Hyperlawhypertext legal database Shaw v. Wilke 137 A.D. 513

← Cases

Shaw v. Wilke

137 A.D. 513 Court Third Department, Decision date 1910-03-09 English

Delivered by *514 Kellogg, J.:

Contents

Majority

p. 513
James A. Shaw, Appellant, v. Henry E. Wilke, Respondent.
Third Department,
March 9, 1910.

Headnote

Pleading — complaint—foreclosure of mechanic’s lien and for.services— proof of services — judgment.
Where a complaint alleges the filing of a mechanic’s lien, within the statutory time limit, the rendition of the services, the value thereof, and demands judgment for the amount and also a foreclosure of-the lien, the plaintiff, although defeated on his lien, is entitled to a judgment for services rendered on proving the common-law liability, no matter what the cause of his failure to establish the lien.
Appeal by the plaintiff, James Á. Shaw, from a judgment of the County Court of Delaware county in favor of the defendant, entered in the office of the clerk of said county on the 31st day of August, 1909, reversing a judgment of a Justice’s Court in favor of the plaintiff.
'Williams <& Cordon \E. E. Conlon of counsel], for the appellant.
Henry E. Willce, for the respondent.

The complaint in Justice’s Court alleged the filing of a mechanic’s lien for twenty-three dollars and twélve cénts for dressing and repairing lumber and wood used in the construction of-a building upon the premises described. It showed the rendering of the service, the value thereof, and demanded judgment for the amount. It also alleged the filing of a lien on the 12th day of August, 1907, within ninety days after the completion of the work, and demanded a foreclosure of the lien. The action was begun in ¡November, 1908. The County Court reversed the judgment in favor of the plaintiff for the value of the services, upon the ground that the court had no jurisdiction to enter judgment without a foreclosure of the lien, and that the lien did not survive the expiration of one year, relying upon Mowbray v. Levy ( 85 App. Div. 68 ).

Section 3412 of the Code of Civil Procedure provides that if the lienor shall fail for any reason to establish a valid lien, he may recover judgment in' an action brought to foreclose the lien for such sums as are due him or which.he might recover in an action on contract.

It does not séem to be material, therefore, for what reason the plaintiff is defeated in his claim of having a lien; if- he alleges and sho.ws a common-law liability he is entitled to judgment thereon, no matter what the cause of the failure to establish the lien is. (Abbott v. Easton, 195 N. Y. 372 .)

■ It is true that the expiration of the year was a complete-defense to the plaintiff’s action -to foreclose his lien, but he alleged and proved a cause of action on contract and the justice properly gave him judgment therefor.

The judgment of the County- Court is, therefore, reversed, and the judgment of the Justice’s Court affirmed, with costs to plaintiff in this court and in the County Court. -

All concurred.

Judgment of the County Court reversed and judgment of the Justice’s Court affirmed, with costs to the plaintiff in this court and in the County Court. .

Cases cited