
    John H. Parker Company, Appellant, v. The City of New York, Respondent.
    First Department,
    December 30, 1905.
    Municipal corporation— city of Mew York—action to recover for. labor and materials under section 155 of Building Code — failure to state cause of action — demurrer to answer raises question as to sufficiency . of complaint. ' ’’
    In an action against the city of New York to recover for work, labor and'services rendered in removing a building as ordered by the-precept óf a justice of the Supreme Court under section 155 of the Building Code of said city, thé complaint must show that the requirements -of said section have been complied with.' When it is not alleged that the commissioner of buildings has-returned said precept with the indorsement of the expenses incurred thereunder, and that the same have been taxed by the said justice, and that the.commissioner has madfe a requisition upon the comptroller for payment, the complaint fails to state a cause of action. ■
    When a plaintiff demurs to the answer the defendant can challenge the validity of the complaint, as any ahsWer is good to a. complaint which does not state a cause of action.
    Appeal by the plaintiff, the John H. Parker. Conxpany, from a judgment of the Supreme Court,in favor of the defendant, enteied in the office of the clerk of the county of -New York on the 18th day of July, 1905,. upon the decision of the court, rendered after a trial at the New York Special, Term, /overruling the plaintiff’s demurrer to threer separate defenses contained in the defendant’s answer.
    
      
      John L. Hill, for the appellant.
    
      Theodore Connoly, for the respondent.
   McLaughlin, J.:

The plaintiff entered into a contract with the commissioner of buildings for the removal of the old hall of records of the city of Hew York and brings this action to recover for labor performed and materials furnished in doipg that work which, at the rate alleged to have been specified in the contract, amounts to $47,889.51, less a credit of $779.43., leaving a balance of $47,110.08, for which judgment was demanded, besides interest.

The defendant pleaded as separate defenses, first, that the contract was not entered into after advertisement and competitive bidding ; second, that a judgment or taxation establishing the claim had not been obtained by the plaintiff, and that no certification of its reasonableness by the auditor of accounts was presented ; and, third, that the claim was in excess of the amount audited by the department of finance.

I am of the opinion that the'demurrer was properly overruled. The contention of the plaintiff is that inasmuch as a justice of the Supreme Court had issued; a precept as provided in section 155 of the Building Code of the city of Hew York, directing that the building be taken down in pursuance of which the contract in question was made and under which the work was performed and materials furnished, that the matters pleaded do not constitute a defense. This does not follow when that section is properly considered. The facts are not disputed. It appears that in October, 1902, a precept was issued by a justice of the Supreme Court which, in a proceeding instituted for that purpose, found that the building in question was unsafe and directed the commissioner of buildings' to take it down ; that in pursuance of such direction the commissioner made a contract for the work with the plaintiff, who alleges that the labor performed and materials furnished in doing it amount to the sum for which a recovery is asked.

The-defendant attacks the validity of the complaint and insists that it does not state facts sufficient to constitute a cause of action. It has a right to challenge jhe validity of the complaint, inasmuch as the plaintiff has demurred to the answer. .This- is upon the theory that any answer is good if the complaint does not state a catise of action.' (Gabay v. Doane, 66 App. Div. 507.)

The action is based upon the contract, the validity of which must b.e determined by the section of the,Building Code under, which it was made. This section provides, among other things, that if,- in á ■ proceeding instituted for the purpose of determining whether or not a building be unsafe or dangerous, it shall be determined that the samo is unsafe, then the judge or justice trying such cause shall issue a precept directed to the commissioner of buildings, com manding liim forthwith to take down tire same; and that the commissioner shall iinme- ' f r ‘ diately thereupon proceed to execute such precept as therein directed and “ may employ such labor and assistance and furnish such materials as-may be necessary for that purpose and after having done so said Commissioner of Buildings shall make return of said precept,, with an indorsement of the action thereunder and the cost and expenses thereby incurred, to the judge or justice then holding the said Special Term of said court, and thereupon said judge or justice shall tax an.d.‘adjust the amount indorsed upon said precept and', shall adjust and allow disbursements of said-proceeding, ■ # * -*■ and in * '* .* carrying into effect any order-of the court or any precept issued by any court, said Commissioner of Buildings may make requisition upon the Comptroller of the City of blew York for such amount or amounts of money as shall be necessary to meet the expenses thereof, and upon the same being approved.by any judge, or justice of the court from which the said- order or precept Was issued and presented to said.Comptroller, he shall pay the same and for that purpose shall borrow and raise upon revenue bonds to be -issued as provided- in section 188 of the Greater ISTew York-Charter the several amounts that may, from time to time,, be'reqtiire.d.” •

There are no allegations in the complaint to the effect that this section of the Building Code has been complied with in so far as it directs that the commissioner of buildings shall make return of the precept, with an indorsement of the action thereunder and the .cost and expenses thereby incurred, to the' judge or justice dr that such judge or justice has taxed and adjusted the amount indorsed, on such precept, or., adjusted and allowed the disbursements of the proceeding, or that such commissioner has made a requisition upon, the comptroller for the payment of such amount or amounts of money as may be necessary to meet the expenses thereof. This not only does not appear, hut there are affirmative allegations showing that such compliance with the section has not been- made. There is an allegation that the plaintiff has requested the commissioner to make such return and that he has refused, but such refusal does not enable the plaintiff to proceed in the first instance against the city. If the commissioner of buildings neglects to perform a duty imposed upon him by this section, then he may be compelled to do so by mandamus. He must return the precept, to the end that the judge or justice may determine whether the amount indorsed thereon is a proper charge against the city. Until that is done plaintiff is not in a position to enforce its claim. Indeed, until that time its cause of action is not complete. . (People ex rel. Allison v. Board of Education, 26 App. Div. 208.)

The proceeding under which the expenses were incurred is a statutory one, and the only way in which one can be reimbursed for expenses incurred is by proceeding in the manner pointed out by the statute. If the commissioner of buildings neglects to perform the duty imposed upon him, then, as already indicated, he can be compelled to do so by mandamus,' or the plaintiff itself can take such proceedings as it may see fit to have the precept returned to the judge or justice for the purpose of having the expenses taxed and adjusted by him. It is only after the precept has been returned and the adjustment made as directed in section 155 of the Building Code that it is made the duty of the comptroller to pay, and until that has been done there is no duty to pay resting upon the city.

The interlocutory judgment appealed from, therefore, must be affirmed, with costs. ‘

O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Judgment affirmed, with costs. 
      
       See Laws of 1901-, chap, 466, §. 188.— [Rep.
     