
    James Owens v. Abraham Ackerson.
    In an action by the contractor against the owner, under the mechanics’ lien law of 1851, to enforce a lien, the owner may set off a demand against the contractor, arising out of other matters than those connected with the contract.
    Special Term,
    May, 1853.
    Before Ingraham, First J. ; all the members of the court concurring.
    Demurrer to a set off alleged in the answer. The opinion states the facts.
    
      Frederick G. Lackey, for the plaintiff.
    
      Augustus F. Smith, for the defendant.
   Ingraham, First J.

The plaintiff’s claim arises under the mechanics’ lien law, for work done by him under a contract with the defendant. The answer denies portions of the complaint, and sets up moneys due to the defendant from the plaintiff, for matters not connected with the contract of the plaintiff, which the defendant claims to set off against the plaintiff’s demand. To this set off the defendant demurs.

I am at a loss to see any valid reason why, as between the contractor and owner, any set off is not allowable. There is nothing in the statute which confines the set off there provided for, to matters arising out of the same contract. On the contrary, when it speaks of a bill of particulars of a set off to the plaintiff’s claim, it must mean something else than payments or deductions for deficiencies. These cannot properly be termed matters of a set off. If the plaintiff had brought his action against the defendant merely to recover the amount due, any moneys due from him to the defendant would be a proper subject of set off in that action, and the addition to such a claim of a request to foreclose a lien on the defendant’s house, furnishes no reason why such a set off should not be allowed. If the proceeding was to foreclose a mortgage, any claim of the mortgagor against the mortgagee might he set up to reduce the amount of the plaintiff’s recovery. And as this proceeding is of an equitable character, a set off is peculiarly proper.

Under the previous lien laws, a set off of this nature was always admitted, and even where the action was between the laborer and the owner, any bona fide set off between the contractor and owner, was held to be a good defence to the laborer’s claim. (Miner v. Hoyt, 4 Hill, 193.)

The defendant is entitled to judgment on the demurrer, with leave to the plaintiff to reply to the counter claim set up in the answer, on the usual terms.

Ordered accordingly.  