Kechler v. Stumme — 36 N.Y. Super. Ct. 337

Majority

p. 337

HERMAN KECHLER, Plaintiff and Appellant, v. MRS. STUMME, Defendant and Respondent.

Headnote

I. Pleading.—Compliance with Statute which gives the Right of Action, what not sufficient.

1. It is not sufficient simply to refer to the statute, unless it is so provided in the statute; but all the facts which under the statute constitute the cause of action must be alleged.

II. Mechanic’s Lien.

1. Complaint in proceedings to foreclose, what insufficient on demiwrrer. ci. A complaint alleging that “a notice in conformity with such statute to create and whereby there was created a lien ” in plaintiff’s favor, was “filed in the office of the clerk,” etc., “and thereafter, upon due notice to the defendant to appear herein and account, etc., an order was entered authorizing the putting in of the pleadings herein,” is insufficient in that it neither sets out the notice nor gives its substance.

III. Definitions.—Wobd “Dub.”

The word “ due ” in such complaint, in the connection in which it 4s used, is a mere conclusion of law, and not a statement of fact.

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Before Monell and Curtis, JJ.

Decided November 29, 1873.

Appeal from judgment in defendant’s favor, on demurrer to complaint.

The complaint alleged the doing of work, etc.,, as a mechanic upon "buildings of the defendant, and that to secure the payment of said sum, and in accordance with the statute in such cases made and provided, the plaintiff did (within three months after the completion of said work, labor, and material being furnished, done and performed) file in the office of the clerk of the city and county of New York (to wit, on or about December 24th, 1872) a notice in conformity with such statute to create and thereby there was created in favor of the plaintiff a lien on said building and the premises whereon the same stands. And that thereafter, upon due notice to the defendant to appear herein and account, etc., an order was entered authorizing the putting in of the pleadings herein.

The relief demanded was a sale of -the premises, etc.

The defendant demurred, alleging that there were not sufficient facts stated to constitue a cause of action.

The defendant had judgment, sustaining the demurrer, from which the plaintiff appealed.

J. H. Whitelegge, attorney, and of counsel for appellant, urged :

I. The allegation that the lien was filed “ in accordance with the statute, etc., and in conformity with the statute, is equivalent to saying that all the requirements of the statute had been complied with ; in other words, that the notice of lien was duly verified at the time of filing ( 23 Barb. 305 ; 2 Abb. 422 ; 3 Edw. Ch. R. 570; 2 Kerr, 433 ; 10 Abb. 102 ; Code, 162; 1 Chit. R. 245).

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No complaint is required by the act; it calls merely for the filing of a statement of the claim or demand.

The defendant was informed* of the lien by the notice to foreclose.

If she had any objections to raise as to the validity of the lien, she should have done so then, for after the statement is filed her objections could only go to the demand as stated.

Marcus J. Waldheimer, attorney, and M. L. Townsend, of counsel for respondent, urged:

First.—The complaint does not show that the notice which the plaintiff alleges he filed in the office of the clerk of the city and county of New York, on the 24th December, 1872, contained any of the particulars required by Section 6 of the act.

A complaint is demurrable which does not show that the notice filed contained these particulars (Hallagan v. Herbert, 2 Daly, 253 ; Duffy v. McManus, 3 E. D. Smith, 657).

The averment in the complaint, that the plaintiff on a day named filed£ £ a notice in conformity with such statute to create a lien, and whereby there was created in favor of the plaintiff a lien on said building and premises,” is not an averment of facts, but a conculsion of law, especially as no statute is referred to in conformity with which it is alleged the notice was filed.

The creation of a lien upon real estate on behalf of a -mechanic, for labor done or materials furnished upon a building, furnishes a cumulative remedy for the collection of his demand. It does not supersede or interfere with the common-law remedy against the employer (Pollock v. Ehle, 2 E. D. Smith, 541).

But as a remedy provided by statute, it is requisite that the provisions of the statute should be strictly com

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plied with (Beals v. Congregation B’nai Jeshumn, 1 E. D. Smith, 654). Hence the notice creating the lien must contain all the matter specified in the statute. Any omission in that regard would be fatal to the lien.

The question in this case, however, is as to the sufficiency of the pleading to foreclose the lien.

The complaint, after stating the performance of the work, alleges that “a notice in conformity with such statute to create, and whereby there was created a lien ” in the plaintiff’s favor, was “filed in the office of the clerk,” etc.

It does not appear, from the averment in the complaint, whether the notice was such an one as fully meets the requirements of the statute. The pleader has characterized it as a notice “in conformity with the statute,” and a notice “to create and whereby there was created a lien,” etc. But it cannot be seen from this averment that it is such a notice. The statute directs that the notice shall specify several things, and without them the notice would be nugatory.

The proceeding to foreclose the lien is by action, and the rules of pleading applicable to other actions of a similar nature are applicable to pleadings in this proceeding (Doughty v. Devlin, 1 E. D. Smith, 625).

In actions founded upon a cause of action given by a statute, it is not sufficient to merely refer to the statute, unless it is so provided in the statute; but all the facts ' which under the statute constitute the cause of action, must be alleged (Schroeppell v. Corning, 2 N. Y. R. 132).

It was not, therefore, sufficient in this case to merely allege that the notice conformed to the statute. The notice itself should have been set out, or its contents so stated that the court could have seen that the statute had been complied with.

This question has been directly adjudicated in the Common Pleas (Hallagan v. Herbert, 2 Daly, 253 ).

The appellant’s counsel claimed that great weight and

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significance should he given to the allegation of “due” notice. But that is a mere conclusion of law, and not a statement of a fact (Myers v. Machado, 6 Abb. 198 ; S. C. 6 Duer, 678 ).

The judgment appealed from should he affirmed. Curtis, J., concurred.