Mitchell v. Dunmore Realty Co.

McLaughlin, J.: Action to foreclose a mechanic’s lien upon certain real property in the city of ¡New York owned by the Dunmore Realty Company and leased to the defendant Murray. The notice of lien was filed in July, 1907. A demurrer was interposed to.the original complaint by the Dunmore Realty Company, which was sustained with leave to amend. Thereafter an amended complaint was served which was also demurred to by the realty company. The demurrer was overruled and an appeal taken to this court where the interlocutory judgment was reversed and the demurrer sustained (Mitchell v. Dunmore Realty Co., 126 App. Div. 829), with leave to serve an amended complaint. The second amended complaint was then served, and the realty company, having interposed an answer thereto, moved, under section 547 of the Code of Civil Procedure, for judgment upon the pleadings. The motion was granted and plaintiff given leave to serve an amended complaint on payment of ten dollars costs. The realty .company appeals from so much of the order as gives the plaintiff this leave. On the prior appeal to this court, Mr. Justice Scott, who delivered the opinion, pointed out the defects in the amended complaint which was then under consideration, and indicated what facts would have to be stated in a complaint in order to set forth a cause of action. The. suggestions made were not followed, but instead an amended complaint was served, which, in legal effect, was substantially the same as the one which this court had pronounced defective. From this it is fairly to be inferred that facts do not exist which will enable the plaintiff to draw a complaint which will state a cause of action; otherwise the suggestions of this court would have been fol [182] lowed and the defects cured which existed in the complaint which was pronounced bad. Where a plaintiff has served three complaints, each of which the court has held did not state a cause of action, he should not be permitted to serve a fourth one unless, facts are set forth from which the court can see that the plaintiff has a cause of action and some explanation given why said facts have not theretofore been pleaded. Here, not a single fact was stated to the court, so far as appears from this récord, indicating that the plaintiff had a cause of. action, aiid, therefore, there was nothing to" justify the court in exercising its discretion in allowing the plaintiff to serve a fourth complaint. It follows that so much of the order as allows plaintiff to serve an amended complaint is reversed, with ten dollars costs and disbursements to the appellant. Ingraham, Clarke and Scott, JJ., concurred.