Opinion
March 7, 1966
In an action to foreclose a mechanic's lien against moneys due and to become due under a State public improvement contract and for other relief, plaintiff appeals from so much of a judgment of the Supreme Court, Westchester County, entered on or about July 21, 1964 upon the court's decision after a nonjury trial, as dismissed the complaint as against defendants A.E. Ottaviano, Inc., and the Fidelity and Deposit Company of Maryland (respectively the general contractor and its surety) and cancelled plaintiff's notice of lien and the surety bond filed for the discharge of plaintiff's lien. Judgment, insofar as appealed from, affirmed, with one bill of costs payable to respondents jointly. No opinion.
Ughetta, Acting P.J., Christ and Hill, JJ., concur;
I agree that the lien asserted by plaintiff is invalid because neither an order continuing the lien was made within six months after the filing of the lien nor was an action begun and a lis pendens filed within that period (Lien Law, § 18). However, I am persuaded that under the liberal provisions of the CPLR the complaint may be construed to plead a cause of action for relief under the provisions of article 3-A of the Lien Law. An action to impress a trust lies under those provisions whether a lien is or is not filed (Lien Law, § 71, subd. 4); Aquilino v. United States, 10 N.Y.2d 271, 277). Although plaintiff in its complaint does not sue in a representative capacity (cf., Lien Law, § 77), the action may be converted by proper amendment ( Davis Warshow v. S. Iser, Inc., 30 Misc.2d 528, 540). In any event, an action should not be dismissed because it has not been brought in a proper form (CPLR 103; cf., Lane v. Mercury Record Corp., 21 A.D.2d 602) or because the proper relief has not been demanded (CPLR 3017, subd. [a]); and a pleading is sufficient if it fairly gives notice of the transactions to be proved and the material elements of the cause of action (CPLR 3013). Here the action was brought against the State of New York, the general contractor, the subcontractor on whose order plaintiff delivered materials to the job, and other presumed materialmen claiming liens. Whether other parties who may also be beneficiaries of a trust exist can await the time when the application to correct the complaint is made. Plaintiff proceeded at the trial on the theory of a lien and Special Term was fully justified in denying it relief on that theory. Ordinarily, a new theory of the case may not be raised on appeal, but in the interests of justice an appellate court may direct either a new trial or remission for the purpose of allowing a party to obtain relief under circumstances which appear so exigent that a remedy should be available, though not originally sought (cf., Fitzgerald v. Title Guar. Trust Co., 290 N.Y. 376, 381; Boissevain v. Boissevain, 252 N.Y. 178, 181; Kaplan v. Blitzblau, 20 A.D.2d 601; Goodrich v. Hancock Mut. Life Ins. Co., 17 A.D.2d 271, 276; Wetchler v. Weal Homes Corp., 240 App. Div. 905). There is no dispute that plaintiff's materials were used in the construction of the public improvement, that the general contractor received payment for the contract and that the subcontractor (which was plaintiff's vendee) is insolvent. Under these circumstances, plaintiff should be permitted to assert a claim on the theory of a trust fund and to introduce proof upon that theory at Special Term. Otherwise, plaintiff may suffer substantial loss and other parties to the action may be unjustly enriched by plaintiff's misfortune.