65 N.Y.S. 1083 | N.Y. App. Div. | 1900
The action is brought by a sub-contractor for the foreclosure of a mechanic’s lien against the contractor and owner and the sureties on a bond given to discharge the lien. The contractor made default, and the judgment appealed from is a money judgment only, rendered against the owner and the sureties. In Matter of Schultes (33 App. Div. 524) this court held that the provisions of section 1351 of the charter of the city of New York (Chap. 378, Laws of 1897) creating the Municipal Court, contemplated not a mere continuance of the District Courts of the former city of Mew York and the Justices’ Courts of the city of Brooklyn, but the erection of a distinctly new and inferior local court not of record. T..e presiding justice in his opinion in that case predicated this conclusion upon the fact that the Municipal Court has other and greater powers and jurisdiction, and its justices have greater authority, than was possessed by all of the former courts combined. (P. 532.) • It was held that the Legislature, by virtue of article 6, sections 17 and 18, of the State Constitution, had power to create such a new court, provided it was made a local inferior court not of record. Following
The respondent, however, insists that as the judgment appealed from is a money judgment only, it may be upheld as within the lawful jurisdiction of the Municipal Court. The complaint is not couched in terms which would support a judgment for labor and materials against the owner of the property, as was the case in
As to the sureties, the condition of the bond is “for the payment of any judgment which may be rendered against the property for the enforcement of the lien.” (The Lien Law, chap. 418, Laws of 1897, § 18, subd. 4.) Liability on such a bond depends upon the validity of the lien, and until that is established a separate action upon the bond will not lie. In Morton v. Tttcker (sztjtra) it was held, citing the head note, that “ the remedy * * to enforce the obligations of the sureties to such a bond is not by an action at law upon the bond, but by an action in equity, in which all persons interested, including the sureties on the bond, are made parties.”
It follows that the judgment should be reversed, with costs.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.