Opinion
June, 1905.
Bruce R. Duncan, for the appellants.
Charles Foley, for the respondent.
It is impossible to spell out a cause of action from this complaint without indulging in surmise and speculation. A complaint in an action to foreclose a mechanic's lien should at least allege sufficient facts to show that the lien sought to be foreclosed was a valid lien and that the interest of the parties sought to be affected was subject to it. The statute gives a contractor, sub-contractor, laborer or material man who performs labor or furnishes materials for the improvement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or sub-contractor, a lien, etc. (Lien Law [Laws of 1897, chap. 418], § 3.) There is no allegation in this complaint showing that the materials for which the lien is claimed were furnished with the consent or at the request of the owner, or of his agent, contractor or sub-contractor. There is no allegation in the complaint as to who was the owner at the time the materials were furnished, or what his relations were with the person to whom the plaintiff furnished the materials, and it is not alleged even inferentially that any of the parties to the action had any interest whatever in the premises at the time the materials were furnished. Merely describing the defendant Charles E. Anderson, to whom it is alleged the materials were furnished, as a contractor is not a sufficient averment to charge the owner or to indicate that the materials were used pursuant to any contract with the owner. It is impossible to tell from this complaint whether the pleader intended to charge the defendant Anna Anderson as owner or as a fraudulent grantee. It is alleged that she is now the owner, but how or when she became such is left to speculation, and what the pleader intended by the allegation in paragraph 8, "that any transfer of said property prior to filing of said lien was not made in good faith but was fraudulently made to deprive plaintiff of the benefit of the Lien Law of this State," is impossible of ascertainment. It may be that the defendant Anna Anderson was the owner at the time the materials were furnished and that they were furnished to the defendant Charles E. Anderson and used by him pursuant to a contract between him and said owner, or it may be that before the filing of the notice of lien the defendant Anna Anderson became a fraudulent grantee as to the plaintiff, but it is impossible to tell from this complaint in which character she is sued, and there are no sufficient averments to charge her either as owner or fraudulent grantee. A defendant is entitled to a complaint which concisely states all of the facts upon which the plaintiff relies, in order that the court may determine whether, assuming all of the facts stated to be true, the complaint states a cause of action. Every fact stated in this complaint may be true and yet no cause of action may exist against the defendant Anna Anderson, and while we construe pleadings liberally, indulging in every inference warranted by fair and reasonable internment, we cannot carry this indulgence into the realm of speculation.
The interlocutory judgment should be reversed, and the demurrer sustained, with costs, with the usual leave to serve an amended complaint upon payment of costs.
HIRSCHBERG, P.J., BARTLETT and WOODWARD, JJ., concurred; HOOKER, J., not voting.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to serve an amended complaint upon payment of costs within twenty days.