
    Clyde Howes, Appellant, v. The Corti Building Company, Agata Cavalucci and Chatharina Salzano, Respondents.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Mechanics’ liens—notice of lien — time' of filing — use of materials — bond —effect of bond to discharge — pleading.
    Where the purchaser of building material uses it without objection, patent defects therein are waived.
    Where, in an action on a bond given to discharge a mechanic’s lien, the lien is not proved, the sureties are only entitled to a dismissal of the complaint and not to a judgment on the merits.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, .borough of the Bronx, first district, rendered in favor of the defendants.
    Clocke, Koch & Reidy (Edward R. Koch, of counsél), for appellant.
    Menken Brothers, for respondents.
   Lehman, J.

The plaintiff furnished certain building material to the Corti Building Company for use in a building owned by it. Thereafter he filed a mechanic’s lien against the builder who discharged the lien by filing a -bond. This action is brought against the principal and sureties on the bond. At the trial the plaintiff proved the delivery of the materials called for hy the contract.' The defendant then produced evidence that the material was defective in appearance. The defects, however, were entirely patent, and yet it is undis- ■ puted that the defendant used them in the building without any objection. Under these circumstances the purchaser of the trim waived the defects and the judgment in his favor must be reversed. The- sureties, however, claim that the judgment must be' affirmed as to them because the plaintiff failed to introduce in evidence the mechanic’s lien and would therefore at most be entitled only to a personal judgment against the owner. Even if this were true, the sureties would be entitled only to a dismissal of the complaint and not to a judgment on the merits. I find, however, no sufficient issue raised by the pleadings upon this point. The owner admits the filing of the lien, and the denial of the sureties is absolutely frivolous, being a denial “ of any knowledge or information sufficient to form a belief ” of the filing of the lien, which was not only a- public record but of which they must, according to the recitals of the bond, have had personal knowledge.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Page, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to. abide event.  