p. 210Thorntons under his contract with ■ them to furnish all the material and do all the work on the building. The judgment roll contained, also, the report of a referee, to whom the issues were referred. This report contained a finding of fact that Charles Toope and George H. Toope furnished materials and did work for and at the request of the Thorntons of the reasonable value of $1,400, and that they duty filed their lien. The report contained no other finding or adjudication as to the claim of the Toopes, nor did the judgment entered upon the report of the referee. The judgment was for the foreclosure and sale of the building and premises and for the payment of the claims of other lienors. With the introduction of this judgment roll the defendants rested, and the court directed a verdict to be rendered against the plaintiff, holding that the issues involved had been litigated or might have been litigated in the action to foreclose the mechanic’s lien, and that the judgment therein was a bar to the present action. The plaintiffs excepted to the direction of a verdict.
H. Bell, for appellants.
A. F. & W. H Kircheis, for respondents.
The judgment was a bar. (Keene v. Clarke, 5 Robt. 38; Demarest v. Darg, 32 N. Y. 281 ; Derby v. Hartman, 3 Daly, 458 ; Schaettler v. Gardiner, 4 Daly, 56 ; Glacius v. Black, 50 N. Y. 153 , 154.)Plaintiffs on the 6th of November, 1874, filed a notice under the Mechanic’s Lien Law of 1863, against premises in this city, owned by the defendant, alleging a claim against the defendant as owner, and J. and J. W. Thornton as contractors for $630, a balance of a debt due for materials furnished and labor rendered in and toward the erection of a building on said premises in pursuance of a contract they had made with said Thorntons.
This notice was verified by the oath of the plaintiff,
p. 211George H. Toope. The work done by plaintiffs was included in the contract between the Thorntons and defendant for J;he erection of such building.
In January, 1875, Peck & Wandell commenced proceedings in this court for the foreclosure of a mechanic’s lien •against the same premises as sub-contractors for materials furnished toward the erection of said building under the same contract of defendant with the Thorntons, making the ■defendant and these plaintiffs parties. These plaintiffs by ■answer therein also made a statement of their claim by way ■of lien against the premises, alleging that they had entered into a contract with said Thorntons, who were (as alleged) the contractors with the defendant Prigge, the owner of the building, and that under and in pursuance of that contract, they had sold and delivered the Thorntons the building materials and done the work and labor for which the present claim is made. They also alleged the filing of said notice of lien on the 6th of November, 1874, and that $630, with interest, was still due them for such materials and labor; that a large sum was due from defendant to the Thorntons, more than sufficient to pay their claim, and they prayed a sale of •defendant’s property, the application of the proceeds to the payment of the lien on said premises, according to their priorities and for a personal judgment against the Thorntons and defendant for said sum of $630 and interest. This statement of claim was also verified by the oath of said George H. Toope.
Defendant answered such claim, denying all the allegations therein except that he was the owner of the premises, and that he had entered into a contract with the Thorntons to do all the work on said premises for $10,500, of which only SI,500 remained due, which he offered to pay for a discharge •of all the liens referred to in said proceedings.
The cause was referred, and the referee by his report, •dated in December, 1875, found the making of said contract between defendant and the Thorntons : That the Thorntons proceeded to do and substantially finished the work in accordance with the contract, and by reason thereof, on the
p. 2122d of November, 1874, and on the date of the filing of liens-in the report mentioned, there was due said Thorntons from the defendant, Prigge, $1,550, being so much of the price mentioned in said contract as was then unpaid. This sum the referee awarded to-other lienors, who had filed their liens for materials furnished and work done for said Thorntons in pursuance of said contract, having precedence to that of the-plaintiffs, and he also found that these plaintiffs furnished said materials and performed' such labor for and at the-, request of said Thorntons, and that they had filed their said lien therefor on the 6th of November, 1874. Upon this report a judgment was entered substantially conforming to the report and adjudging that the entire contract work was performed by the Thorntons, and awarding the payment of said balance due of $1,550 thereon to the persons having precedence to these plaintiffs, such amount being, however, insufficient to satisfy such prior claims. This judgment so far as shown stands in full force. The plaintiffs, notwithstanding such judgment by complaint duly verified in the present action, make a personal claim again the defendant for the balance due them for said materials and work, upon evidence of one of the plaintiffs, and another witness, tending to prove that after they had commenced to- perform: their sub-contract with the Thorntons, and had furnished but a trivial part of the materials, they told defendant they had stopped work on the job; that they wouldn’t trust the Thorntons and wouldn’t do any work for them ; that defendant requested them.to go on and finish the work, and" said he would pay for it; that he would accept the contract they had with the Thorntons and pay for it; that they resumed work on the job according to the contract they had with the Thorntons. Under this solemn farce of perjury, either in the former or latter proceeding, the plaintiffs present this ex-traordinary claim. They have already had a finding in their favor, in the former action against the Thorhtons, upon their claim as made therein, that they furnished the materials and performed the labor for and at the request of the Thorntons, which were of the reasonable value of $1,400, which finding
p. 213would be available for any future action against the Thorntons. It was also therein found and judgment rendered accordingly in harmony with plaintiff’s pretensions in that action, that .all the work on the building was substantially performed by the Thorntons according to the original contract with the defendant, and an award was made for payment by this defendant of the balance due for entire performance to prior lienors. This plain and patent case is but confused by the technical and elaborate but unappreciable argument of the plaintiff’s counsel. The former action was, so far as this defendant and the plaintiffs were concerned, one
in rem. It adjudged that the moneys now claimed by plaintiffs were due the Thorntons, the contractors, for substantial performance by them of the entire contract; that plaintiffs as sub-contractors became lienors for and in respect to the present •claim which they then presented and urged in the double relation of lienors and personal creditors of the Thorntons, and had judgment for it in-their favor as due on their subcontract with the latter. It needs no criticism or weighing of authorities to demonstrate that such a judgment, unreversed •and in full effect, must upon every principle of justice be held conclusive upon the rights of the parties, and debar such a •claim as is now presented on behalf of the plaintiffs.
It is not necessary to review the multifarious cases cited on the points of the plaintiff’s counsel, as no principle can be •eliminated from them, giving countenance to so inequitable .a claim as is here presented. The judgment appealed from ¡should be affirmed.
Charles P. Daly, Ch. J., and Larremore, J., concurred.
Judgment affirmed.