Armstrong v. Chisholm — 91 N.Y.S. 693

Majority

p. 693

(100 App. Div. 440)

ARMSTRONG v. CHISHOLM et al.

(Supreme Court, Appellate Division, First Department.

January 13, 1905.)

Headnote

1. Mechanic’s Lien—Sufficiency of Notice.

A notice of lien stating that it is for “labor performed * * * and the materials furnished and to be furnished” is fatally defective, though another part of the notice states the amount remaining unpaid “for such labor and materials.”

2. Same.

A notice of mechanic’s lien must be sufficient in itself, without reference to extrinsic proof, to render it sufficient.

2. See Mechanics’ Liens, vol. 34, Cent. Dig. § 208.

Appeal from Special Term, New York County.

Action by James Armstrong against Mary A. Chisholm and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

See 91 N. Y. Supp. 299 .

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

G. V. Brower, for appellant.

E. Woodbridge, for respondents.

This is an action to foreclose a mechanic’s lien. It was decided at the Special Term upon an agreed statement of facts, from which it appears that the defendant Mary Chisholm was the owner of the premises against which the lien was filed. She contracted with Andrew J. Robinson, doing business under the name of Robinson & Wallace, for the performance of certain work and furnishing of cer

p. 694

tain materials, and there was due from her to Robinson & Wallace the' sum of $12,805, with interest. The plaintiff, Armstrong, had a contract with Robinson, and there was due the plaintiff upon that contract the sum of $1,907.94, for which the lien was filed. Various amounts were due other defendants, but it is unnecessary to refer to them particularly. On March 7, 1900, the defendant Robinson made an assignment for the benefit of creditors to the defendant Charles L. Talbot. On March 9, 1900, Armstrong filed a lien- against the premises, and in the notice of lien, among other things, it is stated as follows:

“(4) The labor performed was plumbing work in connection with alterations, and the materials furnished or to be furnished, and the agreed price or value thereof, is galvanized iron pipe and fittings to be used throughout the building and improvements on the property hereinafter described, at the agreed price of $13,188.

“(5) The amount unpaid to the lienor for such labor and materials is $1,-907.94.”

The facts above stated are sufficient to present the only question requiring consideration in this case. The appeal is by the plaintiff, and upon the facts stated the justice at Special Term held that the plaintiff was not entitled to a lien, by reason of the defective character of the notice of lien, but he was allowed a personal judgment against the defendant Andrew J. Robinson.

The court below was correct in holding that the notice of lien was defective. Similar notices have been condemned as being insufficient. Bradley & Currier Co. v. Pacheteau, 71 App. Div. 148 , 75 N. Y. Supp. 531 ; Bossert v. Fox, 89 App. Div. 7 , 85 N. Y. Supp. 308 ; Satzinger v. The Chebra Chai Odom Anshi Minsk, 91 App. Div. 612 , 86 N. Y. Supp. 1146 ; Westergren v. Pabst Brewing Co. (decided December 9, 1904, by this court) 91 N. Y. Supp. 1117 . The case of New Jersey Steel & Iron Co. v. Robinson, 85 App. Div. 512 , 83 N. Y. Supp. 450 , affirmed 178 N. Y. 632 , 71 N. E. 1134 , announces the general principle involved, which is that a notice of a mechanic’s lien, in order to be effective, must comply substantially with all the requirements of the lien law, and that a notice which, in attempted compliance with that law, states that “the labor performed or to be performed and the materials furnished or to be furnished” is fatally defective so far as it relates to labor and materials. It is, however, suggested that in the case at bar that rule does not apply. It is admitted that, if the fourth paragraph of the notice of lien, as above quoted, were all that is involved, the lien would necessarily fail; but it is said that by the fifth paragraph of that notice it is stated that the amount unpaid to the lienor "for such labor and materials” is a certain fixed sum, and hence it is insisted that that statement saves the notice, and relieves it from the vagueness and uncertainty which arise only out of the statement of the 4th paragraph. In the New Jersey Steel & Iron Co. Case, supra, the notice of lien referred to work, labor, and materials, and it was condemned by the court as being insufficient with respect to those two subjects; but it also referred to extra work, and it was sufficiently precise and exact with reference to that extra work having been performed to entitle the lienor to his lien to that extent, and the notice was held good pro tanto. But there is nothing in the fifth paragraph of the notice of lien now before

p. 695

us which separates anything, so that any item of it could be made distinctively the subject of a valid lien under the form of the notice. This fifth paragraph simply states that the amount unpaid to the lienor for such labor and materials—that is, referring back to the fourth paragraph—“labor or materials furnished or to be furnished”; and the fifth paragraph is as indefinite as the fourth. What could specifically be declared to be, under the fifth paragraph, the subject of the lien? Is it for labor done or for materials to be furnished? If there were a specification of the amount due for labor, then what is said in the New Jersey Steel & Iron Co. Case might apply. But in order to determine that it would be necessary to ignore the notice as filed, and resort to proof to amplify and change it. In other words, a new notice would be made by testimony; not by proof to sustain a lien, but by proof of what the lienor intended to express in his notice.

The notice is inherently defective, and must be so regarded, if we are to follow the decisions made by the courts upon the subject. A notice of lien must be sufficient in and of itself, without reference to extrinsic proof to supplement deficiencies in it, and therefore we think the judgment of the court below was right, and should be affirmed, with costs.

O’BRIEN and LAUGHEIN, JJ., concur. VAN BRUNT, P. J., and HATCH, J., concur in result.

Cases cited

Bossert v. Happel 89 App. Div. 7 N.Y. App. Div. 1903-12-11 at 85 p. 694
New Jersey Steel & Iron Co. v. Robinson 85 App. Div. 512 N.Y. App. Div. 1903-07-07 p. 694
New Jersey Steel & Iron Co. v. Robinson 178 N. Y. 632 N.Y. 1904-05-31 p. 694