
    Vasco P. Abbott, Appellant, v. James B. Easton, Respondent.
    Third Department,
    November 13, 1907.
    Mechanic’s lien — complaint — necessary allegations — personal ' judgment. "
    Section 3401 read in connection with section 1629 oí the Code of Civil Procedure requires the complaint in. an action to foreclose á mechanic’s lien upon real property to show whether any other action has been brought at law to recover any part of the debt, and if so, whether any part thereof has been collected. When there is no such allegation the action cannot be maintained either to enforce a lien against the property or against a person liable for the debt.
    As a mechanic’s lien and the action to enforce it are created by statute, the statute must be followed. -
    Although by virtue of section 3412 of the Code of Civil Procedure a plaintiff on failing to establish his.lien may recover judgment for the amount shown to be ■ due, or which he might recover in an action on contract against any party to the action, tlie'section does not aid one who fails to allege the matters required by the statute, to be alleged in such action. ,
    Although a- complaint to foreclose a mechanic’s lien contains allegations which might sustain an action for goods sold and delivered, the allegations regarding the lien cannot be disregarded as surplusage when the complaint on motion to dismiss was acknowledged by both parties to be' one for foreclosure.
    Chester, J., dissented, with opinion.
    Appeal by the plaintiff, Vasco P. Abbott, from a judgment of the County Court of-St. Lawrence county in favor of the defendant, entered in the- office of the clerk of said county on the 11th day of February, 1907, upon an order entered in said clerk’s office on the 28th day of November, 1906, dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and also from the said order directing the dismissal of the complaint.
    
      J. C. Dolan, for the appellant.
    
      Howard R. Sturtevant, for the respondent.
   Kellogg, J.:

The action was brought in County Court; the complaint contained the allegations usual in an action to recover for lumber sold and .delivered, and also that the lumber sold was used for the improvement of certain premises, describing them, and that within ginety days from the furnishing of the lumber plaintiff caused a notice of mechanic’s lien to be filed on said premises for the amount, * * * in the St. Lawrence County Clerk’s office,” which notice contained a description of the land, and was filed against the defendant, the owner, and asked judgment for the value stated, and that it be declared a lien upon the land and enforced accordingly, and for other relief.

Certain allegations- of the complaint, if standing alone, would be sufficient to sustain an action for lumber sold and delivered, but the other provisions, of the complaint show clearly that the pleader had in mind an action to enforce a lien rather than an action to recover for lumber sold and delivered.

Upon the call of the calendar the defendant moved to dismiss the complaint upon the grounds that it did not (1) contain a sufficient averment of the making and filing of a no tice of lien, or (2) state whether any other action had been brought to recover any part of the debt, or whether any part of the debt has been collected. The court took the matter under advisement, reserved its decision, and dismissed the complaint, without opinion.

Section 23 of the Lien Law (Laws of 1897, chap. 418) provides that the lien may be enforced against the property and against any person liable for the debt according to the regulations and provisions of the Code of Civil Procedure relating thereto. Chapter 419 of the Laws of 1897 added to the Code of Civil Procedure title 3 of chapter 23, containing, sections 3398 to 3419, regulating and providing the manner of enforcing such liens against the property and the person liable for the debt. Section 3401, read with section 1629 of the Code of Civil Procedure, requires that in an action brought for that purpose the complaint must show whether any other action has been brought at law to recover any part of the debt, and if so whether any part thereof has been - collected. This complaint contained no such allegation,' and, ’ therefore, the action cannot be maintained as an action to enforce a lien, against the property or against the person liable for the debt. A mechanic’s lien, and the action to enforce it, are statutory remedies, -and' the plaintiff must enforce such a lien in the manner pointed out by the statute.

Before the addition of the above' provisions to the Code, if the plaintiff in an action to enforce a lien failed to establish a valid lien, he could not in that action recover the debt. (McDonald v. Mayor, 58 App. Div. 73; Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451.) How, by section 3412, in an action properly brought to foreclose a lien, if the plaintiff for any reason fails to establish his lien he may nevertheless recover judgment for the amount shown due upon the matters alleged. (Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492.) But the section last referred to does not aid a plaintiff who has omitted from his complaint an allegation which the statute requires shall be alleged in such an action.

The appellant contends, however, that the allegations about the filing of the lien and its enforcement may be disregarded, and that he is entitled to recover for lumber sold and delivered. There are two answers to this contention: (1) The complaint shows the action was not brought to recover for lumber sold and delivered ; (2) the objections raised. by the defendant to the complaint show clearly that he was objecting to the action as one to enforce a lien, and tho record shows that the plaintiff consented that the motion be decided by the court as a question of law. The complaint so clearly foreshadowed such an action, and the objections raised pointed so directly to such an action, that if the plaintiff sought to use the pleading otherwise than according to its ordinary and natural meaning, it was his duty to call the attention of the court to his position. I think a fair interpretation of the submission to the court is that it was left to the court to determine whether the complaint was a sufficient complaint in an action to foreclose a mechanic’s lien. The judgment of the County Court, therefore, should be affirmed, with costs, with leave to plaintiff to move in County Court for such relief as he may be advised.

Sewell, J., concurred; Smith, P. J., and Cocheane, J., concurred in result; Chestee, J., dissented in an opinion.

Chester, J. (dissenting):

At the opening of the trial the defendant’s counsel moved that the complaint be dismissed, for the reason that it did not state facts sufficient. to constitute a cause of action. This in effect was the same as if the complaint had been demurred to on that ground. If, therefore, any cause of action is stated in the complaint the motion should have been denied. I agree that this complaint was .insufficient as one for the foreclosure of a mechanic’s lien, but it contains the statement of a good cause of action for lumber sold and delivered, and upon proof of the facts alleged the plaintiff would have been entitled to a money judgment for the amount claimed against the defendant.

In the case it is said that the motion to dismiss the complaint was on the grounds that it did not contain a sufficient averment as to the making and filing of. a notice of lien or state whether any other action lias been brought to recover any part of the debt in said complaint mentioned, or whether any part of such debt has been collected, but no such grounds are stated in the order entered or in the judgment appealed from. In these it is stated that the motion to dismiss was on the ground that the complaint did not state facts sufficient to.constitute a cause of action, and the decision is put on that ground. We should, therefore, take that as the ground of the motion rather than any statement in the case differing from that. That being the ground, and the complaint stating a good cause of action for lumber sold and delivered, although it failed to state a good cause of action for the foreclosure of a mechanic’s lien, the motion should have been denied.

When this motion to dismiss was made it became a question of law for the court to decide, and no consent to its submission as a question of law was necessary. When the court decided that the complaint did not state a cause, of action it was not' incumbent upon the plaintiff to do anything more in the court below and his only remedy was to appeal. I vote for a reversal.

Judgment affirmed, with costs, with leave to plaintiff to move in the County Court for such relief as he may be advised. 
      
       Chapter 22 in statute is evidently intended for chapter 23.— [Rep.
     