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Tobenkin v. Piermont

114 N.Y.S. 948 Court N.Y. App. Term Decision date 1909-02-05 English

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p. 948
TOBENKIN v. PIERMONT et al.
(Supreme Court, Appellate Term.
February 5, 1909.)

Headnote

Mechanics’ Liens (§ 271[1] )—Enforcement—Pleading—Showing Interest of Defendants.
Where a complaint to foreclose a mechanic’s lien does not allege that a named defendant has any interest in the land or in the controversy adverse to the complainant, and the prayer asks for no relief against him, his demurrer to the same should be sustained.
[Ed. Note.—For other cases, see Mechanics’ Liens, Dec. Dig. § 271.*]
Appeal from Municipal Court,' Borough of Manhattan, First District.
Action by Harry Tobenkin against Gustav M. Piermont and others to foreclose a mechanic’s lien. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed, with leave to plead over.
Argued before GIEDERSEEEVE, P. J., and GIEGERICH and SEABURY, JJ.
J. A. Seidman, for appellant.
Charles Fischer, for respondents.

The action is to foreclose a mechanic’s lien, and the defendant Jacob Harris has demurred to the complaint on the ground of insufficiency., The demurrer was well taken, because the complaint does not allege that the said defendant has any interest whatever in the premises in suit, or in the controversy, adverse to the plaintiff. Porter v. Woodward, 28 N. Y. Wkly. Dig. 295, affirmed 121 N. Y. 324 , 24 N. E. 603 ; Willets v. Brown, 42 Hun, 140 ; Hilton Bridge Const. Co. v. Gouverneur, etc., 90 Hun, 584 , 35 N. Y. Supp. 976 . Moreover, the prayer of the complaint is for judgment foreclosing the lien, and only asks for judgment that the defendant Piermont be foreclosed of his right.

The judgment is therefore affirmed, with costs, with leave to the plaintiff to plead over upon payment of the costs in this court and in the court below.

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