107 Misc. 722 | N.Y. Sup. Ct. | 1918
The action is to enforce a lien for a public improvement. The plaintiff furnished materials used in the construction of a state hospital. After its lien was filed it was bonded in the usual way, as provided by subdivision' 5 of section 21 of the Lien Law. The plaintiff’s first claim is that it is entitled to recover against the surety on that bond, regardless of its right to enforce its mechanic’s lien. But this contention is not sound. The law requires such a bond to be conditioned “ for the payment of any judgment which may be recovered in an action to enforce the lien.” Lien Law, § 21. The bond in question was so conditioned. Plaintiff contends that, as admittedly it is entitled to a judgment against the contractor, it can recover on this bond, as the judgment against the contractor can be recovered in the action to enforce the lien. But the provisions of this section allowing the substitution of a bond or the deposit of cash in place of the lien do not extend the lienor’s rights. The lienor has no claim against either the deposit or the bond unless it establishes that its lien is valid and enforcible. Berger Mfg. Co.v. City of New York, 206 N. Y. 24, 30; Milliken Bros., Inc., v. City of New York, 201 id. 65, 74, 75; Fitzpatrick v. Devlin, 81 Misc. Rep. 556. The question as to the validity of the plaintiff’s lien arises upon these admitted facts. The plaintiff’s materials were delivered to the contractor and were used in the building; the contractor failed to complete the building and it was completed by the surety on the contractor’s bond, which had been given as required by the contract, this bond containing' the provision that the surety would,, if requested so "to do by the ."state, fully perform and complete the work covered by the contract if for any cause the contractor failed to do so; the surety at first refused to complete the building, but later, upon the insistence of the state, did so under this provision
Judgment for plaintiff, with costs.