Friedman v. Lowenstein

PAGE, J. This action was brought to foreclose a mechanic’s lien. The defendants, having moved to dismiss the complaint, rested without offering evidence. The justice, after taking the matter under advisement, gave judgment for the defendants. [1] The work, so far as the contract was concerned, was completed on July 28, 1910. Some work appears to have been done subsequently, but for this no charge was made. The notice of lien was filed November 29, 1910. Plaintiffs therefore acquired no lien upon the premises, and the dismissal of the action as against Jennie Goldsmith, the present owner of the premises, against whom no demand for a personal judgment was made, was proper. The complaint demands judgment against Rachael Lowenstein. [2] The learned judge in the Municipal Court appears to have adopted the view urged by defendants’ counsel, that inasmuch as the contract called for the fourth payment to be made by the giving of a note to be indorsed by her husband to run four months, and two notes having been given, one for $300, payable in four months from its date (July 28, 1910), and the -other for $155 dated September 21, 1910, that, the plaintiffs were precluded from filing their lien. This would seem to be an erroneous view. The law seems to be well settled that the right to acquire a mechanic’s lien will not be waived by the taking of a promissory note, even indorsed by a third person, unless the time of payment is thereby extended beyond the time within which an action must be commenced to enforce the lien. Landsberg & Co. v. Hein Construction Co., 135 App. Div. 819, 120 N. Y. Supp. 190; Jones v. Moore, 67 Hun, 109, 22 N. Y. Supp. 53. But, as we have determined that the right to file the lien was lost by the elapse of time, this question ceases to be of determinative value. The complaint states a good cause .of action for goods sold and delivered, and work, labor and services performed, as against the defendant Lowenstein. [3] The note for $300 was transferred to third parties who brought suit and recovered judgment thereon. This judgment, however, has been assigned to plaintiffs, and they are now the owners and holders thereof, and have become reinvested with the title of the unpaid debt in such a manner that, if. the makers of the note pay them the ihoney, it will operate to discharge her from a liability to pay the same amount again upon the judgment. Teaz v. Chrystie, 2 E. D. Smith, 621, 632. The plaintiffs can pursue their remedies upon the note and upon the debt at the same time. Judgment in one action is not a bar to judgment in the other. The debt is hot discharged by judgment, but by satisfaction. There may be several judgments, but only one satisfaction. We are of opinion that the court should have retained the case as against the defendant Lowenstein for the purpose- of giving personal judgment against her. [571] Judgment reversed) as to the defendant Lowenstein, and a new trial ordered, with costs to appellants to abide the event. Judgment affirmed as to defendant Goldsmith, with costs. All concur.