104 N.E. 946 | NY | 1914
The action is to recover upon an undertaking executed by the defendants, as sureties, under the provisions of section
Inasmuch as the appellant asserts that the Appellate Division erroneously ordered judgment for the defendants upon the pleadings, the primary question is, does the complaint state facts sufficient to constitute a cause of action. We decide that it does.
Section 21 provides several methods of discharging the lien. That invoked by the contractor Guthy was the substitution of the undertaking, as permitted by subdivision 5 of the section, for the lien against the money payable to him from the municipality. The statute requires that the undertaking be and it was "conditioned for the payment of any judgment which may be recovered in an action to enforce the lien."
The complaint alleges in effect these facts: The creation of the lien, the proceeding whereby it was discharged by the filing of the undertaking subsequent to the commencement of an action to foreclose the lien, the *408 rendition and entering of a final judgment in such action, which ordered, adjudged and decreed that the lien was at its filing "and continued to be until its said bonding and cancellation and would now be, except for such bonding and cancellation a good and valid lien * * * and that the plaintiff became and was entitled to enforce said lien against the moneys in the hands of the City of New York applicable to said public improvement until its said bonding and discharge, and would now be so entitled, except for such bonding and discharge, that the defendant, the City of New York, is, and has been since the aforesaid bonding and discharge of said lien an unnecessary party to this action, and this action is discontinued against it, and that the plaintiff have personal judgment against the defendant, Peter Guthy, for the sums due, as aforesaid," and the issuance of an execution upon and the complete non-payment of such personal judgment. The defendants here were not parties to that action to foreclose the lien.
The alleged deficiencies in the complaint are (1) the judgment in the action to foreclose the lien did not, in form, adjudge, but merely recited the validity of the lien and was merely a personal judgment against Guthy, and (2) such judgment was invalid and effectless as establishing the validity of the lien because these defendants were not parties to it. The first deficiency alleged does not exist. The judgment, in form, is that the lien was good, valid and enforceable against the moneys payable by the city to Guthy. It is an adjudication of that fact. Its clear and express language forbids discussion as to that. We turn now to the second alleged deficiency. The plaintiff cannot maintain this action unless the complaint alleges and the allegation is supported by admission or proof that the lien had been established in a fixed amount by the judgment in the action to enforce it. (Berger Mfg. Co. v. City of New York,
The Special Term should not have granted the motion of plaintiff for judgment upon the pleadings. The answer of the defendant Plant denies that the action to foreclose the lien was commenced against the city of New York and avers, as a defense, that such action was brought and prosecuted to judgment against Guthy alone and the court did not acquire in it jurisdiction *411
of the city of New York. Such allegations entitle the defendant Plant to introduce upon the trial proof that the city of New York, although a necessary party defendant, in fact was not a defendant. The defendant Gleichmann by his answer denies any knowledge or information of the allegations of the complaint or any thereof, except those concerning the execution of the undertaking, and avers other answers and defenses which it is unnecessary to set forth explicitly, because under the denial above mentioned judgment for the plaintiff should not have been ordered under section 547 of the Code of Civil Procedure. The appellant asserts that the denial is nugatory because it is of knowledge or information of matters of public record sufficient to form a belief. This form of denial is expressly authorized by section 500 of the Code of Civil Procedure. A rule that a defendant cannot, under any circumstances, effectively deny by his answer, knowledge or information of facts presumptively provable by a public record sufficient to form a belief would be dangerous and unjust. Public records not infrequently are misplaced or lost, are sometimes abstracted from their proper depositories or destroyed by fire or other causes. In such or analogous cases proof of the facts alleged should not be dispensed with arbitrarily through the impossibility of denying them. It may safely be held, as it was in Kirschbaum v.Eschmann (
The judgment appealed from should be modified by striking therefrom the part granting judgment in favor of each of the defendants, and as so modified affirmed, without costs to either party.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, CHASE, CUDDEBACK and MILLER, JJ., concur.
Judgment accordingly.