Scerbo v. Smith

Beekman, J. This action is 'brought .for the foreclosure of a hen which the plaintiff claims to have upon certain money’s due1 from the mayor, aldermen .'and commonalty. of the city of Yew York to the defendant Bernard Mahon, under a contract between, the city and: the defendant Smith* which was' subsequently • assigned by him to the defendant Mahon. The plaintiff bases his lien upon allegations showing the performance by him o'f: work and the furnishing of' materials toward the-performance or completion of said contract- ■ The defendants Smith and Mahon demur to the complaint on the ground that it does not set forth facts sufficient to constitute á/'cause of action,- and urge as one of the grounds in - support nf the demurrer that the plaintiff has failed to show by appropriate allegation that there- is any money due upon the contract with the city. The portion of the complaint, which'relates to this matter reads as follows: • , - “ II. That on or about the 4th day of Yovember, 1892, the defendant Terence A. Smith made, executed and entered into' a written contract with the defendant The Mayor,’Aldermen and; Commonalty of the City of Yew York ‘ for constructing sewrer' on Kingsbrid'ge road between Dyckman street and Yaegle ave [103] míe ’ in the city of Yew York, said contract being numbered 12433, for the price or consideration in said contract specified, as .by said contract now on file in the office of the comptroller of the city of Yew York will more fully and at large appear, to which and all the provisions thereof the plaintiff begs leave to refer as part of this his complaint. * * * “ VI. That the said contractor Terence A. Smith and his assignee Bernard Mahon performed all the conditions of the said contract to be performed, and so far completed the same as to become entitled at the time of the filing of- the notice of lien below mentioned, to receive from the defendant The ¡Mayor, Aldermen and Commonalty of the City of Yew York, and there has since b.ecome due upon that contract, a sum in excess of the amount of plaintiff’s claim herein; and the said defendant The Mayor, Aldermen and Commonalty of the City of Yew York is indebted to said defendant Terence A. Smith and his assignee Bernard Mahon in a sum in excess of the amount of plaintiff’s claim herein.” Similar allegations in a like suit were before the court in the case of Brenchaud v. Mayor, 61 Hun,. 564, and were held to be insufficient. That case is, in my opinion, conclusive upon the question of the insufficiency of the complaint in this action, and I should have sustained the demurrer upon its authority, without further comment, were it not. for the plaintiff’s claim that, by reason of the fact that the city was there the demurring party, it is distinguishable from the case at bar on the authority of Drennan v. Mayor, 14 Misc. Rep. 112, the facts of which were substantially the same as those here presented. In that .case, while it was conceded that the complaint was bad as against the city, which was a party to the action, it was slill contended and decided that the cause of action was sufficiently stated as. against the other defendants, for the foreclosure of a lien upon the moneys there claimed to be due from the city to the contractor. I am- unable to assent to this view. The basis of the action is the liability of the city upon a contract in respect to which the lien is claimed. If there is nothing due from it, there can be no lien, and, therefore, no foundation for a judgment of ■foreclosure. It is, therefore, a necesáary part of the plaintiff’s cause of action that he should set forth the contract with ¡he city,- its performance, and the liability which has arisen under it to the contractor, in the same manner as the latter would be required to do if he were suing the city upon it. [104] The contention that, while the complaint is bad against the city, it is still good in respect to the demurrants, rests, I think, on the mistaken hypothesis that the cause of action is not single,' but an agglomeration of causes of action differently affecting the several defendants. There is,- however, one cause of action, and only one, the nature of which is very clearly defined by the statute under which this action has been brought. Cháp. 4.l0j . Laws 1882, §§ 1824-1838. If the city should successfully defend o.n the ground that it owed nothing -to the contractor, the plaintiff must fail as to all of the defendants, for the subject-matter of the action would have disappeared, and the only judgment authorized by the statute would be impossible. The necessity, therefore, for pleading in due form the facts upon which the liability of the city arises is apparent, and each • defendant has a right to insist upon it. The claim of the plaintiff that there is a cause of action stated by him which is sufficient to sustain his complaint, if not for the foreclosure of his lien,., at least for the recovery of his debt against one of the demurrants, is untenable. There is no provision for a personal judgment of such a character in the. statute, and the reasoning in the case of Weyer v. Beach, 79 N. Y. 409, seems to be decisive against it. The demurrer is, therefore, sustained, with costs, with leave to the plaintiff to serve an amended complaint within twenty' days after service on him .of a copy of the .interlocutory, judgment herein, on payment of costs. . ~ _ _ . Ordered accordingly.