Opinion
April, 1893.
Eugene Otterbourg, for plaintiffs (respondents).
Philip L. Wilson, for defendant (appellant).
The evidence is conclusively to the effect that plaintiffs at no time entered into any contract with Uckermann, defendant Braender's contractor, to supply him with the materials for which they claimed a lien in this action, and that they did furnish it upon Braender's promise to pay therefor. No question arises, therefore, as to whether or not Braender's promise was collateral to any promise of Uckermann, and void under the Statute of Frauds because not in writing. Hubbell v. Schreyer, 14 Abb. Pr. (N.S.) 284, 298.
That the notice of lien, and the complaint, alleged a joint contract with defendant Braender and Uckermann under which plaintiffs claimed to have furnished the materials, while the evidence sustains a finding only of a several contract with Braender, might have availed Uckermann on a motion to dismiss the complaint as to him, but did not constitute a defense as to Braender, since he was in either event liable. Hubbell v. Schreyer, 14 Abb. Pr. (N.S.) 284, 300.
Again, that the judgment appealed from may be unauthorized in so far as it undertakes to adjudge the sureties on the bond given to discharge the lien, who were not made parties to this action, liable in an action on the bond thereafter to be instituted against them by plaintiffs herein, can in no sense injuriously affect defendant Braender. If the judgment is justly assailable in the particular mentioned, the invalidity of its operation may be asserted by the sureties when they are prosecuted on the bond and the judgment herein is sought to to be used to preclude their defense.
So also it has been held by the General Term of this court in McGraw v. Godfrey, 14 Abb. Pr. (N.S.) 397, and Hubbell v. Schreyer, Id. 282, that, independent of any express authorization of the Mechanics' Lien Law, personal judgment for the agreed price, or the reasonable value of the services and materials rendered and furnished respectively against the party upon whose credit they were so rendered and furnished, may be awarded to the extent to which the lienor shall have established a valid lien, and that the authority to award the judgment is incidental to the authority to entertain the action. This view is sanctioned by Schaettler v. Gardiner, 47 N.Y. 404; Darrow v. Morgan, 65 id. 338; Burroughs v. Tostevan, 75 id. 571; Weyer v. Beach, 79 id. 409; Childs v. Bostwick, 65 How. Pr. 146; Lawson v. Reilly, 13 Civ. Proc. Rep. 290, and Fay v. Muhlker, 1 Misc. 321.
Notwithstanding the discharge of the lien by the giving of a bond as provided in the Mechanics' Lien Law (Laws 1885, chap. 342, § 24, subd. 6), an action to establish the lien, in form as in an action to foreclose it, was proper, though no sale of the premises affected can be therein directed. Copley v. Hay, 34 N.Y. St. Repr. 771; Scherrer v. Hopper, 45 id. 638; Brandt v. Radley, Supreme Court, First Dept., Special Term, opinion by PATTERSON, J.
The judgment should be affirmed, with costs.
BOOKSTAVER and PRYOR, JJ., concur.
Judgment affirmed.