80 N.Y.S. 950 | N.Y. Sup. Ct. | 1903
This is a demurrer to a complaint upon the ground stated in subdivision 4 of section 488 of the Code of Civil Procedure, that “ it appears upon the face of the complaint that there is another action pending between the same parties, for the same cause.” The complaint, after .setting forth that the plaintiff performed certain work and furnished certain material for a building for the defendant, The Onward Construction Company, sets forth the value thereof and the amount remaining due thereon and then alleges the filing of a lien and the bonding thereof, all pursuant to the statutes of this State. Then follows the clause which is the source of the trouble, to wit: “ That prior to the commencement of this action another action had been brought by this plaintiff against the defendant The Onward Construction Company to recover the amount of indebtedness- herein-before set forth, and the said other action is still pending and undetermined; and that no part of said indebtedness has been collected.” Relief is then prayed for, asking a money judgment against the defendant The Onward Construction Company, and that such sum be declared a valid lien and that the surety be adjudged liable therefor by virtue of the bond and for such, other relief as may be proper. Defendant claims that by virtue of the clause before quoted the plaintiff has brought himself directly within the intent and meaning of the Code provision cited at the beginning of this opinion — its argument being that this is an action upon the bond given to discharge the lien and that the use of the words in the clause of the complaint before quoted, “ indebtedness hereinbefore set forth,” refers to this same bond. The plaintiff’s claim, however, is that the “ indebtedness hereinbefore set forth ” refers to the money owing for the work and material furnished, and that he may pursue cumulative remedies, to wit, an action for the work and materials furnished and another for the maintenance and foreclosure of a lien. There can be no doubt of the plaintiff’s right to pursue his remedy for the debt and the enforcement of the lien at the same time by different actions. Webb v. Van Zandt, 16 Abb. Pr. 190, 194;
Demurrer overruled, with costs to plaintiff, with leave to defendants to plead anew upon payment of costs.