
    Christian J. Mahley, Appellant, v. The German Bank of Buffalo, Respondent, Impleaded with Others.
    
      Mechanic’s lien — a failure to comply literally with the statute is not fatal.
    
    A notice of lien filed by a sub-contractor, which, by omitting to state the whole contract price or value of the materials and labor, and the time when the first and last items of work were performed and materials were furnished, fails to comply with subdivisions 4 and 6 of section 9 of the Lien Law (Laws of' 1897, chap. 418), but which does state the amount of the agreed price or value of the materials and labor not paid íor, and that the last items of materials and labor were furnished and performed .within ninety days from the date of the notice, is not invalid as against a bank which takes an assignment of the principal contract to secure an antecedent debt, with knowledge .of the sub-contractor’s rights or of facts sufficient to put it upon inquiry in respect thereto, where it appears that the bank was not prejudiced by the fact that such notice did not literally comply with the provisions of the statute.
    Appeal by the plaintiff, Ohristian J. Mahley, from a judgment of the Supreme Court in favor of the defendant, The German Bank of Buffalo, entered in the office of the clerk of the county of Erie on the 22d day of June, 1899, upon the decision of the court rendered . after a trial at the Erie Special Term, except from so much of said judgment as awarded judgment to the plaintiff against the defendant W. B. Wilson.
    
      Wallace Thayer, for the appellant.
    
      Robert F. Schelling, for the respondent.
   Williams, J.:

■ The action was brought to establish the validity of a mechanic’s lien filed by plaintiff, and to foreclose the same. The defendant bank claimed that plaintiff’s lien was invalid, and that the defendant bank was entitled to the moneys due from the defendant railroad company for the labor and materials for which the lien was filed, by virtue of the assignment hereinafter referred to. .The defendant Wilson,.having entered into a contract with the defendant railroad company, to furnish the materials for and construct a station house at Hemlock Station, on the line of the railroad, thereafter arid September 5, 1898, made a contract with the plaintiff to furnish materials and build such station house for the sum of six hundred dollars ($600). The plaintiff, pursuant to this contract, furnished the materials for and constructed the station house and fully completed the same prior to November 5, 1898,'and there has been paid to the plaintiff on account of the materials so furnished and labor so performed only the sum of $45, leaving unpaid $555. Before the completion of the station house, and on the. 18th day of October, 1898, the defendant Wilson, being indebted to the defendant bank in the sum of $1,400, assigned to the bank all his right, title and interest in the contract between .himself anehthe defendant railroad company, and all moneys due or to grow due thereon from the railroad company to secure payment of his indebtedness to the bank, and authorized the railroad company to pay all such moneys as they .came due to the bank. At the time the assignment was made the bank knew that the plaintiff was a sub-contractor under Wilson in constructing the station house, and had done or was doing the work. The railroad company, at the time of the assignment, had paid nothing upon the contract. for the construction of the building. On the 22d day of December, 1898, the plaintiff filed the notice of lien in question, for the foreclosure of which this action was brought.

It was claimed and the court found that this lien was invalid by reason of its failure to comply with the provisions of subdivisions 4 and 6 of section 9 of the Lien Law of 1897 (Chap. 418). By the 4th subdivision it was provided that the notice of lien shall state: * * -x- The labor performed or to be performed, or materials furnished or to be furnished, and the agreed price or value thereof.”

The notice in question stated that the plaintiff had a claim and lien against the railroad company, then due and amounting to the sum of $341.25, and interest from November 10, 1898, being for work, labor and materials furnished as .thereinafter mentioned, which amount was* due from Wilson, by whom he was employed, under and pursuant to an agreement with and consent of the railroad company, and being the true' price and value of said worh done and materials furnished, after deducting the payments made thereon; that the claimant performed work and furnished materials which had been used in the erection of a depot building and appurtenances situate upon the lot" and premises, in the town of Hemlock, N. Y., described in the notice.

The criticism upon this statement was that it did not state the whole contract price or value of the materials and labor, but only the amount or part thereof remaining unpaid. This statement of unpaid amount was required to be made by subdivision 5 of the section. The whole contract price or value was $600; this was not stated. The .amount unpaid was $341.25, which was stated. In other respects subdivision 4 appears to have been sufficiently complied with in the notice.

It does not seem to us that it was very important in this case to have the whole contract price or value stated in the notice, that any one was prejudiced thereby, or that the- failure to state it should invalidate the lien. *

By the 6th subdivision- it was provided that “ the notice of lien shall state: * * *. The time when the first and last items of work were performed and materials were furnished.”

The notice in question only stated upon this subject that ninety days had not elapsed since the completion of the contract, or the furnishing of the materials or the. final performance of the work.

The criticism upon this statement was that it did hot specifically and separately state the time when the first and last work was done and materials were furnished.. It stated that the last items of materials and labor were done and performed within ninety days from the date of the notice, December 22, 1898, but did not more particularly indicate the time. It cannot be said that there was any .statement in the notice as to when the first item of labor was performed and materials were furnished. And the only' question is whether the statements in the notice were so far a failure to comply with subdivision 6 as to render the notice invalid. It is not apparent that these items were very material in this particular case, or that any one was prejudiced by such failure.

The person who drew' the notice seems not to‘have been, aware of the Lien Law of 1897, and to have had in mind the laws existing prior to 1897, and, therefore, failed to comply literally with the provisions of these two subdivisions, 4 and 6, of section 9.

By section 22 of the Lien Law of 1897 if is provided: “ Construction of article.— This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same.”

The bank claiming the fund in the hands of the railroad company, as against the plaintiff asserting this lien, is an assignee from the defendant Wilson, against whom plaintiff’s indebtedness exists. The bank took the assignment to secure an antecedent debt, and with knowledge of plaintiff’s rights or of such facts as to- put it upon inquiry which would have disclosed plaintiff’s rights, and it would be a great injustice to permit the bank to have the fund,, in preference to the plaintiff who furnished all the materials and did all the work which gave the contract assigned to the bank any value whatever.

We are not disposed under the liberal rule of construction provided for in the act itself, and, held by the courts, to agree with the trial court in its decision that' the notice of lien in this case was invalid and the plaintiff had no lien upon the premises which he could enforce.

We think that, in this particular case, the notice was a substantial compliance with the statute, that no injury occurred to any one by .reason of any defective‘statements therein, requiring the court to Bold the lien invalid.

We conclude, therefore, that the judgment appealed' from should "be reversed and anew trial ordered, with costs to appellant to abide ■event.

All concurred, except Laughlin, J., not sitting.

. Judgment reversed and a new trial ordered, with costs to the .appellant to abide the event. ' • .  