William M. Gambling et al., Respondents, v. David L. Haight, Appellant

William M. Gambling et al., Respondents, v. David L. Haight, Appellant. (Argued December 14, 1874; decided December 22, 1874.) An action upon a promissory note given to a sub-contractor as collateral security for the payment of work contracted to be done by him in the construction or repair of a building, may be maintained simultaneously with proceedings to enforce a mechanics’ lien filed by him against the premises; but there can he but one satisfaction. - Appeal from judgment of the General Term of the Court of Common Pleas, in and for the city and county of Hew York, affirming a judgment in favor of plaintiffs, entered on a verdict. This action was brought upon two promissory notes made by defendant. Prior to the making thereof, a contract had been entered into between one Jones and the defendant and Sarah B. Haight, for the repair by Jones of a building and the erection of others upon certain premises in Hew York, the title to which was in said Sarah B. Haight. The plaintiffs contracted with Jones to do the painting; not receiving their pay in accordance with the contract, they refused to complete the contract without some provision for payment. Whereupon defendant agreed to and did give the notes in suit as security for the payment of a portion of the work, and thereupon plaintiffs went on and completed it. Plaintiffs also filed two mechanics’ liens against the premises in which defendant and Sarah B. Haight were stated to be the owners, and prior to the commencement of this action an action to enforce said lien had been commenced in which David L. and Sarah B. Haight, as owners, and said Jones, as contractor, were made defendants, which action was pending at the time of the trial hereof. This defendant pleaded the former suit in bar, and upon the trial moved to dismiss the complaint upon the ground of the pendency of said former action. The court denied the motion and directed a verdict for plaintiffs, to which defendant’s counsel excepted. A verdict was rendered in accordance with the direction. John Clinton Gray for the appellant. The pendency of a proceeding to enforce a mechanic’s lien between the same parties could be pleaded as a bar to this action. (Gould’s Pl., chap. 5, § 122, p. 283; Compton v. Green, 9 How. Pr., 230 ; Groshon v. Lyon, 16 Barb., 461; Danvers v. Dorrity, 14 Abb. Pr., 206; Suydam v. Bartlett, 9 Paige, 296; Ogden v. Bodle, 2 Duer, 611.) An abatement of the present action can work no hardship to the plaintiffs. (Code, § 258, a, p. 381; Coit v. Bland, 12 Abb. Pr., 462 and note; Dexter v. Clark, 22 How. Pr., 289; Harrison v. Wood, 2 Duer, 50; Coit v. Beard, 33 Barb., 357.) W. W. Niles for the respondents. A party having several remedies for the recovery of the same debt, may resort to them all, though he can have but one satisfaction. (Webb v. Van Zandt, 16 Abb., 190; Gridley v. Rowland, 1 E. D. S., 670; Maxey v. Larkin, 2 id., 540; Pollock v. Ehle, id., 541.) [MAJORITY — Allen, J.] Allen, J. This action and that brought to enforce the mechanics’ lien are not for the same cause. ¡Neither are the parties the same, nor would the same evidence sustain both. The notes sued upon, although given to secure the payment of a portion of the same debt covered by the mechanics’ lien, were given upon an independent consideration, and are collateral to the principal obligation under the agreement between the owner of the building and the principal contractor. The primary obligation founded upon the original agreement, including the statutory liability under the mechanics’ lien law, and the promissory notes of a third person collateral to it may be enforced simultaneously by legal proceedings and suits adapted to the respective, remedies, and separate judgments recovered upon each; but there can be but one satisfaction. Independent actions may be maintained against principal and surety, upon distinct obligations, and against the different parties to bills of exchange and promissory notes, except as regulated and restricted by statute. The defendant is not an owner of the buildings, or the ’ lands upon which they were erected, and no recovery can therefore be had against him in the action to enforce the lien, although he is made a party thereto as owner. But that fact is not material. He was liable upon his express promise to the plaintiff, independent of any liability that might exist under the statute, and in virtue of the agreement with the original contractor. The judgment must be affirmed. All concur. Judgment affirmed.