Donaldson v. O'Connor

The notice to appear in this court and account, &c., and the defendant’s answer to the plaintiff’s claim, are submitted to me, with the question, whether, under the mechanics’ lien law of July 11, 1851, a party can gain a lien for work, labor and materials done and furnished before the passage of the act, by filing the notice specified in the sixth section?

There appears to me no room for doubt on this subject. The act, in express terms, (section 1,) gives to “ any person who shall hereafter” perform labor, &c., a lien upon the building, &c., upon filing the notice prescribed in the sixth section. *697This describes the persons who may acquire a lien, and there is nothing in the act extending its provisions to any others than those thus described. It would be so obvious a perversion of language to hold that the words, “ who shall hereafter,” include also one who hath heretofore, that I cannot deem discussion necessary. Indeed, it appears to me, that no language which I could employ in discussing the subject, would be more plain or explicit than the act itself. The act, having repealed all pre-existing laws authorizing the creation of a lien, may, and probably has, left the plaintiff without remedy, against the building ; but this will not authorize me to disregard its explicit terms.

Another objection to the plaintiff’s claim appears to me equally conclusive. The answer states that the plaintiff’s work and materials were all furnished, &c., more than six months before the notice of claim was filed with the county clerk. If this be true, and I understand the counsel to concede it on the argument, the plaintiff is too late. The sixth section requires that the notice be filed within six months after the performance of the labor, &c. This is in terms the condition upon which the right to have a lien is given by the act. Unless, therefore, this section is complied with, no lien can be created under the act in question.

Judgment for the defendant.