Page images

and 114 New York State Reporter and with whom the alleged adultery was committed. The plaintiff objects to the hearing and granting of the motion solely upon the ground that the moving affidavit is made by the attorney, and not by the defendant. As this objection is the only one argued, it is the only one that will be considered in disposing of the motion.

The Code of Civil Procedure (section 531) authorizes the court to direct a bill of particulars, but makes no requirement that it must be upon the affidavit of the party or otherwise. The authorities, however, are quite uniforin that the application must be made upon the affidavit of the party to the action, and not his attorney. Cohn v. Baldwin, 74 Hun, 346, 26 N. Y. Supp. 457. The reason of this rule seems to be that as the motion rests in the sound discretion of the court, upon the facts shown, the attorney ordinarily cannot swear as to what knowledge or information his client has, and that the affidavit of the party himself furnishes the court the best information upon that subject. In the Cohn Case the court says the affidavit of the attorney does not show that the defendant required any bill of particulars. In Mungall v. Bursley, 51 App. Div. 380, 64 N. Y. Supp. 674, the affidavit of the attorney was insufficient, as it did not show that he possessed any knowledge of the facts upon which the application is based. In Sanders v. Soutter, 54 Hun, 310, 7 N. Y. Supp. 549, the affidavit of the attorney was held to be sufficient, as the complaint, upon its face, indicated the probable necessity of particulars, to prevent surprise, and that the attorney, and not the client, was the best judge as to whether a proper answer could be interposed without the information sought. It is fairly to be gathered from the authorities that, while the affidavit must in most cases be made by the party, this necessity arises ordinarily from his superior knowledge of the facts, and that the court is better satisfied as to the necessity of the application where the party swears. In this case the complaint is indefinite and entirely uncertain, and is an application had been made, before answer, to make it more definite and certain, the inspection of the complaint would require such relief to be granted. Here the defendant, by a verified answer, denies the adultery. The attorney is a better judge of whether he can safely proceed to trial without the particulars desired than the client, and it is apparent from the complaint that, no matter how innocent the defendant may be, if the case is to be pressed against him he would proceed to trial under the greatest disadvantage, without the particulars sought. This seems to be a case where an affidavit can allege no new facts, and where all that is necessary for the success of the motion is to have the attention of the court drawn to the pleadings, and it seems that the affidavit of the attorney that he cannot safely proceed to trial upon the complaint in its present form is all that is necessary to satisfy the court that the defendant is entitled to the relief asked. The motion is granted, and an order may be submitted to plaintiff's attorney and the court, requiring the time, place, and the name or description of the parties, to be stated with reasonable certainty.

Motion granted.

(39 Misc. Rep. 397.)

FAVILLE v. HADCOCK et al. (Supreme Court, Special Term, Fulton County. December, 1902.) 1. MECHANIC'S LIEN-FORECLOBURE--EQUITABLE RELIEF.

Plaintiff's complaint claimed a lien against certain property, in which lien one of the defendants was claimed to be owner. The complaint alleged that in fact the other defendant was the owner when the work was done and the lien filed, of which the plaintiff had no knowledge, and asked that the lien be held an incumbrance on the interest of such other defendant, and be foreclosed. Held to state a cause of action in equity

only as seeking special relief against the defective notice of lien. 2. Costs.

Code Civ. Proc. $ 3228, subd. 4, refusing costs to plaintiff in certain actions where his complaint demands judgment for a sum of money only, and he recovers less than $50, does not apply to an action seeking to enforce a mechanic's lien, and for special relief against a defective notice

of lien. Action by Welcome Faville against Martha Hadcock and Morgan L. Hadcock. Judginent for plaintiff. Motion to set it aside, and permit defendants to come in and defend. Denied.

Horton D. Wright, for motion.
Frank Talbot, opposed.

SPENCER, J. The action is to foreclose a mechanic's lien. The summons and complaint were served personally on both defendants, and they have purposely made default. Judgment being taken against them with costs, they now, without presenting any excuse for not appearing at the proper time, ask to be permitted to come in and offset against the plaintiff's demand, a small claim for damages because of the unworkmanlike manner in which plaintiff's services were performed. All the facts pertaining to such offset were fully known to them at the time the summons and complaint were served, and to allow them now to make such defense would not be in furtherance of justice. Furthermore, it could only be upon terms involving an expense to them more than double the amount of the damages of which by their proposed answer they would be entitled to give proof. Under these circumstances, it is difficult to perceive how they are to be benefited by being permitted to litigate the issue which they tender. The application to set aside the judgment, and let defendants in to defend, is therefore denied.

The question as to costs is not so clear. Chapter 419 of the Laws of 1897, supplemental to the Code of Civil Procedure, and constituting sections 3398 to 3419 thereof, prescribes proceedings for the enforcement of mechanics' liens on real property. It provides that a lien may be enforced against the property, and against a person liable for the debt, by an action in a court which has jurisdiction in an action founded on a contract for a sum of money equivalent to the amount of the debt. Code Civ. Proc. § 3399. This, beyond question, authorizes an action in justice's court, where the amount of the debt upon which the lien is founded does not exceed $200. But there is nothing to prevent such action being brought in this court, however small the debt, and any attempt to limit such jurisand 114 New York State Reporter diction would be invalid. People v. Nichols, 79 N. Y. 582. But the legislature has the power to accomplish practically such a limitation, and it has so done in certain actions, by refusing costs to a plaintiff where his complaint demands judgment for a sum of money only, and he recovers less than $50, and by granting costs in such case to the defendant. Code Civ. Proc. § 3228, subd. 4; Id. § 3229. But do these sections apply here? A provision in the supplemental chapter above referred to seems to indicate otherwise. It provides as follows:

"If an action is brought to enforce a mechanic's Hen against real property in a court of record, the costs and disbursements shall rest in the discretion of the court, and may be awarded to the prevailing party. If such action is brought in a court not of record, they shall be the same as allowed in civil actions in such court." Code, & 3411.

The statute of which the section quoted forms a part provides two distinct remedies,-one for the foreclosure of a lien in an action in equity in courts of record, and one for debt in an action at law upon the agreement set forth in the notice of lien in courts not of record. The latter form of action inay, no doubt, be brought in this court, because of its general jurisdiction; and where this is done, and the complaint demands judgment for a sum of money only, as in an action at law, there is no doubt that the provisions of sections 3228 and 3229 should apply, and regulate the award oi costs. It also seems that, under the provisions of the statute referred to, the lienor is at liberty to bring his foreclosure action in this court, however small his claim, without subjecting himself to the provisions of sections 3228 and 3229 in respect to costs. Such an action is a suit in equity. Kenney v. Apgar, 93 N. Y. 539; Cement Co. v. Arnott, I52 N. Y. 584, 46 N. E. 956.

But that question need not be determined here, as the action is not for debt upon the agreement set forth in the lien, nor is it solely for a foreclosure of such lien, nor does the complaint demand judgment for a sum of money only. On the contrary, the complaint sets forth a mechanic's lien against certain specified real property, in which the defendant Morgan L. Hadcock is described as owner, and alleges, in substance, that such was the ownership of the real property, so far as the same was known to the plaintiff at the tinie he filed his notice of lien; that, in truth and fact, the defendant Martha Hadcock was the owner of said property at the time the vork thereon was performed and the notice of lien filed,—and asks to have said lien adjudged an incumbrance upon her interest therein, and that such lien be foreclosed, her interest sold, and the money brought into court for distribution, etc. The complaint thus goes beyond a simple suit of foreclosure, and seeks special relief in regard to the defective notice. The plaintiff, on account of such defective notice, was not at liberty to enforce his lien in an action for debt in justice's court. He was therefore compelled to bring his action in equity, and justices' courts have no jurisdiction of equitable actions. In Coon v. Brook, 21 Barb. 546, this court said:

“The respondent's counsel insists that the authority conferred on justices of the peace, to try and determine actions, according to law and equity, gives them jurisdiction to try equitable actions. This position is erroneous. Although courts of justices of the peace have some of the powers which are possessed by courts of record, no decision can be found holding that such courts can try purely equitable actions of any kind.”

This decision was rendered in 1856, and to the present time I find no decision to the contrary. Neither is there anything in chapter 419, Laws 1897, to which reference has been made, to indicate any attempt to confer such jurisdiction in lien cases. The act makes a clear distinction between actions brought in courts of record and those brought in courts not of record. In the former court all the parties in interest, including not only those having incumbrances by way of mechanics' liens, but by judgment, mortgage, or otherwise, are required to be made parties. The court must adjust and determine the equities of all the parties, and also the order of priority of the different liens. In short, the form of the action, the enforcement of the judgment by foreclosing the rights of the parties, the awarding of a deficiency judgment against persons liable for the debt, and all the proceedings, are in all respects the same as in the foreclosure of a mortgage in courts of equity. But in courts not of record no such proceedings are had. The action proceeds as a personal one upon the agreement set forth in the notice of lien. There is no provision for the adjustment of equities among other lienors and incumbrancers, if any should exist, and the judgment is enforced by execution in the same inanner, and subject to the same limitations and restrictions, as judgments in actions at law, except that the sale is of the interest of the owner at the time of the filing of the lien, and not from the entry of the judgment. Strictly speaking, it is an action at law, and in no sense an action in equity. The remedy afforded to the lienor falls far short of that available to him in an action in courts of record. I am therefore of the opinion that the provisions of section 3228, subd. 4, of the Code, in respect to costs, do not apply.

These views lead to a denial of the defendants' application, but as the amount involved is small, and some of the questions involved are of a novel character, costs of the motion will not be allowed.

Motion denied, without costs.

(79 App. Div. 514.) PEOPLE ex rel. BOIES V. BOARD OF CANVASSERS OF ERIE COUNTY. (Supreme Court, Appellate Division, Fourth Department. January 6, 1903.) 1. ELECTIONS-RETURNS-CANVASS-POWER OF BOARD OF COUNTY CANVASSERS.

Election Law (Laws 1896, c. 909, $ 84) provides for the furnishing to the inspectors of election of tally sheet and return sheet blanks, and prescribes that the tally sheet shall contain a separate column, for each ticket printed on the official ballot, for the name of the ticket, and the votes cast on straight and split tickets, and the total votes for each candidate, and provides on the return sheet for a statement of the whole number of votes cast and the total vote for each candidate. Section 110 directs that in making the canvass the proper entries shall first be made on the tally sheets. Section 111 provides for the making of the returns from the tally sheets in the form prescribed for the return and 114 New York State Reporter sheet in section 84. Section 131 provides that the canvass by the board of county canvassers shall be made from the returns. Held that, as the election return sheet provides for no separation of the vote by tickets, the board of county canvassers cannot in their returns show the number of votes each of two parties cast for a common candidate,

but can only show the total vote cast for the candidate by both parties. Appeal from special term, Erie county.

Application for mandamus by the people, on the relation of Loren E. Boies, against the board of canvassers of Erie county, to compel respondents to correct the returns of the recent election so as to show the votes cast for Bird S. Coler for governor by each of the two parties having him as their candidate. From a judgment for the respondents, the relator appeals. Affirmed.


Clarence U. Carruth, Myer J. Stein, and Delos Kneeland, for appellant.

Nathaniel W. Norton, for respondent.

WILLIAMS, J. The order should be affirmed, with $10 costs and disbursements. The application was, in brief, for an order directing the board of canvassers of Erie county to correct the returns of the recent election made by them, so as to show separately the number of votes cast for Bird S. Coler for governor in the column and under the emblem of the "Greater New York Democracy.” This organization secured its column on the official ballot in such election by an independent nomination of its state ticket, under section 57 of the election law (Laws 1896, c. 909, and its amendments). It desires next year to make its nomination by convention, under section 56, Id., and can only do so in case it cast 10,000 votes for state officers at the recent election. The certificates of nomination of a state ticket are required to be filed with the secretary of state. Section 59, Id. Written objections to the certificates may be filed with the secretary of state, and notice of such objection shall thereupon be given to the committees named in the certificates, and to the candidates nominated. Section 65, Id. Any question raised with reference to the validity or legality of the certificates shall be determined in the first instance by the secretary of state, but such determination may be reviewed by the supreme court, or a justice thereof or county judge. Section 56, Id. There seems to be no provision in the law as to the evidence upon which the secretary of state, or the court, justice, or judge, shall act in determining whether a party or organization cast at least 10,000 votes for state officers at the last election for governor, and is therefore entitled to nominate by convention and file a certificate accordingly.

It is assumed in behalf of the appellant that the secretary of state would go to the election returns required to be filed in his office for information on that subject, and ordinarily he would be able to determine the question very satisfactorily from an examination of such returns. It does not often occur that two separate organizations or parties nominate and vote for precisely the same state ticket.

« PreviousContinue »