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In re John R. Sheehan & Co.

135 A.D. 94 Court First Department, Decision date 1909-12-03 English

Delivered by Laughlin, J.:

Contents

Majority

p. 94
In the Matter of the Application of John R. Sheehan and Company, Respondent, for an Order Canceling an Alleged Lien of Notice of a Conditional Bill of Sale Filed by Fitzgibbons Boiler Company, Appellant, in Regard to a Certain Contract Dated on or About the 12th Day of March, 1904, Between The City of New York, Through the Board of Trustees at Bellevue and Allied Hospitals of The City of New York, and John R. Sheehan and Company, in Regard to Gouverneur Hospital, Between Front and Water Streets, Borough of Manhattan, City of New York. Herman A. Metz, as Comptroller of the City of New York, Appellant.
First Department,
December 3, 1909

Headnote

Mechanic’s lien — insufficient notice — court — rights of party giving notice of conditional sale not summarily determined:
Letters written to the comptroller of the city of New York by one furnishing material for a municipal improvement, stating that the' material is furnished to a sub-contractor under an agreement of conditional sale by which the title • is not to pass until the full purchase price is paid, are not equivalent to a notice of mechanic’s lien if the letters are unverified, do not state the residence of the claimant, or whether it is a copartnership or corporation, or the date when the purchase price is to become due, etc., or in other respects comply with section 12 of the Lien Law.
Hence, the court has no authority to enter an order discharging such notices as mechanics’ liens on.the giving of an undertaking by the contractor.
The court on motion to discharge such notices as mechanics’ liens will not summarily determine the rights acquired by the materialman on giving such notice.,
Separate appeals by Herman A., Metz, as comptroller of the city of New York, and by the Fitzgibbons Boiler Company, from an order of the Supreme Court, made.-at the New York Special Term and entered in the office of the c]erk of the county of New York on the 14tli day of July, 1909, denying a motion made by said boiler company to vacate an order theretofore entered herein discharging certain notices of the delivery of material under a conditional bill of sale.
John L. O’Brien [Theodore Connoly with him on the brief], for the appellant comptroller.
p. 95
Mervyn Mackenzie, for the appellant Fitzgibbons Boiler Company.
James F. Mack, for the respondent.

The order from which the appeal was taken was evidently made on the theory that the notices that the material was delivered under a conditional bill of sale, by which title was not to pass until payment of the contract price, in effect, constituted a mechanic’s lien, and it directs that they be discharged the same as if they were mechanics’ liens, on the giving of the undertaking by the contractor who has a contract with the city made by the board of trustees of the Bellevue and allied ■ hospitals for the performance of certain work at the G-ouverneur Hospital. The Fitzgibbons Boiler Company furnished three boilers to a sub-contractor, which were delivered and installed in part performance of the contract work of Sheehan & Co. The notices filed with.the comptroller which have been ordered discharged, do not purport to be notices of mechanics’ liens. They consist of three letters. The first is under date of July 12, 1905. It gives notice that the Fitzgibbons Boiler Company has an agreement, in writing, with Bossman & Bracken, steam heating contractors, giving their office address, to furnish the three boilers designated in certain specifications, giving the purchase price, and that the boilers were installed in the Bellevue Hospital, Gouverneur branch, and that “ under such contract it is especially provided that the title to the boilers shall not pass from our company until all sums due on the purchase price of the same are fully paid and satisfied.” And it further states that Sheehan & Co. are the general contractors. The second letter is dated March 7, 1906, and refers to the other, and gives notice that a payment of $4,452 has been made on account, leaving a balance of $1,118 unpaid, and again draws attention to the provision of its contract by which title was not to pass until the whole amount of the purchase price should be paid. The third letter is under date of December 11, 1907, and refers to the second letter and describes it as a letter “ in regard to a conditional bill of sale,” and states that the amount of this conditional bill of sale was $5,565,” and that there was a balance due and owing to the Fitzgibbons Boiler Company of $1,113, together

p. 96
with interest thereon, “ before we relinquish our right Bind title.” It will be noticed that no lien was claimed upon the fund due or to grow due to the contractor. There was no attempt to comply with the requirements of section 12 of the Lien Law (Gen. Laws, chap. 49; Laws of 1897, chap. 418, as amd.).. "Bone of the letters state the residence of the claimant, nor did the first letter state the amount due or to become due, but merely the contract price, without stating whether or not it-had been paid. Bone of the letters stated thie date when any "part of the purchase price became due. Section 12 of the Lien Law, as amended by section 2 of chapter 37 of the Laws of 1902, which authorizes the filing of a notice of lien on account of a public improvement, provides with respect to the contents thereof as follows : “ The notice shall state the name and . residence of the lienor, the name of the contractor or sub-contractor for whom the labor was performed or materials furnished, the amount claimed to be due or to become due, the date when due, a description of the public improvement upon. which the labor was performed and materials expended, the kind of labor performed and materials ■furnished, and give a general description of the contract pursuant to which such public improvement was constructed.” In no view can these letters be held to constitute valid notices of liens under the statute, and, therefore, the court was without authority to discharge them as if they were mechanics’ liens. It is extremely doubtful whether the order of the court or the undertaking which it requires to be filed, as a condition of discharging the alleged notices, of lien, would protect the city.' The only possible theory upon which the city would be protected is that the Fitzgibbons Boiler Company ■ had notice of the application for the order and might be bound by it. The boiler company, however, as well as the city, appeals, and its counsel argues that the undertaking would be void and not enforeible for its protection. We are of opinion that the rights of the Fitzgibbons Boiler Company, by virtue of the notices it gave to the comptroller, cannot be determined upon a summary application to the court. It does not, as already observed, assert a lien against any fund. It merely gives notice that it claims and .will claim that the title to the boilers .did not pass from it, and will not pass until the purchase - price thereof" is paid in full. Whatever its rights in the premises may be, inasmuch as it has filed ho notice of a mechanic’s lien and ■
p. 97
asserts no right under the Mechanics’ Lien Law, the court was without authority, by virtue of the provisions of that law, to interfere with the notices which it gave the comptroller. There being no other authority for a summary application to the court.in the premises the application should have been denied.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements to each appellant, and motion granted, with ten dollars costs to the Fitzgibbons Boiler Company.'

Ingraham, McLaughlin, Clarke and Scott, J J., concurred.

Order reversed, with ten dollars costs and disbursements to each appellant, and motion granted, with ten dollars costs to the Fitzgibbons Boiler Company.

Statutes and regulations cited