DeMarco v. Boghossian

• Decision Date: 28 November 1962
• Citation: DeMarco v. Boghossian, 236 N.Y.S.2d 585, 37 Misc.2d 701 (N.Y. Cty. Ct. 1962)
• Parties: John DeMARCO, Plaintiff, v. Berg A. BOGHOSSIAN, Defendant.
• Court: New York County Court

Page 585

236 N.Y.S.2d 585

37 Misc.2d 701

John DeMARCO, Plaintiff, v. Berg A. BOGHOSSIAN, Defendant.

Westchester County Court.

Nov. 28, 1962.

Louis Zingesser, Mamaroneck, for plaintiff.

Jesse Rothman, New York City, for defendant.

JOHN H. GALLOWAY, Jr., Judge.

Defendant moves pursuant to Rule 107, Subdivisions 3 and 4, Rules of Civil Practice to dismiss the complaint on the grounds (1) that there is another action pending between the same parties for the same cause, and (2) that there is a decree of this Court rendered on the merits determining the same cause of action between the same parties.

Defendant cannot prevail on either ground.

In support of the first ground, defendant offers as the 'other action pending' an action commenced in the Supreme Court, Westchester County, in early 1957 by Port Chester Lumber Company, a subcontractor, against other subcontractors, including the plaintiff DeMarco in this action, and the general contractor, and also against this defendant, to foreclose its mechanic's lien on this defendant's real property. In the Supreme Court action, the plaintiff herein, DeMarco, as a separate defense and by way of cross-claim against the defendant herein, sought judgment--(1) adjudicating the validity of his mechanic's lien in the sum of $2,500.00, the balance due for labor performed and materials furnished pursuant to his agreement with the general contractor; (2) for the sale of this defendant's interest in the real property and payment of his lien from the proceeds thereof; and (3) for judgment personally against this defendant for any deficiency remaining due to this plaintiff after such sale. That action is still pending undetermined in the Supreme Court, no note of issue having been filed therein to bring it on for trial.

Defendant urges that the complaint in the instant action, which was commenced on or about September 15, 1962, sets forth the same cause of action against him as plaintiff's cross-claim set forth against him in the Supreme Court action. But examination of the complaint reveals that the action at bar is to recover a money judgment for work, labor and services performed and materials furnished, in the same amount of $2,500. and to the same property as in the pending Supreme Court action. The latter action is to foreclose this plaintiff's mechanic's lien. The action at bar is for a money judgment on a contract. The causes are not the same in both actions.

The governing rule is well stated in 16 Carmody-Wait 304, § 122: 'Since a mechanic's lienor is entitled to sue concurrently at law on the debt and in equity for the foreclosure of the lien securing the debt, it is not a valid defense to the lien foreclosure that another action is pending to collect the debt. The pendency in another Court of an action by the same plaintiff against the same defendant to recover judgment for the identical work is not for the same relief as an action to foreclose a mechanic's lien therefor, and presents no obstacle to the maintenance of the foreclosure action'. (citing Rapid Fire Proof Door Co. v. Largo Corp., 243 N.Y. 482, 154 N.E. 531; Gambling v. Haight, 59 N.Y. 354; Raven v. Smith, 71 Hun 197, 24 N.Y.S. 601, aff'd. 148 N.Y. 415, 43 N.E. 63). It follows that there is no other action pending between these parties for the same cause.

In support of his second ground of dismissal, defendant urges that a prior determination of Mr. Justice McCullough (then County Judge) dismissing a previous action commenced in this Court in June, 1958 by this plaintiff against this defendant on precisely the same cause of action and the same facts as in the case at bar, constituted a determination on the merits and bars the instant action. Judge McCullough's decision is reported in the New York Law Journal of October 14, 1960 (p. 17, col. 3).

Examination of the order to show cause why the prior County Court action should not be dismissed discloses that the sole ground for the application to dismiss the prior action was on the alleged ground of failure to prosecute, pursuant to § 181, Civil...