Opinion
October, 1893.
Charles J. Hardy, for defendant (appellant).
Palmer, Boothby Warren ( L.E. Warren, of counsel), for defendant (respondent).
This action was properly brought, both as against this defendant, and for the purpose of establishing the lien in form as in an action to foreclose it against the property upon which the work in question was done, although a bond in discharge of the lien had been filed. Kruger v. Braender, 3 Misc. 275.
It is contended that the notice of lien, as filed, was defective in that the name of the affiant was omitted from the body of the verification thereto; the effect of such omission has been considered by the Court of Appeals in the case of People v. Sutherland, 81 N.Y. 1, where it was held that a verification in such form is sufficient. The only exception contained in this ruling relates to a case where the affiant acts in some special capacity, and in such case the court say: "It is manifest that the name of the deponent must be stated, to apply to him by that name the statement of his capacity." Here, however, no statement of special capacity was required, the affidavit showed to the notary that a person's conscience had been burdened with an oath to the effect that he was "one of the claimants," etc, and that the "statements were true," etc. As to the question of the notary's acquaintance with "C. Smith," it is sufficient to point out that the statute calls for a verification and not an acknowledgment.
There is no force in the objection that the affidavit is in the alternative. That such a verification may follow the words of the statute has been held by this court in Staubsandt v. Lennon, 3 Misc. 90. We consider that the notice of lien complied in form with the statutory requirements.
We have examined the exceptions to the findings and rulings of the referee, and conclude that no error requiring a reversal has been committed. The referee was at liberty to consider the agreement between the parties as evidence of the value of the work. Ludlow v. Dole, 62 N.Y. 617. The evidence supports the finding that the refusal of the defendant to make payments subsequent to the first installment justified the contractors in abandoning further performance.
Judgment affirmed, with costs.