Moore v. Mausert

By the Court,

Miller, P. J.

This ease involves the construction to be placed upon the first section of chapter 558 of the Laws of 1869, page 1355, amending the act in regard to mechanics’ liens for labor, materials, <fcc., in erecting buildings. (S. L. of 1854, chap. 402, § 1, p. 1086.) The amendment declares that the first section of the act of 1854 is amended “ so as to read as follows,” copying the original section with some slight changes, among which, and the material one in this case, is a provision which declares that the lien shall be created by filing notice of the claim in the office of the county clerk, instead of the town clerk, as was provided by the act of 1854.

The act of 1869 was passed on the fourth day of May, and the notice was filed on the fifteenth day of the same month, in the office of the town clerk of the town where the building was situated, in accordance with the provisions of the act of 1854. This was after the amendment of 1869 took effect, and the question to be determined is, whether the amendment applies to persons who perform labor or furnish materials prior to the fourth of May, when the law went into operation, or to those only who should “hereafter” perform labor or furnish materials.

The counsel for the respective parties in this case rely upon the case of Ely v. Holton (15 N. Y., 595), as decisive of the question under consideration. The point involved in the case cited was as to the effect of an amendment to section 11 of the Code of Procedure in regard to appeals in certain cases. It was contended by the counsel for the appellants, that the amended section should be considered as though it had been originally enacted several years ago, in the same language which it contained at the time of the argument, and the learned judge holds that this is not the true construction. After stating the reason why amendments of the Code and the Revised Statutes are made by declaring that particular sections shall be amended so as to read in a given way, he says: “ The portion of the amended sections which are merely copied without change, are not to be considered as repealed and again re-enacted, but to have been the law all along; and the new parts, or the changed portions, are not to be taken to have been the law at any time prior to the passage of the amended act.” According to this rule the law of 1854 remained in force, except that portion which provided that the notice should be filed with the town clerk and this was changed by the act of 1869 at the time of its going into effect, and after that time it became the law. The judge also expresses, an opinion that the words “hereafter made,” in the original and amended section, do not limit the effect of the amendment to cases which arose after it took effect, and further says:

“ The theory of amendments made in the form adopted in the present instance we take to be this: The portions of the section which are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect. In short, we attribute no effect to the plan of dove-tailing the amendment into the original section, except the one above suggested, of preserving a harmonious text, so that when future editions shall be published the scattered members shall easily adjust themselves to each other. In other words, we consider the amendment as only equivalent to an independent statute, declaring in general that an appeal hereafter may be taken from an order granting a new trial on complying with the conditions mentioned.”

The fair import of this language is, as I understand, that while the old portions remain in force as of the time of the original enactment, the amendment as an independent statute takes effect as of the time provided by law. The word “ hereafter,” as employed in the amended act, relates back, and must be considered as including a claim made by a person for labor performed or materials furnished after the act of 1854 took effect, and the place of filing the notice after the amendment of 1869 must be in the county clerk’s office instead of the town’s clerk’s office. The amendment simply directs a different place for filing the notice, without in any way interfering with any claim accruing after the act of 1854, and was not intended to make this provision applicable only to cases where claims accrued after it became a law. Notice of all claims which arose prior to this amendment, as well as those arising afterward, stand upon the same footing, and the law is only changed as to the place of filing the notice.

Although my impression upon the argument of this case was quite strong that the plaintiff’s counsel were right in the position that the first section of the act of 1854, since the amendment of 1869, read the same as before, except as to work performed and materials furnished after that date, and as to these notice should be filed in the county clerk’s office, yet after a careful examination I am satisfied that the case cited is decisive of the question the other way, and that the plaintiff’s action cannot be maintained. I have come to this conclusion with considerable reluctance, as the point is purely technical; but statutes of this character must be strictly construed, and as such is the law the plaintiff’s action must fall to the ground. The judgment must be reversed and a new trial granted, with costs to abide the event.

Judgment reversed.