Ball v. Doherty

Defendant Doherty appeals from so much of a judgment in an action brought to foreclose a mechanic’s lien as gives plaintiff a lien on appellant’s real property, and adjudicates that an offer of judgment made by the appellant was not in proper form, and does not free him from the payment of costs or entitle him to the costs subsequently accruing. His. contention is that the- notice of lien, upon which the judgment is based, is void, that plaintiff was entitled to a personal judgment, only, and that his offer of judgment for an amount greater than the recovery, which was not accepted, not only relieved him from liability for costs to the plaintiff, but enti-' tied him to costs against! the plaintiff from the time such offer was made under the provisions-of section 738 of the Code of Civil Procedure. Chapter 33 of the Consolidated Laws (Laws of 1909, chap. 38) becamq operative on February 17, 1909. The plaintiff’s lien was filed on August 28, 1909, and his rights are governed by the provisions of the Oonsohdated Laws and not by the Lien Law of 1897 (Gen. Laws, chap. 49; Laws of 1897, chap. 418). This is not important, however, for the provisions of the two - statutes upon which the rights of the parties rest are substantially the sanie.

The contention that the hen is invalid rests upon thé provisions of subdivision 4 of section ;9 of said chapter 33 of the Consolidated Laws (the present Lien Law), which is identical in language with subdivision 4 of section 9 of chapter 418 of the Laws of 1897 (the former Lien Law), which requires that the notice of hen state “the labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof. ” The plaintiff’s notice states: “4. The labor performed (1), and to be performed (2), and the materials furnished (3), and to be furnished (4), and the agreed price and value thereof, are as follows, respectively. . The labor performed and the materials furnished was done in pursuance of a contract made between the lienor and said JohniF. Doherty and the agreed price was $937.00.” This recital is substantially the same as the one *279considered in Toop v. Smith (181 N. Y. 283) and held not to meet the requirements of the statute and insufficient to create a valid lien. Judge Werner says: “We.think this recital will be scanned in vain, either (1) for any statement of labor performed, (2) or to be. performed, (3) or materials furnished, (4) or to be furnished. The most liberal statutory construction that the imagination can suggest cannot validate this notice of Hen unless it contains one or the other of these four requisites according to the facts upon which the plaintiff’s claim to a Hen is based. Neither can the favorable findings of the trial court avail the plaintiff. Nothing but a judicial repeal of the statute' can help him, if his notice of Hen is insufficient. * * * It is urged that' the statute does not contemplate a statement of the kind or amount of labor performed or materials furnished by a Henor. We think that is precisely what the statute does require. Such a statement need not necessarily be a specific bill of particulars, but there must be such a general reference to the kind and amount of materials and labor furnished, or to be furnished, as to advise those who may have a legal interest in the subject of the character and extent of the demand upon which the claim to a lien is based. In other words, there must be a substantial compfiance with the requisites of the statute.” The case at bar is controlled by this authority, and the plaintiff’s Hen must be held invalid. Having failed to estabhsh his Hen the plaintiff was entitled to a personal judgment against the appeHant for the sum due him, and for which he might recover in an action on the contract set out'in the complaint (Lien Law, § 54). This brings us to the only remaining question— which of the parties is entitled to costs.

Costs and disbursements in an action brought to foreclose a mechanic’s Hen against real property rest in the discretion of the trial court (Lien Law, § 53), and I do not think that the provisions of section 738 of the Code of Civil Procedure have any appHcation to a case of this character. Section 20 of the present law provides for the ’ discharge of a Hen, and section 55 provides that after action brought the owner may make and file with the clerk with whom the notice of Hen is filed an offer to pay into court the sum of money stated therein, and serve upon the plaintiff a copy of such offer. If within *280ten days after such service a written acceptance is filed and copy served upon the party making the offer, the court may order that upon such deposit being made the lien shall be discharged, and the money deposited takes the place of the property upon which the lien existed, and is subject to the lien. This is the only provision in the Lien' Law applicable to any offer after the commencement of an action, and takes the place of the offer of judgment in actions generally by section 738 of the Code of Civil Procedure.

The judgment should ¡be reversed, with costs, and the action remitted to the County Court of Nassau county, with direction to enter a personal judginent against the defendant appellant for the sum of $750, with interest thereon from August 1, 1909..

Jenks, P. J., Hirschberg, Burr and Woodward, JJ., concurred.

Judgment of the County Court of Nassau county reversed, with costs, and action rdmitted to said court, with direction to enter a personal judgment against the defendant appellant for the sum of $750, tyith initerest thereon from August 1, 1909.