118 N.Y.S. 123 | N.Y. App. Div. | 1909
The action was brought to foreclose a mechanic’s lien which was filed on April 19, 1907, and which had been discharged by filing an-undertaking on May 22, 1907. On April 4, 1908, an order was entered continuing the lien for one year, and on January 30, 1909, this action was commenced. The ground of the motion is that the
It appeal’s in this case that before the order continuing the lien for one year was entered an undertaking was filed,-and the lien was, thez-efore, discharged under subdivision 4 of section 18. The question presented is whether, after the lien was discharged by the filing of an undertaking, the oi’der of A pill 4, 1908, extended the time within which the lienor was required, to commence the action. These pi’ovisions of the Lien Law have given rise to considerable discussion in reported cases, and a solution of this question is not free from doubt-.. By the filing of this- undertaking the lien upon the real property was discharged and the. obligation of the surety upon the undertaking was substituted in place of and- as- a substitute for the lien on the land. So that, before the time within- which
Either of these constructions- would necessarily result in the. action having been "brought within the time allowed, and for that reason the order denying the defendants’ motion for judgment was right and it should be affirmed, with ten dollars costs and disbursements. " .
McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.
Order affirmed., with ten dollars costs and- disbursements..