
    Harry Brown and Jacob Polak, Appellants, v. Abraham Epstein, Respondent.
    Second Department,
    January 29, 1915.
    Judgment—res adjudicata—determination of rights in prior suit to foreclose mechanic’s lien — date of completion of work — judgment by default.
    Where subcontractors and their assignees were made parties to a suit to foreclose a mechanic’s lien, to which suit the owner was also a party, and in that action it was determined that the subcontractors had no lien against the land or claim against the defendant therein, judgment being entered to that effect, the rights of the subcontractors are res adjudieata, and neither they nor their assignees can bring a subsequent action against the owner to recover upon the same claim.
    It is immaterial that plaintiff’s assignors were subcontractors, or that , their rights depended upon the principal contractor, for they might have established the personal liability of the owner in the suit of foreclosure.
    In the subsequent action the notice of lien in the prior action may be considered in order to show when the last item of work was performed and the last item of material furnished by the plaintiff, and that this was prior to the suit of foreclosure.
    The owner may interpose the former judgment as a bar, although it was rendered upon default.
    Appeal by the plaintiffs, Harry Brown and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of January, 1914, upon the dismissal of the complaint by direction of the court on the opening.
    
      Horace London [Abraham H. Solotaroff with him on the brief], for the appellants.
    
      Abraham Stern, for the respondent.
   Jenks, P. J.:

We think that the court at Trial Term properly dismissed the plaintiffs upon the defendant’s plea of res adjudicata. In an earlier action, brought by a third party to foreclose a mechanic’s lien upon real property, the present plaintiffs and their assignors were made parties because their assignors theretofore had filed a lien, and the defendant was made a party because he was an owner of the realty affected. All of said parties appeared, and this present defendant and the other owners made answer, which was duly served upon the present plaintiffs and their said assignors as defendants in that action, whereby the validity of their claim was challenged and payment for all work done, that was the subject-matter of that claim, was pleaded, and a determination of all the relative rights thereunder -was prayed for. The said defendants defaulted, and the Supreme Court made its conclusion of law that the present defendant and his fellow-owners were entitled to judgment that the present plaintiffs and their assignors had no lien nor claim against the premises and no claim against the defendants. The judgment entered thereon is now in full force and effect.

The present action is brought to recover upon the same claim. The claim could have been litigated in the former action. (Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], §§ 43, 45; re-enacting Code Civ. Proc. §§ 3401, 3403.) That is, “the parties might have litigated and had decided as incident to, or essentially connected with, the subject-matter of the. litigation within the purview of the original action, either as matter of claim or defense.” (Earle v. Earle, 173 N. Y. 480, 487, and authorities cited; National Fire Ins. Co. v. Hughes, 189 id. 84, 89.) I think that the bar of res adjudicata was raised by the judgment. (Phillips Mech. Liens [3d ed.], § 455, Hardwick v. Royal Food Co., 78 Hun, 52.) The form of the present action does not affect the validity of the adjudication. (Maeder v. Wexler, 98 App. Div. 68; affd., 182 N. Y. 519; Castle v. Noyes, 14 id. 329.) The application of the principle of res adjudicata is not affected by the circumstance that plaintiffs’ assignors were subcontractors. If it be contended that normally their right depended upon their own contractor,, the answer is that this is not necessarily so (Person v. Stoll, 72 App. Div. 141; affd. on opinion below, 174 N. Y. 548), and moreover that the subcontractors might have established the personal liability of the defendant in the said foreclosure action by proving therein then employment by the defendant or his promise to pay them, alleged in the present action. (Gilmour v. Colcord, 183 N. Y. 342; Mitchell v. Dunmore Realty Co., 135 App. Div. 583. See, too, Abbott v. Easton, 195 N. Y. 372.) As their lien was filed on December 7, 1906, and the said foreclosure action was begun in 1907, and the lien stated that the last item of work was performed and the last item of materials was furnished both in November, 1906, it is clear enough that the said direct employment had been given and the said promise had been made (if at all) before the institution of the said foreclosure action. The notice of lien may be considered if necessary to sustain this judgment. (Dunham v. Townshend, 118 N. Y. 281, 287; Dunford v. Weaver, 84 id. 445, 451; Stemmler v. Mayor, etc., 179 id. 473.) It is immaterial that this defendant secured the judgment in the foreclosure action upon default. (Newton v. Hook, 48 N. Y. 676; Goebel v. Iffla, 111 id. 170; Ostrander v. Hart, 130 id. 406.)

The judgment is affirmed, with costs.

Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment affirmed, with costs.  