
    Louis Goldstein, Respondent, v. Lena Michelson et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1904.)
    No judgment for plaintiff where both complaint and answer are insufficient — Leave to sue necessary in action on undertaking to discharge mechanic’s lien — Allegations as to legal effect of an instrument set out in a pleading cannot alter its terms.
    Although the allegations of an answer are insufficient as a defense judgment cannot be rendered on a complaint which does not state a cause of action.
    No judgment can be entered in an action on an undertaking running to the county clerk and given to discharge a mechanic’s lien, where the complaint does not allege leave to sue. Such undertaking running to another than the plaintiff cannot be made the basis of an action without compliance with the statute which permits such action.
    An averment, that such undertaking ran to the plaintiff’s assignor, is nugatory when such undertaking, annexed to the complaint, shows on its face that it runs to the county clerk. The form of the instrument controls the pleader’s conclusion as to its legal effect.
    Appeal by the defendants from a judgment of the City Court of the city of New York, rendered in favor of the plaintiff upon the pleadings.
    Jacob Gordon, for appellants.
    A. B. Schleimer, for respondent.
   Bischoff, J.

Granting that the affirmative matter pleaded by the amended answer was not sufficient in law, for the purposes of a defense, still the defendants may assail the judgment rendered upon the pleadings, if no cause of action was stated in the complaint, since the judgment, of course, depends upon the admission of the statement of a cause of action. The appellants raised the point that the complaint is insufficient, and correctly, as we view the case.

The action is brought upon an undertaking, running to the clerk of the county of New York, given to procure the discharge of a mechanic’s lien filed by the plaintiff’s assignor, the -undertaking being annexed to and made a part of the complaint.

The obligation thus being one which the plaintiff or his assignor could not enforce without some statutory authority, because running to some other person, the cause of action depends upon compliance with the statute which permits an action, by the individual interested, upon a bond or undertaking running to a public officer (Code Civ. Pro., § 814; Ringle v. Wallis I. Wks., 16 Misc. Rep. 167; Matter of John P. Kane Co., 66 N. Y. Supp. 684; affd. 52 App. Div. 630), and, therefore, the obtaining of leave to sue — the condition imposed by section 814 of the Code — was an essential fact which the plaintiff was bound to allege for the purposes of a statement of a cause of action. 18 Abb. N. C. 149, note.

The averment of the complaint that the undertaking ran to the plaintiff’s assignor is rendered nugatory by the anneiation of the instrument, which runs to the county clerk, and the form of the instrument controls over the pleader’s conclusion as to its legal effect. Bogardus v. New York Life Ins. Co., 101 N. Y. 328.

In the absence of an allegation that leave to sue had been obtained, the complaint afforded no basis for judgment upon the pleadings, and the judgment must, therefore, be reversed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.

Judgment reversed, with costs.  