
    John Raven, Resp’t, v. William R. Smith, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    1. Appeal - Effect of bevebsal,
    Upon the reversal, in the general term, of a judgment, which was the basis of the recovery in the county court, the latter court should, upon some terms, open the judgment, and grant a .new trial.
    2. County coubt — Jubisdiction.
    Though money has been paid into court to discharge a mechanic’s lien, an action can- be maintained, in the county court, against a non-resident defendant to enforce the claim. «
    Appeal from an order denying a motion to vacate a judgment which has been reversed on appeal.
    
      James É. Bowen, for app’lt; Frederick W. Clark, for resp’t.
   Cullen, J.

The action was brought in the county court to foreclose a mechanic’s lien. The defendant answered. Upon the trial the parties admitted a judgment of the supreme court between the same parties which established the plaintiff's claim for work. Judgment was rendered for the plaintiff. The defendant appealed to this court, and the judgment was affirmed. Raven v. Smith, 24 N. Y. Supp. 601; 54 St. Rep. 94. , Subsequently the judgment in the action in the supreme court was reversed on appeal. Raven v. Smith, 24 N. Y. Supp. 600; 53 St. Rep. 857. Thereupon the defendant moved, on the reversal of the supreme court judgment, to vacate the judgment in this action. The county court made an order vacating judgment, and granting a new trial on terms. Subsequently, on an affidavit of the defendant’s attorney that his motion was not for a new trial, but to vacate and annul the judgment, the court reheard the application and denied it. From that order this appeal is taken.

Upon these facts it will be seen that the only question presented by this appeal,is whether the judgment of the county court was or subsequently became void or not. Upon the reversal of the judgment in the action in this court, which judgment was the basis of plaintiff’s recovery in the county court, doubtless that court should upon some terms, open the judgment, and grant a new trial. Smith v. Frankfield, 13 Hun, 489. This relief the first order of the county court granted, but the defendant expressly repudiated it. He seeks to annul the judgment and obliterate the proceedings in the court without giving the plaintiff even an opportunity to try his case. The supreme' court judgment was, in this action, a mere matter of evidence. The jurisdiction of the county court to render a judgment in no wise depended upon its previous rendition. The objection that the recovery in the first action prevented a further recovery in this action was a matter of defense which, so ■ far as relates to the validity of the judgment here, it is wholly immaterial whether the court decided rightly or wrongly. If wrongly decided, it was but an error to be corrected on appeal. 'Had the defendant actually paid a recovery in the supreme court which included the claim in this action, it may be that he might have had relief by motion, despite the recovery of two judgments. Woods v. Pangburn, 75 N. Y. 495. But no satisfaction is alleged in the papers, or suggested on the argument.

It is further contended that the character of the work performed by the plaintiff did not, under the statute, entitle him to,a lien. This also was a matter to be determined on the trial of the action, and the judgment is conclusive on it.

The only objection tha't in any way goes to the jurisdiction of the court is that, money having been paid into .the court to discharge the lien, thereafter nothing but a common-law action could be maintained by the plaintiff, and that such an action could not be maintained against the defendant in the county court, because he was "a non-resident of the county. We think that the judgment concluded the defendant on this point, but the contention is plainly erroneous. The money deposited stood in lieu of the land for the satisfaction of plaintiff’s claim if he established a valid lien. To reach that fund the plaintiff was obliged to show not only a claim against the defendant, but a lien on the land. The action was, therefore, one to foreclose a lien.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.  