
    George W. Copley and Ellen Dolen. Resp’ts, v. Amelia C. Hay, Impl’d, App'lt.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed January 5, 1891.)
    
    I. Mechanics’ lien—Foreclosure—Parties.
    Where a bond has been filed to discharge a lien as provided by sub. 6 of §24 of the act of 1885, an action cannot be maintained against the owner and the property for the foreclosure of the lien. The provision of the statute requiring the bond to be conditioned for payment “ of any judgment which may be rendered against the property” is satisfied by requiring the lienor, in an action on the bond, to show that but for the filing thereof he would have been entitled to a judgment against the property.
    2. Same—Discharge.
    The mere filing of a bond does not discharge the lien. The amount of the bond must be fixed by the court, the sureties must justify, and the court on approval must make an order discharging the lien. Until such order is made the lien is not discharged.
    - Appeal by the defendant, Amelia C. Hay, from an order overruling her demurrer to the plaintiff’s complaint and directing judgment thereon, with costs, and from an order denying her motion to resettle the judgment entered.
    
      W. H. Arnoux and Edward Marshall Grout, for app’lt; Oliver S. Ackley and Wm. A. Crowe, for resp’ts.
   Daly, Ch. J.

This is an action to foreclose a mechanics’ lien, -filed on December 8,1888, against the defendant, Amelia 0. Hay, as owner, Mull & Fromer, contractors, and Bowers & Vreeland, subcontractors, by the plaintiffs who i'urnished materials to Bowers &. Vreeland for the carpenter work upon the premises in question. The complaint alleges the facts necessary iú an action to foreclose a mechanics’ lien under the act of 1885 (chap. 342), and alleges, in addition, that on January 11, 1889, the defendant Mull filed his bond for twice the amount of the plaintiffs' claim or lien herein in the clerk’s office of the city and county of Mew York. Mrs. Hay, the owner, is made a party defendant, and it is demanded that it be adjudged that plaintiffs acquire a valid lien upon the premises, and have a lien on said bond, and that defendants and all persons claiming under them be foreclosed and the premises be sold, and the plaintiffs be paid the amount of their lien from the proceeds. 'x

Mrs. Hay, the owner of the premises, demurs to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action against her. Her demurrer was overruled. She appeals, and both sides have argued the case as one presenting for decision the question whether, when a bond is filed to discharge a mechanic’s lien, as provided by subd. 6, g 24 of the act, an action of this character can be maintained and the owner of the premises made a party defendant and judgment of foreclosure and sale be demanded and rendered. As this question may have to be ultimately decided in the case it may be examined now.

The mechanics’ lien act provides as follows:

“ Sec. 24. A lien may be discharged as follows: * * * 6. By the owner of the premises, person or persons, firm or firms, corporation or corporations, against whom or which the notice of lien is filed, executing with two or more sufficient sureties, who shall be freeholders, a bond to the clerk of the county where the premises are situated, in such sum as the court may direct, not less than the amount claimed in said notice, conditioned for the payment of any judgment which may be rendered against the property. The sureties on said bond must justify in at least double the sum named in said bond. A copy of said bond, with notice that the sureties will justify before the court or a judge thereof, at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the court or a judge thereof.” The respondents refer to the provision of the section and subdivision above cited, declaring that the bond “shall be conditioned for the payment of any judgment which maybe-rendered against the property,” and argue that, in order to obtain the right to enforce the bond, they must have a formal judgment of foreclosure against the property, and consequently that the owner of the premises is a necessary party, such judgment being against her property.

There is undoubtedly an inconsistency between the absolute discharge of the lien, thus releasing the owner and the premises from it, and the maintenance of an action against such owner and the property. This inconsistency results, it is claimed, from the legislative enactment that notwithstanding the lien is discharged, a judgment must be recovered against the property, and that the words of the act “ conditioned for the payment of any judgment which may be rendered against the property,” are equivalent to “ conditioned for the payment of any judgment which shall be rendered against the property.” It is possible, however, to construe the act so as to save the owner of the premises which have been discharged from a lien by the filing of a bond by a third party from the expense and annoyance of a lawsuit, the only object of which is to enable the lienor to enforce such bond.

This may be accomplished by regarding the statutory provision under consideration as requiring, not that a judgment must be obtained against the property, but, that the lienor shall make out a case which but for the filing of the bond would have entitled him to a judgment against the property. If we read the provision as if it stood “ conditioned for the payment of any judgment recovered by the lienor in an action in which judgment might have been rendered against the property if no bond had been filed,” we shall not be unduly importing into the enactment anything contrary or additional to its provisions, but shall be reading it in the light of the evident intention of the legislature.'

It cannot be presumed that the law-makers intended that after the property had been discharged from the lien an action against the owner could be maintained for the foreclosure and sale of the premises; and as suggested by respondents’ counsel the difficulty can be avoided by reading the word “ may” in the clause in question in its natural meaning of “possible;” thus, “any judgment possible to be rendered;” amplified to “any judgment to which the property otherwise might have been liable.” We must give the statute such a construction as will carry into effect all its parts. It is clearly the intention of the legislature that the lien shall be discharged upon the filing of the bond. It is equally clear that no recovery shall be had upon the bond unless the plaintiff shows that he had a valid lien upon the premises when the bond was filed: and if, therefore, we construe the provision in question as requiring that the plaintiff shall in his action upon the bond show himself entitled under the mechanics’ lien act to a lien which but for the filing of the bond would be enforced against the property, we shall be satisfying all the requirements of the statute and imposing no greater obligation upon the sureties than that which they assumed.

In the present case, however, it does not appear that the proceedings necessary under the act to discharge the lien were taken. The averment in the complaint is, “ That on the 11th day of January, 1889, the said defendant, DeWitt S. Mull, filed his bond for twice the amount of the plaintiff’s claim or lien herein in the clerk’s office of the city and county of Mew York.” This is not sufficient to discharge the lien. The act requires that the court shall fix or direct the amount of the bond; that the sureties thereon must be approved after notice of justification, and that upon such approval an order discharging the lien may be made by the court or a judge thereof. Until such order is procured the lien is not discharged, and as the complaint does not allege the making of such an order it does not show that the property or the owner is relieved. For this reason the demurrer of Mr.-Hay is not well taken. The complaint, as it stands, sets forth a good cause of action for the foreclosure of the plaintiff’s lien, and as owner she is a necessary party defendant. The demurrer was, therefore, properly overruled and the judgment should be affirmed. If the defendant alleges and proves a proper discharge of the lien by the filing of a bond under the act, then she may be entitled to judgment in her favor. Upon the pleading before us she is not.

Judgment and order appealed from affirmed, with costs.

Bischofe and Pryor, JJ., concur.  