#### William F. Riley, Appellant, *v.*William J. Durfey and Others, Respondents.

Second Department,

June 16, 1911.

Lien ——r mechanic’s lien — notice — complaint — effect of stipulation.

Where in an action to foreclose a mechanic’s lien it -was stipulated by all parties that there -was a certain sum due from the owner to the contractor applicable to the payment of liens duly filed and that the -work, labor and services for -which the several liens -were claimed had been performed to the satisfaction of the owners and contractor, the only question left to be decided is the validity and priority of the several ]iens as between plaintiff and the other lienors.

A notice of lien must state that so much labor has been performed, or so much material has been furnished for the work on the property on which, the lien is sought, and that a certain amount remains unpaid and if it fail to do so it is fatally defective.

Although a notice of lien states the full amount of work to be done under the lienor’s contract, the price to be paid, states that the work began and ended at given dates and names the amount unpaid for the labor performed and to be performed and the material furnished and to be furnished, it is fatally defective, if it do not allege that all or any of the work and materials have been furnished.

*584An averment of the complaint that “the time when the first and last items of work were performed and materials furnished is work began Oct. 29, 1908, ended March 81st, 1909,” is not sufficient as an allegation that all of the work has been performed and all the materials furnished which went to make up the contract price.

A stipulation that the work, labor and services of the alleged lienors had been performed to the satisfaction of the owners and contractor does not supply a failure to aver that the work had been completed and the materials furnished for which the plaintiff claims a hen.

Where the amount applicable to the payment of Mens is insufficient to pay those coneededly valid, the costs of an appeal from a judgment declaring appellant’s lien invalid should be paid by him personally on the affirmance of the judgment.

Appeal by. the plaintiff, William E. Riley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the. county of Kings on the 29th day of October, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term.

*Edmund T. Oldham,*for the appellant.

*Claude V. Pallister,*for the. respondent Staines, Bunn & Taber Company.

*George E. Brower,*for the respondent John S. Loomis Company.. •

*Jerome H. Koehler*[(?. *Sidney Leach*with him on the brief], for the respondent Durhan.

Woodward, J.:.

' The plaintiff instituted the above-entitled action to foreclose a mechanic’s lien. Patrick J. Egan was the general contractor and William J. Durfey and Lucretia D. Ash were the owners of the. premises, the remaining parties defendant being lienors subsequent to the plaintiff. It was stipulated’that, the amount due from the owners was $825, ££ and that the said sum of Eight hundred and twenty-five dollars is applicable to the payment of the Mechanic’s Liens filed by the plaintiffs and’.the defendant lienors above named which maybe adjudged'valid,” etc. It was also ,££ conceded by all parties appearing ón the trial of this action that the work, labor and services for which a claim against the defendant Patrick J. Egan, and an alleged lien *585filed by them respectively against the property of the owners, the defendants Durfey and Ash, was done and performed to the satisfaction of the owners and .contractor,” so that it would appear from the stipulations that the question of the validity of the several liens was left open to the determination of the court as between the plaintiff and the several lienors. It was upon this theory that the court at Special Term acted, and this was the only question which was, by the stipulations, left open. The court has found that the lien filed by the plaintiff was invalid, and has directed the apportionment among the several defendant lienors, the plaintiff appealing.

The ground of the decision of the court against the hen of the plaintiff is that the notice of lien alleged in the alternative that “The labor performed and to be performed, and the materials furnished and to be furnished, excavation for cellars and the furnishing of sand and gravel used in the erection of certain stores 3⁄8 * 3⁄8 Flatbúsh avenue, Brooklyn, and the agreed. price and value thereof is Fifteen Hundred and eighty-six -3⁄85⁄8 dollars,” and that this failed to comply with the requirements of the law, as laid down in *Finn*v. *Smith*(186 N. Y. 465). There can be no serious question that if this was all that the notice contained • it would be fatally defective. *(Felgenhauer*v. *Haas,*123 App. Div. 75, *77.)*The notice, however, contained these additional averments: that “The amount unpaid to the lienor for such labor and materials is Four hundred and Fifty-six -3⁄81⁄8 dollars,” and that the “ time when the first and last items of work were performed and materials furnished, is work began Oct. 29, 1908, ended March 31st, 1909.” There is not, as in *Felgenhauer*v. *Haas (supra),*any allegation that the work and materials were “Actually used and employed in the erection of buildings,” etc. The most that can be spelled out of the averments of the complaint is that the “ labor performed and to be performed, and the materials furnished and to be furnished” are of the “agreed price and value” of $1,586.56, and that the “ amount unpaid to the lienor for such labor and materials is” $456.56. There- is not in the aver-, ment that “the time when the first and last items of work were performed and materials furnished, is work began Oct. 2.9, 1908, ended March 31st, 1909,” any statement of the mate*586rial fact that all of the work had been performed and all of the materials furnished, which went to make up the agreed value of $1,586.56. This, we apprehend, is the real requirement of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 9); that it'shall state the fact to he that so much of labor has been performed, or so much of material has been furnished for the work in question, and that a. certain amount remains unpaid, and while the statute is to he liberally construed (Id. § 23), where there is a failure to set oiit these facts in plain language, or by fair and necessary inference, the notice of lien is fatally defective, and gives rise to no cause of action to foreclose the lien. It' is probably true that a statement that work and materials to a given amount had been performed and supplied would answer the requirementSj without a separation of the items, but we find no authority which holds that where there is a failure to show that the materials and labor have been supplied, a lien attaches. The'statute contemplates that work and materials may be furnished subsequent to the filing of the lien. (Id. art. 2.) It is proper, therefore, that the ’ notice ■ should contain the whole amount of the contract, the agreed price, the proportion which has been performed, the portion still to be -performed, ■ the amount which has been earned, the sum which has been paid on account, the amount due and unpaid when the notice was filed, and the amount which will be due when the contract is wholly completed. *(Hurley*v. *Tucker,*128 App. Div. 580, 585.) In the case now under consideration the plaintiff states the full amount of his contract; states -that “work began Oct. 29, 1908, ended March 31st, 1909,” but. he nowhere states that all of the work and materials, have been furnished;, he-simply says that “the amount unpaid to the lienor for such labor and materials is” $456.56, but this refers to the “labor performed and to be performed, and the materials furnished and to be furnished,” and so far as the notice shows only an insignificant portion of the labor and materials may have been furnished. Indeed,, there is. no positive averment that any of the materials have been furnished, for he merely says that, the “ time when the first and last items of work were performed and materials furnished, is work began Oct. 29, 1908, ended March 31st, 1909,” without the slightest *587reference to the furnishing of any materials whatever, though it appears he was to furnish “ sand and gravel used in the erection of certain stores,” and it is not even alleged that such stores have been completed.

This is a statutory matter, and while the statute is to ■ be liberally construed, we believe that no case will be found where the averments of the notice of. lieu have been permitted to be helped out by evidence upon the trial. Indeed, appellant concedes that this cannot be done, but he urges that the stipulation of the parties “that the work, labor and services for which a claim against the defendant Patrick J. Egan, and an alleged lien filed by them respectively against the property of the owners, the defendants Durfey and Ash, was done and performed to the satisfaction of the owners and contractor,” operated to supply the failure to aver that the work had been completed. It is to be observed, however, that' the stipulation makes no reference whatever to materials furnished; it merely has reference to the “work, labor and services,” which “was done and performed to the satisfaction of the owners,” etc., but this is far from showing that the plaintiff had furnished any materials, or that all of the labor and materials contemplated by his contract had been . made use of by the defendant owners.

The judgment appealed from should be affirmed, with costs, the costs to be paid by appellant personally, as the fund is not sufficient to, fully pay all of the claims, which rest upon valid liens.

Jerks, P. J., Hirschbbrg, Burr and Rich, JJ., concurred.

Judgment affirmed, with costs, the costs to be paid by appellant personally, as the fund is not sufficient to fully pay all of the claims which rest upon valid liens. - .