Majority
p. 1041(174 App. Div. 406) PRIME et al. v. HUGHES et al. (Supreme Court, Appellate Division, Third Department. June 30, 1916.)
Headnote
1. Mechanic’s Liens ©=271(1)—Enforcement—Pleading—Complaint.A mechanic’s lien canuot be foreclosed under a complaint which fails to comply with Hon Law (Consol. Laws, c. 33) § 43, by stating whether any other action is pending to recover the lien debt.
[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. § 494; Dec. Dig. ©=271(1).]
2. Judgment ©=252(1)—Conformity to Pleading—Pbayer for Relief.
A plaintiff is entitled to relief, irrespective of his prayer for judgment. [Ed. Note.—Ifor other cases, see Judgment, Cent. Dig. §§ 441, 442; Dec. Dig. ©=252(1).]
3. Mechanics’ Liens ©=291(5)—Enforcement—Failure to Establish Lien
—Personal Judgment.
Although a complaint is insufficient to authorize foreclosure of a mechanic’s lien, yet a personal judgment may be entered under it, although none is demanded, especially in view of Lien Law, § 54, which provides that the lienor may recover judgment, though he fails to establish a valid lien.
[Ed. Note.—For other cases, see Mechanics’ Lions, Cent. Dig. § 603; Dec. Dig. ©=291(5).]
^saFor other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
p. 1042The following is the opinion of Borst, J., at Trial Term: The evidence sustains plaintiffs’ contention that the work and materials, the value of which he seeks to recover in this action, were furnished by-authority from defendant owner’s duly authorized agent and were of the value claimed. She has had the benefit of this work and these materials and should pay therefor. Her counsel urges, however, that under the pleadings and proof in this action, plaintiff cannot have a recovery. [1] The complaint is insufficient for a foreclosure of the liens, in that it does not state whether any other action has been brought to recover any part of the lien debt. Lien Law, § 43; Code of Civil Procedure, § 1629; Schwartz v. Klar, 144 App. Div. 37 , 128 N. Y. Supp. 830 . It is not necessary, therefore, to consider the other objections raised against plaintiff’s right to have a foreclosure of his mechanic liens in this action. The right to foreclose the liens failing, plaintiff, nevertheless, is entitled to personal judgment. The allegations of the complaint in each cause of action are sufficient for such judgment (Abbott v. Easton, 195 N. Y. 372 , 88 N. E. 572 ; Bradley and Currier Co. v. Pacheteau, 175 N. Y. 492 , 67 N. E. 1080 ; McDonald v. Mayor of New York, 113 App. Div. 625 , 630, 99 N. Y. Supp. 122 ), the suggestion made by defendant’s counsel that, no demand being made for a personal judgment, none could be granted, is without force. [2, 3] Under our system of pleading, the plaintiff is entitled to any relief, irrespective of the prayer for judgment. Parker v. Pullman & Co., 36 App. Div. 208 , 218, 56 N. Y. Supp. 734 . Further the Lien Law, by section 54, provides that, if the lienor shall fail for any reason to establish a valid lien in an action under the provisions of that law, he may recover judgment therein for such sums as are due him, or which he might recover in an action on contract against any party to the action. Clearly this section is authority for a personal judgment, where sufficient facts are alleged in the complaint for that purpose, as in this case, and the proof establishes the necessary facts for such judgment. A proposed decision may be prepared in accordance with these suggestions. Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.
Action to foreclose mechanic’s lien by Peter W. Prime and others, as administrators, against Mary A. Hughes and others. Order for judgment denying foreclosure, but allowing personal judgments.
See, also, 165 App. Div. 945 , 150 N. Y. Supp. 1107 .
Fred M. La Duke, of Keeseville, for plaintiffs.
S. E. Maders, of Keeseville, for defendant Mary A. Hughes.
Judgment unanimously affirmed, with costs, on the opinion of Borst, J., at Trial Term.
Cases cited
- Abbott v. Easton 195 N. Y. 372 p. 1042
- Bradley & Currier Co. v. Pacheteau 175 N. Y. 492 p. 1042
- Parker v. John Pullman & Co. 36 App. Div. 208 at 218, 56 p. 1042