Majority
p. 758William McMahon, Resp't, v. James Hodge, Impl'd, App'lt. (New York Common Pleas, General Term, Filed, February 6, 1893.)
Headnote
Mechanic’s lien'—Filing of notice.In an action to foreclose a mechanic’s lien, filed by a sub-contractor, the evidence tended to show that plaintiff’s work was finished prior to July 1st, while his lien was not filed until October 10th. Held, that the lien not having been filed within ninety days after completion of the work, was absolutely void.
Appeal by the defendant, James Hodge, from a judgment of the district court of the city of New York for the tenth judicial district, rendered in favor of the plaintiff.
Sherman Fvarts, for app’lt;
Samuel F. Puffey, for resp’t.
This action was brought in the district court to foreclose a mechanic’s lien, filed on the 10th day of October, 1891, for $100, by the plaintiff, a sub-contractor, for a balance due under an oral contract made with the principal contractor, Sehoonmaker, for the mason work, chimneys and plastering of a certain house to be erected by Sehoonmaker for Hodge, the owner. The first question to be determined upon this appeaHs whether or not the plaintiff acquired a valid mechanic’s lien on the
p. 759
premises. There can be no doubt from the evidence that the work was finished, as far as the plaintiff ever finished it, in the spring of 1891. The plaintiff on his direct testified that it was in June, and on his cross-examination testified that he thought it was in April or the spring. This would bring it not later than the 1st of July, while it is conceded the mechanic’s lien was not filed until the 10th of October, 1891, more than ninety days after the completion of the work. Section 4 of the mechanic’s lien act, chap. 342, Laws of 1885, requires that the notice of lien must be filed in the county clerk’s office within ninety days after the completion of the contract, or the final performance of the work. If not filed within that time the claim is absolutely void. Donaldson v. O' Connor, 1 E. D. Smith, 695; Lutz v. Ey, 3 id., 621; Hubbell v. Schreyer, 14 Abb., N. S., 284; Spencer v. Barnett, 35 N. Y., 94 . While the mechanic’s lien law makes benign provision for the payment of mechanics, material men and laborers, yet it is in derogation of the common law, and its provisions must be strictly complied with in order to be of avail to them. In this case the lien was not filed in time, and therefore the complaint should have been dismissed. This question was not distinctly presented to the court below, and if it had been, the testimony upon the point might have been more clearly presented.
Having arrived at this conclusion it is unnecessary to examine the other questions raised on the appeal.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Bischoff, J., concurs.