Summary
In Matter of Hudson Water Works (111 App. Div. 860) the appellant, a national bank, the assignee of the contractor, moved to discharge a mechanic's lien upon a bond executed by itself and a surety.
Summary of this case from Lake v. LakeOpinion
March 13, 1906.
Rosendale Hessberg [ J. Murray Downs of counsel], for the appellant.
Brownell Tilden [ John L. Crandell of counsel], for the respondent.
The right of the appellant to appeal from this order is challenged because of the privilege given therein to renew the motion upon additional papers. The application was denied because a proper bond was not presented. If the right to renew upon another and proper bond were dependent upon this permission the order would probably not be such a final order as to authorize an appeal. (See Robbins v. Ferris, 5 Hun, 286; Wells, Fargo Co. v. W., C. P.C.R.R. Co., 12 App. Div. 49.) The bank, however, might without such permission have presented another bond and might have asked the judge to approve of the same. The permission, therefore, to apply upon additional papers would seem to give no further right to the appellant than it would otherwise have. Notwithstanding such privilege, therefore, it may consistently appeal if the approval of its bond was improperly refused.
Section 20 of the Lien Law (Laws of 1897, chap. 418, as amd. by Laws of 1898, chap. 169, and Laws of 1902, chap. 37) provides for the discharge of a lien for a public improvement. It is therein provided that a lien against the amount due or to become due a contractor from a municipal corporation for the construction of a public improvement may be discharged as follows:
"* * * Either before or after the beginning of an action by a contractor executing an undertaking with two or more sufficient sureties, who shall be freeholders, to the State or the municipal corporation with which the notice of lien is filed, in such sums as the court or a judge or justice thereof may direct, not less than the amount claimed in the notice of lien, conditioned for the payment of any judgment which may be recovered in an action to enforce the lien. * * * The execution of such undertaking by any fidelity or surety company authorized by the laws of this State to transact business shall be equivalent to the execution of such an undertaking by two sureties."
The holding of the learned judge seems to have been that the bond was insufficient because it was signed, not by the contractor, but by the National Commercial Bank, the assignee of the contractor, and that in order to procure a discharge of the lien under this provision of the law the bond must be signed by the original contractor with the municipality. No other criticism is made of the bond presented. In section 2 of the Lien Law the term "contractor" is defined as "a person who enters into a contract with the owner of real property for the improvement thereof." By strict interpretation this would seem to exclude either the personal representatives of a deceased contractor or his assigns. Under the strictest interpretation of the statute an assignee of the contractor might procure a discharge of the lien if only the contractor himself be upon the bond. No reason is suggested, however, why the bond of the contractor should be required and the bond of the assignee prohibited, nor can any reason be assigned why the representatives of a deceased contractor should not be allowed to procure this money upon the giving of a bond with a sufficient surety. The surety must be approved by the court or a judge or justice thereof, which is ample protection to the municipality. It can hardly be conceived that the legislative intent was to bar the representatives of a deceased contractor from this right to procure a discharge of the lien or to bar an assignee of the contract from recovering the moneys which are his by assignment duly made, providing the contractor refused to join in the undertaking. We are of opinion, therefore, that this provision should not receive the strict construction contended for by the respondent, but that within the permission of the statute an assignee of the contract and of the moneys due thereupon may procure a discharge of the lien by filing an undertaking in which the assignee shall appear as principal and with such surety as is provided by the act of which the court or a judge or justice thereof may approve.
We are not unmindful of the change in the phraseology of the Lien Law from former lien laws, as found in section 14 of chapter 315 of the Laws of 1878, as amended by chapter 629 of the Laws of 1892. In that act the term "contractor" was in part defined as the person with whom the contract with the city is made, his "assigns or legal representatives." In the present act the words "assigns or legal representatives" are omitted from the definition of the term "contractor." Prima facie this would seem to indicate an intent on the part of the Legislature to deprive either the assignee or the legal representatives of a contractor of the benefits of this provision of subdivision 5 of section 20 of the act of 1897, as added by chapter 169 of the Laws of 1898 and re-enacted by chapter 37 of the Laws of 1902. The contention that such an amendment is not conclusive evidence of such intent finds some support in our holding in Matter of Cullinan ( Maher Certificate) ( 109 App. Div. 816). The inconvenience that would arise from the strict construction of the statute which has been given by the learned judge before whom the application was made, and the inability of respondent's attorney to suggest any conceivable ground for withholding either from the representatives of a deceased contractor or from his assignee the right to make this application, lead us to give to the statute a liberal interpretation, and to hold that the assignee stands in the place of the contractor, and is entitled to the privilege given to the contractor by the provisions of the statute quoted. It is provided in the act itself, by section 22, that article 1 thereof, in which all the sections cited are contained, "is to be construed liberally to secure the beneficial interests and purposes thereof." By section 32 of the Statutory Construction Law (Laws of 1892, chap. 677, as amd. by Laws of 1894, chap. 448) it is provided: "The provisions of a law repealing a prior law, which are substantial re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law and not as new enactments."
The order of the justice refusing to approve the undertaking as sufficient should be reversed.
All concurred; COCHRANE, J., not sitting.
Order reversed, with ten dollars costs and disbursements, with leave to renew application upon the same or additional papers to any justice of the Supreme Court.