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Mechanic's Lien of Boland v. Sokolski

56 Misc. 333 Court N.Y. Sup. Ct. English

Delivered by Giegerich, J.

Contents

Majority

p. 333
Matter of the Mechanic’s Lien of Charles H. Boland and Arthur Alkier, Claimants (Assigned to Frederick Soland), v. Albert Sokolski, Owner and Contractor.
(Supreme Court, New York Special Term,
November, 1907.)

Headnote

Mechanics’ liens — Bond or deposit to avoid lien — Requisites of bond in general — Justification of sureties.
Service of the notice of justification of sureties upon an undertaking to discharge a mechanic’s lien, required by section 18 of the Mechanic’s Lien Law (L. 1897, ch. 418), must be personal.
Such notice of justification is not a paper in an action, and sections 796 and 797 of the Code pf Civil Procedure do not apply.
p. 334
Motion by the assignee of lienor to disallow the justification of sureties on an undertaking given by the owner of certain real property for the purpose of cancelling a mechanic’s lien.
Feltenstein & Rosenstein (Abraham Rosenstein, of counsel), for motion.
Johnson & Johnson (Lewis M. Johnson, of counsel), opposed.

The question is whether notice of justification of sureties upon an undertaking given to discharge a mechanic’s lien must be personal or whether it is sufficient to leave such notice at the place of residence of the lienor with a person of suitable age and to mail copies thereof to the lienor. The Legislature has power to say that th^s notice required as a condition precedent to the doing of an act may be given'by publication or by leaving‘it at the place of business or dwelling house of the party to be notified, but in the absence of such legislative provision such notice must be personal. Rathbun v. Acker, 18 Barb. 393 ; McDermott v. Board of Police, 25 id. 635; People ex rel. Niagara Bridge & Canandaigua R. Co. v. Lockport & B. R. Co., 13 Hun, 211 ; Mitchell v. Clary, 20 Misc. Rep. 595 . Section 18 of the Mechanic’s Lien Law (Laws of 1897, chap. 418), which requires the service of notice in such a case as this, makes no provision for any substitute for personal service. Sections 796 and 797 of the Code of'Civil Procedure have no application because the notice in question is not a paper in an action. Kerr v. McGuire, 28 N. Y. 446 , 453. The fact that the legislature in section 11 of the act provides that service of a copy of the notice of lien may be made by leaving it at the last known place of residence of the owner indicates that the omission of such a provision in section 18 with respect to a notice of the kind in question was intentional.

Motion granted, with ten dollars costs.

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