APPEAL by the plaintiff, Joe Romanik, from a judgment of the Supreme Court in favor of the defendants Kovensky and another, entered in the office of the clerk of the county of Kings on the 2d day of March, 1909, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits as to said defendants.
Hermon H. Shook, for the appellant.
Abraham H. Spigelgass, for the respondents.
On June 3, 1907, plaintiff entered into a written contract with Max Rapoport and Charles Ratner for the performance of
certain work in connection with the erection of seventeen buildings on the south side of Prospect place, in the borough of Brooklyn, belonging to the said Rapoport. On the 17th of January, 1908, plaintiff filed a notice of a mechanic's lien against the said property. On the 14th of February, 1908, the said lien was discharged by the filing of a bond in accordance with the provisions of the statute. (See Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 18, subd. 4.) Thereafter this action was commenced against the contractors, the owner and the sureties upon the said bond. Upon the trial thereof the complaint was dismissed as against the sureties on the bond, and from the judgment entered in their favor this appeal is taken.
The sureties upon a bond given under such circumstances are not liable unless the plaintiff establishes the existence of a valid lien. ( Vitelli v. May, 120 A.D. 448.) The validity of the notice of lien filed by plaintiff is challenged upon the ground that it fails accurately to state how much labor has been performed and how much remains still to be performed, and what quantity of materials has been furnished and what quantity remains to be furnished under the contract, together with the agreed price or value thereof, and that it falsely states the amount unpaid to the lienor for such labor or materials. (Lien Law, § 9.) To determine the true meaning of these provisions of the statute, this section must be read in connection with section 10 of the same act, which provides that 'The notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or within ninety days after the completion of the contract, or the final performance of the work, or the final furnishing of the materials.' A fair construction of these provisions of the statute requires that if a notice of lien is filed during the progress of the work, such notice should contain a statement of what labor has been performed and what materials have been furnished and what still remains to be done, with the amount unpaid to the lienor under the contract. Unless these provisions of the statute are substantially complied with, the lien is invalid. 'A mechanic's lien never comes into existence unless the
notice upon which it is founded substantially complies with the statute which authorizes the creation of such liens.' ( Toop v. Smith, 181 N.Y. 283.) The notice of lien filed in this case contains a statement that 'The labor to be performed is putting up all iron work on premises.' Counsel for respondents contends that this is a statement that no work has been done upon the premises described in the notice under the contract between the lienor and the persons employing him. This criticism seems to us unfounded; particularly when this sentence is read in connection with subsequent portions of the same notice. We think the fair construction of this language causes it to relate to the nature of the contract, rather than to that portion of the work which has been completed or remains uncompleted. This is apparent when we observe that the very next sentence is to the effect that the labor performed was putting up all ironwork on seventeen buildings. Then follows a statement that 'The material furnished was fire escapes, iron beams, iron stoop-rails and all other iron work necessary in constructing of (sic) said seventeen buildings.' The notice then contains a statement that 'The material to be furnished is .......' This must either be construed as meaning that no material remains to be furnished, or that there is no statement upon the subject. The notice then contains a statement that the agreed price and value of said labor and materials is $3,100, and the amount unpaid to the lienor for such labor and material is $900. It appears from the complaint in this action that this lien was filed during the progress of the work. The language of the complaint is that on the 17th of January, 1908, and after the commencement and prior to the completion of the work and the furnishing of the materials provided for in the contract thereto annexed, the plaintiff filed a notice of lien. The date upon which plaintiff stopped the performance of labor and the furnishing of materials under the contract is not definitely stated in the complaint, but from the statement that the balance claimed to be due became due on the 24th of January, 1908, we are justified in assuming that that date represented the termination of his work under the contract. It also appears that a portion of the materials called for, together with the necessary labor in connection with the installation thereof, was
never performed, but that such omission was had at the request of the defendant contractors. Giving credit for the value of the work omitted, the complaint asks for judgment for $770 instead of $900, the sum stated to be due in the notice of lien.
Upon this state of facts we think that the learned court at Special Term correctly decided that the notice of lien was invalid. ( Finn v. Smith,186 N.Y. 465.) At the time when the notice was filed the lienor knew that there was work still to be done and materials still to be furnished, and that to a considerable amount, and he also knew that the sum of $900 claimed by him would not become due until all of the said materials had been furnished and all of said labor had been performed. This failure to comply with the provisions of the statute as to the labor still to be performed and the materials. still to be furnished, and the misstatement as to the amount due, could not have been the result of an honest mistake, such as has been held sufficient to excuse a variance in these respects. (Ringle v. Wallis Iron Works,149 N.Y. 439; Foster v. Schneider, 50 Hun, 151; Goodrich v. Gillies, 82 id. 18; Felgenhauer v. Haas,123 A.D. 75.) In the case of Ringle v. Wallis Iron Works (supra) the court at Special Term found that the error in the statement as to the amount due at the time the lien was filed was the result of an honest mistake as to the true meaning of the contract. In that case it appeared that in connection with the construction of the work for which plaintiff was to be paid more than $3,000, two gangway openings were omitted, the cost of cutting and completing which would be about $35. The court found that at the time of filing the notice of lien plaintiffs 'supposed that they had completed the contract,' and had not 'knowingly and consciously, inserted any false statements in the notice.' In Goodrich v. Gillies (supra) the ...