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Foster v. Poillon

1 Abb. Pr. 321 Court N.Y.C.P. English

Delivered by Daly, J.

Contents

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p. 321
FOSTER a. POILLON.
New York Common Pleas; Special Term,
February, 1855.

Headnote

Mechanics’ Lien.—Requisites of Complaint.
A complaint filed to enforce a mechanic’s lien, should show that such is its object»
Motion to set aside a complaint for irregularity.
In this case papers were served for the foreclosure of a mechanic’s lien; but the complaint filed, contained nothing about any claim for a lien. It merely set forth in the usual form the indebtedness of defendant for work, labor and materials furnished. The defendant moved to set it aside.
Bellows, for the motion.
As the complaint is regular upon its face, we could not demur. We therefore move to set it aside. The notice is equivalent to a summons, and according to the former practice, if the complaint did not agree with the summons, it would be set aside. Here the summons or notice is for the foreclosure of a lien; but the complaint says nothing about any lien.
p. 322
Waite, opposed.
We are not bound to state in our complaint that proceedings have been instituted to enforce a lien. We file our complaint to recover for work and labor generally.

You are required to show that you have a claim against the owner. If you made no contract with him, it must appear that you made a contract with the person who contracted with him to erect the building, and that that contract was in conformity with the contract with the owner, or you have no lien and no cause of action against the owner.

Waite.—We made our contract directly with the owner.

(Orally).—Issue is to be joined in the language of the statute, upon the cla/im made—that is, the claim made in the notice to appear and submit to the accounting. The plaintiff claims, by virtue of his contract, to enforce a lien upon the building, and the peculiar nature of that claim should appear by the complaint. This is essential to the judgment which he seeks, or rather to the right claimed by him, to enforce his lien by execution against the specific building.'

Plaintiff had liberty to amend.