98 N.Y.S. 33 | N.Y. App. Div. | 1906
The right of the appellant to appeal from this order is challenged because of the privilege given therein to renew the motion upon additional papers. The application was denied because a proper bond was not presented. If the right to renew Upon another and proper bond were dependent upon this permission the order w.ould probably not be such a final order as to authorize' an appeal. (See Robbins v. Ferris, 5 Hun, 286; Wells, Fargo & Co. v. W., C. & P. C. R. R. Co., 12 App. Div. 49.) The. bank, however, might' without such permission have presented another bond and might have asked the judge to approve of the same. The permission, therefore, to apply upon additional papers .would seem to .give. no further right to the appellant than it would otherwise, have. Hob withstanding, such privilege, therefore, it may consistently appeal if the approval of its bond was improperly refused. '.
Section 20 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of 1898, chap. 169, and Laws of 1902,. chap. 37) provides for the discharge of a lien for a public improvement. It is therein provided that a lien against the amount, due or. to become due a' contractor from a municipal corporation for the construction of a - public improvement may be discharged as follows :
sc * * * Either before or after the beginning of an action by a contractor executing an undertaking with two or more sufficient, sureties, who shall be fVeeholders, to the State orthe municipal corporation with which the notice'.of lien is filed,- in- such slims as' thé court or a judge or -justice thereof may direct, not less than the-amount claimed in the notice of lien, conditioned for the payment of any judgment which may be recovered in an action to enforce the lien. * * * The execution of such undertaking by- any fidelity or surety company authorized by the laws of this State to' transact business shall be equivalent to the execution of such. an undertaking by two sureties.” ' ■ "
The holding of the learned judge seems to have been that the bond was insufficient because it was signed, not,by the. contractor, but by the National Commercial Bank, the assignee of the contractor, and that in,'order to procure a discharge of the lien under this provision of the law the bond must be signed by the original contractor with the municipality. -No other criticism ,is. made of
We are not unmindful of the change in the phraseology of the Lien Law from former lien laws, as found in section 14 of chapter 315 of the Laws of 1818, as amended by chapter 629 of the Laws of 1892. In that act the term “ contractor ” was in part defined as the person with whom the contract with the city is made, his <£ assigns or legal representatives.” In the present act the words ££ assigns or legal representatives ” are omitted from the definition of the term “ contractor.” Prima faoie this would seem to indicate an intent on the part of the Legislature to deprive either the assignee or the legal representatives of a contractor of the benefits of this provision of subdivision 5 of section 20 of the act of 1897, as added by chapter 169 of the Laws of 1898 and re-enacted by
The order of the justice refusing to approve the undertaking as sufficient should be reversed.
All concurred; Cochrane, J., not sitting.
Order reversed, with ten dollars costs and disbursements, with leave to renew application upon the same or additional papers to "any justice of the Supreme Court.