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Whitney v. Coleman

9 Daly (N.Y.) 238 Court N.Y.C.P. Decision date 1880-04-05 English

Delivered by Charles P. Daly, Chief Justice.

Contents

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p. 238
Eliza Whitney et al., Respondents, against James A. Coleman, Impleaded, &c., Appellant.
(Decided April 5th, 1880.)

Headnote

When an instrument in the form of a bond to obtain the discharge of a mechanic’s lien under the statute, conforms to the statutory requirements of such a bond in all respects except the attaching of a seal, and is approved by the court, and the lien is discharged upon filing it, the parties executing it cannot afterwards, in an action against them upon it, evade their liability under it because of the omission of a seal.
Appeal from a judgment of this court, entered on an order overruling a demurrer to a complaint.
The allegations of the complaint are stated in the opinion. The defendant Coleman having demurred, upon trial of the issue of law, his demurrer was overruled, and judgment directed for the plaintiffs, with leave to the defendant to answer. No answer having been served within the time allowed, judgment for the plaintiffs was entered upon the order overruling the demurrer. From the judgment the defendant appealed.
T. E. Stewart and E. H. Benn, for appellant.
Jeroloman & Arrowsmith, for respondents.

The judgment below should be affirmed. The complaint states all that was requisite to entitle the plaintiffs to recover. It states the filing of two notices by the plaintiffs, on the 23d of September and the 3d of October, 1878, to secure' two mechanics’ liens on property which is described, together with the name of the owner and the contractor; the commencement of an action to enforce these liens; the giving of the instrument annexed to the complaint, to discharge the liens; the approval of it by the court on the 1st of March, 1878, and the discharge of the liens; the rendering of a judgment in favor of the plaintiffs in the action, against the property described in the notice filed; the amount of the judgment; that it remains unpaid ; and that

p. 239
liberty was given, by the court, to the plaintiffs, to sue upon the instrument.

Having obtained the discharge of the liens by executing this instrument, it does not lie with the parties who executed it, to object, when an action against them is brought upon it, that it is not a bond, because it has no seal. It is in the form of a bond, and contains all that would be required under the statute in a bond, except the attaching of a seal. It was approved by the court, and the defendant has had the benefit of it, as the liens were discharged upon their giving it; and it is well settled that in such cases, the parties who execute the instrument cannot escape from liability under it, because something was omitted in the form of it (Shaw v. Tobias, 3 N. Y. 188 ; People v. Lyons, 7 Daly, 182 ; Field v. Van Cott, 5 Id. 308 ; Coleman v. Bean,, 1 Abb. Ct. App. Dec. 394 ; Decker v. Judson, 16 N. Y. 439 ).

Kelly v. Archer ( 48 Barb. 68 ), on which the defendant relies, has no application, as that was an action for a wrongful taking, in which the defendant relied upon a levy under an attachment, and failed, because the bond given conferred no jurisdiction upon the justice, to issue the attachment, as it omitted a material and necessary condition required by the statute. Had the action, however, been against the sureties upon the bond, a different question would have arisen ; and if Homan v. Brinckerhoff ( 1 Denio, 184 ), on which the defendant also relies, has anything in conflict with the rule above stated, it is overruled by subsequent decisions in the court of appeals, above cited.

The judgment below should be affirmed.

Lajrremore and Van Hoesen, JJ., concurred.

Judgment affirmed.

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