In re Hedden Construction Co.

72 Misc. 153, 129 N.Y.S. 827

• Court: New York Supreme Court
• Decided: May 15, 1911
• Status: Published

Opinion

Giegerich, J.

The Hedden Construction Company is contractor for the erection of the building upon the lands described in the notice of lien, under a contract with the owner thereof. Such company obtained an order fixing the amount of the undertaking to be given by it as a contractor to discharge the said lien, which is sought to be vacated and set aside upon the grounds hereinafter stated. It appears from the papers submitted that by the terms of the contract the said Hedden Construction Company is required to keep the said premises free and clear of all mechanics’ liens, and promptly obtain the cancellation and discharge of any that might be filed against the premises by any subcontractors; that the Hedden Construction Company sublet some of the work to a subcontractor, to wit, the Empire Cornice Works, which in ■ turn sublet some of the work to the Commonwealth Hoofing Company, which filed the notice of lien herein and which makes this application to vacate the said order fixing the amount of the undertaking upon the ground that the said Hedden Construction Company is not named in said lien as contractor or otherwise, but that the Empire Cornice Works is therein named as contractor. The Lien Law, so far as applicable to the question under consideration, provides: “ Section 19. A lien other than a lien for labor performed or materials furnished for a public improvement specified in this article may be discharged as follows: * * * 4. Either before or after the beginning of an action by an owner or contractor executing an undertaking with two or more sureties, who shall be freeholders, to the clerk of the county where the premises are situated, in such sums as the court or judge thereof may direct, not less than the amount claimed in the notice of lien conditioned for the payment of any judgment which may be rendered against the property for the enforcement of the lien.” As I construe the foregoing provisions, the right to discharge a lien by the filing of an undertaking is not limited to the contractor named in the notice of lien, but it is given to any one who may come within the meaning of the term “ contractor ” as defined by section 2 of the Lien Law, viz.: “A person who enters into a contract with the owner of real property for the improvement thereof.” The Hedden Construction Company could" not, therefore, be deprived of the right to obtain an order fixing the amount of the undertaking to discharge the lien simply because the Commonwealth Booting Company, the lienor, did not name the former in its notice of lien as the contractor. Such right is expressly conferred by the statute, and the defendant, the real contractor, could not be deprived of that right by any act or omission on the part of the lienor.

Motion denied, without costs.