Harley v. Plant

• Decision Date: 03 March 1914
• Citation: 104 N.E. 946,210 N.Y. 405
• Parties: HARLEY v. PLANT et al.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 405

104 N.E. 946

HARLEY

v.PLANT et al.

Court of Appeals of New York.

March 3, 1914.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James Harley against Humphrey L. Plant and another. From a judgment of the Appellate Division (149 App. Div. 719,134 N. Y. Supp. 122) reversing a judgment for plaintiff on the pleadings, rendered pursuant to Code Civ. Proc. § 547, and dismissing the complaint, he appeals. Modified and affirmed.

George W. Titcomb, of Brooklyn, for appellant.

James Troy, of Brooklyn, for respondent Plant.

Charles L. Livingston, of New York City, for respondent Gleichmann.

COLLIN, J.

The action is to recover upon an undertaking executed by the defendants, as sureties, under the provisions of section 21 of the Lien Law (Consol. Laws, c. 33), to discharge a mechanic's lien filed by the plaintiff with the comproller of the city of New York against funds payable to one Peter Guthy under his contract with the city for the construction of a public improvement.

[1] Inasmuch as the appellant asserts that the Appellate Division erroneously ordered judgment for the defendants upon the pleadings, the prinary question is: Does the complaint state facts sufficient to constitute a cause of action? We decide that it does.

Section 21 provides several methods of discharging the lien. That invoked by the contractor Guthy was the substitution of the undertaking, as permitted by subdivision 5 of the section, for the lien against the money payable to him from the municipality. The statute requires that the undertaking be and it was ‘conditioned for the payment of any judgment which may be recovered in an action to enforce the lien.’

The complaint alleges in effect these facts: The creation of the lien, the proceeding whereby it was discharged by the filing of the undertaking subsequent to the commencement of an action to foreclose the lien, the rendition and entering of a final judgment in such action, which ordered, adjudged, and decreed that the lien was at its filing ‘and continued to be until its said bonding and cancellation and would now be, except for such bonding and cancellation, a good and valid lien, * * * and that the plaintiff became and was entitled to enforce said lien against the moneys in the hands of the city of New York applicable to said public improvement until its said bonding and discharge, and would now be so entitled, except for such bonding and discharge; that the defendant the city of New York is, and has been since the aforesaid bonding and discharge of said lien, an unnecessary party to this action, and this action is discontinued against it; and that the plaintiff have personal judgment against the defendant Peter Guthy for the sums due, as aforesaid,’ and the issuance of an execution upon and the complete nonpayment of such personal judgment. The defendants here were not parties to that action to foreclose the lien.

The alleged deficiencies in the complaint are: (1) The judgment in the action to foreclose the lien did not, in form, adjudge, but merely recited, the validity of the lien and was merely a personal judgment against Guthy; and (2) such judgment was invalid and effectless as establishing the validity of the lien because these defendants were not parties to it. The first deficiency alleged does not exist. The judgment, in form, is that the lien was good, valid, and enforceable against the moneys payable by the city to Guthy. It is an adjudication of that fact. Its clear and express language forbids discussion as to that. We turn now to the second alleged deficiency. The plaintiff cannot maintain this action unless the complaint alleges and the allegation is supported by admission or proof that the lien had been established in a fixed amount by the judgment in the action to enforce it. Berger Mfg. Co. v. City of New York, 206 N. Y. 24, 99 N. E. 153;Schillinger F. P. Cement & A. Co. v. Arnott, 152 N. Y. 584, 46 N. E. 956.

[2][3]Section 42 of the Lien Law authorizes the enforcement of the lien against the contractor liable for the debt and the funds of the municipal corporation by an action in the same court and in the same manner as a mechanic's lien on real property. Section 44 declares the necessary parties defendant in the action; and section 43 makes applicable to the action the provisions of the Code of Civil Procedure relating to actions for the foreclosure of a mortgage upon real property, except as otherwise provided in the article of the Lien Law containing the sections already mentioned. For obvious reasons, and by virtue of the statutory provisions, the contractor Guthy and the city of New York were defendants here, the sureties in the undertaking the lien. Lien Law (Consol. Laws, c. 33) § 44; Hawkins v. Mapes-Reeve Const. Co., 178 N. Y. 236, 70 N. E. 783. The contents of the judgment reveal that they were parties, and the provision of the judgment discontinuing the action as to the city of New York, although erroneous, did not affect the establishment of the lien by the judgment. The defendants here, the sureties in the undertaking by virtue of which the lien was discharged, were not under any statutory provision, or because of their interest in the subject of the action, necessary parties to the action to foreclose the lien. They were proper parties, but the plaintiff had the right to refrain from applying to the court, as he might have done, for an order bringing them into the action as parties. Morton v. Tucker, 145 N. Y. 244, 40 N. E. 3;Ringle v. Matthiessen. 10 App. Div. 274,41 N. Y. Supp. 962, affirmed 158 N. Y. 740, 53 N. E. 1131. Probably either of the defendants in that action might have applied for such an order. Hilton Bridge Const. Co. v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 290, 40 N. E. 86. The sureties, the defendants here, had an interest in the subject of the foreclosure action (Aeschlimann v. Presbyterian Hospital, 165 N. Y. 296, 59 N. E. 148,80 Am. St. Rep. 723), and might have applied for that order (Code Civ. Pro. § 452; People v. Albany & Vt. R. R. Co., 77 N. Y. 232;Rosenberg v. Salomon, 144 N. Y. 92, 38 N. E. 982;Chapman v. Forbes, 123 N. Y. 532, 26 N. E. 3;White's Bank of Buffalo v. Farthing, 101 N. Y. 344, 4 N. E. 734;Bauer v. Dewey, 166 N. Y. 402, 60 N. E. 30;Gittleman v. Feltman, 191 N. Y. 205, 83 N. E. 969), which the court undoubtedly would have granted (Johnston v. Donvan, 106 N. Y. 269, 12 N. E. 594). The lienor may, however, have and prosecute his action to enforce or establish the lien, whether the undertaking discharging it be filed before or after the action is commenced, making the necessary parties only defendants, and the judgment therein establishing that the lien, when discharged by the undertaking, was...