Frost v. McGinnis — 22 N.Y. St. Rep. 41

Majority

p. 41

Edward L. Frost, Receiver, etc., Resp’t, v. Owen McGinnis, App’lt.

(New York Common Pleas, General Term,

Filed January 7, 1889.)

Headnote

Mechanic’s lien—Enfoboement of—Set-off—What not a watveb.

McGinnis employed Young to do the mason work and furnish the iron work' on a certain building, and to enable Young to procure material, McGinnis made himself liable and paid a sum of money therefor. Certain mechanic’s liens on said building were foreclosed and McGinnis did not cet up Young’s indebtedness to him in the foreclosure action: Meld, in an action by the receiver of Young to recover for extra work, that such indebtedness was a proper offset, and was not waived by the failure of McGinnis to set it up in the foreclosure proceedings.

Appeal from a judgment of a district court in an action by plaintiff, receiver of the assets of one Young, a judgment debtor; against defendant for work done in the erection of a building.

William C. Orr, for app’lt; H M. Hitchings, for resp’t,

—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 Mc-Ginnis 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 agreement. The value of the extra work the justice found to be thirty-five dollars, 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.

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 mechanic’s 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.