Second Department, May, 1908. [Vol. 126. ANTONIO ROMEO, Respondent, v. THE CITY OF YONKERS and Others, Respondents, Impleaded with GAETANO CHIANGONE and BERNANINI DELUCIO, Appellants, and Others. Second Department, May 12, 1908. Pleading-mechanic's lien-municipal improvements ·limitation of action - unnecessary allegations - appeal - failure to take objection. The complaint in an action to foreclose a mechanic's lien upon a municipal improvement need not allege that the action was commenced within three months of the filing of notice of lien. Even though such unnecessary allegation be made, a mere denial thereof in the answer uncoupled by an affirmative allegation that the three months had expired does not raise an issue, for no issue can be raised on an unnecessary or immaterial allegation. Where on the trial under such pleadings there is no evidence as to when the action was begun, nor any issue on that point raised, but the case is tried upon the merits, without a suggestion that the lien had expired, the question cannot be raised upon appeal. HOOKER, J., dissented, with opinion. APPEAL by the defendants, Gaetano Chiangone and another, from a judgment of the County Court of Westchester county in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of said county on the 12th day of January, 1907, confirming the report of a referee, and also from an order entered in said clerk's office on the 5th day of July, 1906, denying the said defendants' motion to set aside said report. Adrian M. Potter, for the appellants. William J. Wallin [Henry J. Rowan and James F. Dalton with him on the brief], for the plaintiff and the defendants Cieri and others, respondents. Charles E. Otis, for the respondent the City of Yonkers. GAYNOR, J.: Section 17 of the Lien Law (chap. 418, L. 1897, as amended by chap. 37, L. 1902) provides that if a lien be for labor or materials on a public improvement it shall not continue longer than three months from the time of filing the notice thereof unless an action App. Div.] Second Department, May, 1908. to foreclose the same shall be begun and a lis pendens filed therein within that time, "or unless an order be made by a court of record continuing such lien ". The notice of lien was filed on November 12th, 1904, and the complaint so alleges. The complaint also alleges that "this action was commenced within ninety days from the filing of plaintiff's notice of lien". The complaint was sworn to on April 5th, 1905. The denial in the answer of the appellants includes the paragraph of the complaint containing this allegation. There is no evidence in the case of when the action was begun, nor was any question on that head raised during the trial in any shape or form. The case was tried on its merits without any suggestion from beginning to end that the lien had lapsed. There fore that question cannot be raised on appeal. The appellants having remained silent upon it before the trial court must continue to be silent upon it now. Not having spoken when they should have done so they may not do so now. This is too old a rule to dwell over. Moreover, the answer does not plead as a defense that the lien had lapsed. The allegation in the complaint that the action was begun within 90 days after the filing of the notice of lien was an unnecessary allegation. Indeed, it is an allegation which a complaint cannot contain if the summons has not already been served. If the summons and complaint are issued together, as the usual practice is, the complaint cannot allege that the action was begun within 90 days after the filing of the notice of lien, any more than a complaint served with the summons could allege that the action was begun within any of the periods after the cause of action accrued, short or long, prescribed by the statute of limitations. And if an action be in fact begun within the three months, it would be entirely unnecessary for the complaint to allege that fact. Who would suggest that the complaint would have to be dismissed on the trial, or would be demurrable for not alleging it? It does not make a difference that the unnecessary or impossible allegation of the complaint is denied by the answer. We must not oust the everyday and obvious rule of pleading, so recently applied by ourselves, that no issue can be raised on an unnecessary or immaterial allegation in a complaint or other pleading (Linton v. Unexcelled Fire Works Co., 124 N. Y. 533; Brown v. Travellers' Life Second Department, May, 1908. [Vol. 126. Ins. Co., 21 App. Div. 42; Ubart v. Baltimore & Ohio R. R. Co., 117 id. 831). There is some nice learning about an exception in a statute having to be negatived by the complaint, in order that a cause of action be stated, i. e., where the cause of action arises out of or rests on the exception; but we have no such case here. The statute does not contain an exception at all. There is a proviso, i. e., the statute enacts (§§ 12 and 13) that the filing of a notice of lien creates a lien, provided, however (§ 17), that if it be for work or material on a public improvement it shall not continue longer than three months unless by an order of court or by the commencement of an action to foreclose it. The proviso is even in a separate clause from the enacting clause, upon which some cases, in the nicety of their learning, rest as quite decisive. The case of Ilarris v. White (S1 N. Y. 532) has no point of resemblance to the present case. It serves for contrast instead of for comparison or precedent. The case of Rowell v. Janvrin (151 N. Y. 60) is in point, and that of Ramsay v. Hayes (187 id. 367) is instructive of the opposite, i. e., of a case where a proviso did not exist or an exception, either, for that matter. Section 1758 of the Code of Civil Procedure provides that the plaintiff is not entitled to a divorce if "the action was not commenced within five years after the discovery by the plaintiff of the offence charged"; but the complaint does not have to contain an allegation that the action was begun within such time; that it was not has to be pleaded as a defense in order to be availed of, even though the complaint alleges that it was and the answer denies such allegation (McCarthy v. McCarthy, 143 N. Y. 235). The judgment should be affirmed. WOODWARD, JENKS and RICH, JJ., concurred; HOOKER, J., read for reversal. HOOKER, J. (dissenting): This is an action to foreclose a mechanic's lien. The plaintiff was a laborer for the defendant Orio; Orio had a contract with the city of Yonkers, one of the other defendants, to pave a certain street within the limits of the city. The appellants, the defendants Chiangone and Delucio, were the bondsmen for Orio. Before the work under the contract was done Orio refused to complete, and assigned his interest in and rights under the contract to these bonds App. Div.] Second Department, May, 1908. men, who undertook to complete the contract with the city of Yonkers. The defendant Raymond also had a claim for materials supplied for this work, but all of the parties agreed upon the trial that he should have his pay out of the money in the hands of the city yet unpaid to the contractor; and since the entry of judgment payment has been made to the defendant Raymond, agreeably to the understanding between all the parties. The other defendants are laborers who did the work for Orio and his assignees. Within the statutory time after the completion of the plaintiff's work, he filed a notice of lien against the moneys then due to the bondsmen, to whom the contract had theretofore been assigned by the defendant Orio; it is claimed that there was a large amount of money in the city's hands which was then due to the assignees of the contractor, and that the notice of lien was sufficient to impress upon those moneys a lien in favor of the plaintiff to pay him for the labor he had performed. The plaintiff's notice of lien was filed on November 12, 1904; the action was commenced by the service of a summons on the defendant Chiangone on the 13th day of February, 1905, and on the defendant Delucio on the 21st day of February, 1905; but the date of the service of the summons upon the defendant, the city of Yonkers, is not stated in the papers. The complaint alleged that the action was commenced within ninety days from the filing of the plaintiff's notice of lien. The answer of the defendants Chiangone and Delucio denied that the action was commenced within ninety days from the filing of the plaintiff's notice of lien; the answer of the city admitted this allegation of the complaint in that it did not deny it. The referee has not found that the action was commenced within three months after the filing of the notice of lien. There is no finding in this respect either way. The other defendants, the laborers, went to trial without having served any answers upon the appellants. When, during the course of the trial, they were sworn to show the amount of the services they had rendered in the work on this street, the appellants objected to the evidence on the ground that there was no issue sufficiently raised in that respect in that these defendants had served no copy of their answer upon the appellants. These defendants, however, were allowed to file answers, and did so; but such answers not only actually denied the allegation of the plain Second Department, May, 1908. [Vol. 126. tiff's complaint that the action was commenced within ninety days after the filing of the notice of the plaintiff's lien, but also failed to allege in the interest of the pleaders that such was the case. The judgment which was entered provided that out of the moneys due from the city to the appellants as assignees of the contract of Orio with the city, there should be paid, first, the Raymond claim; every one agreed, however, that this was a proper payment, and no fault is found with the judgment in that respect; second, that the plaintiff should be paid the amount of his labor; third, that the city of Yonkers should be paid for certain materials it furnished; and fourth, that the thirty-eight laborer defendants be paid the amount of their work. The real parties who are adversely affected by this judgment are, of course, the assignees of the contract, and they alone have appealed from the judgment. It seems to me that the claim the appellants make that the judg ment must be reversed because it does not appear that the action was commenced within three months after the filing of the notice of lien, is sound. The statutory provision is as follows: "Duration of lien under contract for a public improvement. If the lien is for labor done or materials furnished for a public improvement, it shall not continue for a longer period than three months from the time of filing the notice of such lien, unless an action is commenced to foreclose such lien within that time. * *" (Lien Law [Laws * of 1897, chap. 418], § 17, as amd. by Laws of 1902, chap. 37.) The language of the statute under which the plaintiff and the laborer defendants claim to hold a lien against the moneys due from the city to the appellants is distinct in its provision that the lien shall have no validity beyond three months after filing unless an action is commenced to foreclose. Here we have an exception upon whose provision the plaintiff relies; the exception is embodied in the clause of the statute, and the plaintiff must plead and prove that he is entitled to its benefits, namely, that the action was begun within three months (Harris v. White, 81 N. Y. 532, 546; Rowell v. Janvrin, 151 id. 60, 67); the plaintiff has plead the exception, but the allegation is denied by the appellants and even by the laborer defendants; no proof was offered to sustain the allegation and no finding was made in that respect by the referee. That the answer of the defendant, the City of Yonkers, admits the allega |