
    Eugene F. Heagney, Appellant, v. Le Roy Hopkins et al., Respondents.
    (City Court of New York, General Term,
    February, 1898.)
    Action by prior lienor upon a bond of contractors, discharging the lien — Appeal by the owner in an action by the contractors, where the prior lien was established — Construction of bond.
    A common-law action may be maintained by a prior lienor against the sureties upon a bond given by contractors and conditioned to pay any judgment which the lienor may recover against the property, affected by the lien, upon a foreclosure of it; but where the owner of the property duly appeals from a judgment, rendered in an action brought against him by the contractors and, among other things, establishing the prior lienor’s lien at a definite sum, the appeal makes premature an action brought by the lienor upon the bond while the appeal -'s pending, as the judgment which the bond was intended to secure must be deemed to have been only a judgment which was absolutely final.
    Appeal from a judgment rendered by the court, dismissing the complaint of the plaintiff, on the merits.
    Whitehead, Dexter & Osborn, for appellant.
    J. Woolsey Shepard, for respondents.
   Schuchman, J.

The cause of action set forth in the complaint is a liability against sureties on a bond, given by contractors, the defendants, Hopkins and Eoberts, to discharge a mechanic’s lien. The condition of the bond is as follows:

If Hopkins and Eoberts shall well and truly pay any and all judgments, which may be rendered against said property in favor of said Eugene F. Heagney, in an action' to enforce his alleged lien, then the obligatiop. shall be void, otherwise to remain in full force and virtue.”

The complaint further alleges that on October 24, 1896, the defendants, Hopkins and Eoberts, brought an action in the Supreme Oourt against William Engel, as owner, to foreclose a mechanic’s lien against the property and made this plaintiff, Eugene F. Heagney, a prior lienor, a party defendant therein, and that on July 23, 1896, final judgment was rendered therein, adjudging and decreeing among other things, “ that judgment be rendered against the property in favor of the plaintiff herein, and that the property be sold and that out of the proceeds. arising from the sale, .the plaintiff herein bé paid the sum of four hundred dollars,” (the amount due on.his lien.)

The answer of the defendants (all answering in one answer) admits the giving of the bond; tire bringing- of said action, and- the rendition of said judgment, but sets up for a separate and distinct answer, “ that said William Engel took and perfected an appeal to the Appellate Division of the Supreme Court-; and that, in and by his -notice, he appealed from each and every part of the said judgment and that all proceedings under said judgment have been, and now are stayed- by a compliance with the provisions of the Code of Civil Procedure, relating to appeals in mechanics’ lien cases; that Engel has given the requisite undertaking and that ■ said appeal is now pending and undisposed of.”

On the trial, all the aforesaid allegations of the complaint and answer were proven without contradiction and it appeared furthermore .that this plaintiff, Heagney, had interposed an answer in the said foreclosure action brought in the Supreme Court, and that, the appeal from the judgment rendered therein was taken on August 19, 1896, and that this action was commenced on February ' 6, 1891. ...

The .trial judge dismissed the plaintiff’s complaint assigning as his reason .therefor, that this action was a common-law action which could not be maintained against the sureties on such a bond, and that' they could only be sued in an action in- equity to foreclose the lien; citing Morton v. Tucker, 145 N. Y. 244, and see Reilly v. Poerschke, 19 Misc. Rep. 612.

In this ■ reasoning, we think he erred and believe that this - action, being a common-law action, is' maintainable. Ringle v. Matthiessen, 10 App. Div. 274; Miller v. McKeon, 15 id. 133.

But the dismissal was proper and correct for another reason, viz.:. That this action was prematurely brought..

It was brought on February 6, 1891, while the appeal, from the said judgment of foreclosure rendered in the Supreme Court, which was taken on August 19, 1896, was pending, and which is still undetermined. . 1

The appeal of Engel, the owner, from that foreclosure judgment stays all. proceedings thereunder. § 1331 of the Code of Civil Procedure. ' . ' .

By this judgment, the plaintiff’s claim, under the lien is established. If it is reversed on the appeal, then the plaintiff will have no judgment. How will he then fasten any liability on the sureties upon the bond in this action, which is conditioned on payment “ of any and all judgments which may be rendered against said property in favor of said Eugene F. Heagney in an action to enforce his alleged lien.”

The judgment, in this condition referred to, means a final judgment.

The trial- judge dismissed the complaint upon the merits. The latter part is error. § 1209 of the Code; Place v. Hayward, 117 N. Y. 487; Bliven v. Robinson, 152 id. 333.

The judgment appealed from is modified by striking therefrom the words upon the merits ” and as thus modified, affirmed, without costs to either side on this appeal.

Conlan, J., concurs.

Judgment modified and as modified, affirmed, without costs to either side upon this appeal.  