
    Otto Boseck, Respondent, v. Philip C. Riter and Sophia E. Riter, Appellants.
    
      Lien Law — notice.
    
    Appeal from a judgment of the County Court of Erie county entered in the office of the clerk of said county June 14, 1909.
    Judgment modified by striking out interest allowed and as so modified affirmed, with costs.
   All concurred, except Spring and Robson, JJ., who dissented in a memorandum by Spring, J.

Spring, J.

(dissenting): I would like to vote for affirmance in this case, but I do not see how the judgment can be affirmed .unless we disregard the authorities construing the Lien Law. Chapter 418 of the Laws of 1897, in stating the requirements of the notice of lien, provides it, shall state (§ 9): “ 4. The labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof. 5. The amount unpaid to the lienor for such labor or materials.” There are, therefore, two indispensable requirements contained in the Lien Law, one is that the agreed price or value must be stated ; and, second, the amount unpaid. In this case the notice states that the claimant has or claims “a lien * * * for two hundred and fifty-eight dollars and twenty-five cents @258.25), being, the value and agreed price of certain work, labor and service performed, and materials furnished, to wit: Balance due for material furnished and building house known as number 44 Eaton Street" for the improvement of said real property hereinafter described.” Now it is "apparent from this notice that the claimant is not stating, the agreed price of the work performed and materials furnished, but only the balance due, and that is obvious from the proof as well because the contract price for the work was $3,800, so that' there is no compliance with subdivision 4 of section 9 of the Lien Law, and the authorities hold this is indispensable. (Mitchell v. Dunmore Realty co., 126 App. Div. 829, 833; Toop v. Smith, 181 N. Y. 283.) I think the judgment should be reversed. Robson, J., concurred. -  