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Adler v. Lumley

61 N.Y.S. 688 Court N.Y. App. Div. Decision date 1899-12-19 English

Delivered by WILLARD BARTLETT, J.

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p. 688
ADLER v. LUMLEY.
(Supreme Court, Appellate Division, Second Department.
December 19, 1899.)

Headnote

Mechanics’ Liens—Gravestones—Time op Filing Lien.
Under Laws 1897, c. 418, §§ 16, 40, relating to liens on monuments and gravestones, and requiring- notice of such lien to be filed with the superintendent of the cemetery where the monument is erected within one year after the agreed price becomes due, the court has no jurisdiction to give leave to file such a lien nunc pro tune after the year as prescribed in the statute h$s passed.
Appeal from special term, Kings county.
Action by Henriette Adler against Edward Lumley to enforce a mechanic’s lien on a monument. • From an order permitting the plaintiff to file his notice of lien nunc pro tune, defendant appeals. Reversed.
Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
Albert L. Cohn, for appellant.
Robert L. Turk, for respondent.

This is an action to enforce a mechanic’s lien on a monument alleged to have been purchased by the defendant from the plaintiff, and erected in Cypress Hills Cemetery, in the borough of Brooklyn, on or about the 15-th day of August, 1897. Article 3 of the lien law provides that a person furnishing or placing in a cemetery or burial ground a monument, gravestone, inclosure, or other- structure, has a lien thereon for the agreed price thereof, or the part remaining unpaid, with interest, upon filing with the superintendent or person in charge of such cemetery or burial ground a notice of lien as therein prescribed. “Such notice may be filed at any time after the completion of the work, but must be filed within one year after the agreed price for furnishing or placing such monument, gravestone, inclosure, or other structure becomes due.” Laws 1897, c. 418, § 40. The plaintiff’s notice of lien, instead of being filed with the superintendent or person in charge of Cypress Hills Cemetery, as required by the statute, was filed with the clerk of the county of Kings on the 23d day of January, 1899. The plaintiff’s attorney, having ascertained this fact, made an application to the supreme court in October, 1899, for leave to file said notice of lien with the cemetery superintendent-nunc pro tune, and this application has resulted in the order appealed from.

The learned judge at special term expressed some doubt as to the power of the court to make the desired order. We think that his doubts in this respect were well founded. That portion of the lien law which relates to liens on monuments, gravestones, and cemetery structures does not contain any provision for extending the duration of such liens, as may be done by judicial order in the case of mechanics’ liens. Laws 1897, c. 418, § 16. The statute is clear and positive in requiring that the notice of lien shall be filed with the superintendent or person in charge of the cemetery or burial ground, and that it must be filed within one year after the agreed price be

p. 689
comes due. The order which the court has assumed to make permitting the notice of lien to be filed with the cemetery superintendent nunc pro tune cannot be regarded as a proceeding in the action. There is no provision for any such proceeding, either in the lien law or in the Code. The order is a judicial fiat, wholly outside the suit, for which no warrant can be found in any legislative enactment to which we have been referred. We are of the opinion that the court was without jurisdiction to give the leave which it thus assumed to grant. The order must therefore be reversed, with costs.

Order reversed, with $10 costs and disbursements, and motion denied. All concur.

Statutes and regulations cited