
    Benjamin A. Dearing, Plaintiff, v. William Boss et al., Defendants.
    (Supreme Court, New York Trial Term,
    June, 1907.)
    Action — Conditions precedent in general — Entry of judgment.
    Bonds — Breach — What constitutes breach.
    Judgment — Entry — Entry nunc pro tunc.
    An action upon a bond conditioned for the payment of any judgment that may be rendered for the enforcement of a mechanic’s lien cannot be maintained until the judgment is entered as prescribed by the Code; and an action brought upon the bond, after a decision and judgment have been signed by the justice but before the judgment has been entered, is premature and the complaint must be dismissed.
    An order obtained after the commencement of the action on the bond, providing for the entry of the judgment nunc pro tuno as of an earlier date, will not prevent this result.
    Action upon a bond. The opinion states the case.
    C. B. Augustine, for plaintiff.
    E. J. Krug, for defendants.
   Greenbaum, J.

What constitutes the entry of a judgment is prescribed by sections 1236, 1237, 1238 and 1239 of the Code of Civil Procedure. A decision and judgment were signed by the justice before whom the mechanic’s lien action was tried, but none of the Code requisites of filing and entering the judgment has been complied with. Section 1239 provides that “ a proceeding to enforce or collect a final judgment cannot be taken until the judgment-roll is filed.” The condition of the defendants’ bond given to release the real estate of one David Quigley from the mechanic’s lien filed by plaintiff was that “ if the said David Quigley or his legal representatives shall well and truly pay or cause to be paid any judgment that may be rendered against the said property in any proceedings to enforce the said lien, then this obligation shall be void, otherwise to remain in full force and virtue.” There are decisions in other jurisdictions and some in this State under the old Code of Procedure and in actions in Justices’ Courts to the effect that the pronouncing of judgment after the trial and final submission of a case, where there is nothing more to be done than to enter the judgment, constitutes the “ rendition of a judgment.” It may be that inter paries, a judgment may be deemed “ rendered,” even though there be an omission or neglect to formally enter the judgment, as where the right to an appeal of a party is involved. Fleet v. Youngs, 11 Wend. 522, 527, 528; Bank of Geneva v. Hotchkiss 5 How. Pr. 218. But where the right of action against a third party, like the defendants, who were sureties, depends upon the prerequisite of the rendition of a judgment, it seems to me it must rest upon a judgment duly entered and which is in a condition to be enforced as provided for by section 1239. The signature of the justice to the decision and the judgment merely constituted authority for the entry of the judgment (Knapp v. Roche, 82 N. Y. 369) and, until an actual entry of the judgment, an action upon the bond given by the defendants is premature. Since the trial of this action it appears that plaintiff has procured an order nunc pro tunc directing the filing of the judgment in the office of the clerk of the county of New York as of the 13th day of June, 1901, and that the judgment was duly filed on May 16, 1907, pursuant to said order. It seeme to me, however, that the rights of the parties must be determined as of the date when the action was commenced, and for the reasons above stated I am of opinion that the complaint must he dismissed.

Complaint dismissed, with costs.  