Frost v. McGinnis — 15 Daly (N.Y.) 113

Majority

p. 113

Edward L. Frost, as Receiver, &c., of John Young, Respondent, against Owen McGinnis, Appellant.

(Decided January 7th, 1889.)

Headnote

To enable a contractor for work on a building to procure materials, the owner made himself liable therefor and paid money to an amount more than called for by the contract. Held, that he might set off the indebtedness of the contractor to him for such payment against an action for extra work done on the building by the contractor, brought by the receiver of the latter’s property; and that he was not precluded from so setting it up by having failed to claim it as an off-set in proceedings to foreclose mechanic’s leins filed against the building.

Appeal from a judgment of the District Court in the City of New York for the First Judicial District.

The facts are stated in the opinion.

William C. Orr, for appellant.

H. M. Hitchings, for respondent.

[Present, Van Hoesen and Bookstaver, J J.]—This action is brought by the plaintiff, as receiver of John Young, a judgment debtor, to recover for certain extra work done by Young for the defendant McGinnis on a lot and building in Pitt Street. Young had contracted with McGinnis for doing the mason work and furnishing the iron work on this building, and in order to enable Young to procure the iron work necessary, McGinnis had made himself liable to the parties furnishing it, and had, before the commencement of this action, actually paid $485 more than called for. by his contract with Young, and the latter was then indebted to McGinnis in that amount. The value of the extra work tlie justice found to be $35, and we think his conclusion as to the value fully sustained by the evidence. The justice rendered judgment against the defendant McGinnis for this amount. This, we think, was error.

p. 114

The indebtedness of Young to McGinnis was properly pleaded as an .off-set against this extra work, and should have been allowed. The fact that he did not set it up as such in the action to foreclose the mechanics’ liens filed against the building did not constitute a waiver of the claim nor preclude him from setting it up in this action. And he "had as much right to set it up and maintain it as a defense in an action brought by the receiver as he would have had in an action brought by Young himself.

The judgment should therefore be reversed, with costs.

Judgment reversed, with costs.