
    John R. Miller, Respondent, v. Edgar W. Youmans, Appellant.
    (New York Common Pleas—General Term,
    June, 1895.)
    The liability of a surety upon a bond given to discharge a mechanic’s lien is not affected by an amendment of the foreclosure action substituting as owner of the land a person other than the principal in the bond, or by the fact that the judgment therein was recovered against such other person, as the condition of the bond is not the recovery of judgment . against the principal, but against the property.
    Appeal from a judgment entered upon the verdict of a jury, rendered in favor of the respondent by direction of the court at Trial Term.
    
      JS. H. Berm, for appellant.
    
      James Kearney, for respondent.
   Bookstaver, J.

This action was brought to recover the sum of $1,023.21, the amount of a judgment recovered by respondent in an action brought by him in this court against Emma S. Olmsted, as owner, to foredose a certain mechanic’s lien filed by the respondent against property situate on the northwesterly corner of Spring and Washington streets, in this city, upon a bond executed by Emma S. Olmsted in pursuance of the provisions of chapter 342, Laws of 1885, to procure the discharge of the respondent’s lien, approved and filed in pursuance of that statute, whereby the lien was discharged. The appellant Youmans was one of the sureties upon that bond. By an order made in the action brought to foreclose the mechanic’s lien subsequent to the giving of the bond above mentioned, upon notice to Emma S. Olmsted, respondent was permitted to serve an amended and supplemental complaint bringing in and making Miles W. Olmsted, Cyrus Olmsted, The Meyer-Sniffen Co. (Limited), John A. Cisco, as executor, etc., and William A. Barwick, parties defendant to that action upon the payment of twenty dollars costs and taxable disbursements to the attorneys for the defendant Emma S. Olmsted. The respondent paid the costs and disbursements provided by the order and served an amended and supplemental complaint. All the parties thus brought in as defendants ' in that action answered the amended and supplemental complaint; one of them, Cyrus Olmsted, pleading a counterclaim, to which the respondent replied.

The issues so framed were referred to a referee to hear and determine, who subsequently reported in favor of the respondent on the main issues, but dismissed the complaint, with costs, as to Emma S. Olmsted. On this report judgment was rendered in respondent’s favor and against the property described in the mechanic’s lien, which decreed the foreclosure of the lien and a sale of the property; but as the lien was discharged by the giving of the bond before mentioned, the judgment was declared to be in form only and granted leave to respondent to pursue his remedy upon the bond. It also directed the clerk of the city and county of Rew York to deliver up and surrender to the respondent that bond. The judgment remaining unpaid, the respondent applied to this court at Special Term, upon notice to appellant, for leave to sue in his own name for the breach of the condition of the bond, and an order granting such leave was duly made; whereupon this action "was brought.

On the trial the evidence offered on behalf of respondent was received without objection, and no evidence was offered on behalf of the appellant, who relied solely upon questions raised on the motion to dismiss- the action made at the close of the evidence. This motion was made on the ground that the action was originally brought against Emma S. Olmsted, the principal in the bond, as owner of the property, and that the action was subsequently changed to one against Miles W. Olmsted as owner of the land, and because the judgment was recovered against him and not against Emma S. Olmsted.

Upon this appeal the appellant contends that she never contracted any such liability; that she was not in any way surety for Miles W. Olmsted, and also that the order in the original action bringing in new parties and allowing the plaintiff in that action to serve an amended and supplemental complaint was without jurisdiction and void; but, we think, neither contention is well founded. The court had complete jurisdiction of the cause of action. The order complained of made in that action cannot be collaterally attacked. Besides; the defendant in that action, Emma S. Olmsted, accepted from the plaintiff therein payment of the costs and disbursements upon which the order was allowed, answered .the amended and supplemental complaint and upon the issues thus raised proceeded to trial.

Under similar circumstances it has been decided that a party cannot accept so far as it is for his benefit a conditional order granting leave to amend and then question the validity of the order. Smith v. Rathbun, 75 N. Y. 122; Austin v. Auful, 66 N. Y. St. Repr. 779. If the parties to the original action by their acts are estopped from questioning the validity of the order now complained of, the surety also is.

But the court was certainly right in granting the order. Section 8 of the Mechanics’ .Lien Act provides that the manner and form of instituting and prosecuting actions commenced thereunder to judgment shall be the same as in actions for the foreclosure of mortgages upon real property, except as in that act otherwise provided ; and in those actions it is always within the power of the court to bring in such parties as are necessary to a complete adjudication of the matters in controversy. Moreover, it appears from the case that there was then another action pending by another lienor to foreclose a.lien commenced subsequent to the Miller action, and section 18 of the Consolidation Act provides for the consolidation of such actions.

The contention of the appellant that he never contracted a liability to pay the judgment recovered in the mechanics’ lien action and that he never intended to become surety for Miles W. Olmsted might be sustained if the undertaking had been that Emma S. Olmsted should do or omit to do any particular act or thing; but suph a contention entirely overlooks the condition of the bond, which is: “ That the said Emma S. Olmsted, or her legal representatives, shall well and truly pay any judgment that may be rendered against said property in any proceeding to enforce the aforesaid lien,” etc. The judgment sought to be recovered in this action is against the property, and the event in which the defendant’s liability - became fixed happened. It is true it is not a judgment against Emma S. Olmsted, the principal named in the bond, that respondent recovered judgment, but it was not the condition of that bond that plaintiff should obtain judgment against her. Such a judgment is entirely foreign to the condition of the bond. All the respondent is required to do in an action of this character is to prove a judgment rendered in proceedings to enforce the lien. This the plaintiff has done. Morton v. O'Keefe, 10 Misc. Rep. 538.

In Morton v. Tucker, 145 N. Y. 244, it is said: “ The sureties in the bond (to release mechanic’s lien) intended and must be understood as undertaking to pay the amount which it should be adjudged was due and owing to the plaintiffs and which was chargeable against the property by virtue of their notice of lien. In other words, the condition was for the payment pi any judgment which might have been rendered against the property had not the bond been given. The bond, as we have seen,- is given to discharge the lien. It is one of the proceedings provided for by the statute, and it was evidently intended that the bond should take the place of the property and become the subject of the lien in the same form and manner as is provided for in the case of the payment of money into court, or the deposit of securities under an order of the court after action brought.” Citing Ward v. Kilpatrick, 85 N. Y. 413.

The bond upon which this action is brought having been treated by all the parties as valid, and upon the faith of which the plaintiff’s mechanic’s lien was discharged of record, the sureties are thereby estopped to deny the validity of the bond. Goodwin v. Bunzl, 102 N. Y. 224; Sheffield v. Robinson, 30 N. Y. Supp. 799.

Ho question having been raised to the form of the action, the judgment should be affirmed, with costs.

Daly, Ch. J., and Bisci-ioff, J., concur.

Judgment affirmed, with costs.  