Dewsnap v. Davidson

The court is of the opinion that the demurrer to the replication should be overruled. The plaintiffs were not barred by the decree in the lien suit from bringing an action for the damages sustained by the failure of the defendant to comply with his contract. While they might have offered evidence in the lien suit to recoup the damages sustained they were not bound to do so, but were at liberty to reserve their claim and to bring suit on it as they have done. Ives v. Van Epps, 22 Wend. 155, 157;Gillespie v. Torrance, 25 N.Y. 306, 310; Britton v. Turner, 6 N.H. 481, 495; Austin v. Foster, 9 Pick. 341, 346; Ward v. Fellers,3 Mich. 281, 291; Van Epps v. Harrison, 40 Amer. Decis. 314, 326, note.

Demurrer overruled.