¶1(concurring in part, dissenting in part).
¶2I concur with Part A of the opinion. I respectfully dissent from Part B on the ground that defendants had a valid materialman’s lien on plaintiffs’ property. As the opinion points out, the validity of a lien under ‘ § 61-2-2, N.M.S.A.1953 (2d Repl.Vol. 9, pt. 1) is determined by the rule of Panhandle Pipe and Steel, Inc. v. Jesko, 80 N.M. 457, 459, 457 P.2d 705 (1969) that the materials furnished must actually have been installed on the premises in order for the lien to attach. Plaintiffs state in paragraph 3 of the complaint that the swimming pool heater was installed. Defendants also allege that the unit was installed (counterclaim and third-party complaint, paragraph 3). Plaintiffs never sought to amend their complaint. An unconditional admission in a pleading permits of no controversy and requires no proof. Rokita v. Germaine, 12 Misc.2d 84, 176 N.Y.S.2d 34 (1958). The trial court clearly erred in finding that the unit was never installed (Finding No. 4) and in concluding therefore that defendants never had a valid lien (Conclusion of law No. 1).
¶3It should also be emphasized that the subsequent removal of materials, once they have been installed, does not affect the validity of the lien. Johnson v. Smith, 97 Cal.App. 752, 276 P. 146, 147 (Dist.Ct.App., 2d Dist., Calif., 1929).