4 A.D.2d 774 | N.Y. App. Div. | 1957
In an action against the principal contractor and its surety on a bond, executed pursuant to section 137 of the State Finance Law, to recover a sum due for labor performed and materials furnished by appellant under a contract with a subcontractor on a public improvement contract, the appeal is from an order of the City Court of White Plains dismissing the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action (Rules Civ. Prae., rule 106, subd. 4). Order affirmed, with $10 costs and disbursements. The complaint alleges that appellant instituted no action to foreclose its lien, that there was no money due or owing by respondent contractor to the subcontractor with whom appellant had its contract, and that by reason of the foregoing appellant’s lien was not enforcible under the Lien Law and an action to foreclose the same was, and would have been, futile. The filing of a lien and the enforcement thereof, or an attempt to enforce it by the commencement of an appropriate action, are conditions imposed on any action pursuant to section 137 of the State Finance Law. “It is worth noting that, in 1946, the Law Revision Commission recommended that the provision of section 137 which required ‘the beneficiary, before proceeding under the bond, to file and enforce his