
    Karl Mathiasen, Plaintiff, v. George J. Shannon et al.Defendants.
    (Supreme Court, New York Special Term,
    November, 1898.)
    1. Lien law of 1897 — Mechanic’s lien — A lien may be discharged by a bond instead of an undertaking — Estoppel of sureties.
    As the words “ bond ” and “ undertaking ” are used interchangeably in subdivision 4 of section 18 of chapter 418 of the Laws of 1897, sureties who, under said subdivision, have executed a bond because of which the court has discharged a valid mechanic’s lien, are estopped from insisting, upon the lienor’s attempting to enforce the bond, that it is void because it is not in the form of an undertaking.
    
      3. Same — When a personal judgment against sureties need not be expressly demanded.
    Where the demand of relief, in the complaint of an action to foreclose a mechanic’s lien, shows that, the lien having been discharged pendente lite by the giving of a bond, the plaintiff desires judgment according to the law of the case and there is a demand for general relief, sureties, who- have been heard by the court upon the question of a personal judgment against them, cannot thereafter take anything by insisting that the complaint contains no express demand for such a personal judgment.
    3. Same — Personal judgment against sureties, where there can be no foreclosure because of a bond given.
    The former rule that, although a mechanic’s lien has not been and cannot be foreclosed, sureties upon a bond, given to discharge the lien,may be made parties to the action of foreclosure, and that the decision therein may determine that, but for the filing of the bond, the lienor might have foreclosed, and that hence he is entitled to a personal judgment against the sureties, has not been changed by the Lien Law. chapter 418 of the Laws of 1897.
    Action to foreclose a mechanic’s lien.
    Phillips & Avery, for plaintiff.
    J. Baldwin Hands, for defendants.
   Laughlin, J.

It is conceded that plaintiff had a valid mechanic’s- lien against the premises described in the complaint, for the sum of $4,860 and interest thereon, for material furnished and work performed in the construction of a private building. After the commencement of this action such lien was discharged by an order of this court, a bond having been given with sureties in a sum fixed by the court, pursuant to the statute, and the sureties were brought in as parties defendant. The sureties now contend that the security is in the form of a bond and not an undertaking as required by the statute, and is void. Subdivision 4 of section 18 of chapter 418, Laws of 1897, being the, statute on the subject, uses the terms undertaking and bond synonymously. I think that the security is in the form of both a bond and an undertaking, and that it substantially complies with the requirements of the law. The document having been executed for the purpose of procuring a discharge of the lien under the statute, and having been treated as valid and effectual for that purpose, and the court having discharged the lien on the faith thereof, the sureties are now estopped from preventing its enforcement for the protection of the rights of the plaintiff which were secured to him by the lien. Sheffield v. Murray, 80 Hun, 555; Goodwin v. Bunzl, 102 N. Y. 224; Miller v. Youmans, 13 Misc. Rep. 59; 153 N. Y. 653.

The sureties also contend that no judgment can be rendered against them personally because the complaint contains no specific demand for such relief. All of the facts necessary to authorize such a judgment are sufficiently alleged and admitted. It would have been better practice to have expressly demanded a personal judgment against the sureties, but the demand for relief shows that the lien having been discharged, the plaintiff desires judgment according to the law of the case, and the complaint contains a general prayer for other and further relief. I think that the sureties were sufficiently apprised that a personal judgment was to be demanded against them, and in any event they having appeared upon the trial and having been heard upon the question, cannot be prejudiced by the plaintiff’s failure to expressly demand judgment against them.

The sureties further contend that the lien should have been foreclosed and a judgment obtained against the property before bringing suit against them. Under the former Mechanics’ Lien Law (chap. 342, Laws 1885, as amended), it was well settled that the sureties in such case might be made parties to the foreclosure action, and that the decision should establish the validity, of the lien and determine that but for the filing of the bond, the plaintiff would have been entitled to a foreclosure thereof, and that on account of the filing of the bond, he is entitled to personal judgment against the sureties for the amount for which he had a lien, and interest. A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603; Morton v. Tucker, 145 id. 245; Ringle v. Matthiessen, 10 App. Div. 274; 17 id. 374; Scherrer v. Hopper & Co., 45 N. Y. St. Repr. 638.

I am unable to discover any material change affecting that question made by chapter 49 of the general laws, being the new Lien Law of 1897, and consequently these decisions still regulate the practice. The plaintiff’s attorneys may prepare a decision, and if the same be not stipulated as to form by defendants’ attorney, it will be settled by me on two days’ notice.

Ordered accordingly.  