130 Misc. 894 | N.Y. Sup. Ct. | 1927
Defendants Margolies and Margolies & Co. move to dismiss the cross-motion brought by defendant Keister against defendant Kelley, and also to cancel the Us pendens filed by plaintiff in so far as it may inure to the benefit of Keister. The second branch of the motion is consented to by Keister, but he opposes the dismissal of his cross-action as against Kelley. The theory of the motion is that the filing of a bond by the moving defendants, the contractors, to discharge the mechanic’s lien claimed by Keister obviated the necessity of further action on the latter’s part against Kelley, the owner of the property. The fact that the motion is not made by Kelley, but by the other defendants, would seem in itself to furnish sufficient reason for its denial. However, there are more substantial grounds compelling that disposition of this application. The bond filed by the defendants Margolies and Margolies & Co., in accordance with the provisions of section 19 of the Lien Law, was “ conditioned for the payment of any judg