
    Schenectady Contracting Company, Appellant, v. Schenectady Railway Company, Impleaded with Guy M. Gest, Respondent.
    
      Notice of mechanic’s lien — it is insufficient if acknowledged instead of being verified — when a money judgment may be recovered against the principal contractor — when a demurrer does not lie, although such judgment is not specifically demanded—an ai'der sustaining a demurrer is not appealable.
    
    A notice of mechanic’s lien, filed under section 9 of chapter 418 of the Laws of 1897, which has attached thereto the lienor’s acknowledgment instead of the verification required by the statute, is insufficient to create a lien.
    Where the sub-contractor filing such a notice of lien brings an action against the principal contractor and the owner to foreclose the same; if the complaint, although insufficient, on account of the invalidity of the lien, to sustain an action for the foreclosure of the lien, does state facts - sufficient to sustain a common-law action against the principal contractor for labor performed and materials furnished, and the prayer for relief, in addition to the judgment appropriate in an action to foreclose a mechanic’s lien, asks for “such further judgment, decree or order as may be necessary to protect its rights in the premises,” a demurrer interposed by the principal contractor to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, should be overruled for the reason that, under the terms of section 3413 of the Code of Civil Procedure, the plaintiff may recover upon his common-law cause of action against the principal contractor.
    The statutes of the State of New York do not confer upon the defendant in an action the right to demur to the plaintiff’s complaint therein because of the plaintiff’s failure to' demand the specific judgment to which he is entitled.
    An order sustaining a demurrer to a complaint is not appealable to the Appellate Division, and such an appeal will he dismissed.
    Appeal by the plaintiff, the Schenectady Contracting Company, from an interlocutory judgment of the Supreme Court in favor of the defendant Guy M. Gest, entered in the office of the clerk of the county of Schenectady on the 8th day of November, 1904, upon an order made at the Schenectady Special Term and entered in said clerk’s office on the 12th day of November, 1904, sustaining the demurrer of the defendant Gest to the plaintiff’s complaint, and also (as stated in the notice of appeal) from the said order upon which the judgment appealed from was entered.
    The action is brought to foreclose an alleged mechanic’s lien filed by the plaintiff as a sub-contractor against the defendant Schenectady Railway Company, the owner of the property upon, which materials were furnished and labor performed, and against the defendant Guy M. Gest, the contractor. The notice of lien was not verified. In place of the verification the plaintiff attached a certificate of acknowledgment.
    
      John D. Miller and Everett Smith, for the appellant.
    
      James D. Fessenden, for the respondent.
   Chase, J.:

The appeal from the order should be dismissed. (Rowe v. Rowe, 103 App. Div. 100.)

The Lien Law (Laws of 1897, chap. 418, § 9) requires that the notice of lien must be verified by the lienor, or his agent, to the effect that the statements therein contained- are true to his knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.

The notice of mechanic’s lien must substantially comply with the statute which authorizes the lien. (Toop v. Smith, 181 N. Y. 283.) The notice of lien filed by the plaintiff does not substantially comply with the statute and it is consequently insufficient to create a lien.

The ground of the respondent’s demurrer to the plaintiff’s complaint is “that the said complaint does not contain facts sufficient to constitute a cause of action.” Although the facts stated in the complaint are insufficient to sustain an action for the foreclosure of a mechanic’s lien, yet the facts as therein stated are sufficient to sustain a common-law action by the plaintiff against the respondent for labor performed and materials furnished pursuant to a contract between, them. Section 3412 of the Code of Civil Procedure, relating to the enforcement of mechanic’s liens, provides: “ 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 ah action on a contract against any party to the action.”

The Court of Appeals in Bradley & Currier Co. v. Pacheteau, (175 N. Y. 492) has in effect held that when it is determined that a notice is ineffectual to establish a mechanic’s lien, the plaintiff may, nevertheless, recover a personal judgment under his claim for a deficiency. (Ryan v. Train, 95 App. Div. 73.) Respondent substantially conceded that the facts alleged in the complaint are sufficient to sustain a personal judgment against him if a personal judgment had been asked in the demand for judgment. The plaintiff in its demand for judgment asks for the establishment of the lien, the foreclosure thereof* the sale of the premises described .therein and the application of the proceeds of sale to the payment of the lien and interest,' together with the expenses of the sale and the costs of the action. It" further asks : IV. That plaintiff have judgment against the defendant Guy M. Gest for any deficiency that may remain due it after such sale. Y. That plaintiff may have such further judgment, decree or order as may be necessary to protect its rights in the premises.”

There is a lack of harmony among the decisions of the courts of this State on the question as to whether a demurrer should be sustained if the facts alleged in the complaint constitute a cause of action but are insufficient to sustain the judgment demanded in the complaint. Where no answer is interposed it is provided by section 1207 of the Codé of Civil Procedure that the judgment shall not be more favorable to the plaintiff than that demanded in the complaint.

Section 488 of the Code of Civil Procedure provides when a defendant may demur to a complaint. It provides that a defendant may demur to a complaint when it does not state facts sufficient to constitute a cause of action; but it does not provide for a demurrer when such facts are stated, but the demand for judgment does not ask the relief to which the facts thus stated entitle the plaintiff.

The right to demur by reason of the failure of the plaintiff to demand the specific judgment to which he is entitled has never been given by statute in this State. (See 6 Ency. Pl. & Pr. 350.)

It is said in Mackey v. Auer (8 Hun, 180, 182)“ That whenever the complaint contains allegations of fact, which if proved upon a trial after issue of fact joined would entitle the plaintiff to some relief, either legal or equitable, a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action will not be upheld. The defendant cannot demur to the prayer for relief. He must, demur to the facts alleged; and, to sustain his demurrer, he must show that upon those facts, the plaintiff cannot have any relief at the hands of the court; and it is not sufficient for him to show that the relief upon such facts could not be that asked for by the complaint. The right to demur is not given by the Oode on the ground that the complaint does not state facts sufficient to entitle the plaintiff to the relief demanded therein; but on the ground that the complaint does not state facts sufficient to constitute a cause of action — that is, any cause of action.”

In Parker v. Pullman & Co. (36 App. Div. 208, 217) the court say : “The right of the defendant to test jurisdiction by demurrer depends partly upon sections 481 and 1207 of the Code of Civil Procedure. The former provides that a complaint must contain, first, the title of the action, the name of the court and the names of the parties; second, a statement of the facts constituting the cause of action; and third, ‘a demand of the judgment to which the plaintiff supposes himself entitled.* But this does not mean that the plaintiff may not have any other judgment than he demands, although section 1207 provides that where there is no answer' the judgment shall not be more favorable to the plaintiff .than he has demanded in his complaint. This clearly relates not to an action where a demurrer has been interposed, but to one where a judgment • is to be entered by default; and the reason is plain, a party may be willing to permit a judgment by default, not more favorable tlián that which is demanded in the. complaint; but when he demurs, as in the present instance, his claim is that the plaintiff, is entitled to no relief whatever on' the allegations of the complaint, for'' the demurrer here is that the complaint does not .state facts sufficient to constitute a cause of action; ’ in other words, that the plaintiff is entitled to no judgment whatever.”

There are very many reported cases on this subject and the views expressed are ■ conflicting. (See Baylies Code Pl. & Pr. [2d ed.] 326-330.) The position taken by the court in the' two cases from which I have quoted seems to me to be logical and in accordance with the plain language of the Code provisions relating to demurrers.

It is Unnecessary to say-that a'demurrer may not be sustained in some cases where in considering the demand for judgment in connection with the allegations of- the complaint it may be fairly said that the complaint does, not state • facts sufficient to constitute a cause of action. (See Hasbrouck v. New Paltz, etc., Traction Co., 98 App. Div. 563.)

In this case in view of the said section 3412 of the Code óf Civil Procedure -expressly providing that if .the lienor fails to establish ia valid lien in an action under title 3 of chapter 23 of the Code of Civil Procedure, he"may recover judgment as in an -action on contract against any party to the action, and in view of the fact that plaintiff in addition to demanding judgment for the foreclosure of the lien and for a judgment against the respondent for deficiency, has also demanded such further judgment as may be necessary to protect its rights, it should be held that such demand fairly includes a personal judgment in accordance with said section 3412 of the Code Civil. Procedure or, at least, that a demurrer to the complaint on the ground that' it does not state facts sufficient to constitute- a cause of action should not be sustained. (See Steuerwald v. Gill, 85 App. Div. 605.)

The appeal from the order should be dismissed and the interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to the respondent to plead over on payment of the costs.

All concurred; Parker, P. J., in result,

Appeal from the order dismissed, and the interlocutory judgment reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to plead over on payment of costs. 
      
       Code Civ. Proc. chap. 23, tit. 3.— [Rep.
     