Roberts v. Fowler , 3 E.D. Smith 632 ( 1857 )

Ingraham, F. J.

—The question submitted to me in this case is, whether the assignee of a claim for work, labor, or materials furnished towards the erection of a building, can file the notice and thereby create a lien under the act commonly called the Mechanic’s Lien Law.

We have heretofore held that the powers conferred by this act were of such a nature as to call for a strict construction of the act in enforcing them. Unless, therefore, the statute authorizes such a proceeding on the part of the assignee, there is no authority for him to claim from the owner of property money to which otherwise he has no right.

A reference to the statutes, I think, disposes of this question. Section 1 authorizes the filing of a notice by any person who shall perform the labor or furnish the materials.

Section 4 provides that any person who has furnished materials, or any contractor or laborer, may enforce or bring to a close such lien by serving a notice, &c.

Section 5 requires notice of any effect to be served on such contractor, laborer, or person furnishing the materials.

Section 6 confines the filing of the notice with the county clerk to the contractor, sub-contractor, laborer, or person furnishing materials.

Throughout the whole act, the right to the lien and the right to enforce it, appear to be confined to the contractor, laborer, or persons furnishing materials : in no instance is the assignee of such claim recognized in connection with the creation or enforcing of the lien.

In section 11, a different provision is made as to discharging the lien. That section provides that the lien may be discharged by filing a certificate of the claimant or his successors in interest ; and although this section recognizes a transfer of the claim, yet it confines such transfer to a time subsequent to the making the claim. The party is called the successor of the claimant. The claimant, as previously designated, is the party having the claim and filing the notice with the county clerk.

The provisions of the Code, directing actions to be brought in the name of the party in interest, could not affect this question; the filing of the notice is an act previous to the commencement of the suit, and the act of 1851 was passed after the amended Code, and would control such a provision if contradictory thereto.

There can be no other construction given to this statute other than as conferring a mere personal right on the contractor, laborer, or person furnishing materials, and not on his assignee.

This construction of the act disposes of this action, and renders a reference unnecessary.

Judgment ordered for the defendant.