Tobenkin v. Piermont

114 N.Y.S. 948

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 5, 1909
• Status: Published

Opinion

PER CURIAM.

The action is to foreclose a mechanic’s lien, and the defendant Jacob Harris has demurred to the complaint on the ground of insufficiency., The demurrer was well taken, because the complaint does not allege that the said defendant has any interest whatever in the premises in suit, or in the controversy, adverse to the plaintiff. Porter v. Woodward, 28 N. Y. Wkly. Dig. 295, affirmed 121 N. Y. 324, 24 N. E. 603; Willets v. Brown, 42 Hun, 140; Hilton Bridge Const. Co. v. Gouverneur, etc., 90 Hun, 584, 35 N. Y. Supp. 976. Moreover, the prayer of the complaint is for judgment foreclosing the lien, and only asks for judgment that the defendant Piermont be foreclosed of his right.

The judgment is therefore affirmed, with costs, with leave to the plaintiff to plead over upon payment of the costs in this court and in the court below.