Krauss v. Brunett

Pooley, J. A demurrer to plaintiff’s complaint has keen interposed herein by the defendant in an action to foreclose a. mechanic’s lien, .upon the ground that the complaint does not state facts sufficient to constitute a cause of action for that purpose; first, because the premises described in the complaint are not the same premises described in the notice of lien; second, because the notice of lien attached to the [429] complaint and made a part thereof is defective and insufficient in the following particulars: (a) It is alleged that the notice only states the amount remaining unpaid and does not state the whole value or agreed price of the labor and materials.- (b) That the notice is not in accordance with subdivision 7, section 9, of the Lien Law, in that it fails to give the street number of premises, which it is alleged by the defendant are within an incorporated village. In the determination of this demurrer, the complaint proper, together with' the notice of lien attached thereto and made a part thereof, must be considered together; and al‘1 of the facts therein alleged, as well as every fact that can reasonably and fairly be implied therefrom, must necessarily stand as admitted. Candee v. Baker, 131 App. Div. 641. Plaintiff lienor under section 23 of the Lien Law is entitled to a liberal construction of said law to secure the beneficial interests and purposes thereof. “A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same.” The court, however, cannot overlook any of the necessary statutory requirements by reason of section 23 of the Lien Law. Under the complaint there appears to be at least two descriptions of the property, namely, property located in subdivision “B ” and property located in subdivision “ D ”. Both descriptions certainly cannot he right, nor can it he inferred which- of the two is wrong; and, until that fact appears, not on demurrer, hut as a matter of proof at the trial, this question cannot he passed upon. In the case of Hurley v. Tucker, 128 App. Div. 580, where a similar discrepancy -as to the name of the street appears in a .notice of lien, it wa-s held not to invalidate the lien; that the property was sufficiently described for identification 'as between the lienor and the defendant, they being the only parties interested; and, it being apparent that the discrepancy was a. clerical error, the lien should not, therefore, he held invalid. [430] It is also claimed that the notice of lien does not state the whole value of the labor and 'materials. The notice does, however, set forth the following facts: ■ “ $1,305.57, being for the value and agreed price of certain work,’ labor and services,” etc. Subsequently in the lien it appears that the labor was completed and “ that the labor performed,” the words “ to be ” having been stricken out, “ is plumbing work,” and “ that the materials furnished are all furnished Dee. 15, 1910.” Then follows1 a description of materials furnished and the notice of lien continues: “ That the amount unpaid to said lienor for such labor is thirteen hundred & five 57/100 Dollars ($1305.57). That the amount unpaid to said lienor for such materials & labor is $1305.57 Dollars.” As it appears under the recent case of Vitelli v. May, 120 App. Div. 449, this is sufficient, the court there stating, what “ the statute contemplates is that in filing a lien the lienor shall state the labor which Has been performed and which is to be performed, or the materials which have been furnished or which are to be furnished, and to which the lien is to apply, to the end that the owner may know exactly what is involved in the lien.” Oontinuing, “ We find nothing in the statute which indicates that it is necessary to1 malee a statement in reference to said materials, or to indicate what portion is for labor or for materials, and none of the cases to which attention is called decides any such point.” It is apparent from the reading of the notice of lien that by mathematical calculation it can easily be ascertained that the value and agreed price of labor “ completed ” and “materials furnished” was $1,305.57, and that the amount unpaid is $1,305.57, and this seems to come within the rule laid down in Woolf v. Schaefer, 103 App. Div. 567. Clarke v. Heylman, 80 App. Div. 572. This leaves for consideration the sole question as to whether or not the description of the property omitting the street number, without a statement as to whether it is known to lienor or not, is sufficient. [431] It would seem that the description of the property with reference to a particular map, the name of the highway and the side thereof upon which the property is situated, without, anything upon this demurrer to indicate whether or not the property in this community bears numbers, would be sufficient description for the purposes of identification; that the-defendant could in no way be deceived or misled and that, Under a liberal construction of the statute, the lienor has substantially complied with the requirements thereof. This precise question seems never to have been up under the present law, but a description as follows: “ the building situate in 85th street between Fourth and Fifth avenues,” without stating that the building is situate in the city or county of Hew York, but addressed to the clerk of the county, was held in the case of Tinken v. Geraghty, 1 E. D. Smith, 687 (1853), to have been sufficient. The defendant upon demurrer also urges .that the complaint does not state facts sufficient to constitute a cause of action, assuming the notice of lien to have been totally defective and invalid. It seems entirely unnecessary to determine this question at this time, unless the demurrer to the cause of action to foreclose a lien is to be sustained. On the other hand, if the demurrer to the cause of action to foreclose a lien is sustained, the contention of the defendant upon the latter proposition is doubtless correct. ; The defendant’s demurrer to the plaintiff’s complaint herein must be overruled, with leave to the. defendant to answer upon payment of costs within twenty days. Demurrer overruled, with leave to defendant to answer upon payment of costs within twenty days.