151 N.Y.S. 527 | N.Y. App. Div. | 1915
We think that the court at Trial Term properly dismissed the plaintiffs upon the defendant’s plea of res adjudicata. In an earlier action, brought by a third party to foreclose a mechanic’s lien upon real property, the present plaintiffs and their assignors were made parties because their assignors theretofore had filed a lien, and the defendant was made a party because he was an owner of the realty affected. All of said parties appeared, and this present defendant and the other owners made answer, which was duly served upon the present plaintiffs and their said assignors as defendants in that action, whereby the validity of their claim was challenged and payment for all work done, that was the subject-matter of that claim, was pleaded, and a determination of all the relative rights thereunder -was prayed for. The said defendants defaulted, and the Supreme Court made its conclusion of law that the present defendant and his fellow-owners were entitled to judgment that the present plaintiffs and their assignors had no lien nor claim against the premises and no claim against the defendants. The judgment entered thereon is now in full force and effect.
The present action is brought to recover upon the same claim. The claim could have been litigated in the former action. (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], §§ 43, 45; re-enacting Code Civ. Proc. §§ 3401, 3403.) That is, “the parties might have litigated and had decided as incident to, or essentially connected with, the subject-matter of the. litigation within the purview of the original action, either as matter of claim or defense.” (Earle v. Earle, 173 N. Y. 480, 487, and authorities cited; National Fire Ins. Co. v. Hughes, 189 id. 84, 89.) I think that the bar of res adjudicata was raised by the judgment. (Phillips Mech. Liens [3d ed.], § 455,
The judgment is affirmed, with costs.
Thomas, Carr, Stapleton and Putnam, JJ., concurred.
Judgment affirmed, with costs.