Opinion
July 11, 1963
Polan Mickenberg for petitioner.
Sydney D. Bierman for lienor beneficiary.
The subject notice of mechanic's lien discloses the foreign corporation lienor's address is the State of New Jersey and its principal place of business at the same address.
Originally two motions were made — one by lienee to discharge the notice of record, on the ground that it is void on its face and for other relief; the other, by lienor, for an order directing lienee to furnish a verified statement pursuant to article 3-A of the Lien Law.
By order made and entered March 13, 1963, this court granted the first to the extent that the matter be referred to a Referee to hear and report together with his recommendation, on the question: "Whether or not the foreign corporation lienor was in fact doing business within the state within the meaning of the law." Lienee's motion and the balance of the relief demanded by lienor, were held in abeyance pending the coming in of said Referee's report.
The learned Referee reports that the "testimony is clear and undisputed; that the lienor entered upon the performance of the contract and supplied the material and performed the work necessary to install and affix the brick facing material, in and upon the buildings in the City of New York, owned by the Realty Corporation [lienee] and mentioned in the agreement * * * The brick face material was brought into the city by the lienor, and the work of properly placing and affixing the material in and upon the buildings, was necessarily performed by the lienor and his employees or agents in this city" (matter in brackets ours), and goes on to say: "It is my opinion, that the lienor was in fact, doing business in this state within the meaning of the law."
Lienee now moves to confirm the Referee's report and for the relief originally demanded. Lienor continues to oppose and presses for its original demands.
Nothing has been called to my attention from which the conclusion can be reached that this was not a single contract or an isolated piece of business. I cannot agree with the learned Referee's opinion.
The statute (Lien Law, § 9, subd. 1) provides that the "notice of lien shall state: if a foreign corporation, its principal place of business within the state," and section 23 cautions a liberal construction of the article "to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien".
"When two or more statutes, whenever passed, relate to the same thing or the same class of things or to the same general subject-matter, they are in pari materia and are to be construed as forming a unitary system and as one statute." ( People ex rel. Doscher v. Sisson, 222 N.Y. 387, 393.)
Sections 210 and 218 of the General Corporation Law (formerly §§ 15, 16-g.) and subdivision 1 of section 9 Lien of the Lien Law (above in part quoted), relate to the subject of foreign corporations doing business in this State and are in pari materia. In construing the General Corporation Law, the Court of Appeals in International Fuel Iron Corp. v. Donner Steel Co. ( 242 N.Y. 224, 230) enunciated the following principle: "To come within this section, the foreign corporation must do more than make a single contract, engage in an isolated piece of business, or an occasional undertaking; it must maintain and carry on business with some continuity of act and purpose."
Having concluded that lienor was not doing business in the State of New York within the meaning of the law, it follows that lienor cannot be said to have a principal place of business within the State. The statement of lienor's out-of-State principal office is sufficient compliance with the Lien Law. ( Butts v. Valerio Constr. Co., 236 App. Div. 299, affd. 261 N.Y. 630; Matter of Rappoli Co., 5 A.D.2d 758.)
Citing Butts, Jensen, Mechanics Liens (4th ed.) has this to say (§ 181, p. 193): "If the foreign corporation, filing the notice as lienor, is not actually `doing business' within the State * * * the statement of its out-of-state principal office has been held sufficient; the statute is not construed to require the statement of an address that does not exist."
Matter of Rappoli ( supra) was a situation where the lienor had no actual office of its own within New York, but had filed a certificate of doing business in this State, in which the office of a corporation representative had been designated as the foreign corporation's principal office within the State of New York. In its notice of mechanic's lien, lienor stated its out-of-State principal office and omitted its record principal office within the State. The Appellate Division, Fourth Department, sustaining the notice of lien in question, among other things said this (p. 758): "From the record it appears that the respondent was not doing business in New York State and to hold that it nevertheless had a principal place of business at the office of the Corporation Trust Company, which was the address in its certificate, would be an attempt to breathe truth into a fiction."
Accordingly, lienee's present motion to confirm the Referee's report and its original motion to discharge the notice of lien of record and for other relief are denied in all respects. Lienor's motion for an order directing lienee to furnish a verified statement pursuant to article 3-A of the Lien Law is granted in all respects.