Boynton Furnace Co. v. Trohn

126 N.Y.S. 695 | N.Y. App. Div. | 1910

Carr, J.:

The defendant appeals from-a judgment against him in an action to foreclose a mechanic’s lien. He gave no. evidence at the trial, and relies apparently on claimed technical defects in the plaintiff’s proofs. . The plaintiff is a foreign corporation, and in' its complaint it alleges that it was “duly permitted to do business within the State of New York and was at all the times hereinabove mentioned and now is permitted to do and transact business in the State of New York pursuant to the General Corporation Act of this State.” The defendant denied any knowledge or information sufficient to form a'belief as to the truth of this allegation.

, At the trial no proof was given by the plaintiff as to the issuance of the certificate required by the statute to authorize the plaintiff to do business 'in this State, . (See Gen, Corp. Law [Cons'ol, Laws,. chap. 23; Laws of 1909, chap. 28], § 15.) At the close of the plaintiff's case, the defendant moved to dismiss, but he did not specify this ground for dismissal. As this defect might have been obviated by proof, had it been specified, it is too late to urge it for the first time on appeal. Furthermore, there is an express written stipulation in the record that the “ corporate or legal capacity to sue of plaintiff is admitted without formal proof.”

Another ground of attack upon the judgment is that the complaint does not state that the plaintiff has brought no other action to collect the amount claimed to be due. If this action was brought in a court of -record, this objection would be good; but even then a personal judgment might be rendered if the complaint showed a cause of action for goods sold,: as was the fact here, and delivered, unless the defendant claimed a jury trial. (Abbott v. Easton, 195 N. Y. 372.) But the action, so far as the necessary allegations of the complaint are concerned, is governed by section 46 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), whicA relates to actions brought to enforce a mechanic’s lien in a court not of- record. That section' specifies what the complaint must allege, as follows: “ The complaint must set forth substantially the^ facts contained in the notice of lien, and the substance of the agreement under which the labor was performed or the' materials were furnished.” The section of the Lien Law (§ 43) which makes applicable t-h'e sections of the Code of Civil Procedure relating to actions for the foreclosxire of a mortgage applies to “ actions in a court of record,” and there is no provision making them applicable to actions .brought in courts not of record, and there is no authority cited or reason given why this provision should be stretched to apply to the Municipal Court, for it can make no judgment of foreclosure and sale. (Mun. Ct. Act [Laws of 1902, chap. 580], § 1, subd. 11, as amd. by Laws of 1908, chap. 495.)

This brings us to the objection urged that the judgment appealed from does in part purport to -be a judgment of foreclosure and sale. This objection is well founded. The judgment does in part proceed further than the jurisdiction o.f the court, for it does provide as fully for a foreclosure and sale of the premises as if the action were one in a court of record to foreclose á mortgage. At the same time it provides for a money judgment against the defendant and to'that extent it is authorized. (Drall v. Gordon, 51 Misc. Rep. 618.)

The judgment should, therefore, he modified by striking out the provisions for the sale of the premises therein described, thus confining it to a. money judgment against .the defendant, to be enforced as provided in section 260 of tbie Municipal Court Act (as amd. by Laws of 1908, chap. 495), and as so modified it should be affirmed, without costs.

Jenks, Burr, Thomas and Bich, JJ., concurred.

Judgment of the Municipal Court modified by. striking out the' provisions for the salé of the premises therein described, thus confining it to a money judgment against the defendant, to be enforced as provided in section 260 of the Municipal Court Act, and as so modified affirmed, without costs.