Mitchell v. Dunmore Realty Co. , 120 N.Y.S. 771 ( 1909 )

Houghton, J.:

After answer the defendant moved, under the provisions of section 547 of the Code of Civil Procedure, for judgment on the.pleadings, and on the 19th day of February, 1909, an order was entered directing judgment dismissing the plaintiff’s complaint, and also permitting plaintiff upon payment of costs to serve an amended complaint. The plaintiff accepted the order with its permission to amend and did not appeal therefrom, but the defendant appealed to this court from that part of the order permitting the plaintiff to serve an amended complaint, and this court reversed the same. (132 App. Div. 180.) After such reversal of that part of the order appealed from, and on the 12th day-of May, 1909, the defendant entered judgment dismissing plaintiff’s complaint. Thereafter, and on the 11 tli of June, 1909, the plaintiff brought this appeal, and in his notice stated that he appealed from such final judgment, and that he also intended to bring up for review the order of February 19, 1909. • . ,

The respondent insists that the order of-February nineteenth is not an intermediate order within the meaning of section 1316 of the Code, which can be reviewed on an appeal from final judgment by stating in the notice that the appellant intends so to do; and, further, that a judgment entered in- pursuance of an order made on motion under section 547 of the' Code is not appealable to this court, but that the only right of the aggrieved party is tó appeal from the order directing tlie entry of judgment.

If the judgment is not appealable the plaintiff has lost his right; because the notice of appeal cannot be construed as a direct appeal from the order, and, indeed, it is manifest that the .time to appeal from the order had expired when notice, was served.

We are of opinion that an aggrieved party has the right to appeal to this court either'from the order made on a motion for judgment under sectiop 547 of the Code, when the appeal is taken before the entry of judgment, or from the judgment entered in pursuance of such order, or from both.

That the order is appealable there can be no question, for it comes within the express provisions of section 1347 of the Code, in which the right to appeal to this court is given where the order involves some part of the merits of an action or affects a substantial right, or in effect determines the action and prevents a judgment from which an appeal might be taken.

Section 1346 of the Code prescribes that an appeal may be taken to this court from a final judgment rendered in the Supreme Court where such judgment was rendered upon a trial by the court without a jury. Before the enactment of section 547 of the Code, where the defendant did not choose to demur to the plaintiff’s complaint or the plaintiff elect to demur to the defendant’s answer, the parties were compelled to wait'until the cause was reached for trial, and then either party had the right to move for judgment upon the pleadings, and, of course, the judgment thus rendered was appeal-able to this court because it was rendered upon the trial of the action. The manifest purpose of the enactment of section 547 was to enable the parties to avoid the long delay incident to waiting until the action was reached upon the calendar, and to permit them, after issue was joined, to move for judgment at Special Term upon the samé grounds and governed by the same rules as though the motion had been made at trial. (Clark v. Levy, 130 App. Div. 389.) The effect of this provision was that a trial of an action on the pleadings might be had before the court at any Special Term. If the pleadings are of such character that either party is entitled to a judgment, the court so orders, and the judgment which follows is the result of a trial by the court, and is, therefore, appealable to this court under the express provisions of section 1346. The order for judgment necessarily affects the final judgment entered, and, therefore, may be included in the appeal from- the judgment under the permission granted, by section 1316 of the Code. While undoubtedly tile better practice is to appeal from the order and thus avoid the complications incident to the entry of a judgment before it shall be finally determined whether such judgment is proper, still we. are of the opinion that if judgment be entered the aggrieved party can appeal from such judgment and bring up for review the order by specifying the same in his notice and stating his intention so to do.

The plaintiff’s appeal being effectual it remains to be determined whether or not his complaint was properly dismissed.

The action is brought to foreclose á mechanic’s lien upon property owned by this defendant. Onq Murray held a long term lease, and the complaint alleges that the defendant owner requested the tenant Murray to make alterations and improvements upon the real property, and that with the owner’s consent and knowledge the plaintiff entered into a written contract with Murray to make improvements to the extent of $84,500 upon the property,'and that “ at the special instance and request of defendants, " the Dunmore Realty Company and John L. Murray, plaintiff performed certain extra work and furnished certain extra materials in addition to the work and materials required by said written contract to be performed and furnished, and that said extra work and materials were reasonably worth the total sum of $11,649.96,” which’sum has not been paid.

■ The defendant challenges the sufficiency of plaintiff’s notice of lien; Whether the notice of lien be sufficient or not, the complaint states a cause of action against the defendant the Dunniore Realty Company for the extra work amounting to $11,000, for it alleges that at its special instance and request as well as that of Murray, such work was performed and materials furnished, and the complaint asks for a deficiency judgment against’this defendant as well as Murray. Under such a pleading, even if the plaintiff should fail] for any reason to establish a valid lien, he would be entitled to a personal judgment upon making proper proof. (Code Civ. Proc. § 3412; Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38],. § 54; Ryan v. Train, 95 App. Div. 73; Gilmour v. Colcord, 96 id. 358.) Even though, therefore, the plaintiff’s notice of lien . may be bad and he may be unable to recover anything against the Dunmore Realty Company as owner because of its knowledge of the improvements which its tenant Murray through written contract with plaintiff -was putting upon its property, the complaint states a good cause of action with respect to the extra work done because it alleges that it was ordered to be done by the owner as well as the tenant. ■

It, therefore, follows that the dismissal of the complaint was erroneous and the judgment is reversed and order also reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings denied, with ten dollars costs.

Ingraham, McLaughlin and Scott, JJ., concurred; Laughlin, J., dissented.