Ross v. Simon

The appeal was from a judgment of the general term of the city court affirming a judgment upon demurrer. There were but two questions upon the appeal. The first was whether or not the statement in the lien was sufficient as against the owner; and the second was whether the allegations in the complaint that the defendant, the owner, had full knowledge of and consented to the doing of the work was a sufficient pleading of the facts. The re-argument is asked for on the authority of Cornell v. Barney, 94 N. Y., 394 , which the respondent claims his counsel through inadvertence overlooked and to which he failed to draw the attention of the court. But that case does not touch the question of the sufficiency of the notice of a lien in any way, and the sole question decided there was that, in order to bind the owner, the work must be done or materials furnished at his instance or that of his agent, and in the absence of evidence that the lessor had some connection with plaintiff’s contract, plaintiff is not entitled to have or enforce a lien against the interest of the lessor in the land or building, but only against that of the lessee. This does not affect the question of what is necessary to plead in the complaint in order to admit evidence to hold the lessor; it only goes as to what evidence would be required in such a case, and that distinction was expressly made by the general term which reversed the judgment in this case.

The motion for a re-argument or for leave to go to the court of appeals will, therefore, be denied, with ten dollars costs.

Larremore, Ch. J., and Bookstaver, J., concur.