Section 17 of the Lien Law (chap. 418, L. 1897, as, amended by chap. 37, L. 1902) provides that if a lien be for labor or materials on a public improvement it shall not continue longer than three months from the time of filing the notice thereof unless an action *403to foreclose the same shall be begun and a Us pendens filed therein within that time, “ or unless an order be .made by a court of record continuing such lien ”. The notice of lien was filed on November 12th, 1904, and the complaint so alleges. The complaint also alleges that “ this action was commenced within ninety days from the filing of plaintiff’s notice of lien ”. The complaint was sworn to on April 5th, 1905. The denial in the answer of the appellants includes the paragraph of the complaint containing this allegation.
There is no evidence in the case of when the action was begun, nor was any question on that head raised during the trial in any shape or form. The case was tried on its merits without any suggestion from beginning to end that the lien had lapsed. Therefore that question cannot be raised on appeal. The appellants having remained silent upon it before the trial court must continue to be silent upon it now. Not having spoken when they should have done so they may not do so now. This is too old a rule to dwell over.
Moreover, the answer does not plead as a defense that the lien had lapsed. - The allegation in the complaint that the action was begun within 90 days after the filing of the notice of lien was an unnecessary allegation. Indeed, it is an allegation which a complaint cannot contain if the summons has not already been served. If the summons and complaint are issued together, as the usual practice is, the complaint cannot allege that the action was begun within 90 days after the filing of the notice of lien, any more than a complaint served with the summons could allege that the action was begun within any of the periods after the cause of action accrued, short ór long, prescribed by the statute of limitations. And if an action be in fact begun within the three months, it would be entirely unnecessary for the complaint to allege that fact. Who would suggest that the complaint would have to be dismissed on the trial, or would be demurrable for not alleging it %
It does not make a difference that the unnecessary or impossible allegation of the complaint is denied by the answer. We must not oust the everyday and obvious rule of pleading, so recently applied by ourselves, that no issue can be raised on an unnecessary or immaterial allegation in a complaint or other pleading (Linton v. Unexcelled Fire Works Co., 124 N. Y. 533; Brown v. Travellers’ Life *404Ins. Co., 21 App. Div. 42; Ubart v. Baltimore & Ohio R. R. Co., 117 id. 831). There is some nice learning about -an exception In a statute having to be negatived by the complaint, in order that a cause of action be stated, i. e., where the cause of action arises out of or rests on the exception; but we have no such case here. The statute does not contain an exception at all. There is a proviso, i. e., the statute enacts (§§ 12 and 13) that the filing of a notice of lien creates a lien, provided, however (§ 17), that if it be for work or material on a public improvement it shall not continue longer than three months unless by an order of court or by the commencement of an action to foreclose it. The proviso is even in a separate clause from the enacting clause, upon which some cases, in the nicety of their learning, rest as quite decisive. The case of Harris v. White (81 N. Y. 532) has no point of resemblance to the present case. It serves for contrast instead of for comparison or precedent. The case of Rowell v. Janvrin (151 N. Y. 60) is in point, and that of Ramsay v. Hayes (187 id. 367) is instructive of the opposite, i. e., of a case where & proviso did not exist —- or an exception, either, for that mat- . ter. Section 1758 of the Code of Civil Procedure provides that the plaintiff is not entitled to a divorce if “ the action was not commenced within five years after the discovery by the plaintiff of the offence charged ”; but the complaint does not have to contain an allegation that the action was begun within such time; that it was not has to be pleaded as a defense in order to be availed of, even though the complaint alleges that it was .and the answer denies such allegation (McCarthy v. McCarthy, 143 N. Y. 235).
The judgment should be affirmed.
Woodward, Jenks and Rich, JJ., concurred; Hooker, J., read for reversal.