Garland v. Van Rensselaer — 54 N.Y. St. Rep. 74

Majority

p. 74

Horace W. Garland et al., Resp’ts, v. Cortlandt S. Van Rensselaer, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

1. Mechanic’s lien—Consent of owner—Action on bond.

The complaint in an action on a bond given to procure the discharge of a mechanic’s lien alleged that appellant was the owner of certain land, which he contracted to sell to the other defendant, and the latter took possession and contracted with plaintiffs to build a small house, which plaintiffs performed with the knowledge and consent of appellant; that the other defendant subsequently released its right, title and interest to appellant, who filed the bond to release plaintiffs’ lien, with two sureties, whose names were not given, and that no part of the contract price for plaintiffs’ work had been paid. Feld, that the complaint set forth a cause of action; that appellant was to be deemed the owner until his deed was delivered, and that plaintiffs had a lien.

3. Same—Parties.

In an action on a bond 'given to discharge a mechanics’ lien the sureties on the bond are not necessary parties; the principal debtor can be sued alone on it.

Appeal from judgment entered upon order overruling demurrer to the complaint.

Action upon a bond given tó discharge a mechanic’s lien.

The complaint alleges that prior to the 1st of October, 1891, Cortlandt S. Van Rensselaer was the owner of certain premises •described; that on that day he entered into a contract with the company to convey said premises to said company; that under said contract the company took possession of the premises, and while in possession contracted with the plaintiffs to erect a building thereon, for which the company agreed to pay the sum of $150; that plaintiffs performed said contract, and that such performance was with the knowledge and consent of Cortlandt S. Van Rensselaerthat the work was worth said sum ; that a lien was filed for said work, and thereafter the company released and relinquished to Van Rensselaer the right, title and interest in said premises; that Van Rensselaer filed a bond with sureties and had the lien canceled of record, and that no part of the contract price for said work has been paid. The defendant, Van Rensselaer, demurred to the complaint on the ground that it showed no cause of action as against him.

Howard Allison (Isaac N. Miller, of counsel), for app’lt, Charles P. Cowles and Justus A. B. Cowles, for resp’ts.

Under the lien law, chap. 342, Laws of 1885, the plaintiffs had a lien on the land in question. The defendant Van Rensselaer contracted to sell the same to the defendant, Commonwealth Security Company. The security company built a small house on the land with lumber obtained of the plaintiffs with the knowledge and consent of Van Rensselaer. By the 5th section of the lien act Van Rensselaer was to be deemed the •owner until the deed was actually delivered. By the 24th section of the act the owner, by filing a bond with surety, can procure an order discharging the lien. Such a bond was given and approved by the court, and an order entered that the lien be discharged and

p. 75

canceled of record. The bond and order are made part of the complaint by an allegation to that effect and not by the actual annexation of a copy thereof to the complaint. It does not appear who signed the bond besides Van Rensselaer. Van Rensselaer alone demurs. His demurrer was properly overruled. He could only be made liable by proof that a lien actually existed on his property. That made the defendant, company, a necessary party. It was not necessary that the plaintiff should make the sureties to the bond parties. The principal debtor can be sued alone upon it. Code § 454.

The order overruling the demurrer and the interlocutory judgment upon it, must therefore be affirmed, with costs.

Pratt, J., concurs; Dykmah, J., not sitting.