Schenectady Contracting Co. v. Schenectady Railway Co.

Citations

• 106 A.D. 336
• 94 N.Y.S. 401

Syllabus

<p>Notice of mechanic’s lien — it is insufficient if acknowledged instead of being verified — when a money judgment may be recovered against the principal contractor — when a demurrer does not lie, although such judgment is not specifically demanded—an ai'der sustaining a demurrer is not appealable.</p> <p>A notice of mechanic’s lien, filed under section 9 of chapter 418 of the Laws of 1897, which has attached thereto the lienor’s acknowledgment instead of the verification required by the statute, is insufficient to create a lien.</p> <p>Where the sub-contractor filing such a notice of lien brings an action against the principal contractor and the owner to foreclose the same; if the complaint, although insufficient, on account of the invalidity of the lien, to sustain an action for the foreclosure of the lien, does state facts - sufficient to sustain a common-law action against the principal contractor for labor performed and materials furnished, and the prayer for relief, in addition to the judgment appropriate in an action to foreclose a mechanic’s lien, asks for “such further judgment, decree or order as may be necessary to protect its rights in the premises,” a demurrer interposed by the principal contractor to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, should be overruled for the reason that, under the terms of section 3413 of the Code of Civil Procedure, the plaintiff may recover upon his common-law cause of action against the principal contractor.</p> <p>The statutes of the State of New York do not confer upon the defendant in an action the right to demur to the plaintiff’s complaint therein because of the plaintiff’s failure to' demand the specific judgment to which he is entitled.</p> <p>An order sustaining a demurrer to a complaint is not appealable to the Appellate Division, and such an appeal will he dismissed.</p>