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Keogh v. Main

50 N.Y. Super. Ct. 183 18 Jones & S. 183 Court N.Y. Super. Ct. Decision date 1884-03-03 English

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CHRISTOPHER B. KEOGH, et al., Respondents, v. STEPHEN A. MAIN, Appellant, and THOMAS MULRY, et al., Respondents.
Decided March 3, 1884.

Headnote

Mechanics' liens—acts 1880 and 1875.—Verification.
The mechanics’ lien law of 1875 was not repealed by Laws 1880, ch. 486, and still remains applicable to the city of New York.
Accordingly a verification under the general law of 1880, “ that the statements therein contained are true to the best of his linowlege, information and belief,” not being in accordance with the form prescribed by the Law of 1875, the claim so verified gives no lien.
The statute of 1875 requires that the verification shall be true to the knowledge of the person making the same, and a verification that “the same is true to the best-of his own knowledge,” is insufficient and confers no lien.
Before Sedgwick, Ch. J., and Ingraham, J.
Appeal by defendant Main from judgment in favor of plaintiff and defendants Mulry, foreclosing certain mechanics’ liens, on property of the defendant Main, in the city of New York.
The facts are stated in the opinion.
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Jones, Roosevelt & Carley, for appellant.
I. The notices are not verified as required by the statute of 1880. It is an essential perequisite to the creation of the lien that the notice should in its statements comply with the requirements of the statute (Beals v. Congregation B’Nai Jeshurun, 1 E. D. S. 654; Fogarty v. Wick, 8 Daly, 166 ), and be verified as required by the statute (Conklin v. Wood, 3 E. D. S. 662). But the act of 1880, under which the liens are claimed, does not apply to the city of New York, and for this reason there can be no recovery in this action. The plaintiffs and the defendants base their right to a judgment of foreclosure and for sale on the sole ground that they have acquired a lien under said statute. This act does not apply to the city of New York (McKenna v. Edmundstone, 14 Weekly Dig. 494 ; aff’d 91 N. Y. 231 ; see also Whipple v. Christian, 80 Id. 523). It is needless to say that no lien having been acquired, the court had no power to decree foreclosure and sale. There is no lien to foreclose (Conkright v. Thomson, 1 E. D. S. 662).
II. The respondents cannot be permitted to claim that though they failed to obtain a lien under the statutes of 1880, they proved a state of facts upon which the court could adjudge that under and by virtue of the notice filed, they acquired a lien under another and different statute. The issue tendered and tried, was whether a lien was acquired under the statute of 1880. No amendment of the pleadings was made or even asked for, and no such amendment should be allowed now. The notice of lien is not amendable (Beals v. Congregation B’Nai Jeshurun, 1 E. D. S. 654-658).
III. But the notices were insufficient to create a lien under the Act of 1875. By the statute “the verification must be to the effect that the statements are true to the knowledge of the person making the same.” In the case of the plaintiffs, the verification is that the statements are true to the best of his (the deponent’s) knowledge, information and belief. And in the case of the defendants Mulry, it is “that he has read the said notice and knows the contents
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thereof, and that the same is true to the best of of his (the deponent’s) own knowledge.” It does not even appear from anything contained in the verification that either of the persons making the affidavit had any knowledge in respect to the truth of the statements in the notice. It could have been made in the form in which it was made by a stranger, and he not have been convicted of perjury if every statement in the notice was false. A notice improperly verified is void (Conklin v. Wood, 3 E. D. S. 662). Omitting the latter part, the ,form of verification prescribed be the Code is almost identical with the form of verification prescribed by the Mechanics’ Lien Law of 1875 (§5, ch. 379, Laws 1875). It has been invariably held that a verification to the best of a person’s knowledge, or in any other form than that the same is true to the knowledge of the person making the same (excepting, of course, where-it only purports to be on information, etc., as authorized by the Code), amounts to no verification at all (Van Horne v. Montgomery, 5 How. Pr. 238 ; Williams v. Riel, 11 Id. 374 ; Tibballs v. Selfridge, 12 Id. 64 ; Sexauer v. Boner, 10 Abb. Pr. N. S. 335). A notice of lien which is not properly verified is void, and furnishes no foundation for a judgment (Conklin v. Wood, 3 E. D. S. 662; Hollagan v. Herbert, 2 Daly, 253 ; Kechler v. Stumme, 36 Super. Ct. 337).
Robert P. Harlan and Everett D. Barlow, for plaintiffs, respondents.
William P. Mulry, for respondent Mulry.

This is an action to foreclose a mechanics’ lien on premises No. 23 West Twenty-third street, in the City of New York, owned by defendant Main.

The court ordered that the premises in question be sold, and directed that from the proceeds, after paying the costs, the referee pay to plaintiff the amount of a mechanics’ lien ; and second, to pay to the defendants, Thomas Mulry and

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Thomas M. Mulry, the amount of a mechanics’ lien filed by them, and from this judgment, defendant Main appealed.

Plaintiff’s lien was filed and verified under chapter 486 of the Laws of 1880, and was not verified in accordance with the provisions of chapter 379 of the Laws of 1875. Section 5 of that act requires that the claim must be verified by the oath of himself, or of one of several united in interest, or of some other person. The verification must be to the effect that the statements contained in the claim are “true to the knowledge of the person making the same.” The verification to the plaintiff’s lien is “ that the statements therein contained are true to the best of his” (deponent’s) “knewlledge, information and belief.” This is clearly insufficient under the statute of 1875, and as there was no claim filed and verified as required by the statute of 1875, plaintiff could have no lien on the premises under that statute (Fogarty v. Wick, 8 Daly, 166 ; Conklin v. Wood, 3 E. D. S. 662).

In McKenna v. Edmondstone ( 91 N. Y. 231 ), the court of appeals held that the mechanics’ lien lay of 1875 was not repealed by chapter 486 of the Laws of 1880, but that the act of 1875 was in force in the city of New York ; and in Childs v. Bostwick ( 62 How. Pr. 146 ) the general term of the court of common pleas held a lien verified as in this case was insufficient and failed to give a valid lien.

The verification of the claim filed by the defendants, Thomas Mulry and son, is also defective. The statute requires that the verification should be true to the knowledge of the person making the same. The verification is, that “the same is true to the best of his own knowledge.” It may be true to the best of the knowledge of the person verifying the claim, and at the same time such person have no actual knowledge of any of the facts stated in the claim.

The legislature has provided that the claim must be verified by a person who has knowledge of the facts stated. Without the filing of a claim -so verified, there is no provision of law which gives a lien, and the person filing such

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claim has no lien on the premises (Fogarty v. Wick, 8 Daly, 166 ).

It follows, therefore, that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., concurred.

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