Heagney v. Hopkins

It appears from the record that one William ■ Engel, the owner of certain property, entered into a contract with-

At the outset it is necessary to call attention to the fact that the bond in this case was not given by the owner, Engel, but by the principal contractor. This is no longer permissible, under the provisions of the lien law as it now stands (Laws 1897, c. 418, § 18); but at the time the bond in question was given, and the lien discharged, the statute was broad enough to include the contractor, and a bond given by him, as the moving party seeking a discharge of the lien was held to be within the purview of the statute. New York Lumber & Wood-Working Co. v. Seventy-Third St. Bldg. Co. (Com. Pl.) 3 N. Y. Supp. 937 . Where the bond is executed by the owner, he still continues chargeable, so to speak, with respect to the lien, by the substitution of his personal engagement for the land; and the sureties who join in the execution of the bond are sureties for him, and entitled to resort to him for reimbursement if they are compelled to pay upon a breach of the condition. There is therefore an obvious distinction between such a bond and one given by the contractor. In the latter case the contractor becomes the principal, and the sureties are sureties for him, and bound only to thé performance by him of the obligation which they have entered into. The importance of this distinction, in its bearing upon the question under examination, will be apparent. Where the lien is discharged upon the owner’s bond, he is necessarily interested in any attempt to enforce it; and. where the method adopted is by first obtaining a judgment in foreclosure proceedings, establishing the lien against the property, and then prosecuting the bond, there is considerable force in the claim that the latter action is one brought to secure the fruits of the foreclosure judgment, and therefore subject to the stay of execution affecting that judgment. That judgment, while against thé property, in one sense, is so only as a matter of form; that is, while it determines that the lien was a valid and enforceable one, it stops there, and declines to enforce it, because of its discharge. It simply establishes a right, without providing means for its enforcement. Where, then, the owner has appealed from the judgment of foreclosure, and has obtained a stay of proceedings pending the appeal, in the manner provided by law, the argument is certainly a very persuasive one, that, during its continuance, it operates to prevent any action upon the bond given by the owner upon a discharge of the lien. It has been held that such a stay is effectual against any proceeding “to enforce the plaintiff’s rights under the original judgment, or to obtain the fruits of it,” Morey v. Tracey, 92 N. Y. 582 . While suggesting the force of this contention, we do not propose to pass upon it, in view of the fact that in the case before us the lien was discharged, and the bond given, not by the owner, but by the contractor. The suit which has been brought upon the bond is against the contractor and his sureties, and not against the owner, to whom it is a matter of indifference whether there is a recovery upon it or not. The stay which he has obtained is for his own benefit,—intended as a protection to him against proceedings to his hurt, under or on the footing- of the judgment, while the appeal is pending;

The validity of the lien of the plaintiff is dependent upon the determination of the question whether the owner owed the defendants Hopkins & Roberts, the principal contractors, anything; otherwise it was not the subject of dispute. The controversy was entirely with respect to the indebtedness of the owner to Hopkins & Roberts, and the validity of their lien, which had not been bonded and discharged. The judgment passed in their favor, and provided for a sale of the property to satisfy the amount of their claim, so that there was a sufficient reason in this fact alone for the securing by the owner of a stay of proceedings pending his appeal. While it is true that the judgment apparently makes provision for the payment of the plaintiff’s claim out of the proceeds of the sale, it is none the less to be treated as in that respect merely formal. Certainly, the plaintiff, having brought his action on the bond, the consideration of which was the discharge of the lien, could not be allowed to take any other position. It is thus apparent that the only person who might be in a position to claim the application of the stay to this action is not a party to it, nor apparently interested in its event. The contractors, who in this action ars seeking the benefit of the stay, are those against whom it is leveled, who are themselves subject to its restraining force, and who are the respondents on the appeal, there contending that the judgment is irreversible for error, and should stand, while the sureties are strangers to the owner, and bound, not for the payment by him, but by the contractors, of any judgment rendered against the property in favor of the plaintiff. Under the peculiar facts of this case, we conclude, therefore, that the existence of the stay in question is not available as a defense in this action.

The contention that there has been no breach of the condition of the bond, because, by reason of the appeal, the judgment lacks the attribute of finality, and that this action has therefore been prematurely brought, is also untenable. It will be observed that the condition is very broad in its terms, binding the parties to the payment of “any and all judgments which may be rendered against the property” in favor of the plaintiff. Of course, this imports that the judgment so rendered must be final, as distinguished from an interlocutory judgment; but there is no claim made here, nor could there be any, that the judgment in question is not final in that sense. It is a complete determination of the rights of the parties to the suit with respect to its subject-matter, leaving no further question or direction for future determination except such as may be necessary to carry it into effect. 12 Am. & Eng. Enc. Law, p. 63; Morris v. Morange, 38 N. Y. 172 . In the latter case the court held that a judgment of foreclosure of a mortgage was a final judgment, and, as the action to foreclose a mechanic’s lien is by statute assimilated to one for the foreclosure of a mortgage, the case is an authority here.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.