25 N.Y.S. 1098 | N.Y. Sup. Ct. | 1893
The appellant asks for a reversal of the judgment on three grounds: (1) That he is neither a necessary nor proper party defendant; (2) that, a notice of lis pendens not having been filed within one year after the filing of the lien, the action cannot be maintained; (3) that the judgment entered in form against the property is illegal, because the principal contractor, who was the debtor, has given a bond, and obtained an order discharging the lien, pursuant to the sixth subdivision of section 24 of the mechanic’s law. The condition of the bond given is “for the payment of any judgment which may be rendered against the property,” which renders the foreclosure of the lien and a recovery of a judgment against the property necessary before resort can be had to the bond; and in such an action all persons should be made parties defendant who would be proper parties to an action for the foreclosure of a lien in case a bond had not been given. The object of a lis pendens is to give notice of the pendency of the action to persons who may subsequently acquire or seek to acquire rights in the property, but it is not required for the protection of the parties to the action, for they have notice of its pendency, and of the claim made bv it. However, this question has been settled against the claim of the appellant in Ward v. Kilpatrick, 85 N. Y. 413. In that ease it was held:
*1100 “It is further said that the proceeding of the lienor was ineffectual, because he did not show affirmatively the filing of a notice of lis pendens within ninety days succeeding the filing of his claim. That provision under the statute has no application to a case where the lien upon the real •estate is discharged by the depositing in court of the amount of the debt, as was done in this case. In that event the lien is shifted to the fund; the controversy ceases to affect the real estate or third persons, and lis pendens becomes necessary.”
That case arose under chapter 379 of the Laws of 1875, the eighth section of which provided:
“No lien, provided for in this act, shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be commenced within that time to enforce the same, and a notice of the pendency of such action filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket.”
This provision is not essentially different from that contained in section 6 of chapter 342 of the Laws of 1885, except as to the time within which the action is to be commenced, and the notice of its pendency filed. The omission to file the notice is not a defense to the action.
R> error was committed in ordering a judgment of foreclosure in form to be entered against the property. As before stated; until this is done the claimant has no remedy on the bond. The recovery of a judgment by a claimant against the debtor for the amount of his claim would not entitle him to recover the debt from the obligors on the bond without the recovery of a judgment of foreclosure against the property. People v. Butler, 61 How. Pr. 274; Lawson v. Reilly, 13 Civil Proc. R. 290; Highton v. Dessau, (Com. Pl. N. Y.) 19 N. Y. Supp. 395; Scherrer v. Music Hall Co., (Com. Pl. N. Y.) 18 N. Y. Supp. 459. In the case last cited the general term of the common pleas said:
“The claimant, in order to establish a lien upon the property, must show Ms right, as against all other claimants, to payment from the fund subject to the liens,—viz. the moneys due from the owner to the contractor,—and must show that, after the satisfaction of all such claims as are entitled to priority, there is sufficient to satisfy his particular lien, (Lien Act, § 1; Gibson v. Lenano, 94 N. Y. 183;) and he must show the same facts and right in order to establish a lien upon the bond or deposit, and a right of action against the sureties upon the bond.”
In so far as Bulkley v. Moses, (City Ct. Brook.) 23 N. Y. Supp. 125, and Heinlein v. Murphy, 3 Misc. Rep. 47, 22 N. Y. Supp. 713, are adverse to this view, they are overruled.
The judgment in this action carefully protected the rights of the owner and provided that it was in form only against his property, and it clearly constitutes no lien upon it. The judgment should be affirmed, with costs. All concur.
