46 Misc. 605 | N.Y. App. Term. | 1905
The plaintiff, a subcontractor, brings suit to foreclose a mechanic’s lien. The performance of plaintiff’s work was not seriously disputed, and the conclusion of the trial justice that there was an amount due from the defendant to the principal contractor sufficient to cover plaintiff’s claim is amply supported by the evidence. The judgment, however, must be -reversed for a defect in the notice of lien and for failure of necessary averments in the complaint. The mechanic’s lien stated that “ the agreed price or value thereof is two hundred and fifty dollars.” It has been frequently held that a statement "in the disjunctive excludes both of the matters thereby sought to be affirmed, and is not in compliance with the law. In Villaume v. Kirchner, 85 N. Y. Supp. 377, this court held a lien defective because of the alternative statement of “ the agreed price or value.” The validity of this lien cannot therefore be upheld, and a personal judgment cannot be awarded against the owner, as it is not alleged or claimed that a contractual relation existed between him and the lienor. The omission to state in the complaint that any sum was actually due to the original contractor was fatal, apart from the defect in the lien, and no attempt was made upon the trial to amend. Ball & Wood Co. v. Clark, 31 App. Div. 356.
Scott and Blanchard, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
