New York Lumber & Wood-working Co. v. Seventy-third Street Building Co.

Majority

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The New York Lumber and Wood-working Company, Pl’ff and App’lt, v. The Seventy-third Street Building Company, Impleaded, with William J. Merritt and others, Def’t and Resp’t.

(New York Common Pleas, General Term,

Filed February 4, 1889.)

Headnote

Mechanic’s lien—Discharge bond—Parties—What a legal compliance with statute—Execution oe bond—Laws 1885, chap. 343.

When a bond is given with sufficient sureties for the purpose of discharging a mechanic’s lien against real estate, pursuant to subdivision 6, section 34 of chapter 343 of Laws of 1885, it is not necessary for the-owner of the real es'ate to join in the bond, nor is it necessary for all the members of the film of contractors at the time the lien was filed, and. against whom it was filed, as contractors, to join in the bond—it is sufficient if the remaining partner, who is made the principal in the bond, as-successor to the late firm, etc., executes it; and it will be a legal compliance with the statute if the condition of the bond is, that the principal in the bond “shall pay any judgment that may be rendered against said property in any proceedings to enforce the foregoing lien, then,” etc

Appeal from two orders at special term directing and approving a bond discharging a mechanic’s lien.

On June 15, 1888, plaintiff filed a mechanic’s lien for $3,041.36 against William J. Merritt, George H. Tilton and Robert A. Hollister, composing the firm of William J. Merritt & Co., as contractors, and the Seventy-third Street Building Company and Franklin E. Robinson, as owners of forty-one houses on Seventy-third street and West End avenue.

The Seventy-third Street Building Company applied to this court for leave to file a bond of $3,500 executed by William J. Merritt, as principal, and Franklin E. Robinson and Albert E. Scott as sureties in discharge of said lien. The bond was at first drawn in the form : “That, we, William J. Merritt, of the city of New York, in the county and state of New York, as principal, and,” but. afterwards was amended, by leave and order of the court, so as to read: “ That we, William J. Merritt, of the city of New York, in the county and state of New York (successor to the late firm of William J. Merritt & Co.), and,” etc.

The plaintiffs made objections to the said bond, but the-court at special term ordered that the bond, as amended, be deemed sufficient as to form and as to the parties, executing it.

Alan D. Kenyon, for appellant.

When a bond is given pursuant to a statute, the terms of the statute must be strictly complied with. Barnard v. Viele, 21 Wend., 88 ; Town of Wheatland v. Taylor, 29 Hun, 70 ; Commissioners v. Hammill, 33 id., 348.

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. The bond approved and filed is not in accordance with the ■statute.

1. The owners of the premises covered by the hen have not joined in the bond.

“ 6. By the owner of the premises, person or persons, firm or firms, corporations or associations against whom or which the notice is filed, executing with two or more sureties who shall be freeholders, a bond,” etc.

The word “ executing,” renders it necessary for the parties named to join in the bond. Section 811 of Civil Code.

There is no reason for construing the word “or” into the ■section after the word “ premises.” If any word is to be interpolated there at all, the presumption is in favor of the insertion of “and.” For the twenty-fifth section of the act ■provides that the law “ shall be construed liberally to secure -the beneficial interests and purposes thereof.”

2. The firm against whom the lien was filed have not executed the bona; all should join; one cannot execute a specialty for another. Parsons on Partnership, 178, note g, (3d ed.), pp. 194, 195.

No dissolution of the firm affects the rights of third parties. Id., p. 395 (3d ed., p. 428). The bond is merely Merritt’s personal bond. De Witt v. Walton, 9 N. Y., 570 . Section 6 expressly requires the “firm” to execute it.

3. The condition is not in accord with the statute. The statute requires the bond to be .conditioned for the payment •of any judgment which may be rendered against the property. The bond reads: “Now the condition of this obligation is such that if the said William J. Merritt, his heirs or legal representatives, shall pay any judgment that may be rendered against said property in any proceeding to enforce the foregoing lien,” etc.

A. G. N. Vermilya, for respondent.

—Two questions are raised by this appeal. The first is whether any party interested in discharging a mechanics’ lien may become the principal of a bond given for that purpose, or whether the owner of the property must in all cases, unite in the bond as principal.

This depends upon the construction to be given to the sixth subdivision of section 24, Mechanics’ Lien Law, 1885, which is as follows: “By the owner of the premises, person or persons, firm or firms, corporations or associations against whom or which the notice of lien is filed, executing' with two or more sufficient sureties, a bond to the clerk,” etc. The appellant contends that after the word “ premises,” we should insert the conjunction “and” before “ person.’ This would render it necessary that the owner of the premises should, in all cases be a principal in the bond. I think this was not the intention of the legislature. The grammatical construction of the sentence does not warrant our inserting this word. A comma is placed after the word

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“ premises,” and another after the word “ filed,” and under the well known rules of construction, to ascertain the meaning, we may eliminate what is between those commas, and read it as though there were no intermediate words. Doing this, we find that the lien, may be discharged “ by the owner of the premises * * * executing with two or more suf'ficient sureties, * * * a bond to the clerk,” etc. So it is apparent that the other persons interested in discharging the lien by a bond, need not unite with him. But if that is so, it follows, as a matter of course, that the other “person or persons,” etc., interested in the removing of the lien, may do so by themselves becoming principals, withóut the owner-uniting with them. This view is sustained by the fifth subdivision of the same section, which says that the lien maybe discharged by “the owner of the property” * * * affected by any notice of lien filed under this act or the “person or persons,” etc., “ may, at anytime after the filing of the_ notice, serve a notice,” etc. ’ Here the disjunctive “or,” is actually inserted. It was doubtless the intention of the legislature to give the same opportunity to either the owner or contractor in the sixth subdivision.

This view is further sustained by the third subdivision of the same section, in regard to discharging a lien by making a deposit, and under that subdivision it has been held that where the deposit has been made by the contractor, the lien must be discharged as to the owner. Schaettler v. Gardiner, 4 Daly, 56 .

In no case, if the owner complies in all respects with the terms of his agreement with the contractor, is either he -or his land liable to the payment of mechanics’ liens, and, therefore, it is only reasonable to suppose that the legislature did not intend to require him to make himself liable-beyond the clear intent of the act.

The second question arises under the following facts: The contractors for the work under which the plaintiff claims a lien, were William J. Merritt & Co., composed of William J. Merritt, Robert A. Hollister and George H. Tilton. Before the filing of the bond, Hollister and Tilton, had withdrawn from the firm, and Merritt became its successor. He alone executed the bond as principal, describing himself as “successor to the late firm of William J. Merritt & Co.”

The appellant contends that Hollister and Tilton should both have united in the execution of the bond. However-this might have been, had the firm been composed of the-same persons at the time of giving the bond, I do not think it was necessary for the persons who had withdrawn from , the firm to unite with Merritt in the bond at the time it was-given. He then was the sole party in interest as far as the contract was concerned, or the moneys due under it. As-

p. 317

successor to the firm, he could bind the firmfin all respects, by his acts; his release of a firm debt would have been good; any act done by him to collect a firm debt would, have been binding upon the other members of the firm. And, besides, the discharge of the lien by the giving of the _ bond does not relieve either Hollister or Tilton from any ' money judgment that may eventually be recovered against-the original contractors. The persons who did not unite in the bond will be as much bound by that judgment as Merritt is himself, and they are just as much security for the money judgment now as they would have been had they united in the giving of the bond.

I think, therefore, this point is not well taken, and that the orders should be affirmed, with costs.

All concur.