Charles H. Fenichel, Respondent, v. Bernat Zicherman and Mini Zicherman, Appellants

Charles H. Fenichel, Respondent, v. Bernat Zicherman and Mini Zicherman, Appellants. First Department, January 3, 1913. Mechanic’s lien — when notice invalid — personal judgment — interest. A notice of a mechanic’s lien ■ is invalid where it does not state when the last items of work were performed and the materials furnished as required by the Lien Law. Although the statute states that it shall" be construed liberally, the court is not authorized to dispense with the statutory requirements as to the notice of lien. Although in a suit to foreclose a mechanic’s lien the notice is held to be invalid, a persohal judgment is proper. Where the claim is for extra work, and hence unliquidated, interest cannot be allowed. Appeal by the defendants, Bernat Zicherman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the officé of the clerk of the county of Mew York on the 29th day of February, 1912, upon the decision of the court rendered after a trial at the Mew York Special Term in an action to foreclose a mechanic’s lien, Herbert H. Maass of counsel [David B. Cahn, attorney], for the appellants. Lawrence B. Cohen of counsel [Edgar M. Troutfelt with him on the brief], Cohen Brothers, attorneys, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: This is an appeal from a judgment entered in an action to foreclose a mechanic’s hen. The notice of hen did not comply with the provisions of subdivision 6 of section 9 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), providing that the notice of lien shall state: “6. The time when the first and last items of work were performed and materials were furnished.” There was no statement in the notice of lien at bar as to when the last items of work were performed and the materials furnished. The lien, therefore, was invalid. “The provision of the statute that the law shall be construed liberally does not authorize the courts to entirely dispense with what the statute says the notice shall contain. , We are, therefore, constrained to hold the notice of lien insufficient.” (Mahley v. German Bank, 174 N. Y. 499.) The claim being for extra work, and hence unliquidated, the allowance of interest was error. A personal judgment, however, was proper to the amount of $608!50. The 19th finding of fact is modified by striking out the statement that the notice of. lien therein referred to set forth the time when tho last ' items of work were performed and the last items of materials furnished, and the 5 th, 6 th and 7tli conclusions of law are , reverséd, and so much of the 8th as limits the plaintiif to a personal judgment for any deficiency of the amount found due. that may remain due him after such sale; and the judgment .is modified by striking out the provisions for foreclosure of the lien and a sale of the property, so that it should provide for a personal judgment for the amount found due, without interest, up to the time of the judgment, and without costs at the Special Term, and as so modified affirmed by this court, without costs to either party. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Judgment modified as indicated in opinion, and as modified affirmed,, without costs. Order to be settled on notice.