Tarter v. Sanderson

121 Misc. 629

• Court: New York Supreme Court
• Decided: October 15, 1923
• Status: Published

Opinion

Proskauer, J.

Plaintiff moves for summary judgment in an action upon a bond executed by defendants Sanderson and Eidlitz, as principals, and the National Surety Company, as surety, to discharge a mechanic’s lien.

The notice of lien states the owners of the real property “against whose interest therein a lien is claimed is (sic) Jennie T. Eidlitz and Maud Sanderson,” without mentioning Berenice F. Hale, and then recites “ the interest of the owner as far as known to the lienor is fee simple and Berenice F. Hale, lessee.” The amount claimed was $5,550. Sanderson and Eidlitz obtained the usual ex parte order fixing $6,500 as the amount of the undertaking to be executed “ to discharge the mechanic’s lien filed against the interest of said Maud Sanderson and Jennie T. Eidlitz as owners,” and after filing their, bond obtained the usual order directing that the lien against “ Maud Sanderson and Jennie T. Eidlitz, as owners,” be discharged. The bond recites that the lien is against certain property of “ Maud Sanderson and Jennie T. Eidlitz, as owners,” and engages for the payment of any judgment which may be rendered “ against the property for the enforcement of said lien.”

The alleged lessee, Berenice F. Hale, also made a defendant in the foreclosure suit, defaulted and a judgment in favor of defendants Eidlitz and Sanderson was rendered dismissing the complaint on the merits, granting a personal judgment against Berenice F. Hale and decreeing the establishment of a valid lien “ so far as the leasehold interest of the defendant Berenice F. Hale therein * * * is concerned.”

Despite the success of Sanderson, Eidlitz and their surety, plaintiff claims he can recover on this bond because a lien is an entity; that when they filed the undertaking, they in some way made themselves liable for any judgment rendered against any interest in the property. No case cited by plaintiff constrains me to such an unjust conclusion. In every case cited there was an attempt made by an owner to apportion the amount of the' lien between different parcels and to file an undertaking for a smaller sum than the amount claimed to free his own property from the hen. The courts have held this could not be done. Here no such attempt was made; the undertaking was for more than the whole amount of the hen and the obhgation is not to pay a judgment against the property of Berenice F. Hale, but solely the property of the owners in fee.

Plaintiff’s motion denied, with ten dollars costs.

Ordered accordingly.