A. Hall Terra Cotta Co. v. Doyle — 44 N.Y. St. Rep. 900

Majority

p. 900

The A. Hall Terra Cotta Co., Resp’t, v. Andrew T. Doyle, App’lt.^[1]

(Court of Appeals,

Filed May 3, 1892.)

Headnote

•Appeal—Coubt op appeals—Amount involved less than $500.

Plaintiff in an action to foreclose a mechanic’s lien alleged the making of a contract to furnish materials to the amount of $1,250, and that there was a balance due of $652. The answer alleged that the agreement was to furnish $1,000 worth of materials. The referee found in favor of plaintiff, and gave judgment for $652. Held, that the pleadings and proceedings and the evidence disclosed the fact that the amount in controversy was for less than $500, and so the case was not appealable to this court.

Appeal from judgment of the New York common pleas, general -term, affirming judgment in favor of plaintiff entered on re";port of referee.

Charles J. Hardy, for app’lt; McCall & Arnold, for resp’t

This appeal must be dismissed .inasmuch as the ■amount in controversy is less than $500. The complaint was, in form, for the foreclosure of a mechanic’s lien, filed against the defendant’s property. The plaintiff alleged the making of a con

p. 901

tract, under which he was to furnish to the defendant certain terra -cotta building materials of the value of $1,250; and that there was a balance due to him, under the contract, of $652. The answer put in issue the contract price; alleging that the plaintiff .agreed to furnish the materials for the sum of $1,000, and that de.fendant agreed to pay “ something extra ” if plaintiff proceeded promptly, which he failed to do. The referee found the fact as to contract price in favor of the plaintiff, and directed judgment in accordance with" his legal conclusion that the plaintiff should recover of the defendant $652.16. The defendant specifically requested the referee to find, as a legal conclusion, that the plaintiff was entitled to judgment against him for only the sum of $402.

The controversy upon the trial turned upon conflicting evidence adduced by the parties upon the subject of what was the agreed price at which the materials were to be furnished. The pleadings and proceedings, and the evidence, when referred to, as we have the right to do, disclose to us clearly that the amount in controversy was for less than $500. Knapp v. Deyo, 108 N. Y., 518 ; 13 St. Rep., 823 . Nor was the action one which was appealable as affecting the title to real property, or an interest therein. Norris v. Nesbit, 125 N. Y., 650 ; 33 St. Rep., 603 .

The question raised and discussed by the appellant upon this appeal is that the court was without jurisdiction to determine the action, inasmuch as the lien had been discharged by a bond, furnished pursuant to the provisions of the lien act, (§ 24, chap. 342, Laws of 1885), and hence no action in foreclosure could be maintained. But this does not make the case appealable by drawing into the controversy the whole of the judgment rendered.

It is true that the complaint prays judgment as for a foreclosure and sale; but with its other allegations of indebtedness and of lien proceedings, it had also alleged the giving of the bond discharging the lien of record. It was quite competent, therefore, for the court to direct any judgment consistent with the case made by the complaint and embraced within the issue. Code, § 1207; Benedict v. Benedict, 85 N. Y., 625 . That was done in this case. 'The judgment directed and entered here was only against the defendant personally. It did not adjudge a foreclosure and sale of the defendant’s interest in the premises described in the complaint; but, on the contrary, merely adjudged that “plaintiff had a good ■and valid lien * * * and, but for the filing of the bond ■*- * * would be entitled to a judgment foreclosing, etc.”

As this case is not appealable to this court, in any aspect we may look at it to discover the amount involved, I think the appeal should be dismissed. This result is reached by us with less reluctance, inasmuch as we consider the appeal to be without merit

Appeal dismissed, with costs.

All concur.