Opinion
July, 1913.
Michael J. Scanlon, for plaintiff.
O'Brien, Boardman Platt (Edward L. Stevens, of counsel), for defendant Fidelity and Deposit Company of Maryland.
Sackett, Chapman Stevens (Edward L. Stevens, of counsel), for defendants other than City of New York and Fidelity and Deposit Company of Maryland.
The action is brought to foreclose a lien under a contract for a public improvement, and it is conceded that the plaintiff is entitled to judgment against the defendant Devlin as contractor. The question is whether the defendant Fidelity and Deposit Company of Maryland is likewise liable upon its undertaking given to discharge the lien, which undertaking was conditioned for the payment of any judgment recovered by the plaintiff against the said Devlin "in any action or proceeding to enforce the alleged lien filed by the said plaintiff against the moneys due or to grow due to the said John H. Devlin." The plaintiff relies upon the decision of the Appellate Division of this department in Hawkins v. Mapes-Reeve Const. Co., 82 A.D. 72. A reference to the opinion in that case will show, however, that the undertaking there was conditioned for the payment of any judgment recovered "upon the claim or demand specified in the notice of lien." Manifestly the two conditions are quite different. The only case I have been able to find that is directly in point is Casey v. Connors Bros. Const. Co., 53 Misc. 101, in which Judge Andrews held that to establish liability upon a bond like the present one there must be allegation and proof that the lien discharged by virtue of the undertaking was a valid lien and that the mere recovery of a money judgment against the contractor under the provisions of section 3412 of the Code of Civil Procedure is not enough. The point seems never to have been squarely before the Court of Appeals for its decision, but its view has been clearly expressed, especially in Berger Mfg. Co. v. City of New York, 206 N.Y. 24, 30, where it was said that the necessity of enforcing the right to a lien, even after an undertaking is given, is clearly shown by the condition which the statute prescribes for such undertaking, viz.: "The payment of any judgment which may be recovered in an action to enforce the lien," and that the undertaking does not change the relation and the rights of the parties other than to substitute its provisions for the fund remaining due or to become due from the municipality to the contractor. The court further observed (at p. 31) that where an undertaking is given its condition determines the obligation of the parties, and that a valid lien on the primary fund must be established to require payment pursuant to the terms of the undertaking. My conclusion is, therefore, that the plaintiff is not entitled to judgment against the surety.
Judgment accordingly.