82 N.Y.S. 153 | N.Y. App. Div. | 1903
The judgment should be affirmed, with costs, with leave to the defendants to plead over upon payment of the costs of the demurrers and of this appeal.
The action is to enforce a mechanic’s lien upon the property of the railroad companies, defendants. The lien is for work, labor and materials furnished in the construction of a railroad. Personal judgment is demanded against the other defendants who are called a “ Syndicate,” and who originally made the contracts with the plaintiff for the construction of the railroad.
The lien is for two claims, one for $49,597.24, balance due under three written contracts, and the other for $57,224.04, balance due for additional work done at the request of the “ Syndicate,” after the written contracts had been fully performed.
The demurrer is on the ground that the complaint does not state facts sufficient to constitute a cause of action.
In making the contracts the plaintiff, who was alone interested, used the designation “ Vandegrift & Company,” and the defendants claim that this was a crime under section 363 of the Penal Code which rendered the contracts illegal and void, and that the plaintiff can recover nothing for the labor and materials furnished thereunder, and cannot enforce the lien therefor. This contention cannot be sustained. The contracts are not executory but executed ones. The labor and materials have been furnished, and the defendants have had the full benefit 'thereof. In such a case the law is too well settled to be questioned that under the old statute (Laws of 1833, chap. 281, as amd.) or section 363 of the Penal Code, the plaintiff is entitled to recover and to enforce his lien. (Gay v. Seibold, 97 N. Y. 472; Taylor v. Bell & Bogart Soap Co., 18 App. Div. 175; McLean v. Wohltjen, 25 Misc. Rep. 742; Sinnott v. German-American, Bank, 164 N. Y. 386.)
It is further claimed by the syndicate that they are not liable to any personal judgment because the contracts have been assigned by them to the railroad companies, the companies have assumed all the liabilities of the syndicate under the contracts, and the syndicate has been released therefrom. While this may be true as to that portion of the claim based upon the contracts, it does not appear to be true as to the part for labor and materials furnished at
It is also claimed that the complaint is defective in failing to allege that the work was done to the satisfaction of the engineer of the defendants and was accepted by him, such'acceptance being a condition precedent to a recovery under the terms of the contract.
Section 533 of the Code of Civil Procedure, however, provides that in pleading the performance of a condition precedent in a contract, it is not necessary to state facts constituting performance; but the party may state generally that he, or the person whom he represents, duly performed all the conditions on his part, and if that allegation is controverted, he must on the trial establish performance.
The pleading alleges all that is essential under this provision. The allegation is that the plaintiff “has duly fulfilled and performed the conditions of the said contract on his part to be performed,” etc.
The trial court properly disposed of the case.
All concurred.
Interlocutory judgment affirmed, with costs, with leave to the defendants to plead over upon payment of the costs of the demurrer and of this appeal.
