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Hopper v. Erslev

52 N.Y. St. Rep. 8 Court N.Y. Super. Ct. Decision date 1893-04-03 English

Delivered by *9 Dugro, J.

Contents

Majority

p. 8
John J. Hopper, Resp't, v. Victor P. P. Erslev et al., Impl'd, App'lts.
(New York Superior Court, General Term,
Filed April 3, 1893.)

Headnote

1. Pleading—Demurrer.
Unless a demurrer is clearly bad upon its face it should not be overruled as frivolous.
3. Same—Mechanic’s lien.
Where the complaint in an action upon an undertaking given to discharge a mechanic’s lien fails to state the amount of the undertaking, the person to whom it was made, the court wherein judgment was obtained and that it was duly rendered, it is by no means clear that a demurrer thereto is frivolous.
Appeal from judgment entered upon order overruling demurrer to the complaint as frivolous.
The complaint alleged that plaintiffs about March 28, 1891, filed a notice of lien against certain premises; that about April 2d, defendants executed and filed with the clerk of the court of common pleas an undertaking to discharge said lien, conditioned that two of the defendants should pay any judgment that might be rendered against said property in any proceeding to enforce said lien ; that it was approved and the notice of lien cancelled and discharged; that about September 30, 1891, in a proceeding brought by plaintiff judgment was rendered and entered against said property in favor of plaintiff; that a copy thereof was personally served on all the defendants accompanied by a demand for payment, and that'no part thereof has been paid.
These defendants demurred on the ground that the complaint did not allege facts sufficient to constitute a cause of action.
Carpenter & Hassett, for resp't; Henry B. Weselman, for app'lts.

This is an appeal from a judgment for plaintiff entered upon an order overruling a demurrer to the complaint as frivolous.

The order is brought up for review by the notice of appeal.

Unless the demurrer is clearly bad upon its face it should not have been overruled upon the motion.

The failure to state in the complaint the amount of the bond, the person to whom it was made, the court wherein the judgment was obtained and that it was duly rendered, and other omissions, • make the plaintiff’s success upon a trial very doubtful.

We are by no means certain that the demurrer is not good.

J udgment reversed, with costs.

Order reversed, without costs.

Sedgwick, Oh. J., concurs.