
    Philip Biershenk et al., App’lts, v. William E. D. Stokes, Resp’t.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May 2, 1892.)
    
    1. Mechanic’s lien—Filing of lien no defense to action on contract.
    The fact of filing a mechanic’s lien does not constitute a defense to an action at law upon the claim, nor can the owner of the premises counterclaim in such action the expenses incurred in removing the lien and preparing for a possible action for its enforcement.
    2. Pleading—Demurrer—Judgment on.
    The proper judgment upon a demurrer to a part of an answer, where issues of fact remain to be tried, is an interlocutory judgment; final judgment cannot be entered until the case is ready for final judgment upon all the issues.
    Appeal from a final judgment of the general term of the city court, reversing the judgment of the special term, and overruling the plaintiffs’ demurrer to a part of the defendant’s answer, and from the order upon which said judgment was entered.
    
      Oscar Richter, for app’lts; Wm. R. Martin, for resp’t.
    
      
       Sec 43 St. Rep., 788.
    
   Daly, Ch. J.

The complaint was for work, labor and services, and the answer of the defendant, besides denying that the plaintiffs performed said work for him, set up as new matter constituting a defense and counter-claim facts showing that the plaintiffs had filed an unauthorized mechanic’s lien against his property for the same work, and thus subjected him to the expense of clearing the said lien from his land, and to the cost of defending any action they might bring thereon, and counter-claiming $500 damages therefor. To this new matter plaintiffs demurred on the ground of insufficiency in law.

Although a mechanic may acquire a lien for his work, he is not confined to the enforcement of that security for phe satisfacfaction of his debt. It is a cumulative remedy, and does not prevent an action at law upon his claim. This was held under previous lien acts. Cremin v. Byrnes, 4 E. D. Smith, 756; Maxey v. Larkin, 2 id., 540; Pollock v. Ehle, id., 541; Gridley v. Howland, 1 id., 670. The provision of the present act, Laws 1885, chap. 842, permitting a personal judgment where the plaintiff fails to establish a lien, does not exclude the right to a personal action for the debt if the lienor chooses to resort to that remedy instead of the enforcement of the lien. The fact of the filing of the lien, therefore, does not constitute a defense to this action.

Nor can the owner of the premises counterclaim, in an action for the debt, the expenses he has incurred for removing the lien and preparing for a possible action for its enforcement. The expense of preparing for “ a possible action ” can be no ground of action; and, therefore, no ground of counterclaim. As to the expense of removing the lien, it cannot be counterclaimed in this action because it is not a cause of action arising out of the contract or transaction set forth in the complaint nor connected with the subject of the action. .The subject-matter of this action is the doing of the work, labor and services at the defendant’s request; and the subject-matter of the defendant's counterclaim is the filing of the lien for such work. But the former is wholly independent of the latter. Nor is the claim for damages for the expense of removing the lien a cause of action arising upon contract.

It would seem, therefore, that the new matter in the answer not containing a good defense, nor counterclaim, the demurrer was properly sustained by the special term of the city court. Upon appeal," however, the general term reversed the special term and ordered judgment for the defendant overruling the demurrer. Had an interlocutory judgment only been entered upon this decision, an appeal therefrom would not lie in this court. The opportunity ■ to have such interlocutory judgment reviewed by this court could only be presented upon appeal from the final judgment in the action.

'"•But the defendant has chosen to enter a final judgment, after taxation" efcosts, with a provision for execution therefor against the plaintiffs!* - _This is clearly irregular. The proper judgment upon a demurrer'to, a part of an answer where the issues of fact remain to be tried, is an interlocutory judgment. Final judgment in the action cannot be entered until the case is ready for final judgment upon all the issues. Watson v. Bedlow, 2 Monthly Law Bulletin, 26; Belknap v. McIntyre, 2 Abb., 866. The costs awarded upon sustaining the demurrer to a part of an answer cannot be collected until final judgment is rendered upon the issues in the action generally. Armstrong v. Cummings, 22 Hun, 570. But in this case the defendant has entered final judgment in his favor for the costs of the demurrer, and from such final j udgment the plaintiffs are entitled to appeal to this court. The Code, § 8191, provides for an appeal from the general term of the city court to this court where a final judgment has been entered upon an appeal taken to the general term. The final judgment appealed from must, therefore, be reversed and the defendant may enter an interlocutory judgment in place of it.

We cannot entertain an appeal from the order of the general term, nor affirm the decision of the special term, upon the demurrer, for they can only be reviewed upon appeal from the final judgment in the action to be entered after all the issues are disposed of; but we have expressed an opinion upon the merits of the demurrer because both parties have argued them upon their briefs on this appeal.

Final judgment of the general term reversed, and the case remitted to the city court for the entry of an interlocutory judgment upon the decision of the general term.

Appeal from the order of the general term dismissed.

Ho costs of this appeal to either party.

Bischoff and Pryor, JJ., concur.  