Riley v. Watson — 10 N.Y. Sup. Ct. 568

Majority

p. 568

PETER RILEY, Appellant, v. JAMES H. WATSON, Respondent.

Headnote

Mechanics' lien—Kings county—who is owner under the statute — chap. 478 of 1863.

A notice of lien filed under the statute relating to liens in Kings county, which gives the name of the owner of the property who has contracted to sell it to the party who made the contract with the lienor, sufficiently describes the owner within the provisions of that statute.

Appeal from a judgment in favor of .the defendant, entered on the report of a referee. ' .>/■’ ;

Lewis <& Maekay, for the appellant..

The notice of lien shows who the owner is, and is a sufficient notice, and the complaint shows

p. 569

that the claim is made against him. (Moran et al. v. Chase, 52 N. Y., 346 ; Hubbell v. Sehreyer, 15 Abb. Pr. [N. S.], 300.) The second exception is not well taken, for the reason that the person, other than the owner, for whom he furnished the materials, is not required to be named in the notice. The stone was furnished for, and used in the erection of, the cellar walls by permission of the owner. (Hart v. Wheeler, 1 N. Y. S. C. R., 403.)

James Orombie, for the respondent.

The notice of lien filed by the plaintiff was defective and invalid, because it did not state the name of the person against whom the claim was made. (Laws of 1862, p. 947, § 3.) This section requires the notice to state the person against whom the claim is made, and the clerk to enter under the heading, “ against whom claimed,” the name of such person. The statute is to be strictly construed. (Mushlitt v. Silverman, 50 N. Y., 360 ; Hauptman v. Catin, 20 id., 247; Grant v. Vandercook, 8 Abb. [N. S.], 455; Roberts v. Fowler, 3 E. D. Smith, 632; Hubbell v. Schreyer, 15 Abb. [N. S.], 300; Beads v. The Congregation, etc., 1 E. D. Smith, 656; Cronkright v. Thomson, id., 661.) The evidence shows that the plaintiff sold the stone to John R. Ball. Ball testified that he never made any contract with defendant about the stone, and there was n& proof he was a sub-contractor, or that the defendant permitted him to build.

The defendant was the owner of certain premises in Brooklyn, which he contracted to sell to a Mrs. Robbins, and agreed to advance her moneys toward the erection of six buildings thereon. After the completion of the buildings, he was to deed the premises to Mrs. Robbins, and to take back a mortgage for the price of the property, and for the advances so to be made. Under this contract the houses were erected.

The plaintiff furnished stone which was used in the building, but not at the direct order of the defendant. Within three months after the furnishing of such material, he served on the county clerk of Kings county and upon defendants, a notice, of which the following is a copy:

p. 570

•“To the county clerk.of Kings county and to whom it may concern

“ Take notice, that I have and claim a lien for $529, against six houses and the lots on which they stand, situate in the city of Brooklyn, and described as follows: Commencing at the south-east corner of Flushing avenue and Hall street; running thence easterly along the southerly side of Flushing avenue 120 feet; thence southerly 100 feet; thence westerly 100 feet; thence northerly 100 feet to place of beginning. My claim is for building-stone furnished and used in the erection of said houses and furnished within three months last past. James H. Watson is the owner thereof. There are no street numbers to said houses to the knowledge of claimant.

“ Dated February 10, 1872.

“PETER RILEY.”

The referee held that the plaintiff had no lien, because this notice did not contain the name of the person against whom the claim was made, and dismissed the complaint with .costs.

By the provisions of the lien act for the counties of Kings and and Queens,^[1] a lien is given to a person who furnishes materials in building, by virtue of any contract with the owner or his agent, or with any contractor or sub-contractor, or any person permitted by the owner of such lands to build, upon filing a notice, as required by the third section of said act. This section requires the notice to state the person against whom the claim is made, and the name of the owner of the building. Mrs. Robbins was not. a contractor within the meaning of the lien act.^[2]

By the first section of this lien act, a person who has contracted to sell, shall be deemed the owner within the meaning of the act. This lien is given, if at all, because the owner permitted another person to build ; that such was the design seems evident. It met the objection encountered in Loonie v. Hogan,^[3] by inserting the clause under consideration, and by a declaration that the legal owner was to be deemed the owner, notwithstanding an agreement to sell. Against whom could the plaintiff make a claim other than against the real owner % There was no contractor or sub-contractor. The contract was not made with the defendant or his agent.* Mrs.

* Chapter 478, Laws of 1863, § 1.

† † Loonie v. Hogan, 9 N. Y. (5 Selden), 435.

‡ ‡ Supra.

p. 571

Robbins was permitted to build by the .defendant. The person against whom the claim was made and the owner were identical.

The notice claimed the lien, and gave the name of the owner. We think it was sufficient to entitle the plaintiff to his lien.

Judgment reversed, and new trial granted at Special Term, costs to abide event.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Ordered accordingly.