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Norton & Gorman Contracting Co. v. Unique Construction Co.

121 A.D. 585 Court Second Department, Decision date 1907-10-23 English

Delivered by Hooker, J.:

Contents

Majority

p. 585
Norton and Gorman Contracting Company, Respondent, v. Unique Construction Company and Others, Appellants.
Second Department,
October 23, 1907.

Headnote

Mechanic’s lien — when notice of lien insufficient.
Under a notice of mechanic’s lien for labor performed and material furnished in moving a building and placing the same ■ upon other premises at an agreed price, the lienor is not entitled to recover for the price of the- building itself, although the complaint in the action amplifies the notice by making a claim for completing the erection, of the building.
'The notice of lien must specifically and definitély state- the labor performed or to be performed,.or the material furnished or to be furnished.
Woodward and G-aynor, Jj., dissented.
Appeal by the defendants, the Unique Construction Company and others, from a judgment of the Supreme Court in favor of the
p. 586
plaintiff, entered, 'in the office óf the clerk of the county of Kings on the 1st day of November,.1906, upon the decision of the court rendered after a-trial, at the Kings County Special Term.
Ralph K. Jacobs, for the appellants.
J. Stewart Ross, for the respondent.

This (is an action to foreclose a- mechanic’s lien. The only refer-' ence in the notice of lien to the labor performed or the materials furnished was as-follows: “ 4. The labor performed .and -the mate; rials furnished' was the moving of a building from.'tlie north side oí Pacific Street and placing the same upon the premises hereinafter described and designated, and the agreed price thereof is Three thousand four hundred and sixty dollars.”- It is to be observed that the only claim stated was -for the moving of the building and the placing of it upon other premises. The complaint uvas somewhat-broader, claiming for the same moving and placing upon other premises, and in addition for the completing óf the erection thereof. The amount claimed to be due by the plaintiff and mentioned in the decision is $3,457.20, $3,000 of which,'however, is for the building itself, the .balance being for something else. It is evident that the. notice of lien is not valid to support a claim for the price of the building itself. It is held that' the statement in the notice of lien as provided for in subdivision 4 of section 9 of the Lien Law (Laws of 1897, chap. 418). must specifically and definitely state the labor performed or to be performed, or the materials furnished .or to be furnished. (Toop v. Smith, 181 N. Y. 283 ; McKinney v. White, 15 App. Div. 423 .) This has not been done in this case as far as the building is concerned.

The judgment shoiild be reversed and. a new trial granted, costs to abide the event.

Jenks and High,-JJ., concurred ; Woodward and. Gáynor, JJ., dissented on the ground that no question was raised below of the sufficiency of the notice' of .lien, but that on the contrary the case was tried on the assumption that-the notice of lien was sufficient.

Judgment reversed and new; trial granted, costs to abide the final award of costs,

Cases cited

Statutes and regulations cited