November 24, 1915.
Herbert J. Stull, for the appellant.
George F. Slocum, for the plaintiff, respondent.
George W. Thomas, for the respondent Henry C. Fisher.
The judgment was clearly irregular and unauthorized in the absence of proof before the court or a referee upon which to base it. The action is in equity and judgment could not be entered without application to the court in case of default under section 420 of the Code. The proper practice is prescribed by sections 1222 and 1223 of the Code. ( Mathot v. Triebel, 102 App. Div. 426; Sauerbrunn v. Hartford Life Ins. Co., 165 id. 506.)
The complaint contained only appropriate allegations for the foreclosure of the mechanic's lien. It alleged a payment due to plaintiff of $1,000, for which the architect had given his certificate, and that only $200 of this had been paid. It also alleged the performance of labor and furnishing of materials to the amount of $2,495, and alleged that after the payment of the $200 there was now actually due plaintiff for said labor and materials so furnished the sum of $2,295, with interest. We think a good cause of action is alleged for the establishment and foreclosure of plaintiff's lien and that the demurrer to the complaint was properly overruled. The complaint certainly alleges a good cause of action to establish plaintiff's lien to the extent of $800, as to which the architect's certificate has been given. The claim for the additional amount for which no certificate is alleged to have been given and as to which there is no allegation to show that it has become due and payable without the certificate is not a separate cause of action. The complaint is not demurrable, even if it is insufficient to authorize a recovery for the additional amount.
For some reason, which does not appear in this record, the Special Term, probably through inadvertence, failed to provide for granting the usual leave to withdraw the demurrer and answer the complaint. We think this leave should have been given.
As to the demurrer by the defendant Presbyterian Church to the answer of its codefendant Fisher, we find no authority for such a pleading. It has been held in Mellen v. Athens Hotel Co. ( 149 App. Div. 534) that in a mechanic's lien case an answer of a defendant to the answer of his codefendant claiming affirmative relief may be served upon said codefendant. However that may be, we are of opinion that only such demurrers as are specially provided for in sections 488 to 496 of the Code of Civil Procedure are authorized in any action. It was so held in Stuart v. Blatchley (77 Hun, 425) in this department, and we are aware of no authority to the contrary. This demurrer was unauthorized and was properly overruled for that reason, but the order thereon directing final judgment in favor of defendant Fisher is erroneous.
The defendant church is not in need of leave to plead over to the answer of its codefendant Fisher. If it has any claims or counterclaims against defendant Fisher which it wishes to assert in this action, it can make them in its answer to the complaint and serve that answer also on defendant Fisher. But no pleading by defendant church is necessary to put in issue the claims against it asserted in Fisher's answer. By section 522 of the Code these allegations are "deemed controverted by the adverse party, by traverse or avoidance, as the case requires." ( Havana City R. Co. v. Ceballos 49 App. Div. 421.)
The order overruling the demurrer of the defendant church to the answer of the defendant Fisher and directing final judgment in favor of defendant Fisher should be modified by striking therefrom the provisions for final judgment, and as so modified affirmed. The final judgment in favor of the plaintiff against the defendant church and the order amending the same should be reversed, and an interlocutory judgment directed to be entered in favor of the plaintiff, overruling the demurrer to the complaint, with leave to the defendant Trinity Presbyterian Church to withdraw its demurrer to the complaint within twenty days after service upon it of a copy of such interlocutory judgment and notice of its entry, and to answer the complaint; said interlocutory judgment also to provide that in case such leave is not availed of within said twenty days, plaintiff and defendant Fisher may, after the issues raised by said Fisher's answer have been tried or otherwise disposed of, apply at Special Term for final judgment. No costs of this appeal are allowed to any party.
All concurred, except KRUSE, P.J, who dissented in a memorandum.
I concur in the holding that the demurrer to the complaint was properly overruled, and that the judgment should be modified so as to permit the defendant church to withdraw the demurrer and answer the complaint upon the usual terms. But I am also of the opinion that the demurrer by the defendant church to the answer of the defendant Fisher, which sets up an affirmative cause of action on his lien, was permissible. His cause of action is entirely unrelated and disconnected from that set up in the complaint, except that it covers the same property. Under the Lien Law the plaintiff was required to make the defendant Fisher a party, and the latter is required to enforce his lien in this action. As between the defendant Fisher and the church, such an answer should be regarded as a complaint. ( Mellen v. Athens Hotel Co., 149 App. Div. 534.) Otherwise there seems to be no provision for serving any pleading to controvert the Fisher claim. There is as much authority for serving a demurrer as an answer to such a pleading. Treating the pleading demurred to, as between these two defendants, as a complaint (which I think it is in fact as between them) relieves the question of practice from difficulty and embarrassment.
I think this demurrer was permissible, and that it was properly overruled, but the judgment should be so modified as to permit the church to answer upon the usual terms.
Judgment, order amending same and order directing final judgment in favor of defendant Fisher reversed, and an interlocutory judgment directed in favor of plaintiff overruling demurrer to complaint, with leave to defendant Trinity Presbyterian Church to withdraw its demurrer to the complaint within twenty days and to answer the complaint, and in case such leave is not availed of within said twenty days, plaintiff and defendant Fisher may, after the issues raised by said Fisher's answer have been tried or otherwise disposed of, apply at Special Term for final judgment, without costs of this appeal to any party.