91 N.Y.S. 264 | N.Y. App. Div. | 1904
Lead Opinion
The plaintiffs herein furnished certain work, labor and materials to the Mapes-Reeve Construction Company in connection with a contract between it and the city of New York for the building of a schoolhouse. Not having been paid therefor, the plaintiffs filed a mechanic’s lien with the comptroller of the city of New York and with the board of education, claiming a lien upon funds due and to become due to the extent of the claim therein specified. After the filing of this lien the Mapes-Reeve Construction Company caused to be executed by the defendant, The City Trust, Safe Deposit and Surety Company of Philadelphia, a bond for the purpose of obtaining a discharge of the lien. This bond recited the filing of the lien; that the construction company desired to discharge the same, pursuant to chapter 605 of the Laws of 1895,
The action for the foreclosure of the mechanic’s lien and the judgment entered thereon dismissing the complaint did not constitute the same a bar to this action. It was not a determination upon the merits, but was based solely upon the ground that there was no lien to be foreclosed. The court was in error in the disposition which it made of that case, as the plaintiffs were entitled to have a judgment establishing the validity of their lien and also of the amount due thereunder. While no judgment of foreclosure of the lien could be decreed, as there was no fund upon which it could operate, its effect would be to furnish a basis for enforcing the bond which had been substituted in the place of the fund, and an adjudication was necessary as to the validity of the lien and the amount due thereunder in order to form a basis for the prosecution of the bond. The determination, however, does not conclude the plaintiffs from maintaining this action, assuming that upon any ground the plaintiffs show a right to recover. The real question in the case, aside from the Statute of Limitations, hereinafter noticed, is, can the plaintiffs, without first establishing by judgment the validity of the lien and the amount due thereunder, maintain an action against the sureties in the bond and have established in such action the validity of the lien and its amount and a personal judgment against the construction company and the sureties in the bond at the same time and in the same action ? It is contended that this may not be done. In Morton v. Tucker (145 N. Y. 244) an action was brought to enforce a mechanic’s lien, in which were made parties the defendant who had contracted the debt to enforce which the lien was filed, and also against the sureties in the bond which had been given to discharge the lien. A demurrer was interposed by the sureties, based upon the ground that they were not primarily liable and could not be charged therein until the plaintiffs had exhausted their remedy by an action against the debtor for the purpose of foreclosing the lien. The appellants therein insisted that an action at law could be maintained upon the bond without first resorting to an action to foreclose the lien upon the property. Upon this subject,
As the first action for the foreclosure of the lien was not a bar to the maintenance of this action, plaintiffs would seem to have brought themselves squarely within the rule of law authorizing a resort to an equitable action, and as the parties must be deemed to have consented to the trial of the cause at the Trial Term no objection to such procedure is now available. As it was both proved and conceded that the lien was valid and the amount was
It is said, however, that the Statute of Limitations provided by the statute (Laws of 1882, chap. 410, § 1836, as amd. by Laws of 1895, chap. 605) is an answer to the maintenance of the present action. If the statute applies to an action upon a bond, the defendants are undoubtedly correct. We do not think that any sound distinction can be made between a deposit of money and the giving of a bond, as provided by the statute for the discharge of a lien. In each case the deposit or the bond takes the place and is a substitute for the fund, and in enforcement of the claim is subject to the same rules. The case of Hafker v. Henry (5 App. Div. 258), decided by this court, is conclusive of the question that the short Statute of Limitations provided by the statute for the enforcement of the lien does not apply in such a case. While the statute in many respects is obscure in its language, it does not call for the application of any different rule to this case than is applied in the case of a deposit under similar statutes.
It follows from these views that the decision below was correct, and the judgment should, therefore, be affirmed, with costs.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Laws of 1882, chap. 410, § 1886, as amd. by Laws of 1895, chap. 605.— [Rep.
Concurrence Opinion
I concur in the result, but do not agree that in the case of a municipal lien it is necessary in an action on the bond against the principal and sureties to establish the validity of the lien.
Judgment affirmed, with costs.