Raven v. Smith — 78 N.Y. Sup. Ct. 197

Majority

p. 197

John Raven, Respondent, v. William R. Smith, Appellant.

Headnote

Lien foi' grading building lots — ■jurisdiction of the County Court of a foreclosure thereof — pendency of another action for the same services.

By force of section 7 of chapter 342 of the Laws of 1885, which provides in section 1 thereof for a lien to any person who performs labor or services in “altering or repairing” any building or building lot, the County Court of the county in which the property is situated has jurisdiction of an action to enforce a lien acquired under the act, when that court would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien, and it is not requisite that the defendant should be a resident of the county.

The pendency of an action brought to recover for services rendered is not a bar to a proceeding, between the same parties, for the foreclosure of a lien for the same services.

Appeal by the defendant, William R. Smith, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of that county on the 18th day of March, 1893, upon findings of fact 'and conclusions of law made by the county judge after a trial by the court without a jury.

On the trial the defendant objected to the jurisdiction of the County Court on the ground that he was not a resident of the county of Westchester, and claimed that the proceeding was barred by the pendency of an action brought against him in the Supreme Court by the present plaintiff to recover payment for the same services for which the lien in suit was filed.

p. 198

The county judge made, among others, the following findings of fact:

Fifth. That at the time of the commencement of this action the defendant was not a resident of the county of ’Westchester.

Sixth. That at the time of the commencement of this action there was another action pending in the New York Supreme Court, in which the plaintiff herein was plaintiff and the defendant herein was defendant, and that said action in the New York Supreme Court was brought by the plaintiff herein to recover judgment against the defendant herein, for the identical work which the plaintiff herein alleges in his complaint herein that he performed for the defendant.

Jas. B. Bowen, for the appellant.

Frederick W. Clark, for the respondent.

This is an appeal by the defendant from a judgment of the County Court of Westchester county, in favor of the plaintiff, against the defendant, in an action to foreclose a lien in favor of the plaintiff for grading building lots.

The action is prosecuted under chapter 342 of the Laws of 1885, and the 1st section of that act provides for a lien to any person who shall perform labor or service in altering or repairing any “ building or building lot.”

The claim of the plaintiff falls directly under this provision, and the contention of the defendant that no lien could be acquired, is destroyed by the statute.

It is also contended that the County Court had no jurisdiction 0^ er the action, but the Lth section of the act provides that the claimant may enforce his claim against the property mentioned in the lien, and against the person liable for the debt, by a civil action in a court of record in the city or county where the property is situated, which would have jurisdiction to render a judgment in an action founded upon a contract for a sum equal to the amount of the lien.

This provision includes this case, and the objection is baseless.

The other suit pending between these parties is not for the same

p. 199

relief as this, and presents no obstacle to the maintenance of the present action. The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment of County Court affirmed, with costs.