Opinion
July Term, 1899.
Howard W. Sneck, for the appellant.
F.E. Drake, for the respondents Otis and Moody.
Warren Gano, for the respondent Sage and the respondent Anderson as trustee.
The Lien Law in force at the time the question involved in this case arose is found in chapter 418 of the Laws of 1897. (Session Laws, p. 514.)
The appellant having performed labor for Tait was entitled, pursuant to section 3 of the act referred to, to have a lien for the price of such labor, or materials, upon the real property of the said Tait "from the time of filing a notice of such lien as prescribed."
Section 9 prescribes the contents of a notice of lien, and no question is made but that the appellant's notice complied with the requirements of that section in its enumeration of the particulars required therein. Near the close of that section the following language is found: "The notice must be verified by the lienor or his agent, to the effect that the statements therein contained are true to his own knowledge," etc.
It is conceded that the appellant on the 4th day of October, 1898, at nine-ten o'clock in the forenoon, having had a notice of lien prepared and an affidavit subjoined thereto properly entitled, appeared before a commissioner of deeds duly authorized to take affidavits, having subscribed his name to such affidavit, duly verified the same before the said commissioner, and thereupon caused the same to be filed in the Monroe county clerk's office as notice of his lien; and it is conceded that it "was in due form and regular in every respect, except that the affidavit of verification was not certified to by the officer who administered the oath, and the jurat thereto was not signed by any officer or person whatever."
It is conceded in the case: "That said defendant had actually sworn to the affidavit of verification before Howard W. Sneck, a commissioner of deeds of the city of Rochester, New York, before said lien was so filed."
The notice, therefore, had subjoined to it the affidavit required by statute, and that affidavit had been in fact verified, and the appellant was thus entitled to file the notice with the clerk, according to the literal language of the statute. The statute does provide that "the notice must be verified by the lienor;" but it does not, in terms, prescribe that the verification shall be certified to and delivered at the same time the notice is filed with the county clerk. ( Rogers v. Pell, 89 Hun, 159.)
We are commanded by section 22 of the Lien Law to give a liberal construction to its provisions. That section provides as follows: "This article is to be construed liberally to secure the beneficial interests and purposes thereof. A substantial compliance with its several provisions shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same." ( Ringle v. Wallis Iron Works, 149 N.Y. 439. )
When the notice was filed on the fourth of October at nine-ten A.M. it had been verified, and we think it was valid and that the court had jurisdiction to enforce the same from the time of filing the same.
It appears by the admissions made at the trial: "That on the afternoon of the same day said Sneck discovered the omission, and, with the permission of the clerk, subscribed his name as commissioner of deeds to the affidavit of verification, and the county clerk at the same time stamped said notice `Refiled at 2:35 o'clock October 4th, 1898,' and certified in writing on the back of the lien that it was filed at 9:10 o'clock October 4th, 1898, with the ommission of the words `Howard W. Sneck, Commissioner of Deeds,' which omission was supplied by said Sneck at 2:39 o'clock on the same day."
We think the fact that the commissioner subscribed his name to the notice on the afternoon of the fourth of October did not invalidate the notice or the proceedings had in the forenoon; nor should those facts be regarded as a waiver of the notice, as it was verified in the early part of the day and filed with the clerk.
It has frequently been said that it is not the policy of the law to charge a party with the mistake of a public officer, especially where the rights of bona fide holders are not involved. ( Linderman v. Hastings Card Paper Co., 38 App. Div. 492. )
In Jackman v. Gloucester ( 143 Mass. 380) it was said: "Affidavits and depositions lawfully taken by a person authorized to take them, are not to be treated as unsworn statements because the magistrate has not added to the certificate signed by him the name of his office."
In volume 1, Encyclopædia of Pleading and Practice, 317, it is said: "Ordinarily the jurat must be authenticated by the signature of the officer before whom the affidavit is made, but where it is proved extrinsically that it was really made, the affidavit will not be rendered fatally defective by the negligence of the officer in not attesting it." ( Borough of Pottsville v. Curry, 32 Penn. St. 443.)
In Kruse v. Wilson ( 79 Ill. 233) it was said: "The mere omission of the clerk to put his name to an act which was done through him as the instrument should not prejudice an innocent party who has done all he was required to do. The clerk's omission to write his name where it should have been written was not the fault or neglect of the affiant. He signed and swore to the affidavit."
It was competent to show that the notice was accompanied with an affidavit which was duly verified before it was filed with the clerk in the forenoon. ( People ex rel. Churchill v. Rensselaer Common Pleas, 6 Wend. 543; Hunter v. Le Conte, 6 Cow. 731.)
In Buckland v. Goit ( 23 Kan. 327) it was held that an affidavit, sufficient in all other respects, will not be rendered fatally defective because the clerk before whom it was made failed for a few days to annex the jurat.
In White v. Casey ( 25 Tex. 552) the court says: "The affidavit is regular, except that the officer does not sign his name. If objection had been taken in the Justice's Court to the affidavit as insufficient * * * it might have been amended. It might have been shown to have been a mere clerical misprision, and the officer * * * might have been called and permitted to subscribe his name to the affidavit nunc pro tunc."
A similar doctrine was laid down in Cook v. Jenkins Co. ( 30 Iowa 452); Wiley v. Bennett (9 Bax. [Tenn.] 581), and Farmers' Bank v. Gettinger ( 4 W. Va. 305).
We think Cream City Furniture Company v. Squier (2 Misc Rep. 438) differs quite essentially from the case before us. In that case the verification was before a commissioner residing outside of the State of New York, and there was no certificate of the Secretary of State that the person taking the verification was a commissioner of the State of New York. That verification was not accompanied by the certificate required by section 844 of the Code of Civil Procedure, and the absence of that certificate "makes the affidavit a nullity."
If the county clerk complied with the provisions of section 10 of the Lien Law, he immediately entered the particulars of the appellant's notice in the lien docket, and the date, hour and minute of the filing of the notice, and it is a fair presumption that he did discharge his duty; then the lien docket indicated the notice of the appellant to all parties subsequently applying for an inspection of it, and there are no circumstances tending to indicate that either of the other parties to the action were misled by the omission of the commissioner of deeds to place upon the affidavit his name and title of office until in the afternoon of the fourth of October.
We think the appellant's notice should be held valid, and that the same took effect from the time of its filing with the clerk, to wit, on the 4th of October, 1898, at nine-ten o'clock in the forenoon.
The foregoing views lead to the conclusion that the court fell into an error to the injury of the appellant.
We think that the judgment should be reversed and the County Court directed to render judgment in accordance with the views herein expressed.
All concurred.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.