
    Otto Kruger et al., Resp’ts, v. Philip Braender, Impl’d, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed April 3, 1893.)
    
    1. Mechanic’s lien — Statute of frauds.
    In an action to foreclose a mechanic’s lien, it appeared by the evidence that plaintiffs never entered into any contract with defendant’s contractor to supply him with material, but furnished it on defendant’s promise to pay therefor. Held, that no question under the statute of frauds was involved.
    3. Same — Variance.
    The fact that the notice of lien and complaint alleged a joint contract with defendant and his contractor, while the evidence sustained a finding only of a several contract with defendant, does not constitute a defense as to him, as in either event he was liable.
    3. Same — Action to establish.
    Notwithstanding the discharge of the lien by the giving of a bond, an action to establish the lien, in form as in an action to foreclose it, is proper, though no sale, of the premises affected can be therein directed.
    Appeal from a judgment of the general term of the city court of New York, which affirms a judgment of that court at special term in favor of plaintiffs. Action to foreclose a mechanic’s lien.
    
      Eugene Otterbourg, for resp’ts; Philip L. Wilson, for app’lt.
    
      
       Affirming 48 St. Rep., 936.
    
   Bischoff, J.

The evidence is conclusively to the effect that plaintiffs at no time entered into any contract with Uckermann,defendant Braender’s contractor, to supply him with the materials for which they claimed a lien in this action, and that they did furnish it upon Braender’s promise to pay therefor. Ro question arises, therefore, as to whether or not Braender’s promise, was collateral to any promise of Uckermann, and void under the statute of frauds because not in writing. Hubbell v. Schreyer, 14 Abb., N. S., 284, 298.

That the notice of lien, and the complaint,, alleged a joint contract with defendants,Braender and TJckermann, under which plaint- • iffs claimed to have furnished the materials, while the evidence sustains a finding only of a several contract with Braender, might have availed TJckermann on a motion to dismiss the complaint as to him, but did not constitute a defense; as to Braender, since he was in either event liable. Hubbell v. Schreyer, 14 Abb., N. S., 284, 300.

Again,that the judgment appealed from may be unauthorized in so far as it undertakes to adjudge the sureties on the bond given to discharge the lien, who were not ■ made parties to this action, liable in an action on the bond thereafter to be instituted against them by plaintiffs herein, can in no sense injuriously affect defendant Braender. If the judgment is justly assailable in the particular mentioned the invalidity of its operation may be asserted by the sureties when they are prosecuted on the bond and the judgment herein is sought to be used to preclude their defense.

So also it has been held by the general term of this court in McGraw v. Godfrey, 14 Abb., N. S., 397, and Hubbell v. Schreyer, id., 284, that, independent of any express authorization of the Mechanic’s Lien Law, personal judgment for the agreed price, or the reasonable value of the services and materials rendered and furnished respectively, against the party upon whose credit they were so rendered and furnished, may be awarded to the extent to which the lienor shall have established a valid lien, and that the authority to award the judgment is incidental to the authority to entertain the action. This view is sanctioned by Schaettler v. Gardiner, 47 N. Y., 404; Darrow v. Morgan, 65 id., 338; Burroughs v. Tostevan, 75 id., 571; Weyer v. Beach, 79 id., 409; Childs v. Bostwick, 65 How. Pr., 146; Lawson v. Reilly, 13 Civ. Pro., 290, and Fay v. Muhlker, 48 St. Rep., 699.

Notwithstanding the discharge of the lien by the giving of a bond as provided in the Mechanic’s Lien Law, Laws 1885, chap. 342, § 24, subd. 6, an action to establish the lien, in form as in an action to foreclose it, was proper, though no sale of the premises affected can be therein directed. Copley v. Hay, 34 St. Rep., 771; Scherrer v. Hopper, 45 id., 638; Brandt v. Radley, Supreme Court, 1st Dept., Special Term, opinion by Patterson, J.

The judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.  