WOOD MANUFACTURING AND REALTY COMPANY OF LONG ISLAND, Appellant,
GILBERT L. JOHNSTONE and ANNIE F. WHITE, Respondents, Impleaded with F. N. DUBOIS COMPANY and Others, Defendants.
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 county 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 sub-contractor, but fails to allege that at the time the lien was 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 A.D. 356; Brainard v. County of Kings, 155 N.Y. 538, 544, 545; Maneely v. City of New York, 119 A.D. 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 of 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 G. 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 order 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 ...