Opinion
November 19, 1909.
Louis Pleshet, for the appellant.
Louis Bialostosky [ William F. Clare with him on the brief], for the respondents.
The plaintiff complained in the Municipal Court that, under a written contract, he did certain work upon the realty of the defendants, and furnished materials thereupon; that a certain sum therefor became due; that he filed a mechanic's lien therefor, and that the defendant and the other defendant named in this action as surety bonded the lien. He demanded judgment against the owner of the property for the said sum of money; that the lien be declared a valid lien against the realty until discharged by the payment of the judgment; that the surety be declared liable, and that he have such other and further relief as might be just and proper. The defendants demurred on the ground that it appeared on the face of the complaint that the Municipal Court did not have jurisdiction. That demurrer was sustained, with leave to plead over, but with the provision that in case of failure the defendants should have judgment absolute. The plaintiff did not plead over, and judgment absolute was rendered.
This court is committed to a conclusion contrary to that of the learned Municipal Court. ( Eadie v. Waldron, 64 App. Div. 424. ) We may surmise that our decision was not called to the attention of the learned court, inasmuch as it does not appear upon the points of either of the defendants upon this appeal.
The judgment should be reversed and a new trial ordered, costs to abide the event.
WOODWARD, BURR, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.