Opinion
March 24, 1958
Joseph Fennelly, Jr., for defendant.
William P. Shea for plaintiffs.
Motion (1) to dismiss the complaint for failing to state facts sufficient to constitute a cause of action and (2) to vacate a notice of lien filed on July 9, 1956.
The action is to foreclose a mechanic's lien. The complaint alleges that from May, 1956 to June 26, 1956 the plaintiffs, pursuant to an agreement with one Fred Brendel, furnished certain materials for the erection of a building on the defendant's property. Fred Brendel was under contract with the defendant to provide the materials and construct the building. The plaintiffs were paid $1,000, but a balance of $735.16 is due on the price of the materials. A notice of lien was filed on July 9, 1956, and continued by order dated July 8, 1957.
The objection raised by the movant is that the notice of lien was filed against one Vincent Murphy. Subdivision 2 of section 9 Lien of the Lien Law requires the lien to name the owner of the property, and Vincent Murphy is not, and has not been the owner of any interest in the property. The Court of Appeals has said, "Where, however, the person named in the alleged notice of a lien as the owner of the real property against whose interest therein a lien is claimed is not an owner of any interest therein which is defined in the statute, there is a complete failure to comply with the directions thereof and the alleged lien is ineffectual and worthless." ( Gates Co. v. National Fair Exposition Assn., 225 N.Y. 142, 156.) In his opposing brief the plaintiffs' attorney states that Vincent Murphy's name was inadvertently placed in the notice of lien instead of Robert Murphy, the defendant's husband. No reference is made in the complaint to any transactions between Robert Murphy and the plaintiffs or between Robert Murphy and Fred Brendel. Whether Robert Murphy had any legal interest in the property does not appear.
On the papers presented the relief requested must be granted for the notice is defective and no facts appear which would justify an amendment even if a motion pursuant to section 12-a Lien of the Lien Law were made.
Motion granted.
Settle order on notice.