Majority
p. 610BACHMANN v. SPINGHEL et al. (No. 699 E.) «.■Supreme Court, Appellate Division, Second Department. November 6, 1914.) The opinion of Mr. Justice Blackmar is as follows: This is a motion made upon the pleadings to dismiss the complaint for insufficiency. The action was brought to foreclose a mechanic’s lien. The defendants claim that the complaint does not state a cause of action, for two reasons: (1) Because it fails to state whether any other action has been brought to recover any part- of the debt for which the lien was filed; and (2) because the notice of lien is fatally defective, in that it does not state how much of the labor for which the lien was filed has been actually performed. [1] I think the complaint is defective in both particulars. Section 43 of the Lien Law provides that the provisions of the Code of Civil Procedure relating to actions for the foreclosure of a mortgage upon real property apply to actions in a court of record to enforce a mechanic’s lien. Section 1629 of the Code of Civil Procedure provides that the complaint in an action to foreclose a mortgage upon real property “must state, whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part thereof has been collected.” As the complaint does not contain the allegation so required, -it is insufficient to state a cause of action for the foreclosure of a lien; and as the complaint does not state a cause of action at law against the moving defendants, it'is insufficient as against them. [2] I am -also of the opinion that the notice of lien is insufficient. The statute requires that the notice of lien shall state “the labor performed or to be performed, or materials furnished or to be furnished and the agreed price or value thereof.” Subdivision 4 of section 9 of the Lien Law. This section requires that the complaint shall state the amount of labor or materials actually performed and furnished, as distinguished from that to be performed or furnished. As is stated in Finn v. Smith, 186 N. Y. 465 , 79 N. E. 714 , any
Headnote
1. Mechanics’ Liens (§ 271[1] ) — Proceedings fob Foreclosure — Complaint— Sufficiency.Lien Law (Consol. Laws, c. 33) § 43, declares that those provisions of the Code of Civil Procedure relating to the foreclosure of mortgages shall be applicable to proceedings to enforce mechanics’ liens. Code Civ. Proe.
§ 1629, provides that the complaint in an action to foreclose a mortgage must state whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part has been collected. Held, that the complaint to enforce' a mechanic’s lien is defective, where it did not state whether any other action had been 'brought to recover any part of the debt for which the lien had been filed.
[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 494-513; Dec. Dig. § 271.*]
2. Mechanics’ Liens (§ 139*) — Proceedings to Enforce — Notice—Sufficiency.
Under Lien Law, § 9, subd. 4, providing that the notice of lien shall state the labor performed or to be performed and the agreed price thereof, a lien notice which stated that the labor performed was carpenter work as was the labor to be performed, that the agreed price of the labor was $850, and that the amount unpaid was $550, but made no specific- allegations as to the work done or to be done, is defective.
[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 234-236 r Dec. Dig. § 139.*]
Appeal from Special Term, Queens County.
Action by Jacob Bachmann against Mathilde Spinghel and others.
From a judgment dismissing the complaint, plaintiff appeals.
Affirmed.
p. 611notice of lien “must state either explicitly or by plain inference the value or the agreed price of the labor performed or materials furnished at the time of filing thereof.” There is no question in this case as to materials furnished, and therefore the inquiry is whether the notice of lien states the value or agreed price of the labor performed at the time of the filing thereof. \ The notice states that “the labor performed was carpenter work, * * * ” \ and that “the labor to be performed is carpenter work.” There was there- \ fore both labor performed and labor to be performed. The notice then states: \ “The agreed price and value of said labor is eight hundred and fifty ($850) \ dollars.” That means that the agreed price and value of the labor performed \ and to be performed was $850; and although the validity of the lien must be tested by the face thereof, yet in this ease, if we refer to the contract an- ", nexed to the complaint, we find that the inference drawn from a reading of I the face of the lien is correct, and that the total contract price is $850. The ,_j lotice"continues: “The amount unpaid to the lienor for such labor and ma-i £ erial is five hundred and fifty ($550) dollars.” The only interpretation of - Vc iis notice is that the sum of $550 is unpaid upon the total amount of $850, hich is the agreed value of the labor; both performed and to be performed. Sji It is entirely consistent with the wording of this notice that $300 worth of •'£ <or has been performed and is paid for, and also that $550 in value of labor t— dill unperformed and unpaid for. It is true that the notice of lien must ^ . iberally construed, but no possible construction of this notice will inform, j’t. reader of the amount of labor performed at the time it was filed. We ul guess that the plaintiff has done $850 worth of work and that none of it S - leen paid for; but it is purely a guess, and not a fact, either explicitly b 1 in the notice or plainly inferable therefrom. Argued before JENKS, P. J., and THOMAS, CARR, STAPLE-TON, and PUTNAM, JJ.
.--■''follows that the motion for judgment dismissing the complaint as to the moving defendants must be granted, with $10 costs. As I have held that the lien is fatally defective, it would be idle to grant leave to amend.
Robert E. Moffett, of Brooklyn, for appellant.
Jacob Kirschenbaum, of New York City, for respondents.
Judgment and order affirmed, with costs, upon the opinion of Mr. Justice Blackmar at Special Term.
Cases cited
- Finn v. Smith 186 N. Y. 465 p. 610