
    Wood Manufacturing and Realty Company of Long Island, Appellant, v. Gilbert L. Johnstone and Annie F. White, Respondents, Impleaded with F. N. Dubois Company and Others, Defendants.
    Second Department,
    January 19, 1912.
    Pleading — complaint — action by sub-contractor to foreclose lien — dismissal for failure to state cause of action — action by materialmen against owners on order given by building company.
    The complaint in an action by a sub-contractor to foreclose a mechanic’s lien should allege that at the time the lien was filed or thereafter money was due from the owners to the contractor, otherwise it fails to state a cause of action.
    A motion made at the opening of a trial to dismiss the complaint for failure to state a cause of action is regarded practically as a demurrer and should not be granted, unless it appears, after admission of all the facts alleged, that no cause of action whatever is pleaded.
    The complaint in an action for materials furnished alleged in substance that the plaintiff contracted with a building company, with the knowledge and consent of the owners, to furnish certain materials for the construction of a building upon the specified premises of the defendants, that when the plaintiff demanded the balance due, the company executed a written order upon the owners for the amount, which the owners accepted and agreed to pay. After setting forth said order, thb plaintiff then stated, upon information and belief, that at the time of the making and acceptance of said order, some contractual relationship existed between the building company and the owners, and that by reason thereof the said owners had in them possession moneys belonging to the building company, and that by reason thereof promised and agreed to pay the amount expressed in said order and did by their acceptance thereof obligate themselves to the payment of the same, and induced the plaintiff to rely upon the credit of the same and continue in fm-nishing said material; that as this plaintiff is now informed and verily believes the said moneys are still in the hands of the said owners applicable to the payment of the amount expressed in the said order and the whole amount thereof is now due, owing and payable from the said defendants to the plaintiff. It was contended that the “said moneys ” referred back to the moneys described in the first part of the complaint alleged to have been due when the order was given; that the words “ applicable to the payment of the amount expressed in the said order ” was a mere conclusion of law. Held, that, although. the pleading is not to be commended, the final allegation that the moneys were “ applicable, due, owing and payable,” may be construed as sufficient to charge the existence of the specific fund against which the order was directed.
    Appeal by the plaintiff, the Wood Manufacturing and Realty Company of Long Island, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of Nassau on the 8th day of March, 1911, upon the dismissal of the complaint by direction of the court at the opening’ of the case on a trial at the New York Special Term.
    
      John P. Everett, for the appellant.
    
      Martin L. Stover, for the respondents.
   Jenks, P. J. :

At the beginning. of the trial the Special Term granted a motion, made by those defendants who were the owners of the realty, to dismiss the complaint for failure ;to state a cause of action. The complaint comprises two counts, first, for the foreclosure of a mechanic’s lien, and, second', for a personal judgment against the defendant Johnstone upon his writing. In the first count the plaintiff declares as a Isub-contractor, but fails to allege that at the time the lien wasj filed or thereafter any sum of money was due from the owners to the contractor. I think that this was a fatal-defect. (Ball & Wood Co. v. Clark & Sons Co., 31 App. Div. 356; Brainard v. County of Kings, 155 N. Y. 538, 544, 545; Maneely v. City of New York, 119 App. Div. 376, 388.) But the motion as made and when made is regarded practically as a demurrer and should not have been granted unless it appeared after, admission of all the facts alleged “no cause of action whatever” was pleaded. (Abbott v. Easton, 195 N. Y. 372.) I am inclined to the view that despite the keen and justifiable criticism of the learned counsel for the respondents, there was a cause of action stated against the defendant Johnstone. The skeleton of the plea is as follows: Prior to April twenty-ninth the plaintiff contracted with the Builders and Craftsmen Company, with the knowledge and consent of defendants Johnstone and White, for certain materials for the construction of a building upon the specified premises of the defendants; pursuant thereto the plaintiff supplied material, a part óf the price was paid; on November 9, 1909, the plaintiff demanded payment of the specified balance then due and the said company executed a written order upon Johnstone for $1,600, which Johnstone accepted and agreed to pay. The order set forth was addressed to Johnstone, dated November 9, 1909, and read:

“Please reserve and deduct from the final payment due us under the contract with you for erecting residence at Manhasset, L. I., the sum of Sixteen hundred dollars ($1,600.00)- and pay same to the Wood Mfg. and Realty Company of Long Island on account of goods delivered and to be delivered by them on ” said job, “ and when so paid the foregoing shall act as your receipt,- * * * and we shall receive credit for same from the said Wood Mfg. and Realty Company of Long Island.
“BUILDERS & CRAFTSMEN COMPANY.
“ Accepted Q-. L. Johnstone.”

The order was accepted, thereafter filed by the plaintiff and docketed in the lien book, and Johnstone promised and agreed to pay the plaintiff the amount of said order. The plaintiff then pleads upon information and belief that at the time of the making and acceptance of said order, “Some contractual relationship existed between the Builders and Craftsmen Company and the defendants Johnstone and White, and that by reason thereof the said defendant, Gilbert L. Johnstone had in his possession moneys belonging to the Builders and Craftsmen Company, and that by reason thereof promised and agreed to pay the amount expressed in the said order and did by his acceptance thereof obligate himself to the payment of the same, and induced this plaintiff to rely upon the credit of the same and continue in furnishing said material. * * * That as this plaintiff is now informed and verily believes that the said moneys are still in the hands of the said Johnstone applicable to the payment of the amount expressed in the said order and the whole amount thereof is now due, owing and payable from the said defendant to .this plaintiff.” The criticism of the respondents is that the "order is payable out of a particular fund and that there is no allegation that the fund ever became due. It is said that the “ said moneys ” refers back to the moneys described in the first part of the plea, alleged to have been due when the ord'er was given; that the words “applicable to the payment of the amount expressed in the said order ” are a mere conclusion of law; that “it appears affirmatively that said moneys which plaintiff alleges were due were some intermediate payment, for they were alleged to be due at the time of giving the order when there still remained work to be done; ” that there may have been funds from other sources in Johnstone’s hands, and that whether these were applicable was a conclusion of law.

Money “ applicable ” has been construed to mean money which one was entitled, to have applied in payment. (Webster v. Am. Bible Society, 50 Ohio St. 1.) “ An allegation that a sum is due, if by the context it appears to mean merely that a person is indebted, is a mere conclusion, and bad on demurrer-except where sanctioned by statute; but where facts constituting indebtedness are substantially alleged, due ’ may ■ be understood to mean payable, and is an allegation of fact sufficient to show maturity of the debt. ” (Abb. Brief PI. 238. See, too, Buehler v. Pierce, 175 N. Y. 266.) I think, reading the entire count, that we may construe the final allegations thereof that the moneys were “ applicable, * * * due, owing and payable ” as sufficient to charge the existence of the specific fund against which the order was directed. (Smith v. Milton, 133 Mass. 369. And see generally- Williamson v. Wager, 90 App. Div. 189, citing Bliss Code PL § 213; Rochester R. Co. v. Robinson, 133 N. Y. 246.) If the conclusions were to be regarded as of fact, and the defendants desired definiteness and certainty, the remedy was a motion for that, purpose. (Eppley v. Kennedy, 198 N. Y. 351.)

Further, if the complaint contained allegations sufficient to constitute a cause of action for goods sold and delivered, a personal judgment may be gained as in an action on a contract. (Abbott v. Easton, 195 N. Y. 376.) While the pleading is not to be commended I am inclined to the view that it contains enough to support assumpsit.' The prayer is sufficient. (Jensen Mech. Liens, 213, and authorities cited.)

The judgment should be reversed, without costs, and a new trial should be granted, costs to abide the final award of costs.

Thomas, Cabb, Woodwabd and Bioh, JJ., concurred.

Judgment reversed, without costs, and new trial granted, costs to abide the final award of costs.  