(79 Hun, 167.)

#### BRYSON v. ST. HELEN et al.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

1. Res Judicata—Pleading.

A prior recovery is not available as a defense unless pleaded in bar, though it may be alleged in the answer.

2. Mechanics’ Liens—Notice—Statements of Amount" Due.

A notice of lien served on the owner of the premises which merely states that a certain sum is due, instead of stating that such sum is the balance due on the claim, is sufficient where the owner knew the particulars of the claim.

Appeal from Monroe county court.

Action by Robert Bryson against Roger St. Helen and Jeremiah Phelan to foreclose a mechanic’s lien. From a judgment of foreclosure and sale, and for the deficiency against defendant St. Helen in case the avails of the sale should not be sufficient to pay the judgment, defendant St. Helen appeals.

Affirmed.

*525Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

H. J. Sullivan, for appellant.

William W. Armstrong, for respondent.

LEWIS, J.

About November 1, 1891, the appellant agreed to erect a building for the defendant Phelan, and, in December lowing, contracted with one McConnell to do the tin work on the building for $274. McConnell did the work, and, in addition thereto, performed extra work of the value of $3, and he became entitled to $277. St. Helen paid him $198.88 upon the contract, leaving $78.12 still unpaid, for which McConnell, in February, 1892, filed a mechanic’s lien. In his notice of lien McConnell stated that his claim was for tin work done upon the premises of the defendant Phelan, under a contract with St. Helen now due, amounting to the sum of $78; “said amount being the true price and value of the said tin work furnished.” At the time of the filing of the lien there remained in Phelan’s hands a balance due to St. Helen on account of said work of $83.52. Prior to the commencement of this action, McConnell duly assigned to the plaintiff said indebtedness due him from St. Helen, and the mechanic’s lien perfected, as stated, and his cause of action thereon; and thereafter the plaintiff commenced an action in the municipal court of Rochester against St. Helen to recover the amount of his said claim, and another claim, of $2.60, for work upon another building; amounting in all to $80.72. St. Helen alleged a counterclaim in his answer, which was allowed to the extent of $40. The plaintiff recovered a judgment in said municipal court against St. Helen for $40.42, with $10.85 costs. No proceedings were taken to collect said judgment, and it remains wholly unpaid. The plaintiff thereafter commenced this action to foreclose said lien, and recovered a judgment adjudging that there was due the plaintiff from St. Helen the sum of $38.12, the balance due on the Phelan contract, with interest thereon from November 29, 1892, that being the day of the rendition of the municipal court judgment; and further adjudging that he was entitled to a judgment against the defendant Phelan, barring and foreclosing him from all interest and equity of redemption in the premises, and for a sale of all his right, title, and interest therein, and for the payment to the plaintiff from the proceeds of such sale of the said sum of $83.52, or so much thereof as shall be necessary to satisfy said indebtednéss of $38.12, with interest, and the plaintiff’s costs and disbursements of the action to be taxed, which were granted to him; and it further provided that, in case any surplus remains after such payment, it should be paid to St. Helen, and that, in case any deficiency should arise, the plaintiff should be entitled to judgment against St. Helen for the amount thereof. From the judgment entered thereon this appeal was taken.

It is the contention of the appellant that the municipal court judgment was a bar to this action. No such defense is set up in the defendant’s answer. The recovery of the judgment is alleged *526in the answer, but it is not pleaded as a bar to this action. The point that the. complaint fails to state that an execution has been issued upon the municipal court judgment, and returned unsatisfied, was not raised upon the trial of the action. It is too late to raise that question upon this appeal, even if there were anything in the point.

The appellant further contends that the notice of lien only made a claim for $78 as the price and value of the work furnished. It is true that that was the amount claimed in the lien as filed, but it was alleged in the complaint that the value of the work performed, was $277, and that no part thereof had -been paid except $238.88, leaving, as it will be seen, the sum of $38.12, the amount adjudged to be due the plaintiff. The notice of lien should properly have stated that the $78 was a balance due for the work performed under the contract, but the error could not possibly have misled the defendant. He made no such claim at the trial of the action. It appears from the twelfth subdivision of the defendant’s answer that he was fully aware of the particulars of the plaintiff’s cause of action. He knew the value of the work done, and how much had been paid thereon. Section 25 of the mechanic’s lien law declares the law to be remedial. It should be liberally construed in order to secure to the parties its beneficial purposes. The act does not require that the notice shall state the entire amount, of the value of the work done, nor the amount of the payments made. Manifestly, the defendant was not misled by the informality, if there was such, in the lien as filed.

As we have seen, the plaintiff recovered a judgment in the municipal court of Eochester for the same cause of action stated in his complaint here, and he was awarded a judgment in this action for the same claim, amounting, with interest, to $40.40, and the sum of $89.49 costs, and the judgment provides that, in case the sum realized upon the sale of the premises does not amount to the judgment awarded the plaintiff, he shall be entitled to judgment against the appellant for such deficiency. This, as is claimed by the appellant, secures to the plaintiff two judgments for the amount of his claim against the appellant. The judgment appealed from should have provided against this error, and it should be reversed, and a new trial granted, unless the plaintiff, within 30 days, cause to be deducted from the said municipal court judgment the sum of $38.12 as of the day of the entry thereof. In case that is done, this judgment should be affirmed, but without costs of this appeal to either party. All concur.