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Robinson v. Chinese Charitable & Benevolent Ass'n

62 N.Y.S. 292 Court N.Y. App. Div. Decision date 1900-01-19 English

Delivered by INGRAHAM, J.

Contents

Majority

p. 292
(47 App. Div. 69.)
ROBINSON v. CHINESE CHARITABLE & BENEVOLENT ASS’N OF CITY OF NEW YORK.
(Supreme Court, Appellate Division, First Department.
January 19, 1900.)

Headnote

Mechanic’s Lien—Pleading—Complaint to Foreclose Mechanic’s Lien— Sufficiency.
A complaint to foreclose a mechanic’s lien, which fails to allege that plaintiff has performed his contract, or to show any facts that would excuse such nonperformance, does not state a cause of action.
Appeal from special term, New York county.
Action by Mary E. Robinson against the Chinese Charitable & Benevolent Association of the City of New York. From a judgment -dismissing the complaint, plaintiff appeals.
Affirmed.
For former report, see 54 N. Y. Supp. 858 .
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.
M. E. Duffy, for appellant.
-Samuel Greenbaum, for respondent.

The complaint was dismissed below upon the ;ground that it alleged no cause of action. The action was brought to foreclose a mechanic’s lien, and the complaint alleges that by a certain agreement made between the plaintiff’s assignor and certain of the individual defendants the plaintiff’s assignor agreed to perform certain work, labor, and services, and to furnish certain materials, in the erection of a building, for the sum of $6,870, which the individual defendants promised to pay; that the plaintiff entered upon the performance of his work, and did certain work, labor, and services, and furnished certain materials, in the erection of the building on the premises described; that no part of the said sum of $6,870 had been paid, except the sum of $1,150; and that there is now due to the plaintiff the sum of $4,720, payment of which has been demanded and refused, and that the certificate of the architect has been demanded, and unjustly withheld. There is no allegation in the complaint that the plaintiff performed his contract so as to become entitled to the money to be paid, nor is any fact alleged which would excuse such nonperformance. The refusal of the architect to ■give a certificate was certainly no excuse for a failure of the plaintiff to allege and prove the performance of the contract on the part of her assignor. It is too well settled to be questioned that a contractor, to recover under such a contract, must allege and prove performance of the contract, and that, before he can recover under a quantum meruit, he must allege and prove some legal excuse for not completing the work he agreed to do. Lawson v. Hogan, 93 N. Y. 39 ; McEntyre v. Tucker, 36 App. Div. 53 , 55 N. Y. Supp. 153 ; Fox v. Davidson, 36 App. Div. 159 , 55 N. Y. Supp. 524 . The complaint, therefore, failed to state facts sufficient to entitle the plaintiff to recover, and it was properly dismissed.

The judgment appealed from should be affirmed, with costs. All concur.

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