Ringle v. Matthiessen , 45 N.Y.S. 226 ( 1897 )

Patterson, J.:

The bond sued upon in this action contained the condition that the obligors executing it (of whom the defendant is one), would be jointly and severally liable in case the Wallis Iron Company should fail .to “pay any judgment that may be rendered” against certain premises mentioned in said bond and upon which a mechanic’s lien had been filed by the plaintiffs herein, such bond having been given under the statute for the purpose of discharging the lien, and freeing therefrom the property against which that lien was filed. An action to foreclose the lien referred to was begun, and judgment was finally entered therein by which it was adjudged that the lienors acquired a valid mechanic’s lien upon and against' the land and premises referred to; that it was a valid and continuing lien against such land and premises until it was discharged by the filing of a bond (being the same bond as that upon which this action is brought). It is now objected by the defendant that he is not liable upon this bond, because the judgment entered in the foreclosure action does not contain any provision for the enforcement of the lien against the property; that that judgment merely declares that the lien was a valid lien discharged by the giving of the bond; that the bond being conditioned only for the payment of “any judgment that may be rendered against said property in any proceeding to enforce the foregoing lien,” the condition of the bond differs from the provision of. the judgment, and, therefore, there' is no liability on the surety’s contract.

The point is not a new one in this court and is not well taken. It involves simply the question of the construction of the condition of the bond, and that construction was given in the case of Ringle v. Matthiessen (10 App. Div. 274). It is only necessary to repeat here what was declared in that case, vizi: That if the construction contended for by the defendant were to be maintained, the lien of the plaintiffs would be destroyed, and in its place be substituted a bond, the condition of which could never be broken, because, after the giving of the bond, no judgment can ever be rendered against the property itself. Therefore, to repeat' again what was said in Morton v. Tucker (145 N. Y. 248), “ the sureties in the bond intended, and must be understood as undertaking, to pay the amount which it should be adjudged was due and owing to the.plain tiffs, and which was chargeable against the property by virtue of their notice of the lien. In other words, the condition was for the payment of any judgment which might have been rendered against the property had not the bond been given.” ■

The judgment appealed from must be affirmed, with costs.

Bumsey, O’Brien, Ingraham: and Parker, JJ., concurred.

Judgment affirmed, with costs.