Genesee Lumber v. Bonarigo , 139 Misc. 707 ( 1931 )

Charles B. Wheeler,

Official Referee. This action is brought to establish and foreclose mechanics’ liens in which various hens are asserted by different defendants.

The only contest arising on the trial of this action is one as to the validity of a hen asserted by the defendant Goade & Flohr, copartners, who claim a hen for the sum of $2,080.71. Angelo Bonarigo was the owner of the property improved. He had a contract with Lawrence Calabro for the improvement of a certain building in the city of Batavia, N. Y.

Calabro in turn, on or about July fifth, entered into a contract with the firm of Goade & Flohr, by which said firm agreed to install certain heating and plumbing in the building under reconstruction at the agreed price of $1,021 for the plumbing and $1,600 for the heating. In addition said firm supphed certain hardware which amomited to $59.71. Goade & Flohr proceeded with doing the necessary work under their contract with Calabro. However, before the completion of this contract, becoming alarmed as to the financial condition of the contractor Calabro, on the 11th day of September, 1929, Goade & Flohr filed a notice of mechanic’s hen against the property.

In this notice the lienors stated work and material were furnished under the contract with Calabro, in which the agreed price for doing the plumbing was $1,021 and for the heating $1,600. They also stated they had furnished extra hardware at the agreed price of-$59.71.

The notice further stated that the contract for the plumbing and heating had not been completed, but was in the course of construction. The notice further stated that the value of the work performed and material furnished on the plumbing at the time of filing the hen was the sum of $800 and that on the heating was the sum of $700.

It further stated that nothing had been paid to apply on the contract except the sum of $600, leaving a balance unpaid of $2,080.71, for which amount a hen was claimed. The validity of this hen is attacked, and the contestants claim the lienor was prohibited from asserting any hen in advance. Those contesting the hen of Goade & Flohr contend that by virtue of the amendment of section 9 of the Lien Law by chapter 507 of the Laws of 1916 the right to assert a hen for work under a contract was limited to the value of the Work and material actually furnished up to the time of the filing of the notice of lien. It appears that the amendment, so far as it related to section 9, consisted in the omission of the words “or to be performed” and “or to be furnished,” after the words “ performed ” and “ furnished ” as they existed in the statute before the amendment was made.

It is, therefore, argued that the intent of the Legislature was to take away the right to any hen for the whole agreed priee, and to confine it to such work and material as had been supplied up to the time of the filing of the notice, and that valid Hens could be obtained only by the fihng of successive notices as the work progressed.

There are four sections of the Lien Law which have a bearing on the question now under discussion, to wit, sections 3, 4, 9 and 10. Section 3 gives “ a Hen for the principal and interest of the value, or the agreed price, of such labor or materials upon the real property improved or to be improved.” Section 4 of the act (as amd. by Laws of 1916, chap. 507) relates to the extent of the Hen, and among other things provides: “ If labor is performed for, or material furnished to, a contractor or subcontractor for an improvement, the Hen shall not be for a sum greater than the sum earned and unpaid on the contract at the time of fifing the notice of Hen, and any sum subsequently earned thereon.” Section 10 (as amd. by Laws of 1916, chap. 507) provides that the notice of Hen “ may be filed at any time during the progress of the work and the furnishing of the materials, or, within four months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials.” Commenting on these sections it will be noted that a Hen may be obtained for “ the agreed price ” of labor and material. It is so broad in its terms that it may well be construed so as to give a Hen for work to be done in advance of the performance of a contract.

This view is further emphasized by section 4, declaring the extent of the Hen and confining it to a sum not “ greater than the sum earned and unpaid on the contract at the time of fifing the notice of Hen, and any sum subsequently earned.” It is stifi further emphasized by section 10, providing the notice of Hen may be “ filed at any time during the progress of the work,” etc. Reading and construing these sections together the referee cannot escape the conviction that it was the intent of the Legislature to give a contractor or subcontractor the right to a Hen for the amount of the contract price for work and material even though the contract had not been fully performed at the time of filing the notice, provided such contract was subsequently performed. The words in the 4th section quoted to the effect that the lien shall not be “ for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of hen, and any sum subsequently earned thereon,” in view of the other sections quoted, undoubtedly refer to the contract of the henor, and not to the contract between the owner and general contractor. If the word “ contract ” refers only to the contract between the owner and the general contractor, then there was no occasion for the words following those quoted to the effect that the owner shall be liable for no “ sum greater than the value or agreed price of the labor and materials remaining unpaid at the time of filing notices of such hens.” We, therefore, reach the conclusion that section 4 must be construed as giving a contractor or subcontractor during the progress of the work the right to file a notice of hen for the entire contract price which may be enforced when earned by the completion of the job.

Goade & Flohr have completed their contract and are, therefore, in position to enforce their hen.

We think the decisions of the courts of this State sustain the view of the referee on the question as to the right to the hen.

In the case of Henlein v. Murphy (3 Misc. 47, 48) the court said: “ We think a contractor can file a vahd mechanic’s hen for the whole contract before ah the work is done, or ah the material furnished, provided the balance of the contract is thereafter fully completed according to the terms thereof.” This case has been cited as an authority in later cases, and the rule laid down has never been questioned to our knowledge.

The case of Chambers v. Vassar’s Sons & Co. (81 Misc. 562) emphasizes the provisions of section 10 that the notice of hen may be filed at any time.

In Barrett v. Schaefer, Jr. & Co. (162 App. Div. 52, 57) the court said: “ A state of facts may exist where, during the progress of the Work, and before the entire work is done or ah the materials furnished, one entitled to a hen may file his notice for the whole contract price and assert a hen therefor, provided the balance of the contract is thereafter fully completed according to its terms.” (Citing Heinlein v. Murphy, 3 Misc. 47; Firth v. Rehfeldt, 30 App. Div. 326, 331; affd., 164 N. Y. 558.)

So, too, in Romanik v. Rapoport (148 App. Div. 688, 689) the court apparently held a hen may be filed for the contract price before the work is completed.

Assuming the referee is correct in the views above expressed, the question still remains whether under the provisions of section 9 of the Lien Law the right to file a hen for unperformed work still exists, or whether this section has in any way taken away or modified the right formerly existing.

Counsel contend it has been so modified. By the act of 1916, chapter 507, amending the Lien Law in certain particulars, section 9 was amended by omitting from the former section the words “ or to be performed ” and “ or to be furnished ” after the words “ performed ” and “ furnished.”

It is to be noted that this section 4 was amended to read as it does by the same legislative act of 1916 by which section 9 of the Lien Law was also amended. However, the portion of the section quoted is the same as existed prior to the amendment.

Section 9 of the Lien Law (as amd. by Laws of 1916, chap. 507) relates only to the contents of the notice of lien and requires the notice shah state: “4. The labor performed or materials furnished and the agreed price or value thereof, or materials actually manufactured for but not delivered to the real property and the agreed price or value thereof.”

In its present form this section omits the words stated to have been in the section before amendment.

The question involved in this case is, therefore, simply this, does such omission take away the right of a lien for work remaining to be done and given by the provisions of section 4 of the act?

The referee is of the opinion that it does not, and that if the contractor after the filing of the notice proceeds to execute and complete his contract according to its terms (as Goade & Flohr did in this case) the hen is good for the balance earned under it. No rule of law is better established than that in construing a statute all sections thereof must be read and construed together for the purpose of ascertaining the purpose and intent of the Legislature in its passage.

. Sections 4 and 9 form a part of the amendments to the Lien Law passed by chapter 507 of the Laws of 1916.

Had the Legislature intended to take away the right to assert a hen for future work to be done under a contract, why did it not eliminate from section 4 the words “ and any sum subsequently earned thereon? ” Permitting them to remain in the section clearly indicates that there was no intention to take the right away, especially as the two sections in question were passed in and by the same act.

There is nothing inconsistent in the two sections under discussion.

Section 9 simply prescribes what the notice of hen shall contain. It nowhere undertakes or assumes to take away or modify the rights given under section 4.

The argument advanced that it does is simply based on an inference which we think the facts do not justify.

It is claimed that the comparatively recent case of Pascual v. Greenleaf Park Land Co., Inc. (245 N. Y. 294) sustains the position of those challenging the validity of the lien of Goade & Flohr.

The referee is of the opinion that such is not the effect of that case. All that was held in that case is that a failure of the lienor to state in the notice of lien the amount or value of the work and material furnished in an unfinished contract as required by the section is fatal to its validity.

The referee is forced to the conclusion that the lien of Goade & Flohr is valid.

A decision may be prepared for the signature of the referee in accordance with the views above expressed.

So ordered.