Ross v. Simon
New York Court of Common Pleas
Appeal from city court, general term. Action by John B. Boss against John Simon, Ignatz Schmitt, Barbara Schmitt, and others, to enforce a mechanic’s lien. Defendant Simon demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained both at special and general terms of the city court, and plaintiff again appeals.
1Opinion of the CourtDaly, J.
The owner of the premises demurred because the lien, a copy of which is annexed to the complaint, did not contain the statement that the lien was claimed against the interest of the said owner; also on the ground that the allegation in the complaint that the defendant, the owner, had full knowledge of, and consented to, the doing of the work, was insufficient, there being no averment of any agreement or contract with him. The demurrer was sustained upon both grounds.
The lien act provides that persons performing work, etc., in erecting any house, etc., “with the consent of the owner, ” may…
2Cases cited5 opinions
- Otis v. . DoddNew York Court of Appeals · 1882
- Husted v. . MathesNew York Court of Appeals · 1879
- Moran v. . ChaseNew York Court of Appeals · 1873
- Jones v. ManningNew York Supreme Court · 1889
- Ottiwell v. MuxlowNew York Court of Common Pleas · 1889
3Cited by4 opinions
- Blose v. Havre Oil & Gas Co.Montana Supreme Court · 1934
- Havens v. West Side Electric Light Co.New York Supreme Court · 1892
- La Pasta v. WeilAppellate Terms of the Supreme Court of New York · 1897
- Miller v. SchmittNew York Supreme Court · 1901