Sheffield v. Robinson — 62 N.Y. St. Rep. 763

Majority

p. 763

Thomas Sheffield, App’lt, v. Frederick Robinson et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed October 12, 1894.)

Headnote

1. Appeal—What not appealable.

An order sustaining or overruling a demurrer is not appealable.

2. Estoppel—Validity of bond.

The obligor in a bond to discharge a mechanic's lien cannot, after the discharge of such lien, object that the amount of the bond exceeds the jurisdiction of the court which accepted it.

Appeal from an order overruling a demurrer, and from a judgment entered upon the order dismissing the complaint.

M. F. Halpin, for app’lt; F. B. Troutman, for resp’ts.

It has been repeatedly held in this court and in the court of appeals that an appeal from an order sustaining or overruling a demurrer is not permitted, by the Code; the appeal must be from the judgment. Therefore, so much of the appeal as is from the order overruling the demurrer must be dismissed, with $10 costs.

The appeal from the judgment brings up the question as to whether the new matter contained in the answer was sufficient to constitute a defense to the cause of action set out in the complaint. It appears that one Thomas L. Sheffield, in February, 1889, filed a notice of a lien in the county clerk’s office in the city and county of New York, claiming a lien for work done and materials furnished upon certain buildings in said city; that in such notice the defendant Robinson was named as contractor, and one Edward Early was named as the owner of such building. Robinson subsequently made an application to the city court of New York, and to one of the judges thereof, for an order fixing the amount of a bond to be given to discharge such lien. Thereupon the said court, by an order, fixed the amount of the bond to be given at $2,100.' Robinson thereupon entered into a bond, as principal, together with one Mary E. Robinson ^ and the respondent Murray, as sureties, for the purpose of discharging the said lien, which bond was duly approved; and, upon the filing thereof, such lien acquired by the filing of said notice was discharged. Sheffield then commenced- an action to foreclose the said mechanic’s lien. Subsequently the claim and cause of action were assigned to the plaintiff herein. Issue having been joined in said action of foreclosure, the same was tried before a referee,

p. 764

who gave judgment for the plaintiff; but, inasmuch as the lien had been discharged by the filing of such bond, a judgment in form only directing a-sale of the premises was entered. Neither the principal nor his sureties paid the amount found due by said judgment of foreclosure; whereupon application was made by the plaintiff for leave to maintain an action in his own name against said principal and sureties for the amount of the bond. Such leave was granted; and the question presented is whether the plaintiff can maintain an action upon said undertaking because its amount exceeded the jurisdiction of the city court. In view of the fact that the undertaking was treated by all the parties as one having validity, and upon the faith of which the mechanic’s lien was. discharged of record, it seems to us that the question is no longer opened for discussion, under the decision of the court of appeals in Goodwin v. Bunzl, 102 N. Y. 224 .

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide event.

All concur.

Cases cited

Goodwin v. Bunzl 102 N. Y. 224 N.Y. 1886-04-13 p. 764