Conklin v. Wood

Headnote

The notice to create a lien, pursuant to the act of 1851, as amended in 1855, must be verified in the same manner as a pleading under the Code of Procedure.

An affidavit subscribed to the notice, alleging that the statement of the balance due, as therein set forth, is true according to the deponent’s knowledge, is not sufficient.

The defect is fatal to the whole proceeding to acquire and enforce a lien under this law, and it cannot be amended.

The defendant may avail himself of the objection at the trial, and need not raise it upon the return of the notice to account nor in his answer to the complaint.

■ This was an appeal by the defendant from a judgment rendered in favor of the plaintiff, upon the report of a referee in an action prosecuted under the act of 1851, as amended in 1855, for the better protection of mechanics and others.

■ The notice to create the lien, filed with the county clerk, pursuant to the sixth section of the statute of 1851, was as follows :

“ To Richard B. Connoly, Esq., clerk of the city and county of New York: -

. “ Sir—Please to take notice, that I, Albert L. Conklin, of the city of New York, have a claim against Stephen G. Wood, of the same place, amounting to the sum of $920 20, and that this claim is made for and on account of a balance due on a contract for carpenter work, and for mason work and extra work in an upon the premises hereinafter described, and for materials furnished, and that such work, labor and materials were done and furnished by said Albert L. Conklin, in pursuance of an agreement made between said Conklin and said Stephen G. Wood, which building is leased by said Stephen G. Wood, and is situated in the third ward of the city of New York, on the east side of West street, and is known as No. 142 of said street: And that I have and claim a lien on said building, and the appurtenances, and upon the lot of land upon

which the said building stands, pursuant to the provisions of an act of the legislature of the state of New York, entitled An Act of for the better security of mechanics and others erecting buildings, and providing materials therefor, in the city and county of New York,’ passed July 11, 1851.

“ Dated, New York, this 29th day of September, 1855.

“ Indorsed, Albert L. Conklin.

" Eiled 29th of Sept. 1855.”

And to the notice was subscribed the following affidavit: “ City and County of New York, ss:

“ Albert L. Conklin being duly sworn, says that the foregoing statement of the balance due from said Wood to this deponent, as set forth in the foregoing lien, is true according to deponent’s knowledge.

Albert L. Conklin.

“ Thomas A. Richmond, Commr. of Deeds.”

On the day the intended lien was filed, the notice, provided in the fourth section of the act of 1851, requiring the defendant to appear and submit to an accounting, was served upon the defendant, returnable October 22,1851, at which time the parties appeared in this court. The usual order for the joinder of issues and for the service of pleadings was entered, and the cause proceeded upon complaint, answer and reply. A reference for the trial of the action having been directed, the proceedings were continued for several months, during which a mass of testimony was adduced upon either'side.

The trial finally resulted in a report in favor of the plaintiff, affirming the regularity of his proceedings to effect and enforce the statutory lien contended for, and finding against the defendant upon the contested merits of the claim on which the alleged lien was founded.

Appecial judgment having been entered in the form prescribed by law and by the decisions of this court, the defendant appealed therefrom to the general term.

■ The amount found hy the referee due from the defendant was $825 88. Before the cause was referred, the defendant served upon the plaintiff an offer to allow the entry of a -’jirdg-ment for $668 53, -and costs. , . ■

Among the exceptions taken by the defendant’s counsel to the decision of the referee, was an objection “ to so much of the report as finds that the plaintiff served upon the' clerk of the city and county of New York, the notice mentioned, pursuant to the act for the security of mechanics.”

No question was raised upon the sufficiency of either the notice of lien or the verification thereof, upon.the entry of the order for joining issues, nor in the pleadings,- nor in any manner before the trial.' ' -

The-notice of appeal from the judgment specified,, among other grounds of objection, that the judgment'contravened the statute of 1851, and the acts amendatory thereof, “in all re-, spects, and particularly in respect to the lien notice.”