City Court, City of New York, New York,
Queens County, Special Term, Part I.

BLACKMAN-SHAPIRO CO., Inc.,
v.
Murray M. SALZBERG, M. M. S. Realty Corp., et al.


Dec. 11, 1957.


  The first cause of action was to foreclose a mechanic's lien, and the second
cause of action was to recover for goods sold and delivered. The defendants made
a motion for an order to dismiss both causes of action in the complaint, on
ground that they failed to state facts sufficient to constitute causes of
action. The City Court, J. Irwin Shapiro, J., held that where notice of
mechanic's lien, instead of describing by metes and bounds or by street and
number, purported to claim a lien against 'All land belonging to owners in
sections and blocks listed below,' and at the bottom of the notice of lien was
the statement: 'Please index under section 16, block 3763, 3764, 3765 and 3837.
Section 17, 40009, 4015 not located', entire notice of lien was void and could
not stand as the foundation for a cause of action to foreclose a mechanic's
lien, since too little property was included in the description because of
provision 'Section 17, 4009, 4015 not located.'

  Motion to dismiss first cause of action granted, and notice to dismiss second
cause of action denied.


West Headnotes

[1] Mechanics' Liens  134
257k134 Most Cited Cases

Liberal construction of the Lien Law as required by provisions thereof, does not
authorize court to dispense entirely with what the Lien Law says that notice of
mechanic's lien must contain.  Lien Law, § §  9, subd. 7, 23.

[2] Mechanics' Liens  157(1)
257k157(1) Most Cited Cases

A mechanic's lien is a creation of statute, and if there is entirely lacking
from notice of lien one of the material provisions required by the Lien Law, the
lien never comes into being as a lien.  Lien Law, § §  9, subd. 7, 23.

[3] Mechanics' Liens  157(1)
257k157(1) Most Cited Cases

A mechanic's lien never comes into existence unless notice on which it is
founded substantially complies with the Lien Law authorizing creation of such
liens.  Lien Law, § §  9, subd. 7, 23.

[4] Mechanics' Liens  136(3)
257k136(3) Most Cited Cases

Where notice of mechanic's lien, instead of describing by metes and bounds or by
street and number, purported to claim a lien against "All land belonging to
owners in sections and blocks listed below," and at the bottom of the notice of
lien was the statement:  "Please index under section 16, block 3763, 3764, 3765
and 3837.  Section 17, 4009, 4015 not located", notice of lien was fatally
defective as to any parcel or parcels in blocks 4009 and 4015 in section 17.
Lien Law, § §  9, subd. 7, 23.

[5] Mechanics' Liens  136(2)
257k136(2) Most Cited Cases

When description of realty in notice of mechanic's lien includes too much
property, but nevertheless includes and completely identifies all property on
which a lien may properly be claimed, defect is not fatal, since lien will be
limited and restricted to that part against which it may properly be enforced,
but where too little property is included in description, defect is fatal, since
lien, if any, is against all property benefited by improvement, and accurate
description of less requires apportionment of amount due under lien among
portions of property.  Lien Law, § §  9, subd. 7, 23.

[6] Mechanics' Liens  136(3)
257k136(3) Most Cited Cases

Where notice of mechanic's lien, instead of describing by metes and bounds or by
street and number, purported to claim a lien against "All land belonging to
owners in sections and blocks listed below," and at the bottom of the notice of
lien was the statement:  "Please index under section 16, block 3763, 3764, 3765
and 3837.  Section 17, 4009, 4015 not located", entire notice of lien was void
and could not stand as the foundation for a cause of action to foreclose a
mechanic's lien, since too little property was included in the description
because of provision "Section 17, 4009, 4015 not located."  Lien Law, § §  9,
subd. 7, 23.

[7] Sales  353(1)
343k353(1) Most Cited Cases

Second cause of action of complaint alleging that, at special instance and
request of defendants, plaintiff furnished and delivered certain goods, wares
and merchandise at premises owned by defendants, at agreed price and reasonable
value, which defendants agreed to pay to plaintiff, was the classic pleading of
an action for goods sold and delivered, and was sufficient.  Rules of Civil
Practice, rule 106.
  **591 *973 Leo Kessler, College Point, for plaintiff.

  **592 Dreyer & Traub, Brooklyn, for defendants Murray M. Salzberg and M. M. S.
Realty Corp. (Samuel Kirschenbaum, Brooklyn, of counsel).



  J. IRWIN SHAPIRO, Justice.

  This is a motion by the defendants for an order under Rule 106 of the Rules of
Civil Practice to dismiss both causes of action in the complaint upon the ground
that they fail to state facts sufficient to constitute causes of action.

  The first cause of action is to foreclose a mechanic's lien, and the second
cause of action is to recover for goods sold and delivered.

  The defendants contend that the first cause of action is fatally defective
because the notice of mechanic's lien fails to comply with Section 9, subd. 7 of
the Lien Law in that it does not sufficiently describe the property against
which the lien is asserted.

  That section and subdivision, so far as here material, read as follows: '7.
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.'

  *974 Instead of describing the property, by metes and bounds or by street and
number, the notice of lien purports to claim a lien against the following
property:
'All land belonging to owners in sections and blocks listed below,'

 and at the bottom of the notice of lien is listed the following statement:
'Please index under section 16, block 3763, 3764, 3765 and 3837. Section 17,
4009, 4015 not located.'

 [1] Although we are abjured by the statute (Lien Law, Sec. 23) that  'this
article is to be construed liberally to secure the beneficial interests and
purposes thereof,' and that 'a substantial compliance with its several
provisions shall be sufficient for the validity of the lien and to give
jurisdiction to the courts to enforce the same,' an attempt at liberal
construction 'does not authorize the court to entirely dispense with what the
statute says the notice must contain.' Sprickerhoff v. Gordon, 120 App.Div. 748,
105 N.Y.S. 586, 587, affirmed 194 N.Y. 577, 88 N.E. 1132.

 [2] A mechanic's lien is a creation of statute and if there is entirely lacking
from the notice of lien one of the material provisions required by the statute,
it never comes into being as a lien. Toop v. Smith, 181 N.Y. 283, 73 N.E. 1113;
Pascual v. Greenleaf Park Land Co., 245 N.Y. 294, 157 N.E. 144; Brescia
Construction Co., Inc. v. Walart Construction Co., Inc., 238 App.Div. 360, 264
N.Y.S. 862, and **593 Matter of Teicher, Inc. v. Gold, 239 App.Div. 285, 267
N.Y.S. 164.

 [3] As the Court of Appeals said in Toop v. Smith, supra, 181 N.Y. at page 289,
73 N.E. at page 1115:
'A mechanic's lien never comes into existence unless the notice upon which it is
founded substantially complies with the statute which authorizes the creation of
such liens. Even a court of equity has not the power to breather the breath of
life into a notice of lien that is insufficient under the statute, much less a
court whose function it is not to administer equity, but to make the law as
stable and certain as may be.'

  Although the notice of lien in this case does not say that the labor and
materials were performed and furnished for and used in the improvement of all of
the real property described in section 16, blocks 3763, 3764 and 3765 but only
to 'all land belonging to owners in said sections and blocks,' a liberal
construction of the notice of lien may perhaps permit the inference that the
improvement was to all of the property in those blocks. If that were all there
were to this case, this court, on a pleading motion, would hold the lien
sufficient on its face, subject to proof on the trial as to whether the
improvements were in fact for the benefit of all of the blocks mentioned.
However, in addition to the above, the lienor says that the improvements also
covered 'sections 17, 4009, 4015 not located.' This is not merely a meager or an
inadequate *975 description but a complete absence of any description of the
property upon which the work was allegedly performed.

 [4] Giving the notice the most favorable intendment, what the lienor is saying
is that it improved some parcel or parcels in blocks 4009 and 4015 in section 17
but that it has not located them on the map and therefore does not specify them.
A judgment of foreclosure of sale could not properly be drawn from such a
complete absence of description. Hence, as to that portion, the notice of lien
is fatally defective.

  I have come to the conclusion, however, that, under the circumstances of this
case, the entire notice of lien is void and cannot stand as the foundation for a
cause of action to foreclose a mechanic's lien.

  The lienor itself says that its improvements covered more than the property
described in section 16, blocks 3763, 3764 and 3765. Hence, subjecting that
property--properly described--to a mechanic's lien would impose upon that
properly more than its share of the materials furnished and labor supplied. in
such a situation the entire lien is void.

 [5] I apprehend the law to be that when the description includes too much
property, but nevertheless includes and completely identifies **594 all the
property on which a lien may properly be claimed, the defect is not fatal for
the lien will be limited and restricted to that part against which it may
properly be enforced. Blanc on Mechanics' Liens; Woolf v. Schaefer, 103 App.Div.
567, 92 N.Y.S. 184; Jannotta v. Noslac Realty Corp., 231 App.Div. 864, 246
N.Y.S. 516, 512; Kolkman v. Eshelman, 132 Misc. 428, 230 N.Y.S. 91.

 [6] However, where, as in this case, too little property is included in the
description, (and that result follows here by the necessary excision of the
property attempted to be described as 'section 17, 4009 and 4015 not located')
the defect is fatal, for the lien, if any, is against all of the property
benefited by the improvement and an accurate description of less would require
an apportionment of the amount due under the lien among portions of the land.
See Sprickerhoff v. Gordon, supra, and Storch & Co. v. Marginal Realty Corp.,
109 Misc. 669, 180 N.Y.S. 611.

  Under the circumstances, the court grants the motion to dismiss the first
cause of action set forth in the complaint.

 [7] The second cause of action, that for goods sold and delivered, alleges that
'at the special instance and request of the defendants, the plaintiff furnished
and delivered certain goods, wares and merchandise at the premises owned by the
defendants--at the agreed price and reasonable value--which the said defendants
agreed to pay to the plaintiff.'

  *976 That is the classic pleading of an action for goods sold and delivered,
and the motion to dismiss the second cause of action is denied.

  Settle order on notice.

168 N.Y.S.2d 590, 8 Misc.2d 972

END OF DOCUMENT