Edward Gridley v. William Rowland, 1 E.D. Smith 670

By the Court. Ingraham, First J. The suit pending under the lien law against the owner, was no defence to this action against the contractor. A party who has a claim against several for the same debt, may bring actions against each at the same time. It is only after a satisfaction had been recovered in one, that the same is a defence to the further prosecution of another. But a proceeding under the lien law is a mere foreclosure of a security. The judge properly allowed the item for extra work.

The proof not only clearly established the performance of the extra work and its value, but also showed that the defendant had promised to pay it. The other questions stated by the appellant, arose upon the facts as'proved. There was evidence upon both sides, leaving the question of fact to be decided by the court, both as to delay and as to damage. We do not review the finding of the court below upon such questions, except where the decision is so clearly against the weight of evidence that it cannot be sustained.

This is not such a case, but on the contrary, we think the justice has found in accordance with the testimony, and that there is no reason for interfering with his decision. Judgment affirmed.