Harrington Bros. v. City of New York

• Decision Date: 22 July 1931
• Citation: 51 F.2d 503
• Parties: HARRINGTON BROS., Inc., v. CITY OF NEW YORK et al.
• Court: U.S. District Court — Southern District of New York

51 F.2d 503 (1931)

HARRINGTON BROS., Inc., v. CITY OF NEW YORK et al.

District Court, S. D. New York.

July 22, 1931.

James Rosthal, of New York City, for complainant.

Bijur & Herts, of New York City (Harry Bijur, of New York City, of counsel), for defendant John J. Kelly, Inc.

Baar, Bennett & Fullen, of New York City (John P. Hurley, of New York City, of counsel), for defendants Slattery Daino Co., Inc., and Continental Casualty Co.

WOOLSEY, District Judge.

I give the plaintiff a decree herein with a reference to a master to compute the damages, if the parties cannot agree thereon.

I. This case, which was before me once previously on a motion by a judgment creditor of the plaintiff to intervene, Harrington Brothers, Inc., v. City of New York, 35 F. (2d) 1009, is now before me on trial.

There are two questions now involved herein:

(1) The validity of the mechanic's lien, on which the jurisdiction of this court in equity herein depends.

(2) The right of the complainant to a recovery against John J. Kelly, Inc., on the facts shown.

II. I hold that the lien was valid.

The notice of lien which was served under section 12 of the Lien Law of New York, at the department of finance of New York City, on the assistant deputy comptroller, on June 14, 1929, at 2:20 p. m., and entered on the audit lien docket of said department at 2:41 p. m. on said date, reads as follows:

"Notice under Mechanic's Lien Law

"Comptroller of the City of New York, and to all others whom it may concern:

"Please take notice, and the undersigned hereby states:

"That Harrington Bros., Inc., is a corporation organized under the laws of the State of New Jersey, residing at and with business address and principal place of business at 590 Montgomery Street, Jersey City, New Jersey, and with its principal place of business within the State of New York at 1211 Wyatt Avenue, Borough of Bronx, New York City.

"That it has and claims a lien for the principal and interest of the value and price of the labor and materials hereinafter mentioned upon the moneys in the control of the City of New York and upon the moneys of such municipal corporation applicable to the construction of the public improvement hereinafter mentioned, to the extent of the amount due or to become due under and on the contract with said municipal corporation hereinafter described, and hereby further states:

"1. The name of the sub-contractor for whom the labor was performed is John J. Kelly, Inc. and Slattery Daino Co., Inc. is the contractor with the City of New York.

"2. The amount due the lienor is $9,151.50, and the date when due is the 31st day of March, 1929.

"3. A description of the public improvement upon which the labor was performed is as follows: Section 4, Route 106, Municipal Rapid Transit under-ground railroad excavation and construction extending along the Grand Boulevard and Concourse, between 175th and 183rd Streets in the Borough of Bronx, City of New York.

"4. The kind of labor performed is as follows: furnishing trucks and labor for removal of excavated material.

"5. A general description of the contract pursuant to which such public improvement was constructed is as follows: Contract with Slattery Daino Co., Inc. as contractor, dated December 3, 1928, covering Route 106, Section 4, known as the Concourse Route of the Municipal Rapid Transit Railroad subway.

"6. The time when the first item of work was performed was March 1, 1929, and the time when the last item of work was performed was March 31, 1929.

"7. This notice is filed pursuant to the Mechanic's Lien Law of the State of New York, and all acts of the legislature of the State of New York amending or extending the same, or providing for filing mechanic's liens on account of public improvements. The labor aforesaid was performed for the construction of said public improvement pursuant to said contract with said municipal corporation.

"8. Thirty days have not elapsed since the completion and acceptance of the construction of said public improvement.

"Dated, June 13, 1929. "Harrington Brothers, Inc. "By James Vincent Harrington, Treas."

This lien was duly bonded and discharged on June 20, 1929, on filing with the comptroller of an undertaking given by defendant Continental Casualty Company, duly approved by an order of the Supreme Court of New York.

It developed on the trial herein that payment for the work done each month was made according to the informal arrangement existing between the complainant and Kelly on the 10th of the month following; consequently the defendants claim that the notice of the date when the amount claimed was due is subject to a fatal variance and the notice of lien is thereby made invalid.

But it is quite clear that the inaccuracy as to this date was not intentional and consequently must be deemed a venial mistake.

Notice under the Lien Law is supposed to be given by laymen, and its purpose is to make his pay secure to the workman. In view of section 23 of the Lien Law, which requires, in order to accomplish this result, a liberal construction of the notice and provides that "a substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same," it seems to me that to hold the notice of lien in this case invalid for this minor and immaterial inaccuracy would be to defeat, in this case, the purpose of the Lien Law, without any real reason for so doing.

My decision that this lien is valid notwithstanding the mistake as to the due date of the payment is supported by the principles of construction laid...