GROGAN a. RAPHAEL

GROGAN a. RAPHAEL. New York Common Pleas; Special Term, March, 1858. Mechanics’ Lien.—Defences of Contractor.—Counter-claim. In an action to foreclose a mechanic’s lien, a contractor who is made a party defendant may set up a counter-claim against the plaintiff, and recover judgment for an excess. The judgment against a contractor, authorized by the amendatory act of 1856 {Laws 0/1855, 160, eh. 404, § 5), is a personal judgment, and entirely distinct from the judgment to be had against the owner, which is not personal, but in rem. Any defence which would be available to the contractor, if he were sued, in an ordinary action, is available to him in proceedings for the foreclosure of the lien, where he is made a defendant. Foreclosure of mechanic’s lien. The facts appear sufficiently in the opinion. C. Shaffer, for the plaintiff. W. H. Anthon, for the defendant. [MAJORITY — Daly, F. J.] Daly, F. J. This is an action to foreclose a lien. It is brought against the owner Raphael and his contractor McMahon, for materials furnished by the plaintiff to the contractor McMahon, in pursuance of a contract made by McMahon with Raphael for the erection of three dwelling-houses. The amount claimed to be due by the plaintiff is $202. The contractor McMahon, in his answer, sets up a counter-claim against the plaintiff for the sum of $315, founded upon a promissory note made by the plaintiff to the order of one B. Clark, which note was indorsed by Clark and delivered to the contractor McMahon, and was due and unpaid when Grogan the plaintiff filed his lien. The defendant McMahon asks that the amount due upon the note may be set off against the amount of the plaintiff’s claim, and that he have judgment against the plaintiff for the amount of the excess of said note, over and above the plaintiff’s demand. The only question in the case is, whether he can avail himself of a counter-claim against the "contractor in an action of this description. I see no objection to it. By the amendatory act of 1855 (Laws of 1855, 760, ch. 404, §5), the contractor may be made a defendant, and a personal judgment rendered against him of the amount which shall be found owing by him to the party filing a lien. This is entirely distinct from the judgment against the owner, which affects only his right and title in the premises upon which the lien is an encumbrance, and is, as respects him, strictly a proceeding in ram. When the party who has imposed the lien makes the contractor a defendant, it is, in effect, the same as commencing an actiofi •against him for the recovery of the claim, and the contractor may avail himself of any defence to the claim, and has all the rights, as a defendant, which he would have had if he had been sued in an ordinary action, independent of the proceedings to foreclose the lien. He may avail himself of a set-off to the whole, or to part of the plaintiff’s claim ; or if the set-off exceeds the claim of the plaintiff, he may have judgment for the excess. There is no reason why he should be turned over to another action to • sue for the residue, when both parties are before the •court, and every right or advantage they could have in another action is available in this. Judgment will, therefore, be rendered discharging the lien, with cost to the owner, and a judgment for the defendant McMahon, against the plaintiff* for the amount of the note and interest over and beyond the plaintiff’s claim.