Menna v. Cooper & Evans Co.

• Decision Date: 03 April 1917
• Parties: DI MENNA v. COOPER & EVANS CO.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 391

115 N.E. 993

DI MENNA

v.COOPER & EVANS CO.

Court of Appeals of New York.

April 3, 1917.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Michael Di Menna against the Cooper & Evans Company, impleaded, etc. From a judgment of the Appellate Division (163 App. Div. 948,148 N. Y. Supp. 1112), affirming a judgment for plaintiff, defendant appeals. Judgment modified and affirmed.

George E. Miner, of New York City, for appellant.

Arnold Lichtig, of New York City, for respondent.

CARDOZO, J.

The action is brought to foreclose a mechanic's lien. The plaintiff, a subcontractor, furnished labor and materials to the defendant, Cooper & Evans Company, which had a contract with the city of New York for a public improvement. The complaint alleges that the defendant undertook to make advances to the plaintiff during the progress of the work; that it kept its promise for a time; but that in August, 1910, it refused to make further advances, discharged the plaintiff, and terminated the contract. The value of the labor and material supplied at that time, in excess of payments already received, is placed at $3,650.43. Judgment is demanded that the plaintiff be declared to have a lien upon the moneys due to the contractor from the city of New York; that the lien be enforced, and ‘that the plaintiff have personal judgment against the defendant, Cooper & Evans Company, for the amount of his claim, together with interest and costs.’ The city of New York, which was joined as a defendant, served an answer which put in issue the existence of the lien. The contractor's answer denied the material allegations of the complaint, and set up a counterclaim, in which it stated that the plaintiff had wrongfully abandoned the contract to the defendant's damage in the sum of $11,671.41. To this counterclaim the plaintiff made a reply which was in substance a general denial. Upon these pleadings the plaintiff moved that issues be stated for trial by jury. The Special Term denied the motion, but the Appellate Division reversed. 155 App. Div. 501,140 N. Y. Supp. 680. Its order directed that the following issues be tried by jury:

‘(1) Is the plaintiff entitled to a money judgment against the defendant, Cooper & Evans Company, and, if so, for how much?

‘(2) Is the defendant Cooper & Evans Company entitled to a money judgment against the plaintiff, and, if so, for how much?’

These issues were brought on for trial befor Judge Newburger and a jury. A special verdict was rendered, by which it was found that the plaintiff was entitled to recover from Cooper & Evans Company $4,137.97, and that Cooper & Evans Company was not entitled to recover anything from the plaintiff. A motion to set aside the verdict was denied. The plaintiff then brought on the remaining issues for trial at Special Term. He took the position that the jury's verdict was conclusive; the defendant took the position that it was merely advisory. The court accepted the former view. Upon proof of the verdict the conclusion was announced that the plaintiff must prevail. The court was asked by the contractor's counsel to determine the issues for itself, irrespective of the verdict. It refused to do so. It ruled, however, that there remained open the question of the existence of the lien. After that ruling the city of New York proved that the notice of lien had been filed too late. This made it invalid, and so the court held. Equitable relief was accordingly refused, but the plaintiff was given a personal judgment against the contractor for the sum found due by the jury.

In determining the force to be attributed to the jury's verdict, the complaint and the counterclaim are to be distinguished.

[1] We are unwilling to hold that the plaintiff's cause of action was triable by a jury as of right upon the plaintiff's demand. An action to foreclose a lien is one of equitable cognizance. Kenney v. Apgar, 93 N. Y. 539, 550;Schillinger F. P. Cement A. Co. v. Arnott, 152 N. Y. 584, 46 N. E. 956.

[2] Until the enactment of recent statutes the rule was that if the plaintiff did not prove a lien, equity was without power to give judgment for the moneys due to him. Burroughs v. Tostevan, 75 N. Y. 567;Weyer v. Beach, 79 N. Y. 409. That rule has now been changed. Lien Law, § 54, formerly Code Civ. Pro. § 3412; Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492, 67 N. E. 1080;Abbott v. Easton, 195 N. Y. 372, 88 N. E. 572. The action may be retained, and common-law relief awarded.

[3] We do not doubt that a defendant by timely demand may preserve his right, in the event of failure of the lien, to trial by jury of the other issues. Schwartz v. Klar, 144 App. Div. 37, 42,128 N. Y. Supp. 830;Hawkins v. Mapes-Reeve Const. Co., 82 App. Div. 72,81 N. Y. Supp. 794;Id., 178 N. Y. 236, 70 N. E. 783;Milliken Bros., Inc., v. City of N. Y., 201 N. Y. 65, 94 N. E. 196, Ann. Cas. 1912A, 905;Miller v. Ed. El. Ill. Co., 184 N. Y. 17, 27,76 N. E. 734,3 L. R. A. (N. S.) 1060,6 Ann. Cas. 146. The fact that the plaintiff has combined with a prayer for equitable relief an alternative claim for a money judgment cannot deprive the defendant of the jury trial assured to him by the Constitution.

[4] But a different question is presented where it is the plaintiff who seeks a jury. The form of action in such a case is that of his own selection. The law does not require him to demand a personal judgment in the event of the failure of his lien. ‘It is intended to afford him a privilege, not to subject him to compulsion.’ Koeppel v. Macbeth, 97 App. Div. 299, 301,87 N. Y. Supp. 969, 970. If he takes advantage of that privilege, he elects that the whole controversy, in all its aspects, may be determined by the court. To hold otherwise would do violence to the plain purpose of the statute. One cannot be heard to urge as a breach of one's constitutional right the concession of a remedy which one has one's self demanded. The rule is fundamental that where a plaintiff seeks legal and equitable relief in respect of the same wrong, his right to trial by jury is lost. If any right remains, it is the right of the defendant. Davison v. Associates of the Jersey Co., 71 N. Y. 333, 340;Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319, 11 N. E. 518;Carroll v. Bullock, 207 N. Y. 567, 101 N. E. 438;Brinckerhoff v. Bostwick, 105 N. Y. 567, 572,12 N. E. 58;Mackellar v. Rogers, 109 N. Y. 468, 473,17 N. E. 350; Wheelock v. Lee, 74 N. Y. 495, 500; Herrington v. Robertson, 71 N. Y. 280, 283;Miller v. Ed. El. Ill. Co., 184 N. Y. 17, 27,76 N. E. 734,3 L. R. A. (N. S.) 1060,6 Ann. Cas. 146;McNulty v. Mt. Morris El. L. Co., 172 N. Y. 410, 65 N. E. 196. There is a dictum in the Hawkins Case which suggests that either party may be entitled to have the issues framed. 82 App. Div. 72, 78,81 N. Y. Supp. 794. No such question, however, was involved, for the claim to trial by jury was there made by the defendant. When the case came here, we were careful to state that we placed our affirmance on other grounds. 178 N. Y. 241, 70 N. E. 783; Milliken Bros., Inc. v. City of N. Y., supra. The question, therefore, is still an open one. We think our conclusion ought to be that as to the plaintiff's cause of action the jury's verdict was advisory. Acker v. Leland, 109 N. Y. 5, 15 N. E. 743;Hammond v. Morgan, 101 N. Y. 179, 4 N. E. 328;Learned v. Tillotson, 97 N. Y. 1, 49 Am. Rep. 508;McClave v. Gibb, 157 N. Y. 413, 52 N. E. 186.

[5] A different question arises when we come to the counterclaim. This was more than a counterclaim in name only. Bennett v. Edison El. Ill. Co., 164 N. Y. 131, 58 N. E. 7. It was an independent cause of action, which, if sustained, would have given the defendant a judgment for upwards of $11,000. It was therefore triable by jury as of right. Code Civ. Pro. §§ 970, 974; Deeves v. Met. Realty Co., 6 Misc. Rep. 91,26 N. Y. Supp. 23, affirmed on opinion below, 141 N. Y. 587, 36 N. E. 739;Cook v. Jenkins, 79 N. Y. 575. As to that branch of the case the verdict was conclusive. It was conclusive that the plaintiff had not abandoned the contract without cause, and that the defendant was at fault in refusing to permit him to go on. All that was left for the plaintiff to prove was the value of the work and the order for some extra items.

[6] In these circumstances the defendant's motion that the court determine the issues irrespective of the jury's verdict must be held to be too general to sustain the claim of error. There was no attempt to point out the minor...