Gridley v. Rowland — 1 E.D. Smith 670

Majority

p. 670

Edward Gridley v. William Rowland.

Headnote

The pendency of an action, under the lien law of 1851, against the owner of a house for a claim against the contractor, is no defence to a distinct action therefor against the contractor at the same time.

A proceeding under the lien law is a foreclosure of a security, which is no bar to a suit against the debtor.

General Term,

February, 1853.

This suit was commenced on one of the district courts, to recover a claim which accrued to the plaintiff under an agreement with a contractor. It appeared, in the court below, that a proceeding had been instituted by the plaintiff in this case, and was still pending against the owner of the building, to foreclose a lien effected thereon by the said plaintiff, to secure the very debt upon which this suit was founded. The plaintiff had judgment herein. The defendant appealed, and urged the pendency of the lien suit, among other things, as ground for a reversal.

The suit pending under the lien law against the owner, was no defence to this action against the contractor. A party who has a claim against several for the same debt, may bring actions against each at the same time. It is only after a satisfaction had been recovered in one, that the same is a defence to the further prosecution of another. But a proceeding under the lien law is a mere foreclosure of a security.

The judge properly allowed the item for extra work. The proof not only clearly established the performance of the extra work and its value, but also showed that the defendant had promised to pay it.

The other questions stated by the appellant, arose upon the facts as'proved. There was evidence upon both sides, leaving

p. 671

the question of fact to be decided by the court, both as to delay and as to damage.

We do not review the finding of the court below upon such questions, except where the decision is so clearly against the weight of evidence that it cannot be sustained.

This is not such a case, but on the contrary, we think the justice has found in accordance with the testimony, and that there is no reason for interfering with his decision.

Judgment affirmed.