Jack Goodman, Doing Business as Keystone Contracting Co., Respondent, v. Del-Sa-Co Foods, Inc., Appellant, et al., Defendant, 21 A.D.2d 641

Memorandum : Judgment insofar as appealed from affirmed, with costs to respondent. The judgment (1) dismissed plaintiff’s action to foreclose his mechanic’s lien, on the ground that he willfully exaggerated his claim (Lien Law, § 39); (2) ordered the lien cancelled of record; (3) granted judgment to plaintiff against defendant for services rendered and materials furnished, in the amount of $9,380.89, plus interest and costs, making a total judgment of $10,952.72; and (4) dismissed defendant’s counterclaims. In its answer defendant had set forth two counterclaims.

In one it alleged that plaintiff willfully exaggerated his claim, and alleged that as a result thereof defendant suffered damage in the conduct of its business and in its reputation and was required to retain counsel, all to defendant’s damage in the sum of $10,000. In the second counterclaim defendant asked for damages for careless performance of the work by plaintiff. At the close of the evidence the court, without exception, dismissed both counterclaims “for failure of proof”.

In its notice of appeal defendant stated that it appeals from that portion of the judgment which “fails to grant judgment in favor of” defendant against plaintiff “in an amount equal to the difference between the amount claimed to be due under said plaintiff’s alleged notice of lien and the actual amount due thereon, in accordance with the provisions of

section 39-a of the Lien Law of the State of New York, and said defendant * * * appeals only from such parts of said judgment as aforesaid.”

Section 39-a of the Lien Law provides that when a lien has been declared void for willful exaggeration the lienor shall be liable in damages to the lienee to the extent of (1) the premium on a bond given or the interest paid on money deposited to discharge the lien, (2) reasonable attorneys’ fees for services in discharging the lien, and (3) an amount equal to the difference by which the amount claimed to be due or to become due as stated in the notice of lien exceeded the amount actually due or to become due thereon.

It will be observed that defendant asked in its counterclaim for relief under item (2) above, that is, counsel fees; and defendant does not appeal from the judgment dismissing that item for failure of proof. Neither in its pleadings nor at any time upon the trial did defendant ask for the relief which it seeks on this appeal. Having failed to plead, prove or request the presently sought relief at any time prior to judgment, and not having asked the trial court to vacate the judgment and for permission to reopen the ease, replead and prove damages under

section 39-a of the Lien Law, it has no legal standing to press this appeal from the judgment. (Consolidated Corp. v. Colabella Bros., 10 Misc 2d 913, 917.) It has pointed out no error committed by the court below. An exaggerated claim may not have been willfully exaggerated (John H. Reetz, Inc. v. Stackler, 24 Misc 2d 291, 296). Despite the finding of the court below that the lien was willfully exaggerated and hence void, the number of items willfully exaggerated and the extent of such exaggeration were not found, nor requested to be found, as required to entitle defendant to recover under

section 39-a of the Lien Law (Durand Realty Co. v. Stolman, 197 Misc. 208, affd. 280 App. Div. 758).

Section 39-a of the Lien Law is penal in nature, and “must be strictly construed in favor of the person upon whom the penalty is sought to be imposed.” (Joe Smith, Inc. v. Otis-Chales Corp., 279 App. Div. 1, 4, affd. 304 N. Y. 684; Collins v. Peckham Road Corp., 18 A D 2d 860; Durand Realty Co. v. Stolman, supra.) The defendant has had its day in court and a full opportunity to present its claim herein. We find no compelling or sufficient reason for disturbing the judgment below.