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122 A.D. 274

Abbott v. Easton

Appellate Division of the Supreme Court of the State of New York · decided 1907-11-13

Appeal by the plaintiff, Vasco P. Abbott, from a judgment of the County Court of-St. Lawrence county in favor of the defendant, entered in the- office of the clerk of said county on the 11th day of February, 1907, upon an order entered in said clerk’s office on the 28th day of November, 1906, dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and also from the said order directing the dismissal of the complaint.

Decided 1907-11-13

Chester, J. (dissenting):

¶1At the opening of the trial the defendant’s counsel moved that the complaint be dismissed, for the reason that it did not state facts sufficient. to constitute a cause of action. This in effect was the same as if the complaint had been demurred to on that ground. If, therefore, any cause of action is stated in the complaint the motion should have been denied. I agree that this complaint was .insufficient as one for the foreclosure of a mechanic’s lien, but it contains the statement of a good cause of action for lumber sold and delivered, and upon proof of the facts alleged the plaintiff would have been entitled to a money judgment for the amount claimed against the defendant.

¶2In the case it is said that the motion to dismiss the complaint was on the grounds that it did not contain a sufficient averment as to the making and filing of. a notice of lien or state whether any other action lias been brought to recover any part of the debt in said complaint mentioned, or whether any part of such debt has been collected, but no such grounds are stated in the order entered or in the judgment appealed from. In these it is stated that the motion to dismiss was on the ground that the complaint did not state facts sufficient to.constitute a cause of action, and the decision is put on that ground. We should, therefore, take that as the ground of the motion rather than any statement in the case differing from that. That being the ground, and the complaint stating a good cause of action for lumber sold and delivered, although it failed to state a good cause of action for the foreclosure of a mechanic’s lien, the motion should have been denied.

¶3When this motion to dismiss was made it became a question of law for the court to decide, and no consent to its submission as a *278question of law was necessary. When the court decided that the complaint did not state a cause, of action it was not' incumbent upon the plaintiff to do anything more in the court below and his only remedy was to appeal. I vote for a reversal.

¶4Judgment affirmed, with costs, with leave to plaintiff to move in the County Court for such relief as he may be advised.

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