
    Cunningham v. Doyle.
    (New York Common Pleas—General Term,
    October, 1893.)
    The name of the affiant was omitted from the body of the verification of a notice of lien filed under the Mechanics’ Lien Law. Held, that the notice was not defective.
    An action against the owner of property for the purpose of establishing a mechanic’s lien is properly brought in form as in an action to foreclose it, although a bond in discharge of the lien has been filed.
    An affidavit that the statements contained in a notice of lien are true tp the knowledge or information and belief of the affiant, is good.
    In an action by contractors against the owner of property to foreclose a mechanic’s lien, the agreement between the parties may be considered on the question of the value of the work.
    Appeal from the judgment entered upon the report of a referee.
    Action to foreclose mechanic’s lien.
    
      Charles J. Hardy, for defendant (appellant).
    
      Palmer, Boothby & Warren (L. E. Warren, of counsel), for defendant (respondent).
   Per Curiam.

This action was properly brought, both as against this defendant, and for the purpose of establishing the lien in form as in an action to foreclose it against the property upon which the work in question was done, although a bond in discharge of the lien had been filed. Kruger v. Braender, 3 Misc. Rep. 275.

It is contended that the notice of lien, as filed, was defective in that the name of the affiant was omitted from the body of the verification thereto; the effect of such omission has been considered by the Court of Appeals in the case of People v. Sutherland, 81 N. Y. 1, where it was held that a verification in such form is sufficient. The only exception contained in this ruling relates to a case where the affiant acts in some special capacity, and in such case the court say: “ It is manifest that the name of the deponent must be stated, to apply to him by that name the statement of his capacity.” Here, however, no statement of special capacity was required; the affidavit showed to the notary that a person’s conscience had been burdened with an oath to the effect that he was one of the claimants,” etc, and that the “ statements were true,” etc. As to the question of the notary’s acquaintance Avith “ 0. Smith,” it is sufficient to point out that the statute calls for a verification and not an acknowledgment.

There is no force in the objection that the affidavit is in the alternative. That such a verification may follow the words of the "statute has been held by this court in Staubsand v. Lennon, 3 Misc. Eep. 90.' We consider that the notice of lien complied in form with the statutory requirements.

We have examined the exceptions to the findings and rulings ■of the referee, and conclude that no error requiring a reversal has been committed. The referee was at liberty to consider the agreement between the parties as evidence of the value of the work. Ludlow Dole, 62 N. Y. 617. The evidence supports the finding that the refusal of the defendant to make payments subsequent to the first installment justified the contractors in abandoning further performance.

Judgment affirmed, Avith costs.  