
    GARLAND et al. v. VAN RENSSELAER et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. Mechanics’ Liens—Lots Sold on Contract.
    Laws 1885, c. 342, § 1, provides that any person performing labor or furnishing material in the erection of a building, with the consent of the owner, may have a lien on the building and lot Section 5 provides that, where the owner has agreed to sell and convey the premises, he shall remain the “owner,” within the meaning of the lien law, till the deed has been delivered and recorded. Held, that one who, by agreement with the purchaser in an executory contract to sell land,.and with the consent of the vendor, erects a house on the land,- has a lien on the house and lot as against the vendor.
    2. Same—Release—Bond op Owner—Action on—Parties.
    In an action on a bond given by the owner under section 24 of the lien law to release the premises from liens, conditioned for the payment of any judgment that might be rendered against the premises in any proceeding to enforce the lien, while the bondsmen are not necessary parties, the purchaser of the lot is a necessary party, for the purpose of establishing the lien.
    Appeal from special term, Westchester county.
    Action by Horace W. Garland and another against Cortlandt S.- Van Bensselaer and the Commonwealth Security & Improvement Company. From a judgment for plaintiffs against defendant Van Bensselaer, entered on an order overruling his demurrer to the complaint, on the ground that it showed no cause of action as against him, he appeals.
    Affirmed.
    The complaint alleged that defendant Van Rensselaer, at all the times mentioned therein, was seised in fee simple and possessed of certain land in the county of Westchester; that prior to October 1, 1891, he entered into a contract with the defendant the Commonwealth Security & Improvement Company, whereby he agreed to sell the land to said company, and, pursuant thereto, the company entered into possession of the premises; that thereafter, prior to November 28, 1891, while the company was in the lawful possession of the premises -under said contract, and before the performance and completion of the same, plaintiffs, at the request of the company, and with the knowledge and consent of Van Rensselaer, erected on the premises a building, and furnished the labor and material therefor; that the company agreed to pay plaintiffs $150 for the construction of the building, and the building was reasonably worth that sum; that within 90 days after completion of the building, on January 12, 1892, while the company was in possession of the-premises under the contract of sale, plaintiffs filed in the office of the clerk of the county of Westchester the notice required by law to effect a lien, and' that this notice was referred to and. made part of the complaint as if set forth; that plaintiffs, while the company was in possession of the premises,, under the contract of sale, served the notice of lien on both defendants on. January 14 and 15, 1892; that thereafter tire company relinquished to Van. Rensselaer all its rights and interest in the premises, together with the-building erected thereon by plaintiffs; that thereupon Van Rensselaer re: sumed possession of the premises, subject to plaintiffs’ lien; that Van Rensselaer, on February 26, 1892. executed, and caused to be filed in the office-of the clerk of the county of Westchester, his bond, bearing date February 26, 1892, in the sum of $500, with two sureties, conditioned for the payment of any judgment that might be rendered against the premises in any proceedings to enforce the lien, and that thereupon, after service of the same on-plaintiffs, and on the approval and filing of the bond, an order of court was-made and entered in the office of the clerk of Westchester county, March 8, 1892, wherein and whereby it was ordered that the lien be discharged, and directing the clerk of the county to cancel the same of record, and the bond and order were referred to and made part of the complaint, as if fully set forth; that no part of said sum had been paid, though demanded; and that there was due and owing from defendants to plaintiffs $150, wherefore plaintiffs demanded judgment against defendants for $150, with interest and costs..
    Argued before BARNARD, P. J., and PRATT, J.
    Howard Allison, (Isaac N. Miller, of counsel,) for appellant.
    E. B. & O. P. Cowles, (Charles P. Cowles and Justus A. BiCowles, of counsel,) for respondents.
   BARNARD, P. J.

Under the lien law (chapter 342, Laws 1885) the plaintiffs had a lien on the land in question. The defendant Van Rensselaer contracted to sell the same to the defendant the Commonwealth Security Company. The security company-built a small house on the land, with lumber obtained of the plaintiffs, with the knowledge and consent of Van Rensselaer. By the fifth section of the lien act, Van Rensselaer was to be deemed! the owner until the deed was actually delivered. By the twenty-fourth section of the act, the owner, by filing a bond with surety,., can procure an order discharging the lien. Such a bond was given, and approved by the court, and an order entered that the lien, be discharged and canceled of record. The bond and order are-made part of the complaint by an allegation to that effect, and! not by the actual annexation of a copy thereof to the complaint. It does not appear who signed the bond besides Van Rensselaer.. Van Rensselaer alone demurs. His demurrer was properly overruled. He could only be made liable by proof that alien actually existed on Ms property. That made the defendant company a necessary party. It was not necessary that the plaintiffs should make the sureties to the bond parties. The principal debtor can be sued alone upon it. Code, § 454. The order overruling the-demurrer and the interlocutory judgment upon it must therefore-be affirmed, with costs. 
      
       Laws 1885, c. 342, § 1, provides that any person who shall perform any-labor or services, or furnish any materials which have been used, or which-are to be used, in erecting, altering, and repairing any house, building, or-building lot, with the consent of the owner, may have a lien on the house, and lot.
      Section 5 provides, in cases in which the owner has made an agreement to sell and convey the premises to the contractor or other person, such owner-shall be deemed to be the “owner,” within the intent and moaning of this-act, until the deed has been actually delivered and recorded, conveying said; premises pursuant to such agreement.
     