The action was brought in County Court; the complaint contained the allegations usual in an action to recover for lumber sold and .delivered, and also that the lumber sold was used for the improvement of certain premises, describing them, and that within ginety days from the furnishing of the lumber “ plaintiff caused a notice of mechanic’s lien to be filed on said premises for the amount, * * * in the St. Lawrence County Clerk’s office,” which notice contained a description of the land, and was filed against the defendant, the owner, and asked judgment for the value stated, and that it be declared a lien upon the land and enforced accordingly, and for other relief.
Certain allegations- of the complaint, if standing alone, would be sufficient to sustain an action for lumber sold and delivered, but the other provisions, of the complaint show clearly that the pleader had in mind an action to enforce a lien rather than an action to recover for lumber sold and delivered.
Upon the call of the calendar the defendant moved to dismiss the complaint upon the grounds that it did not (1) contain a sufficient averment of the making and filing of a no tice of lien, or (2) state whether any other action had been brought to recover any part of the debt, or whether any part of the debt has been collected. The court took the matter under advisement, reserved its decision, and dismissed the complaint, without opinion.
Section 23 of the Lien Law (Laws of 1897, chap. 418) provides that the lien may be enforced against the property and against any person liable for the debt according to the regulations and provisions of the Code of Civil Procedure relating thereto. Chapter 419
Before the addition of the above' provisions to the Code, if the plaintiff in an action to enforce a lien failed to establish a valid lien, he could not in that action recover the debt. (McDonald v. Mayor, 58 App. Div. 73; Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451.) How, by section 3412, in an action properly brought to foreclose a lien, if the plaintiff for any reason fails to establish his lien he may nevertheless recover judgment for the amount shown due upon the matters alleged. (Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492.) But the section last referred to does not aid a plaintiff who has omitted from his complaint an allegation which the statute requires shall be alleged in such an action.
The appellant contends, however, that the allegations about the filing of the lien and its enforcement may be disregarded, and that he is entitled to recover for lumber sold and delivered. There are two answers to this contention: (1) The complaint shows the action was not brought to recover for lumber sold and delivered ; (2) the objections raised. by the defendant to the complaint show clearly that he was objecting to the action as one to enforce a lien, and tho record shows that the plaintiff consented that the motion be decided by the court as a question of law. The complaint so clearly foreshadowed such an action, and the objections raised pointed so directly to such an action, that if the plaintiff sought to use the pleading otherwise than according to its ordinary and natural meaning, it was his duty to call the attention of the court to his position. I think a
Sewell, J., concurred; Smith, P. J., and Cocheane, J., concurred in result; Chestee, J., dissented in an opinion.
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Chapter 22 in statute is evidently intended for chapter 23.— [Rep.