Opinion
January 3, 1913.
Herbert H. Maass of counsel [ David B. Cahn, attorney], for the appellants.
Lawrence B. Cohen of counsel [ Edgar M. Troutfelt with him on the brief], Cohen Brothers, attorneys, for the respondent.
Present — INGRAHAM, P.J., McLAUGHLIN, CLARKE, SCOTT and DOWLING, JJ.
This is an appeal from a judgment entered in an action to foreclose a mechanic's lien. The notice of lien did not comply with the provisions of subdivision 6 of section 9 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), providing that the notice of lien shall state: "6. The time when the first and last items of work were performed and materials were furnished." There was no statement in the notice of lien at bar as to when the last items of work were performed and the materials furnished. The lien, therefore, was invalid.
"The provision of the statute that the law shall be construed liberally does not authorize the courts to entirely dispense with what the statute says the notice shall contain. We are, therefore, constrained to hold the notice of lien insufficient." ( Mahley v. German Bank, 174 N.Y. 499.)
The claim being for extra work, and hence unliquidated, the allowance of interest was error. A personal judgment, however, was proper to the amount of $608.50. The 19th finding of fact is modified by striking out the statement that the notice of lien therein referred to set forth the time when the last items of work were performed and the last items of materials furnished, and the 5th, 6th and 7th conclusions of law are reversed, and so much of the 8th as limits the plaintiff to a personal judgment for any deficiency of the amount found due that may remain due him after such sale; and the judgment is modified by striking out the provisions for foreclosure of the lien and a sale of the property, so that it should provide for a personal judgment for the amount found due, without interest, up to the time of the judgment, and without costs at the Special Term, and as so modified affirmed by this court, without costs to either party.
Judgment modified as indicated in opinion, and as modified affirmed, without costs. Order to be settled on notice.