Vitelli v. May — 120 A.D. 448

Majority

p. 448

Nicola Vitelli, Respondent, v. Henry B. May and Others, Defendants, Impleaded with Edward Johnson and Frank A. Slocum, Appellants.

Second Department,

June 7, 1907.

Headnote

Mechanic’s lien — sufficiency of notice — liability of sureties on foreclosure — leave to sue.

Anotice of mechanic’s lien stating that the lien is claimed for “ labor, performed and to be performed, and the materials, furnished and to be furnished is all labor in, toward and about the brick work” for six buildings, etc., and stating the agreed price and value thereof, is not defective in failing, to show that the claim is made for labor; the statement as to material furnished may be regarded as mere surplusage and will not operate to invalidate the notice. '

■The sureties of an owner are not liable in an action to foreclose a mechanic’s lien ■unless the Hen be valid and that question may be litigated.

In an action against the sureties of an owner, it is not necessary for the plaintiff to obtain leave to sue under section 814 of the Code of Civil Procedure.

Appeal by the defendants, Edward Johnson and another, frbm an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings ■ on the 21st day of February, 1907, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling their demurrer to the complaint.

Paul M. Crandell, for the appellants.

Robert Stewart [Ralph G. Barclay with him on the brief], for the respondent.

The plaintiff brings this action to foreclose a mechanic’s lien, and has made. Johnson and Slocum, the sureties upon a bond given for the purpose: of having the lien discharged, parties defendant. These defendants have demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and the learned' court at Special Term has overruled the demurrer.. The said defendants appeal to this court.

The undertaking executed by the defendants Johnson and Slocum, and referred to in the complaint, is conditioned for the. payment of any judgment which may he rendered against the prop

p. 449

erty in. an action to foreclose the lien. . We agree witli the defendants that they are not liable in this action unless the plaintiff had a valid lien, and this question is open to litigation in this action. (Parsons v. Moses, 40 App. Div. 58 .) We are, however, unable to agree with the contention of the defendants that the notice of lien, made a part of the complaint, is open to the criticism, or that it is within the rule laid down in the cases of Bradley & Currier Co. v. Pacheteau ( 71 App. Div. 148 ); Bossert v. Fox (89 id. 7); New Jersey Steel & Iron Co. v. Robinson (85 id. 512), and Armstrong v. Chisolm (100 id. 440). In. all of these cases the point decided was not that it was necessary to state separately the value of labor and materials furnished, but that the notice of lien did not state definitely the facts; the notice is made ineffective as a notice by failing to state affirmatively the facts which the statute^[1] requires to be stated. ■ This is made entirely, plain by the discussion of Mr. Justice Hatch in New Jersey Steel & Iron Co. v. Robinson (supra, 516) and the other cases cited. . The scheme of the statute is that a proper person, by filing a lien at any time during the progress of the work and the furnishing of materials, gains a lien upon the property improved both for work performed or to be performed, and for materials furnished or to be furnished,' provided, of course, such labor and materials are in fact furnished ; but a statement in the notice that labor has been or is to-be performed is not a statement of fact. What the statute contemplates is that in filing'a lien the lienor shall state the labor which has been performed and which is to be performed, or the materials. which have been furnished or which are to be furnished, and to which the lien is to apply, to the end that the owner may know exactly what is involved in the lien. In the case now before us the lienor has complied with this provision ; he tells us.that “the labor performed and to be performed, and the materials furnished and to be furnished (is) all the labor in, toward and about the brick work for six (6) buildings four (4) story apartments on the north side of Fourth St., * * * ■ and the agreed price and value thereof is $12,205.57.” It is entirely evident from this notice, and the contract appended to the complaint

* See Lien Law (Laws of 1897, cliap. 418), art. 1, as amended.— [Bep,

p. 450

supports it, that'it relates to the .wdrlc necessary to be performed in laying the brick work upon ■ these six buildings, and the fact that' the notice refers to “materials furnished and to be furnished” does, z • . :not detract anything from the statement of facts required by the statute. And, in fact, the contract does' provide for furnishing certain materials, such as scaffolding, etc., to he used in the work, hut which do not come within the contemplation of the statute, for they are not to be included in the work, but are merely to be.used . in prosecuting the work. . The notice further state's ■ that '“ The amount unpaid to the lienor for such labor and materials is thirty-, four hundred -and sixty-five and 57 /100 dollars,” together with the. other formal statements required by the statute. - It is- not to be doubted that' the notice would be sufficient if' the lienor had omitted all reference to materials furnished or to be furnished, and it' would be strange, indeed,-if the mere surplusage, iu.no wise c'alculated to mislead, should operate to make the notice invalid.

We find nothing in the statute which indicates that it is necessary ' to make a separate statement in reference to these matters, or to, indicate what portion is for labor or for materials, and hone of the cases to which attention is called decides any'such point.. A liberal construction of the statute, commanded by section 22, would not seem to’ demand such'a ruling, for the obvious intention is simply to give notice, of the true state of facts at the time of the filing of-the lien ; and when the notice declares that it is for “ all the. labor in, toward and about the brick work,” that the agreed price and value thereof is $12,205,57, and that the amount unpaid to the lienor is $3,465.57, no one can be misled in. the matter. (See Woolf v. Schaefer, 103 App. Div. 567 ,571.)

We áre of opinion that it was not necessary to comply, with the provisions of- section' 814 of the Code of Civil Procedure to maintain this action against the-sureties. (Morton v. Tucker, 145 N. Y. 244 .) The action being in equity, it is proper to bring in all of' the interested parties.

We1 find no reason- for' reversing the interlocutory judgment, ' which should be affirmed,- with costs, ■

Jenks, Hooker, Gaynor and High, JJ., concurred.

Interlocutory judgment affirmed, with costs.

Cases cited

Morton v. Tucker 145 N. Y. 244 N.Y. 1895-03-12 p. 450