McKenna v. Edmundstone

This action was brought to foreclose a mechanic’s lien, filed by the plaintiff July 30, 1881, against premises owned by the defendant Edmundstone, situate in the city of Hew York, for work done after May 1, 1881. The order from which the appeal is taken was made under the Mechanics’ Lien Law of 1875, applicable to the city and county of Hew York, which directed the lien to be discharged upon the giving by the defendant of a bond, with sureties, for the payment of any judgment which might be recovered in the action, pursuant to subdivision 4, section 18, of that act. It is claimed by the appellant that the act of 1875 was repealed by chapter 486, Laws of 1880, entitled “ An act to secure the payment of mechanics, laborers and workmen who perform work, also persons furnishing materials toward the erection, altering or re-pairing buildings, wharves, vaults or any other structure in the cities of the State of Hew York,” and the determination of this appeal depends upon the correctness of this contention. It is well settled that a special and local statute, providing for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law. (Matter of the Commissioners of Central Park, 50 N. Y. 493 .) This is but the application of the larger rule that a statute is not to be deemed repealed by implication by a subsequent act upon the same subject, unless the two are manifestly inconsistent with, and repugnant to each other, or unless a clear intention is disclosed on the face of .the later statute, to repeal the former one. (Bowen v. Lease, 5 Hill, 225 .) There was no express repeal of the statute of 1875 in the statute of 1880, and if the former statute was repealed by the later one, it must be upon the ground that the two cannot consistently stand together, in which case a repeal by implication is necessarily effected. The statute of 1875, related exclusively to the city and county of Hew York; the statute of 1880, relates to the cities of the State, and while the city of Hew York, in the absence of any other statute upon the subject

The statute of 1880, was a general statute within the rule we are considering, although it applies only to cities and not to the whole State. A statute affecting all males or all females, or all infants, would plainly be a general one, and on the same principle an act applicable to all cities is general, in contradistinction to a statute applicable to one city only. See In re The Evergreens ( 47 N. Y. 216 ).

It is claimed that the intent of the legislature in passing the act of 1880, to repeal the act of 1875, is shown by the fact that the city of Buffalo is expressly excluded from its provisions. This it is claimed affords an inference of an intention to include all the cities of the State except the one specially excepted, on the construction that the exclusion of one city, is the inclusion of the others. But we think this does not afford that clear evidence of intention which justifies us in holding that the former statute was repealed by implication. The legislature at the same session in which the act of 1880 was passed, also enacted a special lien law for the city of Buffalo (Laws of 1880, chap. 143), and the legislature for greater caution, may have excepted the city of Buffalo from the general law to prevent any doubt that the special act was not' sii

We are of opinion, therefore, that the act of 1875 was not repealed by the act of 1880, and that the court had jurisdiction to make the.order in question.

All concur, except Bapallo and Miller, JJ., absent.

Order affirmed.