Opinion
June 27, 1906.
Albert F. Forthmiller, for the appellant.
Hiram C. Todd and William S. Ostrander, for the respondent.
The notice of lien served by the defendant makes claim simply for the value of labor and services "in and about the business of cutting, trimming and preparing logs to be sawed, hauling the same from wood lots in the town of Greenfield to the Cronkhite sawmill in said town, assisting in moving, hauling and sorting said logs, and doing all work necessary and requisite to be done in and about the same in preparing them to be made into lumber at said saw mill." In the defendant's answer in the case a lien is claimed for substantially the same services. Neither in the notice of lien filed nor in defendant's answer is there any claim of a lien for any services in sawing the logs into lumber. It is settled law that where one holding possession of personal property upon demand of the rightful owner fails to assert his lien but claims himself to be the owner of the property he thereby waives his lien. ( Everett v. Saltus, 15 Wend. 474; Maynard v. Anderson, 54 N.Y. 641.) By analogy it would seem that the assertion of a lien for specific work would bar the laborer from claiming a lien for other work not specified. The issue is then reduced to the question whether the defendant had a lien for cutting and hauling these logs to the sawmill. Upon this question we concur in the reasoning of Mr. Justice RUSSELL in his decision in O'Clair v. Hale (25 Misc Rep. 31). To the reasoning of that opinion we would simply add that in many States a lien for just this work has been given by statute which would constitute a recognition at least in those States that no such lien existed at common law. (See 19 Am. Eng. Ency. of Law [2d ed.], 531 et seq.) While our Lien Law has been codified there has been no attempt to enlarge the lien given to the artisan beyond that given by common law. (See Laws of 1897, chap. 418, § 70.) The judgment should, therefore, be affirmed.
Judgment unanimously affirmed, with costs.