Whipple v. Christian , 22 N.Y. Sup. Ct. 321 ( 1878 )

Talcott, P. J.:

This is an appeal from a judgment rendered in this action in favor of the plaintiff at the Ontario Special Term. The action is to redeem certain premises situated in the village of Canandaigua, in said county, from the defendant, who claims title to them as a purchaser on the foreclosure of certain mortgages upon, said premises aiid a sale thereof on the 17th of January, 1868. The mortgages were made to J. & A. McKochnie, in August and September, 1858. The foreclosure was commenced in August, 1867.- The plaintiff, claiming to have a. debt against Joshua Tracy, the owner of the equity of redemption in said premises, for lumber furnished at his request, to be used in repairs on a, certain building on said premises known as the Tracy House, on the 10th day of September, 1866, filed a notice of his claim in the town clerk’s office of the town of Canandaigua; and afterward, on the 16th day of July, in the year 1867, commenced an action in the Supreme Court for the purpose of foreclosing the lien supposed to have been created by the filing of the said notice; and on the 29th of August, 1867, obtained a judgment therein by default for the sum of $285.40; and on the 19th day of September, 1868, purchased the said premises on an execution issued on-the said judgment, and no person having redeemed the same on the 28th day of December, 1869, the said premises were conveyed to the plaintiff by the sheriff of Ontario county, in pursuance of said judgment and execution sale.

The notice of lis pendens in the suit to foreclose the McKechnie mortgages was filed in the office of the clerk of Ontario county on the 6th day of August, 1867, but the plaintiff was not made a defendant in the said action. The defendant, having purchased the said premises at the foreclosure sale, went into possession of the said promises, and has made valuable and permanent improvements thereon, and had no notice of any claim of the plaintiff thereon, until on or about the 6th day of October, 1874, just prior to the commencement of this suit, when the said plaintiff served on the said defendant a written notice claiming that he was the owner of the premises, and giving an account of'what he claimed to be his title, and demanding of the defendant that he should render an account of the amounts ho had received as the rents and profits of said premises, and offering to pay the $8,000 purchase-money paid by the defendant on his purchase at the foreclosure sale, less the amount of such rents and profits, and demanding the possession of the premises on such payment being made.

The first and most important question which is presented is, whether, by the filing of such notice in the office of the clerk of the town of Canandaigua, the plaintiff acquired a lion under the mechanic’s lien law, and by the sale, on execution issued on his judgment and the sheriff’s deed, acquired the title to the promises in question.

This depends upon the construction and effect of the various lien laws bearing upon the question. The plaintiff’s judgment was recovered on the 24th day of August, 1867, which was subsequent to the filing of the notice of Us pendens in the foreclosure suit.,, .By chapter 220 of tiro Laws of 1844, there was a méchame’'' lien law enacted for the city of New York. By chapter 305 of ' the Laws of the said session, there was enacted a mechanic’s lien law applicable to all the cities of the State (except the city of • New York), and to the villages of Syracuse, Williamsburgh, Geneva, Oswego, Auburn and Canandaigua. By this act it was provided that 1 ‘ any person who shall hereafter, by virtue of any ' contract with the owner the reofor his agent, * * * perform ■ any labor or furnish materials in building, altering or repairing ’ any house * * * in the several cities in this State (except ■ the city of New York), and in the villages of Syracuse, Williams- • burgh, Geneva, Oswego, Auburn and Canandaigua, shall have a' lien,” etc. And by the second section of the same act it was provided as follows : “The person performing such labor * '* # ” shall cause to be drawn up specifications of the work by him contracted to be performed, or materials to be furnished, and stating the price or prices agreed to be paid therefor, and shall file them, ' or if there be a contract, a true copy thereof, if the same be in writing, in the office of the cleric of the county in which the city or - village may be situated, and serve a notice thereof personally on such owner or his said agent,” etc. And section three of the act provides that “the lien so created by this act shall take effect from such filing'and such service of the said notice, and shall continue ■ in full force for the space of one year thereafter.” This act was amended by the Laws of 1845, by giving to the Court of Common Pleas jurisdiction of the docket of liens and judgments filed’ with the county clerk in the same manner as judgments recovered in said court.

The next act to be noticed is chapter 402 of the Laws of 1854, entitled, “An act for the better security of mechanics and others erecting buildings in the counties of Westchester, Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, :■ Lewis, Orange and Dutchess.” Section 1st of this act provides that ’ “ any person who shall hereafter perform any labor in erecting * * * any house * * * in either of the counties mentioned * * * shall, on filing with the town clerk of the town in which the ’ property is situated, the notice prescribed in the fourth section of this ■ act, have a lien for the value of such labor and materials, upon such-' house, * * # and upon the lot, parcel or farm of land upon: which the same shall stand to the extent of the right, title, and interest of the owner of the property existing at the time of the filing of the said notice.”

The fourth section of this statute provides that “ within thirty days, after the performance and completion of such labor or-the final furnishing of such materials, the contractor * * * * shall serve a notice in writing upon the town cleric of the town where the property is located, specifying the amount of the claim. and the person against whom the claim is made, the name of the. owner of the building; and if in a city or village, the situation of the-building by street and number, if the street be known. * * * The town clerk shall enter the particulars of such notice in a book to be kept in his office, to.be called the “ Lien Docket,” * * * and -no lien shall attach to said land, buildings or appurtenances, unless such notice be served and filed by said clerk, and said notice when so filed shall thereafter operate as an incumberance upon said property.” Section 24 provides, that “all acts heretofore passed for the better security of mechanics. * * * in either of the above counties are hereby repealed,” and contains a. provision, saving pending -proceedings commenced under any former acts. Clearly the act of 1854 did not alter or otherwise effect the act of 1844 as applicable to .the village of Ganandaigua.

• Chapter 204 of the Laws of 1858 briefly declares that the provisions of the act of 1854 are extended and deemed applicable to all. the counties of the State, except New York and Erie. And. sec-, tion 2 of the act of 1858, provides that all acts and parts of acts; inconsistent with the said act of 1858 are thereby repealed. This is the only legislation that can in any way affect the act of 1844, as applicable to the village of Canandaigua.- The object of the. act of Í854 was to extend the benefits of the mechanic’s lien law to the counties named in its title, and it provides for the filing of notice of the lien in the town clerk’s office .of the towns in such-counties. When this act was by the statute of 1858 extended to all the counties of the State, it simply repealed “ all acts and parts of acts inconsistent with this act.” There was no inconsistency between the acts of 1858 as applicable to the county of Ontario; and the act of 1844, which had provided a hen law expressly for. the cities of the State except New York, and for certain villages, including Canandiagua.

The Legislature passed an act, chapter 489 of the Laws 1873, purporting to amend the act of 1854 (which act of 1873 was amended by chapter 551 of the Laws of 1874 and by chapter 233 of the Laws of 1875), and which extends to all the counties of the State, except Kings, Queens, Erie, New York, Onondaga and Rensselaer, repeals all acts theretofore passed for the better security of mechanics and others erecting buildings and furnishing materials in either of the counties of the State except those named. (Laws of 1873, ch. 489, § 24.) This act provides for the filing of the notice of lien in the office of the clerk of the county where the property is situated. (§ 4.)

All the legislation affecting the question down to the time when the plaintiff filed his notice of lien affected only counties as to which no mechanic’s lien law existed, and was presumably intended only to embrace such counties. The law of 1844 was special and local as to the cities and villages embraced withiu its provisions. The act of 1858 was a general law, and it is a well-established rule for the construction of statutes that a general law does not repeal a local law relating to the same subject, unless the intent to repeal the local law is clearly manifested. (Smith’s Commentaries, § 757, pp. 87, 98; § 788, p. 905.)

In Bowen v. Lease, 5 Hill, 221, the court says: “As laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Hence a repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law if the two acts, may well subsist together.” (Op., p. 226, and see Van Denburgh et al. v. The President, etc., of Greenbush, 66 N. Y., 1, Op., p. 3.)

It cannot be presumed that by the act of 1854, extended by the act of 1858, the Legislature intended to repeal the law of 1844, as by such a construction there would have been left no lien law applicable to any portion of the State except the city of New York; and town clérk’s offices are not known in cities. ■ ■

The act of 1844 had no reference to the county of Ontario; it gave a mechanic’s lien as to property situated within the village .of Canandaigua, whilst the act of 1854, extended by the act of 1858, was intended to give to mechanics power to create a lien . on buildings situate in the comity of Ontario, and without the .limits of the villages of Geneva and Canandaigua, and there is nothing inconsistent in the two laws, and no such repugnancy between the two as makes it necessary to hold that the law of 1844 , was repealed by the extension of the law of 1854 to the several , counties of the State.

, If these views are correct, they lead to a reversal of the judg.rnent, because the-notice of the lien claimed by the plaintiff was not filed in the office of the clerk of Ontario county, and therefore .. he acquired no title as against the purchaser on the foreclosure of útho prior mortgages, by a sale on his execution, because ho had no lien when the notice of lis pendens was filed in the action to ; foreclose the mortgages.

i Judgment reversed and complaint dismissed, with costs to the ■ defendant.

The effect of tho reversal of the judgment in the above case is to reverse all the proceedings on the reference for the accounting, . which arc accordingly reversed without costs to either party.

Haemk, J., concurred ; Smith, J., not sitting.

Judgment reversed and complaint dismissed, with costs to the ' defendant. Decision of referee on accounting reversed, without costs.