Opinion
January Term, 1901.
Interlocutory judgment affirmed, with costs, on opinion of Dwight, J., delivered at Special Term, with leave to defendant to withdraw his demurrer and answer upon payment of the costs of the demurrer and of this appeal. All concurred.
The following is the opinion of Dwight, J.:
The action is to foreclose two mechanics' liens filed by the plaintiffs Porter and Chamberlain Phillips, respectively, for materials furnished by such plaintiffs, respectively, to the principal contractor Freese, in the erection of a building for the defendant Avery. The complaint alleges a balance of the contract price due to Freese from Avery and amounts severally due to the materialmen aggregating less than the amount alleged to be due as above to the principal contractor. The demurrer is for: 1. Misjoinder of parties plaintiff, in that Freese was not a proper party plaintiff. 2. Defect of parties defendant, in that Freese was a necessary party defendant. 3. Improper joinder of causes of action, in that a cause of action in assumpsit in favor of Freese is joined with causes of action for the enforcement of liens in favor of the other plaintiffs respectively. 4. Failure to state facts sufficient to constitute a cause of action, in that there is no allegation that the contractor Freese has not paid the claims to the other plaintiffs. I think the demurrer is not well taken on either ground specified. First. It is contended by the demurrant in his 2d specification that Freese was a necessary party, but, as he says, party defendant; and he was undoubtedly a proper if not necessary party to the action. ( Hilton Bridge Construction Co. v. N.Y.C. H.R.R.R. Co., 145 N.Y. 390.) Such being the case, it is of little moment in an equity action whether he be a party plaintiff or defendant. ( Simson v. Satterlee, 64 N.Y. 657.) If he desires or consents, as he has done in this case, to be a party plaintiff, there can be no doubt of the propriety of making him such. Indeed, the attitude of plaintiff seems much more consistent with his relation to the other parties and to the subject-matter of the action than that of defendant. His claim against the defendant Avery must be established as the basis of the cause of action of the other plaintiffs, and it seems more appropriate that he should be associated with the plaintiffs, who are interested to establish his claim, rather than with the defendant, who is interested to defeat it. As a plaintiff he is before the court for the adjudication of whatever rights or interests he may have in respect to the matters at issue. Second. What has so far been said disposes equally of the second ground of demurrer; Freese being properly made a party plaintiff, there is no defect of parties defendant. Third. The objection of an improper joinder of causes of action is not well taken. Although the allegations of the complaint in respect to the amount due from the defendant to Freese would be appropriate to a cause of action in assumpsit, they are not necessarily to be construed as so intended. They are equally appropriate as allegations constituting the necessary basis of a cause of action in equity for the enforcement of a lien of sub-contractors or materialmen. Their lien applies only to the extent of the amount due from the owner to the principal contractor, and their first task is to establish that amount. To prove it they must allege it, and this they have done in the allegations objected to under the 3d specification of the demurrer. Fourth. I suppose the allegation that certain amounts specified are due from Avery to plaintiffs, other than Freese, respectively, are quite sufficient without alleging that those amounts have not been paid by Freese. The money could not be due from Avery if it had been paid by Freese; and the affirmative allegation of the facts upon which the indebtedness arose, and that such indebtedness still exists, is sufficient without the negative allegation of non-payment. The demurrer will be overruled, with costs to the plaintiffs to abide the event of the action, but with leave to the defendant to withdraw the demurrer and answer over within twenty days.