
    Washington Bulkley, App’lt, v. Catharine Healy, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Mechanic’s lien—Counterclaim.
    A failure to perform the contract, causing damages to the owner, is the subject of counterclaim in an action to foreclose a mechanic’s lien.
    3. Same—Evidence.
    A judgment for such damages recovered by the owner is conclusive evidence of the amount of the counterclaim and is admissible.
    
      Appeal by plaintiff from judgment in bis favor and from that part which allows defendant’s counterclaim, and from order resettling the original decree.
    Aption to foreclose a mechanic’s lien.
    
      Samuel P. Potter, for app’lt; L. A. Gould and Thos. D. Bambaut, for resp’t.
   Barnard, P. J.

The plaintiff agreed to furnish the materials and build a house for the defendant at an agreed price. Payments were made according to the contract except that there was remaining a balance of $855.50. The defendant after the work was finished, as claimed by the plaintiff, commenced an action in the city court of Brooklyn in which she claimed damages for various omissions and defaults in the execution of the contract and claimed $2,500 damages.

The plaintiff then commenced this action to foreclose the lien and the defendant, Mrs. Healy, pleaded the same facts as a basis of counterclaim in this action, and stating inferentially that the action in the city court was then pending.

Mrs. Healy tried her suit in the city court and got a judgment foi’ damages and costs, $582.30. Then the lien action was tried and the court allowed the amount of the city court judgment as a counterclaim to the plaintiff’s claim under the contract and which he sought to enforce by foreclosure. The plaintiff appeals and alleges for error that the city court judgment was not a basis for counterclaim:

First, because an appeal was pending from the city court judgment. The case does not show this to be the fact. The recovery of the city court judgment,is found, but it is not proven or found that the same was appealed from or secured on appeal.

Second, because the counterclaim was not proper in the lien action because it was the subject of an independent action.

As matter of law a counterclaim may be set up in an action to foreclose a lien. Lumbard v. Syracuse, etc., R. R. Co., 62 N. Y., 290.

The lien action is based upon a contract. The particular remedy by foreclosure does not change the nature of the action. A failure to perform the contract causing damages to the owner is the subject of counterclaim within § 501 of the Code. The counterclaim was not stricken out but was replied to and denied, and it is of no moment that there was an action pending in the city court to recover the counterclaim.

The question was not raised. The city court judgment was conclusive evidence of the amount of the counterclaim and was properly received in evidence. Krekeler v. Ritter, 62 N. Y., 372.

The correction of the decree so as to make it express the result of the trial and decision of the court was proper, and although an appeal is taken from the order resettling the same no point is made on the argument.

The judgment and order should therefore be affirmed, with costs.

Pratt, J., concurs; Bykman, J., not sitting.  