18 N.Y.S. 854 | New York Court of Common Pleas | 1892
The complaint was for work, labor, and services, and the-answer of the defendant, besides denying that the plaintiffs performed said work for him, set up as new matter constituting a defense and counterclaim, facts showing that the plaintiffs had filed an unauthorized mechanic’s lieu against his property for the same work, and thus subjected him to the expense of clearing the said lien from his land, and to the cost of defending any action they might bring thereon, and counterclaiming $500 damages therefor. To this new matter plaintiffs demurred on the ground of insufficiency in law. Although a mechanic may acquire a lien for his work, he is not confined to the enforcement of that security for the satisfaction of his debt. It is a cumulative remedy, and does not prevent an action at law upon his claim. This was held under previous lien acts. Cremin v. Byrnes, 4 E. D. Smith, 756; Maxey v. Larkin, 2 E. D. Smith, 540; Pollock v. Ehle, Id. 541; Gridley v. Rowland, 1 E. D. Smith, 670. The provision of the present act (1885, c. 842) permitting a personal judgment where the plaintiff fails to establish-a lien, does not exclude the right to a personal action for the debt if the lienor chooses to resort to that remedy instead of the enforcement of the lien. The fact of the filing of the lien, therefore, does not constitute a defense to this-action. Nor can the owner of the premises counterclaim in an action for the debt the expenses he has incurred for removing the lien and preparing for a. possible action for its enforcement. The expense of preparing for “a possible-action” can be no ground of action, and therefore no ground of counterclaim. As to the expense of removing th'e lien, it cannot be counterclaimed in this action, because it is not a cause of action arising out of the contract or transaction set forth in the complaint, nor connected with the subject of the action. The subject-matter of this action is the doing of the work, labor, and