
    Ernest K. Thomas, Appellant, v. John M. Noonan and Others, Respondents.
    Third Department,
    June 24, 1909.
    Pleading—foreclosure — counterclaim, by one of two joint obligors — reply not necessary — evidence — value.
    In an action to foreclose a mechanic’s lien brought against two joint obligors, a counterclaim in behalf of one of them cannot be pleaded, and the plaintiff may urge the objection without a reply.
    Evidence that lumber is worth from eighteen to twenty dollars per thousand is not legal proof of a value greater than eighteen dollars. ■
    Appeal by the plaintiff, Ernest K. Thomas, from a judgment of the Supreme Court in favor of tire defendants, entered in the office of the clerk of the county of Warren on the lltli day of April, 1908, upon the report of a referee.
    
      L. M. Pulver (George R. Salisbury of counsel], for the appellant.
    
      S. M. Richards and James H. Bain, for the respondents.
   Smith, P. J.:

The action is brought to foreclose a mechanic’s lien. The plaintiff was employed by the defendants to make some improvements upon the real property owned by Azilda Noonan. He claimed the sum of $241. The defendants claimed that the repairs were to be made for $200, which was found as a fact by the referee. There was a claim for extras to the amount of $9.26 about which there was no dispute, so that upon the findings of the referee the plaintiff had a lien for $209.26, less, the amount of any counterclaim that the defendants held against the plaintiff.

The defendants pleaded two counterclaims. One a counterclaim for groceries and provisions furnished by the defendant John M. Noonan. Of this, however, no evidence was given. It is claimed' that there was no reply to this counterclaim, and,, therefore, that the claim was admitted. The action is brought against two joint obligors. The counterclaim is in behalf of one of them only and is not properly pleaded in the action ; and this objection may be. urged by the plaintiff even without a reply. (Lipman v. Jackson Architectural Iron Works, 128 N. Y. 58.)

' The. other counterclaim of the defendants was for lumber furnished. Upon the defendants’ computation there ivas some 11,313 feet of lumber originally piled, from which 3^500 feet had been sold before the sale was made to the plaintiff. This leaves 10,813 feet which was sold to the plaintiff. Of this 518 feet was found to be worth ten dollars per 1,000. This would amount to five dollars and forty-eight cents. The remaining amount, to wit, 10,265 feet, was sworn to have been worth from eighteen to twenty dollars per 1,000. But the evidence of a Avitness that lumber is worth from eighteen to twenty dollars is no legal proof of a value greater than eighteen dollars, and at eighteen dollars the value of this lumber was one hundred and eighty-four dollars and seventy-seven cents. This added to the five dollars and forty-eight cents makes one 'hundred and-ninety dollars and twenty-five cents, the extent of the defendants’ counterclaim against the plaintiff. This leaves the plaintiff with a valid lien for nineteen dollars and . one cent. The referee has apparently made an error in computation as well as in allowing the'defendants the sum of twenty dollars per 1,000 for lumber upon the testimony stated. He found for the defendants in the sum of about five dollars, and charged the plaintiff. with the cost.s-of the action. If the conclusion which I have indicated be right, this judgment was erroneous and -should be reversed and a new trial granted, with costs to appellant to abide tlie event.

All concurred.

Judgment, reversed on law and facts, referee discharged, and new trial granted* with costs to appellant to abide event.  