Webb v. Van Zandt

Hilton, J. The defences are not so clearly irrelevant or frivolous as to justify their being stricken out on a motion, unless we are willing to declare that the more formal remedy by demurrer, intended for cases like this, should be abandoned. As to the first defence, its invalidity has never been determined by any court, and although I am not prepared to hold it valid, yet I will not upon a summary motion declare it in [193] valid, nor, in the present case, examine it as upon a demurrer, as I understand the well-settled rule, applicable to all motions of this kind, to be whether the court can upon a mere statement (f the case, and without argument, declare the defence to be irrelevant or frivolous. (Voorhees' Code, § 152, and notes.) As has often been remarked, the power to strike out a defence is one that should be sparingly exercised, and should never be applied to a case in the slightest degree doubtful. Respecting the fourth defence, much may be said in favor of permitting it to stand upon the record, to the end that the proof at the trial necessary to substantiate it may be offered, so that on a review the case may be presented to the appellate tribunal in its fullest aspect. The present action is, it is true, brought under the Lien Law, and although in the nature of a proceeding in rem, yet it may also terminate, in case of a deficiency upon a sale of the premises, in a personal judgment against the defendant for a part, or the whole, of the plaintiff’s claim. The action in the Supreme Court is of a personal nature, upon the same demand; and the two suits may, progressing together, result in giving the plaintiff two distinct judgments for the same cause of action. Whether this can be done has never yet been decided by any court, and I am not willing to determine it upon a motion to strike out a defence as frivolous. I think the order appealed from should be affirmed. Bbady, J., concurred. Daly, F. J. I think that neither of the defences was available. The first assumed that the plaintiff could not have a lien for the whole amount that was due upon the contract and for extra work; that the right was lost as to the first two payments by suffering six months to elapse after each of these payments became due, without taking any steps to create a .lien for the amount then earned; and that, also, by allowing six months to elapse after the extra work was done, the right to create a lien as to it was lost, and that the notice filed by the plaintiff a few days after the whole work was finished would cover only what was due on the last payment. There is nothing in the Lien [194] Law to warrant such a construction as this. The contract was for the erection of a building, afterwards enlarged by an agreement for extra work; and the plaintiff had six months after the performance of the entire work,—that is, after the building was completed,—within which to serve the notice upon the county clerk. The lien is given to any person performing labor, &e., in building any house, who, after “the performance of such labor,”—that is, after building the house,—shall serve the notice required upon the county clerk, which in this case was served in five days after the building was completed. As to the other ground of defence, the suit in the Supreme Court .could not be set up in bar to this action. The remedies were different, and where a party has several remedies for the recovery of the same debt, he may resort to them all, though he can have but one satisfaction. Thus, where a bond and mortgage is given to secure a debt, the creditor may have at the same time an action upon the bond, and a suit in equity for the foreclosure of the equity of redemption and the sale of the land. (Jackson a. Ireland, 10 Johns., 481.) The two actions here are not alike. The one is brought to recover a personal judgment, which is a lien only upon real estate from the time that judgment is recovered; the other to obtain a decree for the sale of the interest which the defendant had in these premises on the day when the notice of lien was Sled. The cause of action is not the same. The existence of the lien creates the cause of action in the present suit, but for which the court could not exercise the equitable jurisdiction which the action is brought to enforce. Order affirmed.