110 N.Y.S. 724 | N.Y. App. Div. | 1908
Lead Opinion
Section 17 of the Lien Law (chap. 418, L. 1897, as, amended by chap. 37, L. 1902) provides that if a lien be for labor or materials on a public improvement it shall not continue longer than three months from the time of filing the notice thereof unless an action
There is no evidence in the case of when the action was begun, nor was any question on that head raised during the trial in any shape or form. The case was tried on its merits without any suggestion from beginning to end that the lien had lapsed. Therefore that question cannot be raised on appeal. The appellants having remained silent upon it before the trial court must continue to be silent upon it now. Not having spoken when they should have done so they may not do so now. This is too old a rule to dwell over.
Moreover, the answer does not plead as a defense that the lien had lapsed. - The allegation in the complaint that the action was begun within 90 days after the filing of the notice of lien was an unnecessary allegation. Indeed, it is an allegation which a complaint cannot contain if the summons has not already been served. If the summons and complaint are issued together, as the usual practice is, the complaint cannot allege that the action was begun within 90 days after the filing of the notice of lien, any more than a complaint served with the summons could allege that the action was begun within any of the periods after the cause of action accrued, short ór long, prescribed by the statute of limitations. And if an action be in fact begun within the three months, it would be entirely unnecessary for the complaint to allege that fact. Who would suggest that the complaint would have to be dismissed on the trial, or would be demurrable for not alleging it %
It does not make a difference that the unnecessary or impossible allegation of the complaint is denied by the answer. We must not oust the everyday and obvious rule of pleading, so recently applied by ourselves, that no issue can be raised on an unnecessary or immaterial allegation in a complaint or other pleading (Linton v. Unexcelled Fire Works Co., 124 N. Y. 533; Brown v. Travellers’ Life
The judgment should be affirmed.
Woodward, Jenks and Rich, JJ., concurred; Hooker, J., read for reversal.
Dissenting Opinion
This is an action to foreclose a mechanic’s lien. . The plaintiff was a laborer for the defendant Orio; Orio had a contract with the city of Yofficers, one of the other defendants, to pave a certain street within the limits of the city. The appellants, the defendants Chiangone and Delucio, were the bondsmen for Orio. Before the work under the contract was done Orio refused to complete, and assigned his interest in and rights under the contract to these bonds
The answer of the defendants Chiangone and Delucio denied that the action was commenced within ninety days from the filing of the plaintiff’s notice of lien ; the answer of the city admitted this allegation of the complaint in that it did not deny it. The referee has not found that the action was commenced within three months after the filing of the notice of lien. There is no finding in this respect either way. The other defendants, the laborers, went to trial without having served any answers upon the appellants. When, during the course of the trial, they were sworn to show the amount of the services they had rendered in the work on this street, the appellants objected to the evidence on the ground that there was no issue sufficiently raised in that respect in that these defendants had served no copy of their answer upon the appellants. These defendants, however, were allowed to file answers, and did so ; but such answers not only actually denied the allegation of the plain
The judgment which was entered provided that out of the moneys due from the city to the appellants as assignees of the contract of*0.rio with the city,' there should be paid, first, the Raymond claim; every one agreed, however, that this was a proper payment, and no fault is found with the judgment in that respect; second, that the plaintiff should be paid the amount of his labor ; third, that the city of Yonkers should be paid for certain materials it furnished ; and fourth, that the thirty-eight laborer defendants be paid the amount of their work. , The real parties .who are adversely affected by this judgment are, of course, the assignees of the contract, and they alone have appealed from the judgment.
It seems to me that the claim the appellants make that the judgment must be reversed because it does not appear that the action was commenced within three months after the filing of the notice of lien,is sound. The statutory provision is as follows: “Duration of lien under contract for a public improvement.— If the lien is for labor done or materials furnished for a public improvement, it shall not continue for a longer period than three months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time. * * * ” (Lien Law [Laws of 1897, chap. 418], § 17, as amd. by Laws of 1902, chap. 37.)
The language of the statute under which the plaintiff and the laborer defendants claim to hold a lien against the moneys due from the city to the appellants is distinct in its provision that the lien shall have no validity beyond three months after filing unless an action is commenced to foreclose. Here we have an exception upon whose provision the plaintiff relies; the exception is embodied in the clause of the statute, and the plaintiff must plead and prove that he is entitled to its benefits, namely, that the action was begun within three months (Harris v. White, 81 N. Y. 532, 546; Rowell v. Janvrin, 151 id. 60, 67); the plaintiff has plead the exception, but the. allegation is denied by the appellants and even by the laborer defendants; no proof was offered to sustain the allegation and no finding was made in that respect by the referee. That the answer of the defendant, the City of Yonkers, admits the allega
The time the action was commenced and hence the very validity of the lien, to foreclose which the action is brought, was an issue in the case raised by the pleadings and the burden was on the plaintiff ; there is no finding and no evidence to meet this burden, and hence the judgment must be reversed as far as the plaintiff’s claim is concerned ; the claims of the laborer defendants provided for in the judgment suffer from the same infirmity and as to them it must likewise be reversed, and the city’s claim is so closely allied, at least in its establishment, that it must fall with the balance of the judgment.
I advise that the judgment be reversed and a new trial ordered before another referee, costs to abide the event.
Judgment of the County Court of Westchester county affirmed, with costs.