McLaughlin v. Page

This is an action to foreclose a mechanic’s lien. The appellant raises several objections to the conclusions of fact and those of law found by the learned referee. But it will be unnecessary to refer to all of them, as the single error of law, hereinafter considered, goes to the root of the controversy in its present shape, and is fatal to the judgment entered in plaintiff’s favor.

The paper claimed to be a valid notice of lien was filed in the office of the clerk of the city and county of New York on the 21st day of September, 1882. It is conceded that this notice did not conform to the technical requirements of the Mechanic’s lien Law of 1815 (Laws 1815, chap. 319); but that it did conform to the provisions of General Mechanic’s lién Law of 1880 (Laws 1880, chap. 486); and also to the provisions of that portion of the so-called consolidation act, which regulates mechanic’s liens. Laws 1882, chap. 410, §§ 1801-1823. The referee has held that by filing a notice framed as aforesaid the plaintiff acquired a valid lien. In this, I think, he erred; and I agree with the learned counsel for appellant in his contention that the only mechanic’s lien law in force on the 21st day of September, 1882, was the said chapter 319 of the Laws of 1815.

This act of 1815 was special in its character, and, by its terms, applied exclusively to the city of New York. The succeeding act of 1880 was general in its terms and applied to all the cities of the state of New York, except the city of Buffalo. In the case of McKenna v. Edmondstone ( 91 N. Y., 231 ; affirming 10 Daly, 410 ), the court of appeals held that the said act of 1880 did not repeal the said act of 1815, but left the same in force. The decision went on the ground that “it is well settled that a special and local statute for a particular case or class of cases is not repealed by a subsequent statute, general in its terms, provision and application, unless the intent to repeal or alter is manifest,

According to my understanding of this decision, the ground, upon which it was placed, was that an act, general in its terms, would not be held to repeal, by implication, a prior act, special in its terms and relating to a particular locality. In other words, the court of appeals decided that the act of 1880 did not apply to the city of New York, because such city already had its own special act which continued in force. Therefore, with all due deference to the opinion of the general term of the supreme court in this department (Cockerill v. Loonam, 36 Hun, 353 ), I am unable to agree with them in the decision that at the time in question both statutes were in force as far. as the city of New York was concerned, and that a claimant might acquire a valid lien by following the provisions of either act The .only reason for holding the act of 1875 to be unrepealed by the act of 1880, was that it applied to a special locality; and it seems to me to follow, irresistibly, from this consideration that the only way of acquiring a lien in such locality was by following its peculiar law. The converse of the principle laid down by the court of appeals in Heckman v. Pinkney ( 81 N. Y., 217 ), would seem to apply in the present case. It is there said, that “where a later statute, not purporting to amend a former one, covers the whole subject, and was plainly intended to furnish the only law on the subject, the former statute must be held repealed by necessary implication.” If the act of 1880 should be held to apply to the city of New York, it would necessarily, and just as clearly as in the instance discussed in Heckman v. Pinkney, “cover the whole subject and furnish the only law on the subject. ”

It offered a complete system, both of law and practice, on the subject of mechanic's lien and under the doctrine of Heckman v. Pinkney, if it had had any application to such locality, it must have become the exclusive provision therefor In holding, therefore, that the law of 1880 did not repeal, by implication the law of 1875, because the latter referred to a special locality, the court necessarily held that said law of 1880 had no application whatsoever to such locality. The general term of the superior court of the city

But the respondent claims that as the notice of hen in. question conformed with the requirements of the so-called, consolidation act of 1882, a valid hen was thereby established. The notice of lien was filed September 21, 1882, and the consolidation act by its terms provides that the act shall not take effect until the 1st day of March, 1883. The respondent’s argument, therefore, is probably based upon the following provision in such consolidation act: “For the purpose of determining the effect of this act upon other acts, except the Penal Code, and the effect of other acts, except the Penal Code, upon this act, this act is deemed to have been enacted on the first day of January, 1882; all acts passed after such date and the Penal Code are to have the same effect as if passed after this act.

I cannot agree with the learned counsel for the respondent in this contention. According to the terms of the act itself, it was not to take effect until several months after the filing of this lien, and in view of this provision it is immaterial when it shall be “deemed to have been enacted. ” I am disposed to acquiesce in the theory of construction suggested by the counsel for the appellant that the object of the legislature in providing when said act was to be ‘ ‘deemed to have been enacted,” was to express its intention as to the effect of this act upon other acts, and other acts upon it, passed, at the same session. It is easy to see that many questions of construction, not necessary to be specified here, might, have arisen under the various statutes passed at such session. Certainly, according to the usual acceptation of language, not the date upon which an act is “deemed to have been enacted,” but the date upon which it takes effect, is. the time when it becomes operative and after which its provisions must be obeyed.

I am, therefore, of opinion that in regard to mechanic’s liens, the act of 1875, was the law, and the only law in and for the city of New York at the time in question; and as the notice of lien filled by the plaintiffs confessedly did not-comply with the requirements of such act, such notice was void, and the judgment appealed from should be reversed, and a new trial ordered, costs to abide the event.

Allen, J., concurs.