APPEAL by the defendants, Humphrey L. Plant and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of October, 1911, granting the plaintiff's motion for judgment on the pleadings and denying a similar motion made by defendants, and also from a judgment in favor of the plaintiff entered in said clerk's office on the 9th day of October, 1911, upon the said order.
James Troy and Thomas H. Troy, for the appellant Humphrey L. Plant.
Frank S. Angell [Charles F. White with him on the brief], for the appellant William Gleichmann.
George W. Titcomb, for the respondent.
The complaint in this action alleges the filing of a notice of lien with the proper officials for the sum of $4,177.30 on the moneys due or to grow due one Peter Guthy under his contract with the city of New York for the construction of a public improvement; that thereafter proceedings 'were taken by said Guthy for the purpose of securing the cancellation and discharge of said lien by filing a bond in the manner prescribed by the Lien Law, by presenting to the Supreme Court a petition, a copy of which is hereto annexed and made a part of this complaint, * * * and thereafter an order of the Supreme Court * * * was made September 27, 1909, * * * fixing the amount of the undertaking to be given by said Guthy to discharge said lien to be the sum of $8,354, said undertaking to be executed pursuant to chapter 38 of the Laws of 1909. That thereafter on or about the 16th day of October, 1909, the plaintiff began an action in the Supreme Court, Kings county, to foreclose said lien; * * * that thereafter the defendants executed a bond conditioned that they should well and truly pay any judgment which might be recovered in an action to enforce the lien before mentioned; ' that this bond was approved by a justice of the Supreme Court and an order entered canceling and discharging the lien, and 'thereafter said bond and a copy of said order were filed with the Comptroller of the City of New York and with the Board of Education of the City of New York and plaintiff's said lien was thereupon canceled and discharged, as provided in said order. * * * That thereafter such proceedings were had in said action brought to foreclose said lien that on or about the 3rd day of June, 1911, final judgment therein was obtained by the plaintiff and was entered by the Clerk of the County of Kings, as follows: 'Ordered, Adjudged and Decreed that the lien filed by
the plaintiff on the 27th day of August, 1909, with the Comptroller of the City of New York and the Board of Education of the City of New York and set forth in the complaint was then and continued to be until its said bonding and cancellation and would now be, except for such bonding and cancellation, a good and valid lien to the extent of $4,177.30, with interest, now amounting to $380.07, on the moneys of the City of New York due or to become due the defendant Guthy on account of the construction of the public improvement mentioned in said lien, and that the amount due plaintiff on said lien is the amount thereof, $4,177.30 with interest from the time when due, amounting to $380.07, and that the plaintiff became and was entitled to enforce said lien against the moneys in the hands of the City of New York applicable to said public improvement until its said bonding and discharge, and would now be so entitled, except for such bonding and discharge; and it is further Ordered, Adjudged and Decreed that the defendant, The City of New York, is, and has been since the aforesaid bonding and discharge of said lien an unnecessary party to this action, and this action is discontinued against it, and that the plaintiff have personal judgment against the defendant, Peter Guthy, for the sums due, as aforesaid, making a total of $4,557.37, together with the sum of $96.47, costs to be taxed, and that the plaintiff have execution therefor."
The complaint then closes with the allegation that 'execution upon said judgment was duly issued against said Guthy to the sheriff of the County of Kings, where said Guthy then resided, and said execution has been returned wholly unsatisfied and said judgment remains wholly unpaid,' and a demand for judgment against the defendants, the sureties upon the bond mentioned in the complaint, for the sum of $4,653.84, with interest and costs.
The obligation of the bond on which the defendants are sureties is that 'if the above bounden Peter Guthy, William Gleichmann and Humphrey L. Plant shall well and truly pay any judgment which may be recovered in an action to enforce the lien before mentioned, then this obligation to be void,' etc.
The defendant Plant, answering the complaint, 'Denies that the action referred to in paragraph 3 thereof, was begun or
commenced against the defendants in this action, or either of them, or against the City of New York,' and avers as a defense to this action 'that said action was brought and prosecuted to judgment against the said Peter Guthy alone, and not otherwise, and this Court did not acquire any jurisdiction in said action of the defendants herein, or either of them, or of the said City of New York, for the foreclosure of said alleged lien, or otherwise, and said alleged judgment in said action did not foreclose or constitute a foreclosure or enforcement of said alleged lien as against the defendants herein or the said City of New York, and is not binding on them, or either of them, and is in legal effect a judgment for the sum of ...