
    Seward Clapper, Appellant, v. Robert H. Strong, Defendant, Impleaded with The Village of Nassau, Respondent.
    
      Mechanic's lien for a public improvement— the notice need not be verified.
    
    The Lien Law (Laws of 1897, chap. 418) does not require the verification of notices.
    of mechanics’ liens filed against a village on account of public improvements.
    Appeal by-the plaintiff, Seward Clapper, from ¡an interlocutory judgment of the Supreme Court in favor of the defendant, The Village of Nassau, entered in the office of the clerk of the county of Rensselaer on the 14th day of July, 1903, upon an order entered: in said clerk’s office on the 14th day of July, 1903, sustaining the said defendant’s demurrer to the plaintiff’s complaint, and also from such order upon which the said jtidgment was entered.
    
      N. B. Spalding, for the appellant.
    
      S. J. Daring, for the respondent.
   Chase, J.:

. The plaintiff performed work for the defendant Strong. The defendant ’Strong performed work and- furnished materials for-the defendant, the village of Nassau, a municipal corporation. Plaintiff diily filed with said village an unverified notice of lien in the form prescribed by section 12 of the Lien; Law (Laws of' 1897, chap. 418,. as amd. by Laws of 1902, chap. 37) for the value» ' of the work so performed by him under his contract with said. Strong. This action-is brought to foreclose said lien. The corporation demurred to the plaintiff’s complaint on the ground that it: did not state facts sufficient to constitute á cause - pf action.- The» demurrer"was sustained and the plaintiff was given! leave to" amend, his complaint. The respondent insists that it is necessary to verify a notice of lien on account of public improvements and that without such verification the notice is a nullity. Prior to the passage of the Lien Law above cited there were two separate acts regulating -the filing of mechanics’lien's, one of 18851 (Chap: 342, as. amd.) where the lien was against real property- for claims arising for the improvement thereof; the other of 1878 (Chap, 315, as amd.) where the lien was against the fund in the control or a city and applicable to the payment of public improvements made by it therein. (Brace v. City of Gloversville, 39 App. Div. 25.) Some sections of article 1 of said Lien Law apply only to private property and others only to public improvements. (Brace v. City of Gloversville, 167 N. Y. 452.) Section 9 of said Lien Law relates to notices of lien on real property, and section 12 to notices of lien on account of public improvements. A lien for public improvements does not attach to any real property, but is confined to the fund in the possession of the municipality applicable to the payment of the public improvement on account of which the services were rendered or materials furnished. None of the provisions in either of the sections referred to purport to extend to or affect liens other than those expressly provided for in the section. Said section 12 is complete in itself, and it can and should be construed without reading with it section 9 which relates wholly to an entirely different lien. Only the general provisions of article 1 of said Lien Law are applicable to the different liens in said article mentioned. Section 12 of said Lien Law is a substitute for sections 2 and 3 of chapter 315 of the Laws of 1878, as amended by chapter 629 of the Laws of 1892. (Report of Commissioners of Statutory Revision 1897 [Assem. Doc. of 1897, No. 80], p. 401.) The omission from said section 12' of the provision relating to the verificatipn- of the notice of lien contained in the statutes of which said section is a substitute must have been intentional. The Lien Law' does not show that it is the policy of the Legislature to prevent liens being filed without the solemnity of a verification. There is no provision in said section 12 for verifying a notice of lien on account of public improvements, neither is there any provision requiring a verification of a notice of lien provided for by either articles 4 or 5 of said Lien Law, and statements to be filed at the expiration of the first or any succeeding term of one year after the filing of a chattel mortgage, are not required to be verified. (Lien Law, § 95, as amd. by Laws of 1901, chap. 219.) We conclude that it is not necessary to verify notices of lien filed on account of public improvements. (See Heydecker Mechanics’ Liens, 72, 206.) The demurrer, however, was properly sustained for, the reasons stated by the court at Special Term. (Clapper v. Strong, 41 Misc. Rep. 184; 83 N. Y. Supp. 935.)

The judgment and order: should be affirmed, with costs. -

Judgment and order unanimously affirmed, with costs, with leave to amend complaint upon payment of costs within twenty days after the entry of judgment of affirmance and notice thereof.  