Cehio v. Fischer

Appellate Division of the Supreme Court of New York

Cehio v. Fischer

143 A.D. 577, 128 N.Y.S. 289, 1911 N.Y. App. Div. LEXIS 880

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 24, 1911

StatusPublished

This text of 143 A.D. 577 (Cehio v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cehio v. Fischer, 143 A.D. 577, 128 N.Y.S. 289, 1911 N.Y. App. Div. LEXIS 880 (N.Y. Ct. App. 1911).

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Opinion

Pee Curiam:

This is an' action to foreclose a mechanic’s lien and the defendants have separately demurred to the complaint upon the ground that causes of action have been improperly united. It is probably true that the demand for judgment contains provisions beyond the power of the court to grant (Dowdney v. MeCullom, 59 N. Y. 367), but we agree with the learned court at Special Term that “ there is but one cause of action arising out of the original building contract.” The fact that a part of the consideration expressed in the contract was to be paid by the conveyance of a portion of the premises, which was refused, and that such conveyance is asked for in the complaint, does not constitute this an action for specific performance. This allegation of fact merely places the court in the possession of the necessary information to properly determine the amount due upon the contract under which the lien was acquired, and the prayer for relief by way of specific performance may be disregarded.

The interlocutory judgment appealed from should be affirmed, with costs.

Jenks, P. J., Bure, Carr, Woodward and Bioh, JJ., concurred.

Interlocutory judgment affirmed, with costs.

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Pee Curiam:

This is an' action to foreclose a mechanic’s lien and the defendants have separately demurred to the complaint upon the ground that causes of action have been improperly united. It is probably true that the demand for judgment contains provisions beyond the power of the court to grant (Dowdney v. MeCullom, 59 N. Y. 367), but we agree with the learned court at Special Term that “ there is but one cause of action arising out of the original building contract.” The fact that a part of the consideration expressed in the contract was to be paid by the conveyance of a portion of the premises, which was refused, and that such conveyance is asked for in the complaint, does not constitute this an action for specific performance. This allegation of fact merely places the court in the possession of the necessary information to properly determine the amount due upon the contract under which the lien was acquired, and the prayer for relief by way of specific performance may be disregarded.

The interlocutory judgment appealed from should be affirmed, with costs.

Jenks, P. J., Bure, Carr, Woodward and Bioh, JJ., concurred.

Interlocutory judgment affirmed, with costs.

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Bluebook (online)

143 A.D. 577, 128 N.Y.S. 289, 1911 N.Y. App. Div. LEXIS 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cehio-v-fischer-nyappdiv-1911.

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