133 N.Y.S. 422 | N.Y. App. Div. | 1912
At the beginning. of the trial the Special Term granted a motion, made by those defendants who were the owners of the realty, to dismiss the complaint for failure ;to state a cause of action. The complaint comprises two counts, first, for the foreclosure of a mechanic’s lien, and, second', for a personal judgment against the defendant Johnstone upon his writing. In the first count the plaintiff declares as a Isub-contractor, but fails to allege that at the time the lien wasj filed or thereafter any sum of money was due from the owners to the contractor. I think that this was a fatal-defect. (Ball & Wood Co. v. Clark & Sons Co., 31 App. Div. 356; Brainard v. County of Kings, 155 N. Y. 538, 544, 545; Maneely v. City of New York, 119 App. Div. 376, 388.) But the motion as made and when made is regarded practically as a demurrer and should not have been granted unless it appeared after, admission of all the facts alleged “no cause of action whatever” was pleaded. (Abbott v. Easton, 195 N. Y. 372.) I am inclined to the view
“Please reserve and deduct from the final payment due us under the contract with you for erecting residence at Manhasset, L. I., the sum of Sixteen hundred dollars ($1,600.00)- and pay same to the Wood Mfg. and Realty Company of Long Island on account of goods delivered and to be delivered by them on ” said job, “ and when so paid the foregoing shall act as your receipt,- * * * and we shall receive credit for same from the said Wood Mfg. and Realty Company of Long Island.
“BUILDERS & CRAFTSMEN COMPANY.
“ Accepted Q-. L. Johnstone.”
The order was accepted, thereafter filed by the plaintiff and docketed in the lien book, and Johnstone promised and agreed to pay the plaintiff the amount of said order. The plaintiff then pleads upon information and belief that at the time of the making and acceptance of said order, “Some contractual relationship existed between the Builders and Craftsmen Company and the defendants Johnstone and White, and that by reason thereof the said defendant, Gilbert L. Johnstone had in his possession moneys belonging to the Builders and Craftsmen Company, and that by reason thereof promised and agreed to pay the amount expressed in the said order and did by his acceptance thereof obligate himself to the payment of the same, and induced this plaintiff to rely upon the credit of the same and continue in furnishing said material. * * * That as this plain
Money “ applicable ” has been construed to mean money which one was entitled, to have applied in payment. (Webster v. Am. Bible Society, 50 Ohio St. 1.) “ An allegation that a sum is due, if by the context it appears to mean merely that a person is indebted, is a mere conclusion, and bad on demurrer-except where sanctioned by statute; but where facts constituting indebtedness are substantially alleged, ‘ due ’ may ■ be understood to mean payable, and is an allegation of fact sufficient to show maturity of the debt. ” (Abb. Brief PI. 238. See, too, Buehler v. Pierce, 175 N. Y. 266.) I think, reading the entire count, that we may construe the final allegations thereof that the moneys were “ applicable, * * * due, owing and payable ” as sufficient to charge the existence of the specific fund against which the order was directed. (Smith v. Milton, 133 Mass. 369. And see generally- Williamson v. Wager, 90 App. Div. 189, citing Bliss Code PL § 213; Rochester R. Co. v. Robinson, 133 N. Y. 246.) If the conclusions were to be regarded as of fact, and the defendants desired definiteness and certainty, the remedy was a motion for that, purpose. (Eppley v. Kennedy, 198 N. Y. 351.)
Further, if the complaint contained allegations sufficient to constitute a cause of action for goods sold and delivered, a
The judgment should be reversed, without costs, and a new trial should be granted, costs to abide the final award of costs.
Thomas, Cabb, Woodwabd and Bioh, JJ., concurred.
Judgment reversed, without costs, and new trial granted, costs to abide the final award of costs.