
    Mayer Daxe, Respondent v. Frank Hajek et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1907.)
    Municipal Courts: Jurisdiction — Mechanics’ liens; Review — Decision.
    In an action in the Municipal Court of the city of New York for the enforcement of a mechanic’s lien, where the complaint prays for no personal judgment, a judgment, establishing the validity of the lien and against certain of the defendants, some of whom were not personally liable, for the amount of plaintiff’s claim, will be' modified on appeal by striking out that part which provides for a personal judgment.
    Appeal by the defendants from a judgment in favor of the plaintiff, rendered in the Municipal 'Court of the city of New York, ninth district, borough of Manhattan. •
    W. E. Benjamin, for appellants.
    Herman R. Elias, for respondent.
   Gildersleeve, J.

The facts in this case are substantially as follows: The action is brought to foreclose a mechanic’s lien. The defendants Hajek (Frank and William), Zahradnik, hereinafter called the owners, and one Newberry, a copartner of said owners, made a contract with the defendants Joseph and Josephine Bernascheff, hereinafter called the contractors, to erect a building on certain premises. The contractors fully performed their contract; and, at the time the lien of the plaintiff was filed, there was due from the owners and Newberry the sum of ,at least $319. During the progress of the work, plaintiff made an agreement with the contractors to paint the building. The painting was a part of the work to be done by the contractors. The price to be paid plaintiff therefor was $125, and he fully performed the labor and when the lien was filed that sum was due the plaintiff. The lien was duly filed against the owners and the contractors and proper service thereof made upon. them. The answer admits the ownership of the property in the two Hajelcs and Zahradnik and substantially denies the other allegations of the complaint. The complaint asks for judgment that plaintiff has acquired a valid lien on the property for $125, and that the interest of the owners he sold and plaintiff’s lien paid out of the proceeds, together with the cost and expenses of the sale and of this action, and for such other and further relief as may he just. Ho demand is made for a personal judgment against any of the defendants. After the case was tried the court rendered the following judgment: That plaintiff have a valid mechanic’s lien for the sum of $125, with interest from January 25th, 1907, at the-rate of six per cent, per annum, against the said property of the defendants, Trank Hajek, William Hajek, John Zahradnik and Harold Newberry; and that the plaintiff have judgment against Trank Hajek, John Zahradnilrand Josephine Bernascheff for the sum of $125, with interest thereon from the 25th day of January, 1907, at the rate of six per cent per annum, besides the costs and disbursements of this action.” The judgment then directs a sale of the title and interest of the owners in the premises and the payment of the plaintiff’s judgment out of the proceeds of such sale. It also provides that “ in ease of any deficiency arising upon such sale the plaintiff have a judgment against the said defendants Frank Hajek; John Zahradnik and Josephine Bernaschejf for such deficiency.” The appellants claim that the judgment gives more than is demanded in the complaint and wrongfully allows a personal judgment against the two owners as well as against one of the contractors. Why the defendants William Hajek, Harold Newberry and Joseph Bernascheff are not included in the personal judgment does not appear. The Municipal Court Act (§ 1, subd. 11) provides that the Municipal Court shall have jurisdiction in an action to enforce a mechanic’s lien on real property, in which the court shall have, power to render judgment for the sum due, and to declare the amount a valid lien against the interest of the defendant in the property described in the complaint, at the time of the filing of the lien, where the amount does not exceed $500 exclusive of interest and costs; but said court cannot render judgment for the foreclosure and sale of the property.” See also Drall v. Gordon, 51 Misc. Rep. 618. Section 3399 of the Code provides that “A mechanic’s lien * * * may be enforced against such property and against a person liable for the debt upon which the lien is founded.” Section 34-12 of the Code provides that If the lienor shall fail, for any reason, to establish a valid lien in an action under the provisions of this title, he may recover judgment therein for such sums as are due him, or -which he might recover in an action on a contract, against any party to the action.” In order, however, to base a personal judgment under these sections of the Code against any defendant, the complaint, must allege facts which establish the liability of the defendant against whom such a judgment is sought; and personal judgment must be demanded in the complaint against such defendant. Kane v. Hutkoff, 81 App. Div. 110. As there was no contract between plaintiff and the owners, they, personally, owed him nothing; and, therefore, no personal judgment against them could be obtained. Seigel v. Ehrshowsky, 92 N. Y. Supp. 733. As the owners owred the contractors $319 and the contractors owed plaintiff $125, plaintiff’s remedy against the owners was a sale, under an execution, of their interest in the premises, to the amount of the plaintiff’s claim, which sum the owners could then offset against the claim of the contractors against them. Had the owners, however, in good faith and without collusion, paid the contractors the full contract price, they woidd not be liable to the plaintiff for the amount due him from the contractors. De Lorenzo v. Von Raitz, 44 App. Div. 329; Drall v. Gordon, supra, and cases cited. The Municipal Court is limited to the rendering of a simple money judgment against the defendants, to be enforced by an execution authorizing a sale of the interest which the judgment debtor had in the property at the time the lien was filed. Drall v. Gordon, supra.

The judgment must be modified by striking out the personal judgment as to all of the defendants and, as modified, affirmed, without costs of this appeal to either party.

Gut and Beuce, JJ., concur.

Judgment modified and, as modified, affirmed, without costs of this appeal to either party.  