Opinion
March, 1916.
Paul Englander, for appellant.
Davies Bernstein (Samuel S. Bernstein, of counsel), for respondent.
This action is brought upon an undertaking given by the defendant upon an appeal taken from a judgment, entered in the Municipal Court, in an action in which this plaintiff was the plaintiff therein, and the United States Fidelity and Guaranty Company, Wendover Bronx Company and Abraham Silverson, and others, were defendants. The judgment was rendered April, 1914, in an action brought to enforce a mechanics' lien against real property, the lien having been bonded. The undertaking sued upon was given for the purpose of staying the issuing of an execution, pending the hearing and determination of the appeal taken by the defendants to the Appellate Term. Upon appeal the judgment was modified by this court by dismissing the complaint as to the United States Fidelity and Guaranty Company, as the proof showed that the notice of lien had not been verified, and directing a judgment for the sum of $250 against the defendants, Wendover Bronx Company and Silverson. The present appeal comes up upon an admitted statement of facts made in open court, judgment having been rendered in favor of the plaintiff. The defendant urges a reversal upon two grounds: (1) That the action having been brought to enforce a mechanic's lien, and the lien having been held invalid, the surety in the undertaking (this defendant) is discharged, and (2) that the plaintiff has failed to comply with section 1309 of the Code of Civil Procedure, in not having alleged and proven that ten days' written notice of entry of a judgment or order affirming the order or judgment appealed from, that is to say, the earlier judgment of the Municipal Court had been served prior to the commencement of the present action.
It is true that the first action was brought in the Municipal Court to enforce a lien, nevertheless it was an action in which the right existed to recover a money judgment only in that court and such a judgment was rendered. The bond given by defendant was the usual one given upon appeal, and contained no limitation that it should be regarded as security, only in case a lien was established, but provided that "If the appeal is dismissed, or if the said judgment is affirmed by said appellate court, and an execution thereon is returned wholly or partly unsatisfied, it will pay the said judgment and interest thereon or the portion thereof remaining unsatisfied and the costs of the said appeal." While in form the action in the Municipal Court was to enforce a mechanic's lien, nevertheless, the only judgment that can be obtained in an inferior court is a money judgment, to be enforced by execution authorizing a sale of the judgment-debtor's interest in the property at the time the lien was filed. Drall v. Gordon, 101 N.Y.S. 171; Daxe v. Hajek, 107 id. 601. Although the prayer for relief in proceedings to enforce a mechanic's lien in a court not of record is equitable in its nature, it is to be considered as a demand for a personal judgment only. Pearce v. Knapp, 127 N.Y.S. 100. The learned trial justice correctly states the situation in his opinion, as follows: "The judgment appealed from was one for a sum of money only against all the defendants. Their liability was arrived at by establishing the validity of a lien, but the judgment was still one for a sum of money." The appellant's first point is, therefore, not well taken.
As to the second point, the court below held that the undertaking in question was given under section 314 of the Municipal Court Act and that compliance with the provisions of section 1309 of the Code was not required. In this I think that the court below was in error. Section 314 of the Municipal Court Act provides for the giving of an undertaking upon appeal, and section 126 of that act provides that no action shall be commenced upon such an undertaking until the return of an execution unsatisfied in whole or in part. This action was tried when those sections of the Municipal Court Act were in force. The provision contained in section 1309 of the Code, that an action shall not be commenced upon an undertaking given upon an appeal taken as prescribed in titles 3, 4 and 5 of chapter 12, of which chapter title 3 governs appeals from an inferior court to the Supreme Court, until ten days after the service upon the attorney for the appellant of a written notice of the entry of a judgment or order affirming the order appealed from, is not in conflict with the provisions of sections 314 and 126 of the Municipal Court Act, but is made applicable to the Municipal Court by the omnibus provisions of section 20 of that act. This court held, in Monarch Mining Co. v. Laughlin, 146 N.Y.S. 1068, that a complaint which did not allege compliance with section 1309 of the Code was defective. The judgment should, therefore, be reversed.
LEHMAN and DELEHANTY, JJ., concur.
Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.