
    Russell Johnson and Roswell H. Johnson, Composing the Firm of Johnson Brothers, Respondents, v. Howard T. Alexander and Others, Appellants, Impleaded with Walter S. Chatterton and Others.
    
      A complaint to foreclose a mechanic’s lien—when it will only sustain a personal judgment-—-consequent right to a trial by jury.
    
    The complaint in an action, in form to foreclose against the owners of the fee and others an alleged mechanic’s lien upon "Certain premises, stated that the plaintiff was a contractor with a party defendant who had leased certain premises for seventeen days, for the purpose of erecting thereon a reviewing stand, hy the terms of which contract such lessee was bound to erect and remove the stand and was thereafter to become the sole owner of its materials, in which the owners of the fee had no interest, and that the lien was not filed until the day after the lease had expired.
    
      Held, that no recovery could be had enforcing the lien against the owners of the fee, but only for the price of the goods sold and delivered to the lessee;
    That it was, therefore, erroneous for the court to deny a motion made "by the defendants, .upon the ground that they were entitled to a jury trial, to strike the case from the Special Term calendar.
    Appeal by the defendants, Howard T. Alexander and others,, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the day of October, 1897, denying their motion to strike the cause from the Special Term calendar,
    ■. George S'. Golemam,, for the appellants.
    
      Marshall S. Marden, for the respondents.
   O’Brien, J.:

The motion was made on the ground; “ that the cause is not in any proper sense a mechanic’s lien suit,, hut is" in reality an action on contract for goods sold and delivered; and that, as such, the defendants are entitled to have the issues of fact tried hy a jury.” As correctly held by the learned judge ¡below, this question must be determined by an inspection of the complaint. Looking at the complaint, therefore, there can be no doubt that the action is in form one to foreclose a mechanic’s lien, and that such an action is one in equity; but although a stipulation was entered into between the plaintiff and the owners of the fee, that the former would not take judgment against them, this does not effect a change in the action or .prevent the plaintiffs having a trial at Special Term. As held in Schillinger Cement Co. v. Arnott (152 N. Y. 591): These actions (to foreclose mechanics’ liens), until final judgment, continue to be suits in equity to enforce mechanics’ liens, and their character is in no way changed by the course of the-proceedings.” Section 15 of the Mechanics’ Lien Law (Laws of 1885, chap. 342) provides that “ whenever in any action brought' under the provisions of this act any claimant shall fail for any reason to establish a valid lien, he may, nevertheless, recover therein judgment against the party or parties to the action for such sum or sums as may appear to be due to him and which he might recover in an action upon a contract against the said party or parties.” And in Van Rensselaer v. Van Rensselaer (113 N. Y. 213), the judge writing the opinion says : “ The case was tried at Special Term. At the outset the defendants objected to the tribunal, as an improper one for the trial of any question involving a personal judgment ’ against either of the defendants, and ‘ demanded that if such question was to he tried it should be by a jury trial.’' This objection was not that the case as disclosed by the pleadings, was only triable by a jury. It looked not to the case as presented by the complaint, but as it might possibly be decided at the end-Such an objection is wholly unsound. It conceded that the action, as it came into court, was of an equitable character, as it certainly was ; but insisted that, if the final relief was to be a personal judgment, the case was one for a jury. A court of equity does not, in that manner, lose its jurisdiction, and, having once acquired it, retains it to the end, even though it may turn out that adequate-relief is reached by a merely personal judgment.”

•The motion here, however, was made upon the ground that the-case, as disclosed by the pleadings, was only triable by a jury; ”' and if that appears, then the fact that it is called an action to foreclose a mechanic’s lien wuuld no more entitle it to a trial at the Special Term than if it was called a judgment creditor’s action, if, in point of fact, it was neither. Upon the face of the complaint it appears that no lien is claimed against any of the defendants, except the owners of the fee of the land. As to them, the right to a lien did not exist when the notice was filed, nor could it possibly be maintained in this action.

The complaint alleges that the defendants, other than the owners of the fee, entered into an agreement by which the defendant Chatterton was to erect a grand stand on the premises on the occasion of the dedication of Grant’s Monument; that out of the gross receipts the lumber bills were to be paid, as well as other expenses, and the profits divided in certain proportions; and that the plaintiffs, at Ohatterton’s request, sold certain lumber to such defendants, to be used in the erection of the grand stand. The owners of the fee were never, at any time, the owners of the reviewing stand, or of the material which entered into its construction. By the terms of the agreement, set out in full in the complaint, the defendant Ohatterton was to erect the stand, assuming all the expense thereof, and of taking down and removing the same; in which latter event the lumber and other materials were to belong to and be the property of the said Ohatterton, and it was to be removed as promptly as possible after April . 27, 1897. It further appears that the lease of the premises to Ohatterton began on April 19, 1897, and expired on the sixth- of May following, and that the notice of lien was filed .against the real estate on which the grand stand had stood one day after Ohatterton’s lease had expired. Upon the motion to strike from the calendar,, it further' appeared that the plaintiff had entered into a stipulation with the owners of the fee that they would not seek or attempt to obtain or enforce any judgment herein against the premises described in the notice of lien heretofore filed by plaintiffs.”

Without placing any great weight upon this stipulation, which is only valuable as favorable to the inference that the plaintiffs thetrn selves realized that they had not stated a good cause of action in a. mechanic’s lien suit, we must, as already suggested, determine the question from the complaint and regard it for that purpose, just as though the owners of the fee had interposed a demurrer. If a demurrer would be sustained upon the ground that the complaint did not state facts sufficient to constitute a cause of. action against the owners of the fee, then we think it must be conceded that, whatever the action may have been called, it- was not one for the foreclosure of a mechanic’s lien or entitled to be tried at the Special Term.

If Chatterton, the builder and owner of the grand stand, had been a lessee for 'several months or years of the premises, a lien could have been enforced against the grand stand and against Chatterton’s interest in the real estate, but no further. As appears from the complaint, Chatterton’s interest in the real estate had ceased before the notice of lien was filed, and the plaintiffs do not attempt to assert any lien against the temporary • structure. This is not a case, therefore, where there are sufficient allegations in the complaint which, if supported by proof, would establish a valid lien, or result in a failure to maintain the lien if there was a defect of proof on the trial, but it is one in which it is apparent from an inspection of the complaint that no lien existed or could exist when the suit was commenced. In other words, the allegations of the complaint would support an action for the contract price of the goods; but the error into which the court below fell in granting the motion was in laying too much stress upon the fact that the complaint was in form one to foreclose a lien, and in overlooking the fact that, by the very allegations of the complaint, it was a legal impossibility that any lien should exist as against the owners of the -fee. In the illustrations made use of by the court below, in comparing the stipulation between the plaintiffs and the fee owners to a'bond given tó release a mechanic’s lien, or to deposit money, it failed to recognize that in the latter cases the lien, which was valid in the beginning, was merely transferred to the fund or enforced as against the bond instead of the property. But in those cases there is presumably a valid lien, and only the form of the- security is changed. Here, however, considering the allegations of the complaint as true, they do not allege a valid lien. The difference between this case and the instances referred-to of substituted security for a presumptively valid lien, lies in the distinction which must be observed between an action brought upon seasonable allegations, and which may or may not succeed upon the trial, and one where, as here, the complaint itself reveals the absence of a statutory lien.

As our reading of the complaint, therefore, has brought us to the conclusion that no valid lien is asserted in the complaint, and as the action was one in which nothing could be recovered but the contract price of the lumber, which of course is but a simple action at law, it was properly triable before a jury, and the motion to strike •it from the Special Term calendar should have been granted. No statute can deprive a party of a trial by jury of the issue raised in an action, where no lien has ever been acquired or other grounds of equitable jurisdiction have existed.

The order is accordingly reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the moving defendants to abide the event.

Van Brunt, P. J., Williams, Patterson and Ingraham, «TJ., concurred.

Order reversed, with, ten dollars costs and disbursements, and ■motion granted, with ten dollars costs to moving defendants to abide ■event.  