104 N.Y.S. 1082 | N.Y. App. Div. | 1907
The plaintiff brings this action to foreclose a mechanic’s lien, and has made. Johnson and Slocum, the sureties upon a bond given for the purpose: of having the lien discharged, parties defendant. These defendants have demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and the learned' court at Special Term has overruled the demurrer.. The said defendants appeal to this court.
The undertaking executed by the defendants Johnson and Slocum, and referred to in the complaint, is conditioned for the. payment of any judgment which may he rendered against the prop
We find nothing in the statute which indicates that it is necessary ' to make a separate statement in reference to these matters, or to, indicate what portion is for labor or for materials, and hone of the cases to which attention is called decides any'such point.. A liberal construction of the statute, commanded by section 22, would not seem to’ demand such'a ruling, for the obvious intention is simply to give notice, of the true state of facts at the time of the filing of-the lien ; and when the notice declares that it is for “ all the. labor in, toward and about the brick work,” that the agreed price and value thereof is $12,205,57, and that the amount unpaid to the lienor is $3,465.57, no one can be misled in. the matter. (See Woolf v. Schaefer, 103 App. Div. 567,571.)
We áre of opinion that it was not necessary to comply, with the provisions of- section' 814 of the Code of Civil Procedure to maintain this action against the-sureties. (Morton v. Tucker, 145 N. Y. 244.) The action being in equity, it is proper to bring in all of' the interested parties.
We1 find no reason- for' reversing the interlocutory judgment, ' which should be affirmed,- with costs, ■
Jenks, Hooker, Gaynor and High, JJ., concurred.
Interlocutory judgment affirmed, with costs.
See Lien Law (Laws of 1897, cliap. 418), art. 1, as amended.— [Bep,