Duffy v. Brady

3 E.D. Smith 657 | New York Court of Common Pleas | 1857

Brady, J.

—The objection to the complaint in this action more particularly is, that it is predicated on the notice of lien, containing averment of the contents of the notice and the object and intent thereof, without averment of the facts alleged in the notice, separately in the complaint in these proceedings. The complaint must be subjected to the rules of law governing the pleadings in other actions, and should aver that notice was filed; that the defendant is the owner; that the work was done in pursuance to a contract and in conformity therewith. The notice should state, among other things, the situation of the building by its street and number, if the number be known (Act of 1857, §6).

A general statement that the building is situate on the west side of a street between two streets named, may be sufficient in a notice of lien, on the assumption that the plaintiff did not know the number; but the complaint should enlarge the description in such manner that the sheriff, in the event of defendants’ having more than one building in the localities, would be able to determine by the judgment beyond doubt the premises to be sold. I think also that when the number is omitted, the fact should be alleged that the plaintiff was ignorant thereof. The complaint is, therefore, defective, in not averring the necessary facts to constitute his cause of action, and in not presenting such description of the premises affected as would make the judgment of the court effectual, or advise the defendants precisely of the building proceeded against.

For these reasons, the demurrer is sustained, with liberty to amend, on payment of costs.