Garland v. Van Rensselaer

24 N.Y.S. 781, 78 N.Y. Sup. Ct. 2, 54 N.Y. St. Rep. 74, 71 Hun 2

• Court: New York Supreme Court
• Decided: July 28, 1893
• Status: Published

Opinion

BARNARD, P. J.

Under the lien law (chapter 342, Laws 1885)¹ the plaintiffs had a lien on the land in question. The defendant Van Rensselaer contracted to sell the same to the defendant the 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 fifth section of the lien act, Van Rensselaer was to be deemed! the owner until the deed was actually delivered. By the twenty-fourth 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 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 alien actually existed on Ms property. That made the defendant company a necessary party. It was not necessary that the plaintiffs 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.

1 Laws 1885, c. 342, § 1, provides that any person who shall perform any-labor or services, or furnish any materials which have been used, or which-are to be used, in erecting, altering, and repairing any house, building, or-building lot, with the consent of the owner, may have a lien on the house, and lot.

Section 5 provides, in cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner-shall be deemed to be the “owner,” within the intent and moaning of this-act, until the deed has been actually delivered and recorded, conveying said; premises pursuant to such agreement.