44 N.Y.S. 371 | N.Y. App. Div. | 1897
The action was brought to establish a lien of the plaintiff for the value of materials furnished by him to the defendant McLaughlin, who used them in the performance of a contract he had with the city of Hew York to construct a sewer.
The facts alleged are to the effect that the contract had been so far performed by McLaughlin that he had become entitled to payment from the city of a sum in excess of that due the plaintiff, who, pursuant to statute, duly filed with the comptroller of the city a notice which gave him a lien to the extent of his claim upon that fund; that afterwards McLaughlin, with che defendants McKeon and Hart as his sureties, made and filed an undertaking pursuant to the statute for the discharge of the lien, and that Murdock was made a party defendant because he had or claimed to have a lien upon such fund subsequent to that of the plaintiff.
The ground of the demurrer interposed by the defendants McKeon and Hart is that the complaint failed to state facts sufficient to constitute a cause of action against them. The disposition
The statute applicable to the city of Few York provides to the effect that any person performing any labor or furnishing any materials towards the performance of any contract with the city, on filing the requisite notice, shall have a lien for the value of such labor or materials upon the moneys in the control of the city due or to grow due under such contract, and that this right to a lien is available to a person employed by or furnishing materials to a subcontractor. (Laws of 1882, chap. 410, §§ 1824, 1825.) The claimant having filed his notice of lien may, by action, enforce his claim against the fund. (Id. § 1829.) He must make all parties who have filed claims, the contractor and the city parties defendant (id. § 1830), and the court shall determine the validity of the lien, the amount due to the contractor under the contract and the amount due from him to the respective claimants and render judgment, etc. (Id. § 1831.)
The statute also provides that the lien may be discharged: “ Fourth. By giving an undertaking with at least two sureties * * * to the effect that the person or persons from whom the amount set forth in the notice of lien shall be claimed to be due or to grow due, will pay on demand to the claimant or claimants named in such notice of lien, the amount of any judgment which may be recovered in an action upon the claim or demand specified in such notice of lien against such person or persons, not exceeding the sum specified in the undertaking, with interest and costs.” (Id. § 1836, as amended by Laws of 1895, chap. 605.)
The contractor McLaughlin, with the defendants McKeon and Hart as sureties, gave the requisite undertaking for the discharge of the plaintiff’s lien. The apparent or literal meaning of the terms of this provision for the discharge of a lien is that when it is accomplished by an undertaking, the claim of the person filing the notice
The Lien Law is available alike to those who perform labor for and furnish materials to sub-contractors and contractors. It may happen that a larger sum may be due to those who have furnished materials and performed labor for a sub-contractor than the latter is entitled to recover from the contractor. If they should file notices of lien the lien could not, on that interpretation, be discharged by means of an undertaking under the statute, unless the contractor and his sureties assume a liability in amount beyond that with which he can otherwise be chargeable. It would seem to be more in harmony with the other provisions of the statute on the subject, and more
It is quite evident, from the nature and purpose of the amendment of 1895, that it was not intended to do more than to preserve, in the substituted security provided for, that which the claimant had acquired by filing his notice of lien against the fund. This view of the statute, as has been observed, is more favorable to the contractor and the liability assumed by his sureties than the interpretation contended for by the defendants’ counsel, and preserves fully to the claimant the benefit acquired by the filing of his notice of lien, and which he could have derived from it if the lien had not .in that manner been discharged.
In construing an amending provision of a statute reference may be had to the other provisions of which it becomes a part to ascertain its object and purpose in that relation. It is seen that the provision in question became part of the statute as a whole providing for obtaining and enforcing liens in behalf of laborers and materialmen upon funds due to the contractors and sub-contractors who have become liable to them for labor and materials employed and used in performance of contracts with the city. The provision inserted by the amendment for relieving the fund from the lien by means of an undertaking may reasonably be supposed to have been intended not to prejudice any substantial rights of the claimant or contractor as they existed prior and up to the time of filing the undertaking. The doctrine that the liability of a surety is strictissimi juris is to the effect that he will not be held beyond the precise stipulation of his contract, whether assumed pursuant to statute or otherwise. The liability restricted to the claim or demand which had become a lien upon the fund cannot exceed, but may be less, in amount than might arise from the construction which would relieve the claim or demand referred to from any relation to the fact and
These views, founded upon questions of the construction and effect of the statute, not free from doubt, lead to the conclusion that the discharge of the lien by giving the undertaking did not deny to the claimant the right to his action in equity for the relief sought. While the case of Morton v. Tucker (145 N. Y. 244) is distinguishable from and not necessarily applicable to the present case, there is such analogy on the question of construction of the statute as to make the reference to it legitimately pertinent.
The judgment should be reversed and demurrer overruled, with leave to the defendants to answer on payment of costs.
All concurred.
Judgment reversed and demurrer overruled, with costs, with leave to the defendants to answer within twenty days on payment of costs of the demurrer and this appeal.