
    Schwartz et al. v. Allen et al.
    
    
      (Superior Court of Buffalo, Trial Term.
    
    July 12, 1889.)
    1. Payment—Proof of Payment.
    In an action to foreclose a mechanic’s lien after the death of the owner of the house, defendants alleged payment of the debt by decedent in his life-time, but failed to produce any receipt for payment, though it appeared to have been decedent’s habit to take receipts. Eeld that, the defense being an affirmative one, with the burden of proof on defendants, the failure to produce a receipt, or reasonably account for its absence, was sufficient to defeat the defense.
    8. Evidence—Book Entries. o
    An entry made by a debtor in his own favor is inadmissible to prove payment of the debt, though offered in evidence after his death.
    8. Same—Declarations.
    Nor is the testimony of one who heard him say that he had paid the debt admissible for that purpose.
    
      4. Mechanics’ Liens—Fob what Obtained.
    Laws N. Y. 1885, c. 342, § 1, provides that any person who shall perform any labor or service or furnish any materials used in the erection of any house may have a. lien for the price and value thereof. Held, that a furnace set within a brick structure, and the connecting pipes and appurtenances, are part of the house, and entitle the person furnishing them to a lien for their price.
    6. Same—Pbocedube—Verification.
    Section 4 provides for a verification of the notice of lien “to the effect that the statements therein contained are true. ” Section 25 declares that the lien law is to-be liberally construed, and that a substantial compliance with its provisions shall be sufficient. Claimant’s verification to the notice of lien was that he knew the contents thereof, and that the same were true, but he did not swear that the “ statements ” were true. Held,, that the verification, though not in statutory language, was a substantial compliance with the law.
    Action by Leopold Schwartz and others against Eliza E. Allen and others, to foreclose a mechanic’s lien for a furnace put in a building while it was-being constructed. Defendants denied the right of lien for that class of work or materials, objected to the verification of notice of lien as insufficient, and alleged payment of the debt.
    
      Lyman M. Baker, for plaintiffs. F. 11. March and Alvin Burt, for defendants.
   Beckwith, C. J.

The action is brought for the foreclosure of a mechanic’s-

lien. Ethan Allen, late of the city of Buffalo, on or about the 1st day of November, 1887, entered into a contract with the plaintiffs by which the plaintiffs undertook to furnish the said Allen, for his residence then in process of erection, a “No. 140 Boynton latest improved Crusader furnace, and to set-the same in the best masonry work, with four runs of the best heating pipe to the first floor, and four runs of tin heating pipe in the second floor, with all the necessary register boxes and hot-air pipes, made of tin, to supply heat to the registers, and all the tin flashings requisite to render the same safe and secure from fire,” in consideration of which furnace and appurtenances the said Ethan Allen agreed to pay the plaintiffs $176. The plaintiffs performed their undertaking. On the 26th day of December, 1887, said Ethan Allen-died intestate, and the defendant Eliza E. Allen is his widow, and the defendant Eraneis Julia Allen his daughter and heir.

The defendants contest the plaintiffs’ claim mainly upon these grounds: First, that “the lien law does not cover a furnace;” second, that Ethan Allen, in his life-time, paid the plaintiffs; third, that the notice of lien is invalid for want of a sufficient verification.

First. The statute, (chapter 342 of the Laws of 1885,) entitled An act for the better security of mechanics, etc., yvho perform labor or furnish material-for buildings, etc., provides (section 1) that any person who shall perform any labor or service or furnish any materials used in the erection of any house may, upon filing the notice of lien prescribed in the fourth section of the act, have a lien for the principal and interest of the price, and value of such labor and material. It seems too plain to require any discussion that the furnace set within the brick structure, and the connecting pipes and appurtenances, were a part of the house, and that the same passed to the heir as a part of the realty, and that the contribution the plaintiffs so made to the construction of the house entitled them to a lien under the statute. It seems clear that the furnace and its connections, constructed by the plaintiffs, were in fact, and by the parties to the contract, deemed to be a part of the house.

Secondly, as to payment. The defendants claim, and are very sincere in their belief, that the intestate in his life-time paid the plaintiffs. They found their belief on the circumstances that on a certain occasion he took money and went down town with the apparent purpose of paying bills; that the same day he made an entry of payment in his account-book, on a page where-he entered all the payments he made on the construction of the house; that the witness Greagham. saw him, on the same day that his entry was dated, coming up Seneca street, the street where the plaintiffs’ place of business is located, and from the direction of the plaintiffs’ office; afterwards met him on the corner of Main street, and was there told by the deceased that he had got his furnace in, and had just been down and paid for it; and the defendants, for further grounds of assurance that Mr. Allen paid the plaintiffs, and that he would not have made the entry in his book of payment unless he had in fact paid the bill, show that he was a man of marked integrity, and of very exact business habits. The place where the deceased made the entry was on a page which contained only the payments made on the construction of the house and purchase of the lot, headed “Cost of House and Lot.” The entries were 15 in number, and this was the eleventh, and the defendants produced receipts showing the actual payment by Mr. Allen, on the day of the date of the entry, of every sum entered on the page, excepting the one in suit; but the defendants are unable to produce any receipt for this item in question. It is claimed by the defendants -that, considering the character of Mr. Allen for care and accuracy in his business, his acknowledged integrity, his taking money and leaving his home on the day of the date of the entry with the apparent object of settling his bills, his statement to the witness Greagham, the same day, that he had just been down to the defendants’ place and paid the bill, his entry on or soon after returning home, on the said page of his book, of the charge of the payment, the court ought, Mr. Allen being dead, to infer and find the fact that the payment was made.

There are several difficulties in the way of making such an inference of fact. In the first place, the inference would be entirely uncertain whether he paid to one entitled to receive the money. The testimony of Greagham is of a kind recognized as not very satisfactory, for the reason that a witness is very likely to misunderstand a casual remark made in a merely friendly conversation upon an accidental meeting. While the production of receipts showing that the deceased did actually pay all the other 14 charges made by him at the dates of tlieir entry tends to convince the mind that the intestate intended that the entries should be true statements, still, the inability of the defendants to produce a receipt for the item in question operates, perhaps, quite as forcibly to establish this entry as an exception. The testimony shows that Mr. Allen was very particular about taking receipts, which is evidenced by the production of receipts for all those items of entry except the one in suit; and the testimony of Mr. Gieb, of whom the deceased rented a house before he built the house in question for himself. Mr. Gieb says that when Mr. Allen came to him to pay his monthly rent he always came with a receipt for the payment prepared, 'which he brought with the money. So, therefore, assuming that the court might, from all the circumstances, lawfully deduce a finding of fact as to payment, it would be very difficult to infer satisfactorily, from the offered -testimony and circumstances, the fact of such payment. If he paid, the uncertainty as to when he paid; why, contrary to his exacting habit, he omitted to take a receipt for this considerable sum; no circumstances raising a probability of a loss of the receipt; the claim of non-payment by the plaintiffs, against whose business integrity nothing is said,—all these circumstances would leave the truth of the matter so uncertain that the court could not rest satisfactorily on a finding that the intestate actually made the payment.

The defendants-have the affirmative, and must satisfy the court of the fact of payment; but, if the evidence offered by the defendants would, properly received, and without objection, justify a finding of payment, there are still the insuperable difficulties in the way of the defendants that the declarations made by Mr. Allen to the witness Greagham, and the entries made by himself in his book, were objected to by the plaintiffs’ counsel, and without the aid of such declaration and entry the defendants’ evidence would be plainly insufficient. It is perfectly settled by the courts, in a long series of decisions, that entries of that kind, made by Mr. Allen on a page of his book, being entries in his own favor, are not admissible as evidence. They cannot be admitted under the head of shop-keeper’s charges; they were not entries against his own interests; they were not “res gestee;” and this court cannot make any new law. That the testimony of the witness Creagham, and that the entries made by Mr. Allen of his payments, are not admissible evidence in favor of the defendants is elementary, and hardly needs the citation of authorities. I will only refer to Redfield v. Stilt, 10 N. Y. St. Rep. 366; Vaughn v. Strong, 4 N. Y. Supp. 686; Tilson v. Terwilliger, 56 N. Y. 273; Lowery v. Erskine, 20 N. E. Rep. 588. The statement of Mr. Allen to the witness Creagham, and his entries, are not rendered admissible evidence by reason of his decease. Romig v. Romig, 2 Rawle, 241; Scull v. Wallace, 15 Serg. & R. 231; Hess’ Appeal, 112 Pa. St. 168, 4 Atl. Rep. 340.

Third. The defendants further object that the notice of lien is invalid for want of a proper verification, and a great many cases have been cited, and supposed analogies argued, in support of the position. A verification is necessary simply because it is required by the gtatute, and the particular statute which demands a verification furnishes the measure of what is required. The statute of 1885, c. 342, § 4, provides that the notice of lien must be verified, “to the effect that the statements therein contained are true to the knowledge or information and belief of the person making the same.” Section 25 of the statute declares: “This act is hereby declared to be a remedial statute, and is to be construed liberally to secure the beneficial interests and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for. and to give jurisdiction to the courts to enforce the same.” The verification appended to the notice of lien is in these words: “Leopold Schwartz, being duly sworn, says: I am one of the claimants mentioned in the foregoing notice of lien. I have read the said notice, and I know the contents thereof. The same is true of my own knowledge or information and belief. ” The statute says the notice shall be verified, to the effect that the “statements” therein contained are true. The affidavit does not state that the “statements” contained in the notice are true, but that he has read the notice, and knows the contents thereof, and the same is true. This language is that in professional use in the verification of pleadings, and signifies that the statements of the notice are true. When the affiant declares that the notice is true, he must be deemed to speak of the notice as the instrument in writing, and to verify its statements. The remainder of the verification is that the notice is true of affiant’s own knowledge or information and belief, and, as it seems to me, is a substantial compliance with the statute. Mr. Wait says that it is clearly allowable to frame the verification to all pleadings indiscriminately in the exact words of the statute. 2 Wait, Pr. 339. It is sufficient if the substance of the. statute, without evasion, is contained in the affidavit. In re Macaulay, 94 N. Y. 578; Waggoner v. Brown, 8 How. Pr. 212; Kingsland v. Cowman, 5 Hill, 610.

Justice Bronson, speaking of the form of an affidavit required by statute, says: “He may obtain an order for that purpose on an affidavit that ‘ he believes he has a defense’ under the statute. Such an affidavit is sufficient, because the statute so provides. This statute not only fails to prove anything for the defendants, but it proves something against them. We are to suppose that where the legislature uses different words different things are intended.” So it may be noticed with respect to the different lien .laws that different forms of verification have been required by different statutes; but where in the statute in question it is finally provided that the verification shall be to the effect that the statements are true to “the knowledge or information and belief” of the deponent, we may conclude that that general form was deemed sufficient, and that it was not intended to require the affidavit to be distributive in form, so as to designate what particular statements are sworn to upon knowledge, and what upon information and belief. Plainly the statute was intended to be construed liberally as a remedy, and not strictly as a departure from the common law. The lien being valid, the plaintiffs had their right of action against the defendants. The defendants have contested the suit, as it would seem, on the faith that Mr. Allen would not have made the entry of payment in his book unless such payment had beeen actually made. Of course it is possible the payment was made; that it might have been made to some representative of the plaintiffs’ firm, who did not account to the plaintiffs for it; but there is no proof that such representatives are not entitled to the same respect for integrity that is claimed for the intestate. If the debt was really paid it is unfortunate for the defendants that the laws of evidence exclude the proofs upon which they relied, but it is clear that the law excludes proof of entries, and declarations of the character of those made by the deceased. The ■defendants having put the plaintiffs to the expenses of the action without the means of establishing a defense on the merits, the judgment must go against them, with costs.  