
    William Buess, Plaintiff, v. Paul B. Pugh & Co., The Peck Brothers & Co., Paul Buell, Harry Barth and Leopold Barth, Defendants. The Peck Brothers & Co., Appellant, v. Paul B. Pugh & Co., Respondent.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Mechanics’ Lien Law — Section 9 — Notice — Sufficiency.
    A notice of lien prepared upon a printed form from which the words “ labor performed ” had been stricken out, setting forth a claim for “ labor and materials furnished ” with specification of the materials and the amount due therefor, fairly construed, relates only to materials furnished, the inadvertent retention of the word “ labor ” may be disregarded and the notice held sufficient under section 9 of the Mechanics’ Lien Law.
    
    Appeal from a judgment of the City Court of the city of Hew York, rendered at a trial term, dismissing the affirmative claim of the defendant, The Peck Brothers and Company, as against the defendant Paul B. Pugh and Company, in an action to foreclose a mechanic’s lien. The opinion states the material facts.
    Frederick W. Yates (James L. Bishop, of counsel), for appellant.
    Hugo S. Mack, for respondent.
    
      
      See Toot v. Smith, 181 N. Y. 283.
    
   Giegerich, J.

The sole question in the ease is whether the notice of lien that was filed hy the appellant The Peck Brothers and Company complied with the requirements of the Mechanics’ Lien Law (Laws of 1897, Chap. 418, § 9).

The notice of lien was prepared upon a printed form, certain words thereof having been stricken out by a stroke of the pen. The portions necessary to be quoted are as follows (the words printed in italics being those stricken out from the printed form as above stated) :

“Please take notice, that The Peck Brothers and Company, a corporation * * * has and claims a lien * * * for the principal and interest of the value and agreed price of the labor and materials hereinafter mentioned which were (performed, and—stricken out) furnished hy the said lienor. * * *

“ The (labor performed and the — stricken out) materials furnished and the agreed price and value thereof are as follows: Plumbing supplies, pipe, metal goods, etc., under contract for the sum of four thousand eight hundred and thirty-seven and 04/100 dollars ($4,837.04).

“ The amount unpaid to the said lienor for such labor and materials is Eighteen hundred and fifty-seven 54/100 dollars, with interest thereon from the 1st day of October, 1903.

“ The time when the first item of work was performed was the dav of 1 : the time when the o j first materials were furnished was the eighth day of July, 1903; the time when the last item of work was performed was the day of _ 190 , and the time when the last materials were furnished was the- 21st day of Nov., 1903.”

The court below held that this notice was insufficient and from that decision The Peck Brothers and Company has appealed.

In support of the notice it is argued that the striking, out of the words above indicated, together with the omission to state the time when the first or the last item of work was performed, show with sufficient clearness that- the purpose of the notice was to create a lien for materials furnished only not for labor. On the other hand, it is argued that since the notice in so many words claims a lien for both labor and materials and states' that the amount unpaid for such labor and materials without specifying how much of that unpaid amount is for labor and how much for materials, that there is a clear failure to comply with the statutory requirement that there should be stated “ the amount unpaid to the lienor for such labor or materials.”

If it were held that the lien in question was claimed for labor performed as well as for materials furnished, then unquestionably the notice would be bad; but our opinion is that fairly construed, the notice should be held to relate only to materials and that. the word “ labor ” where it was allowed to remain was plainly the result of inadvertence and should be disregarded.

The judgment should, therefore, be reversed and a new trial ordered with costs to the appellant to abide the event.

Scott and McCall, JJ., concur.

Judgment reversed and new trial ordered .with costs to appellant to abide event. ■  