Michael Di Menna, Appellant, v. The City of New York and Others, Defendants, Impleaded with Cooper and Evans Company, Respondent

Michael Di Menna, Appellant, v. The City of New York and Others, Defendants, Impleaded with Cooper and Evans Company, Respondent. First Department, March 7, 1913. Practice — suit to foreclose mechanic’s lien and for personal judgment — right to jury trial. In a suit to foreclose a mechanic’s hen and also asking for personal judgment the plaintiff is entitled to have issues settled for a trial by jury. In such suit the plaintiff is entitled not only to a jury trial as to whether he is entitled to a personal judgment in case his lien fails, but also to such trial upon issues raised by a reply to the defendant’s counterclaim for money damages. Appeal by the plaintiff, Michael Di Menna, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 20th day of Movember, 1912, denying the plaintiff’s motion to settle issues for trial by a jury. Arnold Lichtig, for the appellant. George E. Miner, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Action to foreclose a mechanic’s municipal lien. The complaint, in addition to seeking a foreclosure of the lien, asked, in case of a deficiency, that the plaintiff have a personal judgment against the respondent. The answer of the respondent denied the validity of the lien, the amount due, and set up a counterclaim for which judgment was demanded in the sum of $11,671.41 for damages caused by plaintiff’s alleged failure to complete his contract. Plaintiff replied to the counterclaim and denied its material allegations. After issue had been joined, and before the cause was noticed for trial, the plaintiff moved to settle the issues for trial by a jury. The motion was denied and he appeals from the order. The plaintiff was entitled to a trial by jury if he so desired. (OodeOiv. Proc. § 3412, as re-enacted by LienLaw [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 54.) Any doubt which theretofore existed as to such right was settled by this court in Hawkins v. Mapes-Reeve Construction Co. (82 App. Div. 72; affd., 178 N. Y. 236). If the lien should fail, but he should otherwise establish the cause of action alleged, he would be entitled to a personal judgment. The practice to be followed in obtaining a trial by jury was pointed out in the Hawkins case. The rule there laid down was followed in the present case. (See, also, Steuerwald v. Gill, 85 App. Div. 605; Schwartz v. Klar, 144 id. 37.) Plaintiff was not only entitled to have a jury trial as to whether he was entitled to a personal judgment in case his lien should fail, but also upon the issue raised by the reply to the counterclaim. The order appealed from is, therefore, reversed, with ten dollars costs and disbursments, and the motion granted, with ten dollars costs. Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with,ten dollars costs. Issues to be framed on settlement of order. Order to be settled on notice.