson Randolph Yard, for the defendants Marshall & Hufcutt and others.

William A. Moore, for the defendants Mezzullo and Hill.

Otto A. Samuels, for the defendants Craig and Brown.

PER CURIAM:

This is an action to foreclose a mechanic's lien. The controversy presents attack and counter attack by various of the alleged lienors upon the ground of fatal defects in many of the liens. There are four liens which we will discuss, because upon the question of their validity the court is not in agreement. Two are filed by the plaintiff Barrett, one by the White Plains Trim Company and one by the Lieberman & Sanford Company. All the liens save these are valid.

The defect asserted to exist in the two notices of lien filed by the plaintiff Barrett arises from the statement contained in the notices, that 'the time when the first item of work was performed or materials furnished was on the 20th day of May, 1910, and the time when the last item of such work was performed or materials were furnished was the 7th day of February, 1912.'

The corresponding requirement of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 9, subd. 6) reads: 'The notice of lien shall state: * * * The time when the first and last items of work were performed and materials were furnished.' The criticism is that the statement in the notice is in the disjunctive. The authority for the condemnation is the line of cases beginning with Bradley & Currier Co. v. Pacheteau (71 A.D. 149; 175 N.Y. 492), in which liens were condemned because, owing to statements made in the alternative, facts which the statute required to be stated were not definitely stated. The reason for the rule declared in those cases has no application to the question in this case. 'The statute requires the lienor to state explicitly or by plain inference the value or the agreed price of the labor performed or materials furnished at the time of the filing of the lien. (Finn v. Smith, 186 N.Y. 465.) Hence a statement in the alternative of the labor performed or to be performed, etc., is not an affirmation of any fact required to be stated. The fact may be either the one or the other, whereas the statute requires an explicit statement of what the fact is.' (Abelman v. Myer, 122 A.D. 470, 471.) The information as to the labor performed or the materials furnished, and the agreed price or value thereof, is for the purpose of apprising the owner so that he may, upon inquiry, ascertain whether the materials have been actually furnished or not, and the value of the same. (Vogel v. Luitwieler, 52 Hun, 184, 189.) The object of the provision requiring the notice to state the time when the first and last items of work were performed and materials were furnished is, so far as the latter requirement is concerned, to establish whether the labor was performed or the materials were furnished during the progress of the work, or whether ninety days had elapsed since the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or of materials furnished. (Lien Law, supra, § 10.)

A lien is available to four classes: Contractors, sub-contractors, laborers or materialmen. (Lien Law, supra, § 3.) Section 9 of the Lien Law requires what the notice of lien shall state, irrespective of the class to which the person making and filing the notice belongs.

In the notices filed it appears that the lienor was a materialman and that what he furnished was trim--sash, door, trim and other building material and mill work--and any reference in his notice to labor should be considered as labor incidental to the manufacture of his material. (Felgenhauer v. Haas, 123 A.D. 75, 76; Martin v. Gavigan Co., 107 id. 279, 283; Clarke v. Heylman, 80 id. 572, 576.) The entire notice may be considered in construing any particular part of it, and where it appears in the notice that the lienor is a materialman, and that what he asserts is a lien for the principal and interest for the value or agreed price of materials, he is not required to state separately the time when the first and last items of work were performed, and any reference to items of work contained in his statement, made in an attempted compliance with subdivision 6 of section 9 of the Lien Law, may be ignored as surplusage. (Vitelli v. May, 120 A.D. 448, 450; Schwartz v. Lewis, 138 id. 566, 568; Felgenhauer v. Haas, supra.) 'As to the time and dates of work done and materials furnished for which a lien is claimed, all that is required is such certainty as will enable those interested to discover during what period the materials were delivered or the work [was] done so as to individuate the transaction.' (27 Cyc. 182; cited with approval in Hurley v. Tucker, 128 A.D. 580, 584; affd., 198 N.Y. 534.)

We determine that the two notices of lien filed by the plaintiff Barrett are free from defect; and as the only objection against the lien filed by defendant White Plains Trim Company is a similar alleged defect, we pronounce it valid also.

The Lieberman & Sanford Company notice provides:

'(4) The labor performed was setting iron and glass doors, iron stair, bronze saddles, iron lamps, iron ladder. The labor to be performed is to set wrought iron grilles, and quarter-inch plate glass indoors. The material furnished was iron entrance doors, iron stairs, bronze saddles, iron lamps and iron ladder. The material to be furnished is quarter-inch plate glass in entrance doors. The agreed price and value of said labor is Ten Hundred Seventy and 63/100 Dollars. The agreed price and value of said material is Eighteen Hundred seventy eight 37/100 dollars or total for labor and materials Twenty Nine Hundred Fifty dollars.

'(5) The amount unpaid to the lienor for such labor and material is Seven Hundred and Fifty dollars.

'(6) The time when the first items of work were performed was April 11, 1911, and the time when the first items of material were furnished was April 11, 1911. The time when the last items of work were performed was December 5, 1911, and the time when the last items of material were furnished was February 27, 1912.'

The contract as to the labor was entire, as was the contract for the material, and it is exactly stated when the first items of work were done and the first items of material were furnished, and when the last item of work was done and the last item of material furnished. The items of labor to be performed and the items of material to be furnished are clearly stated. The statute (§ 9, subd. 4) requires that the notice shall state 'The labor performed or to be performed, or materials furnished or to be furnished, and the agreed price or value thereof.' In Toop v. Smith (87 A.D. 241) the notice did not state what materials were furnished or what work was done. No specifications or drawings appeared in or in connection with the notice of lien. Attention is not directed to the omission to state the price. The decision was affirmed in 181 New York, 283, where, after a reference to the contents of the notice, Judge WERNER wrote: '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.' Then the opinion tends to the concession that, if the specifications and drawings had been attached to the notice, there would have been a substantial compliance with the statute. Finn v. Smith (supra) held that 'under the statute any notice of lien must state either explicitly or by plain inference the value or the agreed price of the labor performed or materials furnished at the time of filing thereof.'

A notice is not to be denounced as defective if under certain circumstances it may be declared valid. The lien is restricted by express provision of statute to the principal and interest of the value or agreed price of labor performed and materials furnished. (Lien Law, art. 2, § 3; Doll v. Coogan, 48 A.D. 121; affd., 168 N.Y. 656; O'Reilly v. Mahoney, 123 A.D. 275.) A state of facts may exist where, during the progress of the work, and before the entire work is done or all the materials furnished, one entitled to a lien may file his notice for...