This was an action to foreclose a mechanic's lien and to set aside certain mortgages and conveyances from the owner to the two defendants who answered as fraudulent. The trial court found that on or about the 24th day of February, 1898, the plaintiff entered into a contract with the defendant Samuel W.B. Smith, whereby the plaintiff agreed to furnish certain materials, consisting of iron work, for the buildings on the premises 115 and 117 West Seventy-ninth street, in the city of New York, and the defendant Smith agreed to pay therefor the sum of eight thousand seven hundred and thirty-seven dollars; that thereafter and on or about the first day of April, 1898, the plaintiff entered upon the performance of said contract and thereafter duly performed all the work and furnished all the materials required by the terms of said contract, and duly *Page 290 performed the same in all particulars. That all the work had been actually performed and all the materials furnished between the first day of March, 1898, and the 6th day of December, 1899, and that no part of the contract price has been paid except the sum of three thousand four hundred and forty-five dollars and eighty-nine cents, and that there was, at the time of the filing of the lien, remaining unpaid to the plaintiff the sum of five thousand and ninety-one dollars and eleven cents; that on or about the 22d day of December, 1899, within the time prescribed by law, the plaintiff duly filed a notice of lien, which is a good and valid lien for the amount due on said contract. The court also found that before the commencement of the action the defendants deposited with the clerk the amount of money claimed in plaintiff's notice of lien and interest to the time of said deposit, for the discharge of the plaintiff's lien.
The trial court also found the details of the various transfers from Smith, the original owner who made the contract, to the two defendants who answered in this case, and he found that these transfers and conveyances were made for the purpose of hindering, delaying and defrauding the creditors of Smith, and that they were void as against the plaintiff in this action. Judgment was directed in favor of the plaintiff for the amount demanded in the complaint, with costs.
The judgment was reversed at the Appellate Division and a new trial granted, but the order is silent as to the grounds of the reversal, and, hence, it must be deemed to have been reversed for some error of law. The facts found by the trial court have not been disturbed, and they are sufficient to warrant the judgment ordered for the plaintiff. We must, therefore, be able to find some error of law in the record, otherwise the appeal must be sustained. The only error of law mentioned in the opinion of the learned court below or in the briefs of counsel is that the notice of lien filed by the plaintiff was insufficient. It should be observed that Smith, who made the contract with the plaintiff, has not answered in the case. The only parties who have answered are his fraudulent grantees, *Page 291 and they make the point that the plaintiff had no lien sufficient to enable him to maintain the action.
It may be assumed that a party who has taken to himself the debtor's property by means of fraud may protect the fruits of the fraud by impeaching the validity of the lien of an honest creditor, but such a defense in a case like this should rest upon a technicality so formidable that it cannot be overcome by any fair construction of the statute; so we must examine the plaintiff's notice of lien in order to see whether it is so defective that he cannot maintain this action.
Section nine of the statute prescribes the requisites of such a notice in the following words:
"§ 9. The notice of lien shall state:
"1. The name and residence of the lienor.
"2. The name of the owner of the real property against whose interest therein a lien is claimed, and the interest of the owner as far as known to the lienor.
"3. The name of the person by whom the lienor was employed, or to whom he furnished or is to furnish materials; or, if the lienor is a contractor or sub-contractor, the person with whom the contract was made.
"4. The labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof.
"5. The amount unpaid to the lienor for such labor or materials.
"6. The time when the first and last items of work were performed and materials were furnished."
Section twenty-two of the statute provides as follows:
"§ 22. 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."
In order that the fatal defect which it is claimed exists in this notice of lien and which it is said renders it absolutely void for any purpose may be clearly perceived and understood, *Page 292 I have copied the notice in this case in full. Here it is: "I, George H. Toop, residing at No. 1372 Lexington avenue, in the City of New York, Borough of Manhattan, have and claim a lien for the principal and interest of the value and agreed price of the labor and materials hereinafter mentioned pursuant to the provisions of article one of chapter forty-nine of the General Laws of the State of New York and amendments thereto.
"The name of the owners of the real property and improvements against whose interest therein a lien is claimed are Samuel W.B. Smith, Herbert Coope and Edwin Shuttleworth, and the interest of the said owners so far as is known to this lienor is in fee.
"The names of the persons with whom the contract for improvements herein mentioned were made and to whom he furnished materials are the said Samuel W.B. Smith, Herbert Coope and Edwin Shuttleworth. The labor performed and the materials furnished and the agreed price or value thereof is as follows: Under and by virtue of a contract partly written and partly oral made with the said Smith, Coope and Shuttleworth above mentioned according to specifications in writing and drawings of the improvements herein mentioned on or about February 24th, 1898, April 25th, 1899, and September 25th, 1899, and also for certain extra work and materials ordered by said Shuttleworth, all upon the building and premises situate as hereinafter stated for the sum of Eighty-nine hundred and eighty-seven dollars ($8,987.00) with interest on Five thousand and ninety-nine and 11/100 dollars from December 6th, 1899.
"The amount unpaid to this lienor for such labor and materials is Five thousand and ninety-one and 11/100 ($5,091.11) dollars; that the time when the first item of work was performed and materials furnished was about March 1st, 1898, and the time when the last item of work was performed and materials furnished was about December 6th, 1899."
It will be seen that the notice complies with all the provisions of the statute unless it was necessary to specify the particular *Page 293 kind of labor and the particular kind of material that was provided for in the contract. The contract was to furnish the iron work for the building and the notice of lien refers to the written specifications. The statute requires the lienor to state the labor performed or materials furnished. It will be seen that the notice refers to materials already furnished and to labor already performed and claims nothing for either work or labor to be performed in the future. The claim is for labor performed and materials furnished in pursuance of a completed contract. It does not seem to me that the omission to state the kind of material furnished, whether brick, stone, iron or lumber, vitiated the notice. It was, I think, a substantial compliance with the statute. No party to this action could possibly have been misled by the defect or omission, if it is one. Certainly the original owner, who made the contract, knew what the notice meant when it spoke of labor and materials furnished. He does not defend this action at all, but has made default, and it would seem that his fraudulent grantees stand in his shoes and are affected by his knowledge. Clearly, they cannot claim that they have been misled, and so they are not in a position to urge that the notice of lien is so defective as to be absolutely void as against them or indeed as against any one else.
The purpose of the notice is to inform the parties in interest of the nature and extent of the claim of the lienor, and the notice in question fulfills that purpose in every particular. It is now urged that the notice in this case is so defective that the defendants, who have obtained the title to the property by means of a fraudulent conspiracy with the owner who made the contract, are unable to find out what the plaintiff's claim really is, and hence they have been misled. The result of that contention is that the money deposited by these fraudulent grantees goes back into their own pockets and the honest claim of the plaintiff is defeated. The statute commands us to construe the Lien Law liberally to secure the beneficial interests and purposes thereof, and that a substantial compliance with its several provisions shall be sufficient for the *Page 294 validity of a lien and to give jurisdiction to the court to enforce the same. This action is one in equity to enforce a lien. The general spirit of equity controls in such cases if the court has jurisdiction. Of course, every one knows that the defendants' contention, that they are misled by the notice, can be nothing else than a mere pretense. The only argument in support of the contention is that we are concluded by authority and must hold that the notice is void.
But, in my opinion, there is no substantial ground for this claim. It is said that this court has decided that the notice in this case is void. I deny that proposition and assert that it cannot be sustained by any authority. The only decision of this court cited in support of that contention is the case ofMcKinney v. White (162 N.Y. 601). That is a memorandum decision, affirming without any opinion the same case (15 App. Div. 423), and in order to find out just what doctrine we affirmed we must go back to the per curiam opinion in the case below. There we find that the notice of lien and the questions in the case did not arise under the present statute at all, but under chapter 342 of the Laws of 1885, which is quite a different law, since it required, in terms, that the notice should state"the nature and amount of the labor and services performed or the materials furnished or to be furnished." The lien in the present case was filed under chapter 418 of the Laws of 1897. (General Laws, ch. 49.) This statute recast previous lien laws and especially section four of the act of 1885, which prescribed the contents of the notice of lien. In recasting the law the legislature produced from a confused mass of verbiage a clear and concise provision, which is section nine of the present law. It will be seen that many words and phrases in the old law were dropped out in framing the new law, and especially and most significantly these words "the nature and amount of." The inquiry suggests itself here as to the intention and purpose of the legislature in dropping out these words from the new statute. They would be just as appropriate in the new statute as in the old unless some change was contemplated. The answer to that question *Page 295 seems to me very plain. It was for the purpose of obviating just such an objection as prevailed in the case of McKinney v.White. In the old law it was necessary to state the nature of the materials and the nature of the labor. The present law, under which the notice of lien in this case was filed, does not require anything of that kind. If it did it is very obvious that the legislature would have retained the words which were expunged. In the present law the requirement is general. In the old law the requirements were more restrictive and specific. The present law requires only a statement of the value or agreed price of the labor and materials. The old law required not only all that but much more, since it required a statement of thenature of the materials and the nature of the labor, and that called for details and specifications to indicate the character of the materials and the kind of labor. There is an obvious difference between a requirement to state a thing in general terms and a requirement to state the nature of the same thing. The notice in this case states that the plaintiff performed labor and furnished materials of the value and at the agreed price of $8,987.00, and according to written specifications. How could he make his claim any clearer without a bill of particulars or attaching all the specifications to the notice? The defendants were parties to the contract and specifications and proof was given of all the details of the claim, including both labor and materials. So we see that the case of McKinney v. White, of which so much is said, has nothing to do with this case, and here I will venture to assert that no case can be found in this court where it was held to be necessary to state in the notice of lien under the act of 1897 either the nature of the materials or the nature of the labor.
It cannot be shown that this court has ever made any such decision under the act of 1897, but in my opinion it has held just the contrary. It has decided in a very recent case that a notice of lien much more defective than the one in the case at bar was good and sufficient. The case of Mahley v. German Bankof Buffalo (174 N.Y. 499) was an action to foreclose *Page 296 a mechanic's lien, and then as now the objection was made that the notice of lien did not comply with the statute. In that case the notice filed stated that the plaintiff claimed a lien for the sum of $341.25, "the same being for work, labor and materials furnished as hereinafter mentioned. Said amount being the true price and value of such work done and materials furnished after deducting the payments that have been made thereon." It will be observed that the notice in that case was much more defective that the one in the present case, since it did not state either the nature of the material or the nature of the labor, or even what the gross value was or the original agreed price. The statute plainly requires two things to be stated: (1) The total agreed or contract price or value. (2) The amount unpaid. The statute is as imperative as to the former as it is as to the latter. All that the lienor stated was that he claimed a lien for the sum of $341.25 due after "deducting the payments that havebeen made thereon." That is a mere balance, as the result of his own calculations, which is much less than the statute requires. It will be observed that the notice of lien in that case was assailed as void, in that it did not comply with subdivision four or six of the statute. The matter that is important here is what the court said about the notice as a compliance with the fourth subdivision of section nine, since if that notice was good under that subdivision, certainly the notice in the case at bar must be good also. It was held in that case that the notice was good under the fourth subdivision, but not sufficient under the sixth subdivision. In regard to the first objection, which is the one made in the case at bar, Judge CULLEN, writing for a unanimous court, proceeded to quote section twenty-two of the statute, where it is enacted that "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 learned judge then proceeded in these words: "Full effect should be given to this provision and so far as the appellant's first objection is *Page 297 concerned, we think that the statement that the value of the work was $341.25 after deducting the payments made on account thereof could be held a substantial compliance with the statute. * * * But under the most liberal rule of construction we cannot find anything in the notice that even attempts to state when the first item of work was done or anything from which that time may be inferred. * * * Errors in the notice may be disregarded and it is not necessary that the precise verbiage of the law should be followed." It seems to me that the doctrine of that case is conclusive as to the sufficiency of the notice in the case at bar. The language of the notice in the present case is much more clear and comprehensive than the language of the notice in the case just cited, and if there is any distinction in the two cases the distinction is in favor of and not against the notice in the present case.
Here we have a notice in which it is stated that the contract price and value of the materials furnished and labor performed was $8,987; that the amount unpaid was $5,091.11; that all the materials have been furnished and all the labor performed under a contract with written specifications. The specifications referred to cover six printed pages of the record, and if the plaintiff had copied them all into the notice of lien he could have added nothing to the knowledge of the owner, who was a party to them, or of the defendants. Now, I am utterly unable to perceive how the notice in the case just cited can be good under subdivision four and the notice in the present case bad under the same subdivision. The statute commands us to view the Lien Law with an open and liberal mind, and not with a jealous eye; and I am disposed to obey it in letter and spirit.
If the notice in the present case is to be held void only for the reason that it fails to describe the materials and the labor, that makes it very difficult to construct a valid notice, and it will be interesting to observe how the rule will operate in practice. I will suppose a very common case where a mechanic or a builder agrees to construct a house for the *Page 298 owner of a plot of land. He has a written contract in which he agrees to furnish all the material and all the labor to complete the house upon a given date, and then and not until then will he be entitled to the contract price. He performs the contract and completes the house, but the owner or some fraudulent grantee may refuse to pay and so the mechanic or builder may have to file a lien. In his notice of lien he will state that the owner is indebted to him in a specified sum of money, which is the contract price for erecting the house upon the owner's lot; that the contract price is due and unpaid. His untutored mind may readily reach the conclusion that he has a good lien, but he will be greatly mistaken. Although he has complied with all the other provisions of the statute in regard to the nature of the work and the nature of the materials he has not stated half enough. In the first place he has not given the dimensions of the house, since some fraudulent grantee may naturally want to know whether the house built upon the land is a small house or a large one. Moreover, he has not stated the nature or character of the house so constructed. He has not stated whether it is of wood, brick, stone, marble, iron or steel, and it is necessary to do that, since he cannot get a lien for any materials that he does not describe, and if it happens, as it often does, that the house is constructed from a combination of all these materials, he must state the relative proportions of each and his trouble then would only have just commenced since he must describe the labor. In the building of a house it is necessary to employ various kinds of labor and various kinds of materials. There is the mason, the carpenter, the painter, the plasterer, the decorator, the plumber and what not, and if he happens to leave out of the notice any of the various kinds of labor or any of the various kinds of materials, he can get no lien for the same, since it is necessary to describe the labor and the materials, and of course that means all the labor and all the materials. This must be the necessary and logical result of the principle we are about to establish, and it is easy to see that it converts an equitable *Page 299 statute into a trap for the simple and unwary, the very class of people that the statute was intended to protect. This court has great powers in the line of giving construction to statutes and it has always exercised them. In the present case we are expressly commanded to use these powers in order to sustain the lien, and even if the statute was silent in that respect, the most obvious principles of justice would dictate the same result. In view of all this it does seem to me that we might get along with the notice of lien in this case and hold it good rather than to defeat the claims of an honest creditor upon the very narrow and technical contention of the defendants whose title is founded upon fraud. No authority can be found in this court to support the contention and there is abundant authority against it as has been pointed out. It may be useful, however, to add another. The case of Darrow v. Morgan (65 N.Y. 333) was an action to foreclose a mechanic's lien under chapter 500 of the Laws of 1863. In that case there was an obvious and material defect in the notice of lien, as was conceded. It was a much more material and radical defect than is claimed to exist in the notice in this case, and yet it was held by this court that the defect was not fatal after judgment upon a complaint containing all the necessary allegations; that the defect might be disregarded or the proceedings amended. It is quite plain that the court did not regard such defects in the notice as jurisdictional, since want of jurisdiction can be raised at any time and can seldom, if ever, be cured by amendment after judgment. I think it has been shown that in this case there was no defect in the notice, but even if there was, it can and should be disregarded. I will only add that, in my opinion, the learned judge who tried this case in the first instance decided it correctly. His decision rests upon board principles of justice and reflects in a marked degree judicial common sense. He disregarded the objections to the notice, but he looked well to the weightier matters of the law. He sustained the demands of justice, and in doing so, in my judgment, he did not ignore or disregard a single rule or principle of law. *Page 300
I am in favor of reversing the order appealed from and affirming the Special Term.
GRAY, BARTLETT, HAIGHT and VANN, JJ., concur with WERNER, J.; CULLEN, Ch. J., concurs with O'BRIEN, J.
Order affirmed, etc.