Cehio v. Fischer — 143 A.D. 577

Majority

p. 577

Angelo Cehio, Respondent, v. Max A. Fischer and Others, Appellants, Impleaded with David Waters and Joseph Miller, Doing Business under the Firm Name of Waters & Miller, and Others, Defendants.

Second Department,

March 24, 1911.

Headnote

Pleading — complaint — suit to foreclose mechanic’s lien — specific performance of contract to convey.

It seems, that the court in a suit to foreclose a mechanic’s lien cannot decree the specific performance of an agreement to convey a portion of the premises as part of the consideration for a building contract.

p. 578

But the complaint in a suit to foreclose a mechanic’s lien which alleges that part of the consideration for a building contract was to be paid by a conveyance of a portion of the premises does not unite two causes of action, and the request for the specific performance of the agreement may be disregarded.

. Appeal by the defendants; Max A. Fischer and others, from an interlocutory judgment of- the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of ¡November, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendants’ demurrers to the second amended complaint.

W. C. Damron, for the appellants.

Henry C. Frey [Herman F. Winne with him on the brief], for the respondent.

This is an' action to foreclose a mechanic’s lien and the defendants have separately demurred to the complaint upon the ground that causes of action have been improperly united. It is probably true that the demand for judgment contains provisions beyond the power of the court to grant (Dowdney v. MeCullom, 59 N. Y. 367 ), but we agree with the learned court at Special Term that “ there is but one cause of action arising out of the original building contract.” The fact that a part of the consideration expressed in the contract was to be paid by the conveyance of a portion of the premises, which was refused, and that such conveyance is asked for in the complaint, does not constitute this an action for specific performance. This allegation of fact merely places the court in the possession of the necessary information to properly determine the amount due upon the contract under which the lien was acquired, and the prayer for relief by way of specific performance may be disregarded.

The interlocutory judgment appealed from should be affirmed, with costs.

Jenks, P. J., Bure, Carr, Woodward and Bioh, JJ., concurred.

Interlocutory judgment affirmed, with costs.

Cases cited

Dowdney v. McCullom 59 N. Y. 367 N.Y. 1874-12-22 p. 578