
    GATES v. BUDDENSICK.
    
      N. Y. Common Pleas;
    
    
      Special Term, October, 1878.
    Mechanics’ Lien.—Material-Men.—Time to File Lien for Materials.
    Under the mechanics’ lien law for the city and county of New York (L. 1875, c. 379), the lien of a person furnishing materials must he filed within thirty days after the materials are furnished.
    
    Demurrer to answer.
    The action was brought to foreclose a mechanics’ lien in the city of New York, and the question to be determined was, within what time a lien must be filed by one who furnishes materials towards the erection, alteration or repair of a building in this city ?—whether it must be filed within thirty days after the materials are furnished, or whether- it may be filed within thirty days after completion of the building, improvement, structure, repairs or alterations in which the materials were used.
    The plaintiff furnished materials between October 12 and November 8, 1877, to one Buddensick, who used them in the erection of buildings under a contract with one Bellmann, the owner. Plaintiff did not file his lien notice until March 18, 1878, one hundred and thirty days after the materials were furnished, but before the expiration of thirty days after the buildings were completed under Buddensick’s contract.
    The owner set up as a defense that the lien was not filed within thirty days after the materials were furnished. Plaintiff demurs to this defense.
    
      
       See next case.
    
   J. F. Daly.

[After stating the facts.]—The act of 1875, c. 379, prescribes the time within which lien notices must be filed. In section 5, it is enacted that every original contractor, within sixty days after the completion of his contract, and every person save the original contractor, claiming the benefit of this act, must within thirty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or after the completion of the work, or the furnishing of the materials for which the lien is claimed, file with the county clerk, &c.

The language used does not leave the question free from doubt, but I deem the proper construction to require the lien of a person furnishing materials to be filed within thirty days after the materials are supplied.

Special reference to, and provision for, the claims of persons furnishing materials is made in the section, indicating the intention to enact particularly, in that clause, upon the subject of their claims. The limitation of thirty days after the furnishing of the materials is special, as is the limitation as to other, claims. The section provides for liens under eight.different species of claims :

1. By the original contractor, who has sixty days after the completion of his contract to file his notice. 2. By one claiming a lien for the completion of a building. 3. By one claiming a lien for the completion of an improvement. 4. One' claiming for the completion of a structure. 5. One claiming for the completion of alterations. 6. One claiming for the completion of repairs. 7. One claiming for work completed by him (evidently intended to cover the claim of an individual, mechanic or laborer, who has not been paid for his work). 8. One claiming for materials furnished by him ; and in each of the last seven cases the lien must be filed within thirty days after the completion of the building, improvement, structure, alteration, repair. work, or the furnishing of the materials, as the case may be.

To give the section the construction claimed by plaintiff, it would be necessary to hold that the legislature fixed two imperative limitations, one within the other, for the filing of liens by sub-contractors ; i. e., that the person furnishing,materials must within thirty days after the materials are furnished, or must within thirty days after the completion of the building, improvement, structure, alteration, repair or work, in the course of which the materials were used, file his notice. The latter being the greater limitation, includes, of course, the former, and renders the former unnecessary ; but we may not conclude that the legislature made an unnecessary, inconsistent or idle provision, if any construction shows the provision to be reasonable and proper.

That the limitation contended for by defendants is reasonable and proper, one illustration will clearly show: Suppose one furnishes stone to the original contractor for the construction of the foundation of a building, which building is not to be, or cannot be, completed for years. Has the claimant who furnishes the foundation stone until thirty days after the building is finished in which to file his lien, even if his claim against the contractor is outlawed by time ? If he have, then the statute is meaningless and the provisions idle that require him to file it within thirty days after the materials are furnished. A decision in the courts of another State support, however, the construction of the act claimed by plaintiff, and must be examined.

The mechanics’ lien law of the city of Baltimore (Laws of Maryland, 1888, c. 205, § 1) provides that every building erected in the city shall be subject to a lien for the payment of all debts contracted “for work done or materials furnished” for or about the erection. or construction of the same; and further (§ 13) pro-' vides that every such debt shall be a lien, as aforesaid, until the expiration of six months “ after the work shall have been finished or materials furnished, &c.”

In the case of O’Kisko Co. v. Matthews (3 Md. 176), it was held that the lienor was entitled to the benefit of the two alternatives, i. e., that his lien was good either for six months after the materials were furnished, or after the work was finished, in the course of which the materials were so furnished.

I should have supposed, from a reading of the statute, that the legislature intended to provide for two classes of debts, one for materials, and one for work; and to have designed that if the lien was for the former it was to ■ continue for six months after the furnishing of the materials, and if the latter, then for six months after the doing of the work.

Such is the interpretation which the language of a nearly similar provision in the Kings County, N. Y., mechanics’ lien act of 1853 (c. 335) has received from our court of appeals. The last-named act provided that the notice of claim must be filed before the expiration of “thirty days after the completion of the work, or within sixty days after the materials are furnished,” and the court held (Spencer v. Barnett, 35 N. Y. 94) that in the case of a claim for materials the notice must be filed within sixty days from the date of furnishing them. No suggestion was made that the material-man had any “ alternative” between the limitations in the statute.

The demurrer should be overruled with costs.

Ordered accordingly.  