
    John Sullivan v. Ulysses B. Brewster and another.
    The lien law, passed July, 11, 1851, applies to cases where the contract was made before its passage, if the labor was performed and the materials were furnished after such passage. 
    
    The law is not in that respect unconstitutional.
    The claimant may file his notice of claim under § 6, at any time; but to entitle him to recover, he must show that a payment has become due from the owner upon the contract.
    
      A failure to recover against the owner, does not deprive the claimant of his demand against the contractor.
    A judgment of nonsuit, in an action under the lien law, or a judgment dismissing the proceedings on the trial, is a bar to a second proceeding to enforce the same lien.
    General Term,
    May, 1853.
    Appeal by one of the defendants (the owner) from a judgment rendered against him and his co-defendant, (the contractor,) by the fourth district court, in favor of the plaintiff (a sub-contractor). Upon the trial, the defendants admitted the execution of a contract between them for the erection of a house, and that the plaintiff had a valid demand, as claimed against the contractor, for materials furnished to the building. It was also admitted, that a lien had been duly effected ; that proceedings had been taken to foreclose if, which had been dismissed, and the plaintiff nonsuited; and that the present proceeding was instituted pursuant to a second notice, served under § 4 of the act of 1851, to bring to a close the same lien. Further facts, relating to the questions determined, are stated in the opinion.
    
      William P. Lee, for the appellant.
    
      William W. Niles and S. V. Bagley, for the respondents.
    
      
       See Donaldson v. O' Connor, post. See, also, Doughty v. Devlin, ante, p. 625, and Miller v. Moore, post.
      
    
   By the Court. Ingraham, First J.

This action was brought in the court below to enforce a lien created under the mechanics’ lien law. The owner, in his answer, made a general denial of the plaintiff’s claim, and set up as a bar a judgment of nonsuit in a former proceeding to enforce the same lien. The plaintiff demurred to so much of the answer as set up a former judgment, which demurrer was sustained by the court.

It appeared on the trial, that the contract with the owner was made before the passage of the lien law, and the plaintiff, to support his case, merely proved a contract between the owner and contractor, without showing what the contract was, or whether any payment had become due under it.

These questions are now presented to the court on this appeal.

ls¿. Whether the law applies to contracts made before its passage. 2d. Whether the plaintiff should not show that some payment had become due, before he is entitled to a judgment against the owner. 3d. Whether a judgment of nonsuit, in a former proceeding to enforce the same lien, is a bar to a second proceeding for the same purpose.

The point first stated has not before been distinctly presented to us; but in the case of Doughty v. Devlin, decided in May, 1852, (ante, p. 625,) we intimated that the views then expressed as to the extent of liability of the owner, would relieve this question from difficulty. In that case, the liability of the owner was restricted to the amount which, by the contract, he would be liable to pay, and he was to be credited for all payments made by him, in good faith, upon account of such contract. The effect of applying this statute to contracts in existence at the time of its passage, would be no alteration of the contract, either to the prejudice of the owner or of the contractor. The liability of the owner, as to amount, is not changed. The proceeding only attaches to the money in his hands, which remains due to the contractor, and applies it to the payment of a debt which the contractor owes and ought to pay. It does not affect the rights of either, but only provides a new remedy for the collection of a debt, which one owes, and the other has the money of the debtor to pay with.

There is nothing in the statute which limits its operation to contracts made after its passage. But it does limit the claim to work done after its passage. It would have been unnecessary so to restrict the plaintiff’s claim, if the remedy was only to be effectual when the contract was made after the passage of the act. This limitation, as to the time of doing the work or furnishing materials, shows the intent to have been to make it applicable to contracts then in existence, so far as any work should be done on account of them, subsequent to the passage of the statute. As it merely provides a new remedy, without increasing the liability of the owner, there is nothing in it, in this respect, which renders it liable to the objection that it impairs the obligation of contracts.

It becomes necessary, in regard to the next point, to inquire, what proof was necessary to make out the plaintiff’s case as to the indebtedness of the defendant to his contractor, on the contract.

The creditor may have a lien at any time, whether any thing has become payable on account of the contract or otherwise, but the owner is not to be compelled to pay any greater sum. than he agreed to pay by the contract. Under our former decisions on these provisions of the statute, it is settled in this court that the owner cannot be called upon to pay any money on account of his contract, unless a payment has became due upon the contract since the creation of the lien, by filing the notice.

Is it necessary, then, that the sub-contractor or material man should show that a payment has become due upon the contract before he can recover against the owner, or is it sufficient to show merely the existence of a contract between the parties ?

If the action had been between the contractor and the owner upon the contract, the contractor, to make out a prima facie case against him, would be required to show the performance of work sufficient under the contract, to entitle him to payment. The operation of the lien law is to transfer to the subcontractor so much of the contractor’s claim against the owner as would be sufficient to pay the debt of the contractor to his sub-contractor. It would be but reasonable to require the same amount of proof to recover against the owner for the same debt, whether the suit is brought by one or the other claimant.

It is said that this would be requiring the plaintiff to prove a negative. This is not so. It is an affirmative proposition that there was a contract, and also that a payment has become due upon it.

This would be all that is required in either case. After showing that an indebtedness has existed, the discharge of that indebtedness must be proven by the owner; but until the fact is shown that the building has so far progressed as to entitle the contractor to call for a payment under the contract, no case is made out by which a sub-contractor can claim payment under the contract, as assignee of the contractor.

Nor is there any difficulty in making out the proof necessary on the part of the plaintiff. The law gives ample means to compel the parties to produce the contract, and the plaintiff could easily show the state of the building, at the time of commencing the suit, to be such as to establish a payment due under it, if such payment was due.

This same question arose under the former lien law, in the case of Haswell v. Goodchild, 12 Wend. Rep. 373. In that case the superior court held, that the owner was to show that he had paid the contractor, and that the fact of indebtedness on the part of the owner, was not an ingredient in the cause of action, but a part of the defence. The chief justice of the supreme court, in deciding the case, dissented from these views; and that court held, that the plaintiff must show that the defendant (the owner) owes the contractor. He must make out a prima faaie case. That it was not sufficient to prove that a contract existed, but that the money had become payable under it. That such a principle, if assumed as correct, would relieve the plaintiff from proving the only fact upon which the defendant’s liability rests, viz.: his indebtness to the plaintiff’s debtor.

Although the present statute differs from [the one in force at the time the decision above referred to was made, still there is nothing contained in it to alter the effect of the reasoning and decision in that case.

The liability of the owner is to the same extent, and is enforced in a similar manner. The additional security arising from the lien on the land makes no alteration in the evidence necessary to establish the plaintiff’s claim, and until such indebtedness on the part of the owner to the contractor is proven, the owner is not called upon to prove payment.

The court below, in sustaining the demurrer to that portion of the answer which set up the judgment of nonsuit as a bar to this action, decided that such judgment did not prevent a second notice to enforce the same lien.

In actions to recover demands from a defendant, a judgment of nonsuit, or dismissal of the complaint, would not prevent a second action for the same cause; and this rule should be applied to this proceeding, unless there is something in the act which would render a different rule necessary. It is proper, however, to remark, that a failure to recover against the owner, does not deprive the plaintiff of his claim against his debtor; that remains unaffected by any.failure to recover against the owner. Upon examining this statute, I am of the opinion that it does not contemplate more than one proceeding to enforce the lien.

By the 8th section, the action, after issue, is to be tried and judgment enforced in the same manner as upon issues joined and judgments rendered in other actions in the same court; and by the 9th section it is provided, that a transcript of every judgment rendered shall be furnished to the successful party, who may file the same with the county clerk; and when the judgment is against the claimant, the clerk shall enter “discharged” against the claim upon the docket.

This applies to every judgment, not merely to a final judgment. A judgment of nonsuit, or dismissing the plaintiff’s complaint, is just as much a judgment within the meaning of this section as a judgment for the plaintiff; and so far as relates to that action, it is a final judgment.

The clerk could not refuse, upon such a judgment, to make the entry directed by the 9th section ; and if the lien is once legally discharged, there is no provision for reviving it again. The act only contemplates one notice, one issue, and one judgment. If the plaintiff fails, either upon the merits, or from want of proof, or any other cause, so as to allow a j udgment in the action to be entered against him, such judgment operates, on filing the transcript, to discharge the lien; and the plaintiff must thereafter resort to his original debtor for the payment of his demand. Upon both grounds, I think the justice erred, and the judgment must be reversed.

Judgment reversed.  