134 N.Y.S. 122 | N.Y. App. Div. | 1912
The complaint in this action alleges the filing of a notice of lien with the proper officials for the sum of $4,177.30 on the moneys due or to grow due one Peter Gruthy under his contract with the city of New York for the construction of a public improvement; that thereafter proceedings “ were taken by said Gruthy for the purpose of securing the cancellation and discharge of said lien by filing a bond in the manner prescribed by the Lien Law, by presenting to the Supreme Court a petition, a copy of which is hereto annexed and made a part of this complaint, * * * and thereafter an order of the Supreme Court °* * * was made September 27, 1909, * * * fixing the amount of' the undertaking to be given by said Gruthy to discharge said lien to be the sum of $8,354, said undertaking to be executed pursuant to chapter 38 of the Laws of 1909. That thereafter on or about the 16th day of October, 1909, the plaintiff began an action in the Supreme Court, Kings county, to foreclose said lien; * * * that thereafter the defendants executed a bond conditioned that they should well and truly pay any judgment which might be recovered in an action to enforce the lien before mentioned; ” that this bond was approved by a justice of the Supreme Court and an order entered canceling and discharging the lien, and “thereafter said bond and a copy of said order were filed with the Comptroller of the City of New York and with the Board of Education of the City of New York and plaintiff’s said lien was thereupon canceled and discharged, as provided in said order. * * ' * That thereafter, such proceedings were had in said action brought to foreclose said hen that on or about the 3rd day of June, 1911, final judgment therein was obtained by the plaintiff and was entered by the Clerk of the County of Kings, as follows: (Ordered, Adjudged and Decreed that the lien filed by
The complaint then closes with the allegation that “ execution upon said judgment was duly issued against said Guthy to the sheriff of the County of Kings, where said Guthy then resided, and said execution has been returned wholly unsatisfied and said judgment remains wholly unpaid,” and a demand for judgment against the defendants, the sureties upon the bond mentioned in the complaint, for the sum of $4,653.84, with interest and costs.
The obligation of the bond on which the defendants are sureties is that “if the above bounden Peter Guthy, William Gleichmann and Humphrey L. Plant shall well and truly pay any judgment which may be recovered in an action to enforce the lien before mentioned, then this obligation to be void,” etc.
The defendant Plant, answering the complaint, “ Denies that the action referred to in paragraph 3 thereof, was begun or
The defendant Gleichmann makes a general denial in substance of the matters alleged in the complaint, except that he admits being one of the sureties upon the bond, and for a first defense alleges that on the 22d day of March, 1910, the plaintiff commenced an action against him upon the bond hereinbefore mentioned, the complaint in that action being set forth as an exhibit, and showing that the action was brought against Peter Guthy, the board of education of the city of New York, the city of New York, Humphrey L. Plant and William Gleichmann. Among the allegations of that complaint was one that “no other action has been had at law, or otherwise, for the recovery of said money, or any part thereof.” The defense further alleges that the defendant Gleichmann appeared in that action and served an amended answer, and that upon the action coming on for trial on the 8th day of March, 1911, plaintiff, through his counsel, moved to discontinue the same, and that subsequently the plaintiff was permitted to withdraw that action, notwithstanding the objection of the defendants in the present action, and it is urged that the matters contained in the action of March, 1910, became res adjudicada. It is further alleged that “no notice has been given by the plaintiff herein to this defendant that an action was pending against the said Guthy upon which he would be held responsible, and that the said sureties have been deprived of their
It appears, for the purposes of this appeal, that an action in due form was commenced against the proper parties for the foreclosure of the lien, or for the determination of the questions on which the liability of the sureties upon the original bond depend, and that this action was discontinued without giving the defendants in the present action any opportunity to litigate these questions. After the second action had been thus discontinued, it appears that the original action, commenced on the 16th day of October, 1909, and which resulted in the giving of the bond involved in this action, was in some manner revived, and “ thereafter such proceedings were had in said action brought to foreclose said hen that on or about the 3rd day of June, 1911, final judgment therein was obtained by the plaintiff,” etc., and this final judgment was a personal judgment againt Peter Outhy, the principal in said bond. Of course, in the action of October 16, 1909, which resulted in the giving of the bond, neither of the defendants in this action were parties, and while the city of New York appears to have been made a defendant originally, it was provided in the judgment that the action should be dismissed as against it, so that the result of the litigation was to determine that Peter Gruthy owed the plaintiff the sum of money claimed to be due to the plaintiff as a sub-contractor under G-uthy in the construction of a public improvement for the city of New York. The contention of the plaintiff here is, and in this he has been sustained by the order granting judgment upon the pleadings, that the defendants, as sureties, are bound by this judgment ■in the action of October sixteenth, to which they were not parties, because of the recitals in that judgment to the effect that the original filing of the notice of lien operated to give to the plaintiff a good and valid lien upon the fund in the hands of the city of New York. There can be no question, of course, that as between the parties to that action the judgment is conclusive, but does it operate to conclude the defendants, who were not parties % That is the broad question presented by this appeal.
If this is the correct practice, and we do not find it questioned except in the case of Hawkins v. Mapes-Reeve Construction Co. (82 App. Div. 72), which has been pretty thoroughly discredited upon this point (Hawkins v. Mapes-Reeve Construction Co., 178 N. Y. 236, 241; Milliken Brothers, Incorporated, v. City of New York, 201 id. 65, 74), it must be apparent that the defendants now before the court have been deprived of their rights, for it nowhere appears that they were parties to the original foreclosure action, or that the complaint in that action ever contained the necessary allegations of fact to constitute a good cause of action against them. In Vitelli v. May (120 App. Div. 448) an action was brought to foreclose a mechanic’s lien, Johnson and Slocum, sureties upon a bond to procure a discharge of the lien, being made parties. This court, after pointing out that “The undertaking executed by the defendants Johnson and Slocum, and referred to in the
It is true that in Ringle v. Matthiessen (10 App. Div. 274; affd., without opinion, 158 N. Y. 740) it was held that an action at law could be maintained where a bond had been given under the statute to discharge a mechanic’s lien, and where, after the lien was discharged, the action was prosecuted to judgment against the original parties, the sureties upon the bond not having been brought in as parties, but in that case the defendant was the owner of the property, and the judgment adjudged that the plaintiffs'recover against the defendants the amount of their claim, and that they had a lien against the premises described therein for the amount of their claim. There was an adjudication of a hen against the premises of the owner, who was a party to the action, and who had an interest to interpose any defense which might exist, and who would naturally keep his sureties advised of the situation, which is quite a different situation from that presented in the case at bar, where the action was to foreclose a lien against a fund in the custody of the city of New York, and where it was adjudged that the city was not a proper party to the action, and the complaint was dismissed as against the municipality, and a mere personal judgment was entered against the contractor. The owner of the fund was not before the court; there is nothing in the record to show that the defendant contractor had earned any part of the fund, or that he had any interest, at the time the original action was brought to trial, in asserting the rights of his sureties. The court in Pierce, Butler & Pierce Manufacturing Co. v. Wilson (118 App. Div. 662, 664), after calling attention to the rule of this case, and that laid down in Morton v. Tucker (supra), say: “ The latter, however, would appear to be the better practice and this seems to have been the view of the Court of Appeals in Morton v. Tucker (supra).” (See Maneely v. City of New York, 119 App. Div. 376, 390.)
Clearly the Court of Appeals is not in accord with the doctrine of the Hawkins Case (supra), and we are clearly of the opinion that the defendants in the present action are entitled to be heard upon the issues raised by their answers, as against a plaintiff who has merely a personal judgment against the principal contractor, and particularly as such personal judgment may be procured where there is a failure to establish the hen. (Code Civ. Proc. § 3412; Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 54.)
The judgment and order appealed from should be reversed, with costs to the appellants, and judgment directed for the defendants upon the pleadings, with costs.
Jenks, P. J., Hirschberg and Rich, JJ., concurred; Burr, J., not voting.
Judgment and order reversed, with costs to the appellants, and judgment directed for the defendants upon the pleadings, with costs.
See Laws of 1911, chaps. 450, 873. — [Rep.
See Laws of 1911, chaps. 450, 873.—[Rep.
See Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), § 54.— [Rep.