
    In re FRIEDAL CORPORATION. H. J. BUTLER & BRO., Inc., v. IRVING TRUST CO.
    No. 23.
    Circuit Court of Appeals, Second Circuit.
    Oct. 19, 1931.
    
      The following is the opinion of District Judge Caffey in the court below:
    There is a single issue. It is very narrow. Very little of the proof, perhaps less than 5 per cent., is material.
    The question turns on New York law. Accordingly, the decisions of the courts of that state should govern.
    The property involved, correctly described by metes and bounds in paragraph 1 of the referee’s findings of fact (hereinafter called the correct description), was at the time of the transactions with which we are concerned known by the numbers 833, 834, 835, and 836 Fifth avenue (hereinafter called the correct street numbers). The contract (Trustee’s Exhibit 2), under which was furnished the material for which a lion is claimed, used the same four street numbers.
    The notice of lien (Claimant’s Exhibit 3) described the property as “on the East side of Fifth Ave., 75 feet * * * North of 64th Street, being 110 feet and - inches wide, front and rear by 120 feet and -inches deep on each side, and known by the Number 833 Fifth Ave.”
    Actually the motes a,nd bounds description in the notice covers a portion of the property (as correctly, described), but also embraces a substantial addition not included in the property (as correctly described). Moreover, while the street number given (833) is one of the four numbers as at the time they existed and were employed in the contract (Trustee’s Exhibit 2), yet that number did not apply to and was wholly outside of the plot covered by the metes and bounds description. The consequences are that (1) for part of tho property, if correctly described, the notice gives no, street number; (2) the notice description includes a substantial area which is no part of the property as correctly described; and (3) for so much of the correctly described property as corresponds to the street number used, the notice contains no description by metes and bounds or otherwise.
    Tho Lien Law (chapter 33 of the Consolidated Laws of New York) prescribes, in subdivision 7 of section 9, that: “The notice of lien shall state: * * * The property subject to the lien, with a description thereof sufficient for identification; and if in a city or village, its location by street and number, if known.”
    If tho claimant was entitled to a lien, it attached to the whole of the property correctly described and with the correct street numbers; to the property as an entirety mentioned in paragraph 1 of tho referee’s findings of fact and designated by street numbers as 833-6 Fifth avenue. The requirement of the statute is that the notice “shall state” two things, namely, (1) “a description” of “the property,” and (2) “its location by street and number.” While section 23 directs liberal construction and provides that substantial compliance shall bo sufficient, yet obedience to section 23 cannot be carried to the extent of nullifying the affirmative requirements in section 9 as to the contents of the lien notice. ^Section 9 creates conditions precedent to enforce^ment of tho lien. Failure to meet both or either of them forfeits any right to a lien.
    It must not he overlooked that if claimant has a lien it is upon the whole of the property having the stréet designation 833-6 Fifth avenue and having the description sot out in referee’s: finding 1. It is enough that in the notice the lienor select one description, among tho possible descriptions or forms of description, which will enable the owner or another lienor to identify the subject-matter of the claim of lien and furnish a street number which will enable the owner or another lienor to locate the property; but it is not enough unless the notice meet both requirements. Here, however, the lien- or did not comply with either requirement. The description omits a portion of the premises to which the lien might have attached. It includes land to which it could not possibly attach. It gives only one of fonr separate street numbers actually applicable., To increase the confusion, the metes and bounds description fits no part of the property which the street number fits. Manifestly, therefore, there has been no compliance whatever with the statute, either substantial or otherwise, and liberal construction can afford no assistance.
    Siegeltuch, Butler & Kraft, of New York City (Myron Butler, of New York City, of counsel), for appellant.
    Zalkin & Cohen, of New York City (Israel Akselrod, of New York City, of counsel), for trustee-appellee.
    I agree with the referee that this result is sustained by Storch v. Marginal Realty Corp., 109 Misc. Rep. 669, 180 N. Y. S. 611. It would be a departure from the law of New York, as there declared, to reach any other result. In that ease the description by metes and bounds, as well as the street number given, were each correct to the extent that they were precise in application to the western half of the plot covered by a single building to which the lien would attach upon proper notice, but entirely ignored the eastern half of the plot. The facts in that ease were much more favorable to a lien than -are those in the case at bar. Here, at best, the street number related to one portion of the plot and the metes and bounds description to another portion of the plot. Here the street number given was only one of four numbers applicable, whereas the metes and bounds description not only included a considerable area not embraced in land subject to the lien, but did not correspond in any respect to the street number given. In the Storch Case, at page 679 of 109 Misc. Rep., 180 N. Y. S. 611, 617, Judge Lehman pointed out the utter impossibility under the description there of any apportionment of the amount secured by lien to or against the part of the property which was correctly described in the notice and that this impossibility was fatal to enforcement of a lien. In the case at bar, the situation is worse for the lien claimant; the .description employed in the notice is so far defective that not alone would it be impossible to make an apportionment, such as Judge Lehman deems requisite, but with respect to the part of the land for which a street number is furnished, there is no metes and bounds description or any other description and with respect to the portion for which, by the utmost stretch of liberality, it can be said that there is a description in the notice, no street number is given.'
    The result in the ease at bar is also in complete accord with Hurley v. Tucker, 128 App. Div. 580, 112 N. Y. S. 980, 983. In that ease there was precise compliance with the statutory requirements as to the contents of the notice. The description was “the stable in the course of erection, located upon the lots and parcels of land * * * known and designated as” certain specified street numbers, which were correct. It would have been perfectly impossible for any one acquainted with the locality to mistake the plot to which such a description applied. In consequence, the notice wholly fulfilled the requirements of subdivision 7 of section 9, in that it correctly gave both “description” and “street and number.”
    The notice of lien was filed February 1, 1930. At some time the property formerly designated by the four street numbers (833-6) was redesignated by one of them (834). When the redesignation occurred does not appear. It .might have been subsequent to February 1, 1930. If so, plainly it is immaterial. As one who asserts the lien has the burden of proof (Brandt v. City of New York, 110 App. Div. 396, 97 N. Y. S. 280, affirmed 186 N. Y. 599, 79 N. E. 1101), in order for claimant to get any benefit from employment of a single new street address, it would have been necessary for him to show that this was established preceding February 1. Moreover, claimant can get no advantage from this change, because the street number he employed in the notice was 833, which un.der the redesignation was erroneous.
    Referee’s order affirmed.
    Before MANTON, L. HAND, and SWAN, Circuit Judges.
   PER CURIAM.

Order affirmed on opinion of Caffey, Judge below.  