23 N.Y.S. 277 | N.Y. Sup. Ct. | 1892
The questions presented by the demurrer in this case are said by counsel on both sides to be novel, and, so far as any decision of this. court is concerned, I cannot find that they have been adjudicated. They arise under the peculiar provisions of subdivision 6 of section 24 of the mechanics’ lien law of 1885. The action is brought by a lienor—a subcontractor—against the principal contractors and against the representatives of a deceased owner of a building for work done on such building, and it appears from the complaint that, after the plaintiff filed a notice of lien, a bond with sureties was given by the owner to discharge the lien, pursuant to the terms of the act referred to. It also appears from the complaint that prior to the time the plaintiff’s lien was filed other liens had been put upon the property, and it" is alleged that those liens were not valid, and that the persons filing them had no claims against the property. With reference to the bond, the alie
The whole difficulty connected with the subject under consideration arises from a crude or imperfect expression of what was intended by subdivision 6 of section 24 of the mechanics’ lien law; and the real questions involved are: First, what Is the proper construction of such subdivision 6; and, secondly, what, is the proper procedure in a case in which a bond has been given to discharge a lien, and in and by which bond the sureties under the terms of the statute become liable, not in the first instance,' as for a fixed sum, but only secondarily, according to the obligation they assume, which of course must be strictly construed? By this sixth subdivision of the twenty-fourth section, which relates to how a lien may be discharged, it is provided that such discharge may be operated by the owner of the premises, person or persons, firm or firms, corporation or associations, against whom or which the notice of lien is filed, executing, with two or more sufficient sureties, who shall be freeholders, a bond, etc., to the clerk of the county in which the premises are situated, in such sum as the court may direct, "not less than the amount claimed in' said notice, conditioned for the payment of ,any judgment which may be rendered against the property, and then that, upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the court or a judge thereof. The language of this section is ambiguous, arid seemingly contradictory in terms. The filing of the approved bond discharges the lien ipso facto, and, that being so, there can be no possibility of a judgment being rendered to be enforced against the property. Security in this action having been given, those who executed it, apart from the owner of the property or the principal obligor, must simply stand in the ordinary relation of sureties, and, in fact, are so named in the act. It seems to be apparent that it was the intention of the legislature to clear the property from the lien by the giving of the bond, and that the bond should stand in the place of the property, and to it the lien should be transferred for enforcement, instead of the property. But that does not in any way change the relations existing between all those who may have liens upon the property, and those who have become liable upon the bond. The sureties do not assume an independent liability, directly enforceable against them, whether the lien is good or not, but all of their liability consists in the obligation to respond to the lienor for so much, if anything, as he might be entitled to in case he had the right to enforce his lien directly against the property. Any other construction of this act is simply impossible, would make it unintelligible, and would defeat the very purpose which seems to have been intended by the legislature.
For these reasons the demurrer must be sustained, with costs.