
    Levering & Garrigues Company, Respondent, v. Edward & John Burke, Ltd., et al., Respondents, and P. J. Duncan, Inc., Appellant, Impleaded with Others.
    
      Liens — foreclosure — action to foreclose mechanic’s lien — subrogation of surety company which furnished bond to discharge lien to rights of lienor.
    
    
      Levering & Garrigues Co. v. Burke, Ltd., 214 App. Div. 730, affirmed.
    (Argued March 3, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The judgment appealed from in substance adjudged that the mechanic’s lien of the plaintiff, bonded and discharged by the general contractor, was superior to the open and unsatisfied lien of the appellant, in form decreed a foreclosure of plaintiff’s lien, and in lieu of a sale of the premises awarded plaintiff personal judgment against the general contractor and the defendant surety company. The judgment further adjudged that -the defendant surety company be subrogated to the rights of the plaintiff in and to the sum earned and unpaid on the contract and held by the defendant Burke, Ltd., the owner, and excluded the appellant from any rights against the property or said fund.
    
      Samuel F. Moran and Arthur A. Kaye for appellant.
    
      Harry E. Herman and Arthur 0. Ernst for plaintiff, respondent.
    
      Daniel S. Murphy and Emerson F. Davis for Edward & John Burke, Ltd., defendant, respondent.
    
      Thomas L. Walsh and Joseph T. Magee for National Surety Company, defendant, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.  