
    John I. Goodrich, Resp’t, v. John Gillies et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    Mechanics’ lien—New York city.
    A sub-contractor who files a notice of mechanics’ lien under the Consolidation Act, Laws of 1882, chapter 410, wilfully and fraudulently misrepresenting in such notice the amount due him, by including material known to him to have been rejected by the contractor, and not used, is not entitled to a lien even for the portion of the material used in the work.
    Appeal from judgment in favor of plaintiff, in action to foreclose an alleged lien upon moneys in the hands of the comptroller of the city of New York, due from said city to the defendant Gillies, upon a contract between him and the city to build a pier and bulkhead at the foot of Rivington street, East river.
    
      Thomas F. Maguer, for app’lt;
    
      Eastings & Gleason, for resp’t.
   Lawrence, J.

This cause was before the general term on an ■appeal from a judgment rendered at special term in December, 1891. That judgment was reversed, as appears from the opinion then delivered, on the ground that it did not appear that the merchandise which was the subject of the lien, or any part of it, had been used towards the performance or completion of a contract made with the mayor, aldermen and commonalty of the city of New York, and that, therefore, a case was not made out entitling the plaintiff to a lien, under the provisions of § 1824 of the Consolidation Act. The court,on the trial, which resulted, 62 Hun, 479; 42 St. Rep., 319, in the judgment from which the present appeal is taken, found,as a matter of fact,that, of the material contracted to be sold and delivered by the plaintiff to the defendant, fifty-one pine sticks, of the value of $5.60 each, were actually used by the defendant in the execution and completion of the contract between the defendant and the city of New York; and, also, that the whole amount of the sticks delivered by the plaintiff to the defendant amounted to 141. There were fourteen other sticks for which the plaintiff also claimed a lien, and the amount for which such .lien was claimed was stated in the notice to be,after deducting just credits and offsets, the sum of $650.14, with interest. It was found by the court that the value of the 141 pine sticks delivered by the plaintiff, after deducting a payment on account thereof of $161.86, was and is the sum of $571.74. It was also found, as a matter ■of law, that the plaintiff was only entitled to a lien for $285.60, being the value of the 51 sticks aforesaid, with interest. Although the court found that but 51 sticks out of the 155 claimed by the plaintiff to have been delivered to the defendant were used in the execution and performance of the contract with the city, it is found that the plaintiff filed a notice of lien with the city officers, claiming that there was due and owing to him at the time of such filing, after deducting all just credits and offsets, the full sum of $650.14. In other words, plaintiff filed a claim for much more than double the sum due him for materials furnished by him which were used in the performance of the contract. The evidence of the plaintiff himself, taken upon the trial, conclusively shows that he must have known at the time he filed the notice of lien that the amount claimed by him was not the true amount due and owing to him for which he was entitled to a lien. He claims, in his notice, that all the materials were actually used in the execution of the contract with the city. In his testimony, he admits that the fourteen sticks aforesaid were rejected, and that they were not used in the performance of the contract, and he admits that, knowing this fact, he,, notwithstanding, filed a notice of lien in which the value of those sticks was included as a part of his claim, against the defendant.

It also appears from his testimony that the third instalment of thirty-five piles which he delivered on the 28th of June, 1889, were not used in the construction of the pier. He states that he agreed to take four dollars apiece for that instalment of. piles, or $1.60 less than the original agreed price. He was asked: “ Why did you agree to throw off that $1.60 on those piles? ” and his answer was: “Because it was better to do that than to have the expense of moving them anywhere else. I agreed to take them away, because the city could not use them. I had to take them away. I agreed to throw off'$1.60 on every one of them, and then he took the whole lot rather than take the other third of them away. The other third was not so poor that I had to deduct something. I knew that I would have to take away the one-third, because the inspector rejected them, and they could not go into the work.” It also appears that he knew that a subsequent lot, sent on the 10th of July, did not go into the construction of the pier, because, in his letter of July 1st, referring to short sticks in the last lot of thirty-five which were rejected by the defendant, he states that he has another lot of the same kind, “which he will send, and expect the defendant to take." It is very clear from other portions of the testimony of the plaintiff that he also knew at the time he filed his notice of lien that other sticks of the timber which formed the subject of this lien did not go into the construction of the pier; and yet he filed a notice of lien which covers every stick of timber, whether accepted or rejected by the defendant. A party should not be allowed to proceed in this manner, and, unless there is something in the lien law contained in the consolidation act which precludes us from acting so, we should, under such circumstances, prevent the plaintiff from enforcing a lien for any sum whatever. Liens of this character rest and must find support entirely upon the statutes authorizing them, Benton v. Wickwire, 54 N. Y., 226 ; and it has always been held that the notices of lien filed under such statutes must comply with the terms of the statute, and must be truthful in their statements; and under the general mechanic’s lien law it has been held that a notice of lien which did not correctly state the name of the debtor could not effect a valid lien, nor sustain proceedings for its enforcement. Kneel. Mech. Liens (2d ed.), § 163. It was also held by the general term of this department, in Foster v. Schneider, 50 Hun, 151; 19 St. Rep., 449, that under chapter 342 of the Laws of 1885, relating to mechanics’ liens, which requires the notices filed with the clerk to contain a statement whether all the work for which the claim is made has been actually performed or furnished, and, if not, how much of it, a notice which fails to state how much of the work under the contract remains to be performed, but states that it has all been performed, when in fact it has only been partly performed, does not entitle the claimant to a lien. In that case, Judge Daniels, in delivering the opinion of the court, said:

“It cannot be said that a misrepresentation of this description would not invalidate the proceeding, for the legislature, as a part • of the proceeding by which the lien is to be secured, has provided otherwise. It was intended in this manner (he says) that a truthful statement of the facts should be contained in the notice; and that probably was intended to be for the benefit of other claimants, as well as of the owner of the property, and the truthful information of the court And the courts can no more dispense with the observance of this requirement in the making and filing of a notice than they can with that of any other direction required to be observed for the purpose of creating a lien.”

See, also, cases cited by Daniels, J., in Gaskell v. Beard, 58 Hun, 107; 33 St. Rep., 852. Sections 1824-1838 of the consolidation act provide for the filing of liens by persons who may perform any labor or furnish any material towards the performance or completion of any contract made with the city. And § 1825 of that act prescribes that—

“ At any time before the whole work to be performed by the contractor for the city is completed or accepted by the city, and within thirty days after the same is so completed or accepted, any claimant may file with the head of the department or bureau having charge of said work, and with the comptroller, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due, and, if not due, when it will be due ; giving the amount of the demand after deducting all just credits and offsets, with the name of the person by whom employed, or to whom materials were furnished; also a statement of the terms, time given, conditions of his contract; and also that the work was done or materials were furnished to the said contractor, and were actually performed or used in the execution and completion of said contract with said city; but no variance as to the name of the contractor shall affect the validity of the said claim or lien.”

It will thus be perceived that the statute provides that a variance in the name of the contractor shall not affect the validity of a claim or lien. This was probably inserted in the act because, as has already been stated, under former decisions under the mechanics’ lien law it has been held that such a variance would be fatal to the notice of lien. Section 1825 of the consolidation act does not make any other exception. The case of Gaskell v. Beard, 58 Hun, 101; 33 St. Rep., 852, holds that under the consolidation act, Laws 1882, § 1825, if, in a notice of lien filed thereunder, a person, without any fraudulent intent, or through mistakes on the part of those having in charge the details of the business, claims a larger amount in the notice of lien than is shown by the evidence to be due him, the lien in such case may be enforced, notwithstanding the error in the amount claimed in the notice.

We do not regard that case as being applicable to the case at bar, for the reason that the plaintiff admits that, at the time he filed his notice of lien, he knew that a large proportion of the materials furnished by him had not been used in the performance of the contract with the city ; that a portion of such materials had been rejected by the contractor; and that he had sold - other portions thereof for other purposes than for the performance of the contract with the city. Under such circumstances, we think that the plaintiff wilfully and fraudulently misrepresented in his notice of lien the amount which was due to him, and that, therefore, he should not be allowed to obtain a lien for the fifty-five sticks, which were the only portion of the materials furnished by him that was used in the execution of the contract. In other words, we think it is our duty so to construe this statute as to prevent parties from obtaining a lien by following in their notice the language of the statute, when they know that the proof which they m ust give when an action is brought for the enforcement of the lien must fail to establish that they are entitled to more than a small portion of the sum for which the lien is claimed. To permit such a practice would be to enable a subcontractor to fraudulently, and by the means of his own wrong, prevent the contractor with the city from obtaining his money, and aid him in forcing a settlement of a demand to which the contractor may have, as he claims in this case to have, an ample and substantial defense. We think that the plaintiff has failed to show by his evidence that, under the notice of lien as actually filed by him, he was entitled to a lien upon the moneys in the hands of the comptroller, and that he should be remitted to his ordinary action at law to establish such claim as he may have against the defendant. The judgment below must be reversed, and a new trial ordered, with costs and disbursements to the appellant to abide event.

Yah Brunt, P. J., and Lawrence, J., concur.  