Cockerill v. Loonam

The question presented in this case is, whether the lien filed by the plaintiff is valid under the statute in such cases made and provided. The appellant predicates his appeal on the contention that the plaintiff proceeded under chapter 379 of the act of 1875, and that being a sub-contractor he was obliged to file his claim within thirty days after the completion of the work or the furnishing of the materials for which the lien is claimed, urging that no work was done by him and no materials furnished within thirty days preceding the filing of his lien. The plaintiff, however, insists that his lien was filed under the act of 1880, chapter 486, which permits the filing of a lien at any time within thirty days after the completion of the building towards the erection of which the materials were furnished.

In response to this proposition the appellant contends that the Court of Appeals have decided that the act of 1880 does not apply to this city, citing the case of McKenna v. Edmundstone (91 N. Y., 231) as an adjudication upon that subject; also Hickey v. Schwab (Daily Reg., Sept. 16, 1882), a Special Term case in the Court of Common Pleas, and Keogh v. Main (N. Y. Week. Dig., No. 19, p. 338). In the case of McKenna v. Edmundstone (supra) the Court of Appeals is understood to have declared that the' act of' 1880 was in force and applicable to the city of New York as well as the act of 1875, which was not repealed by it. It must be noted here that Keogh v. Main decided only that the act of 1875 was not repealed, and the case of Hickey v. Schwab (supra) was decided before McKenna v. Edmundstone, namely, in September, 1882, the latter case having been decided in January, 1883. The Court of Appeals distinctly state in that case that the statute of 1880 was a general one. They said further that the statute of 1875 related exclusively to the city and county of New York; that the statute of 1880 *355related to all the cities of the State, and that while the city of New York, in the absence of any other statute on the subject of mechanics’ liens, would be deemed included within its purview, that alone was not sufficient to indicate an intention on the part of the legislature to repeal the act of 1875. They further observed that there was no express repeal of the statute of 1875 in the ■statute of 1880, and that if the former statute was repealed by the latter one, it must be upon the grounds that the two cannot consistently stand together, in which case a repeal by implication is necessarily effected. The two stand together as a necessary result ■of this interpretation, and it follows that the proceeding may be under either of the statutes, and if it conform to either as to the filing of the lien, the lien is valid. No other solution of the question is seen in consequence of the decision of the Court of Appeals in the case of McKenna v. Edmundstone (supra), whatever views might be entertained of it if it were an original, question.

For these reasons it is thought that the referee was right in ■declaring that both the law of 1875 and that of 1880 were in force in this city.

The judgment should be affirmed.

* Resubmission granted.