Opinion
October 31, 1924.
Joseph J. Jacobs, for the appellant.
Ary Horwitz [ Paul Rude of counsel], for the respondents.
The defendant M. Brooks Son, Inc., owns some property in New York city. The plaintiff was engaged to provide some window shades and also to repair certain window glass which had been broken in the building. He went to M. Brooks, who was the president of the defendant corporation, who sent him to his son, Samuel Brooks, who was the treasurer of the corporation. He could get no satisfaction and finally sued Samuel Brooks, individually, for the amount of his bill and recovered judgment therefor, upon which execution was returned unsatisfied. He then brought this action against M. Brooks Son, Inc., and against the New Amsterdam Casualty Company. It seems that M. Brooks Son, Inc., sold this building to the Dexter Realty Company and the casualty company bonded this lien for the Dexter Realty Company. He recovered judgment in the Municipal Court, and upon appeal to the Appellate Term the judgment was reversed and the complaint dismissed. The Appellate Term held that the judgment against Samuel Brooks was res adjudicata, unless the plaintiff can show that there was a several liability, both of the defendant and of Samuel Brooks.
In the first place, one has no lien upon real property for furnishing window shades for a building. Under the law a lien is given simply for permanent improvement to real property, both for labor and for material furnished therefor. Section 2 of the Lien Law (as amd. by Laws of 1916, chap. 507) defines the word "improvement" to include "the erection, alteration or repair to any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property or materials furnished for its permanent improvement." Plaintiff had no lien, therefore, for the cost of the window shades furnished, but might have a lien for the repair of the glass. The bill of particulars shows just how much was included in each item. The whole sum claimed is $234.85, of which $185.25 was for the window shades and $49.60 was for the repair of the glass. But judgment cannot be given for a lien upon real property in any event without making the owner of the real property a party to the action. (See Lien Law, § 44 et seq). This plaintiff has not sued the owner of the real property, the Dexter Realty Company, but has sued the bondsman. But the condition of the bond is that the Dexter Realty Company shall well and truly pay any judgment which may be rendered against the property for the enforcement of said lien against said property, not exceeding the sum of $350.
It is true there is no plea in abatement that the Dexter Realty Company has not been made a party. Being a necessary party, however, the court must order them to be brought in before plaintiff can have a lien upon the real property, or before he can have judgment against the New Amsterdam Casualty Company, because the condition of the bond is that a judgment establishing a lien shall first be obtained against the Dexter Realty Company.
If the plaintiff still desires to prosecute for a lien for the forty-nine dollars and sixty cents, he must bring in the Dexter Realty Company. Not having brought them in, the judgment against the New Amsterdam Casualty Company and the judgment establishing the lien are unauthorized and they were properly reversed. But the Lien Law provides that in an action to establish a lien plaintiff may join the party liable for the debt, and if plaintiff fail to establish the lien, he may have personal judgment against the party liable to pay the debt. (Lien Law, § 54.)
It is true that the defendant corporation, M. Brooks Son, Inc., is personally liable to pay the debt, and upon failure to establish the lien, the judgment against that corporation was proper as a money judgment under this provision of the Lien Law.
But it is strenuously insisted and has been practically so held by the Appellate Term, that the judgment heretofore obtained against Samuel Brooks is res adjudicata of this claim. But this holding ignores the well-settled principle that estoppels must be mutual. M. Brooks Son, Inc., was not a party to that action and was not bound by the judgment, and under the rule that estoppels must be mutual, this plaintiff would not be bound by that judgment. That judgment is, therefore, no defense to this action. Under the proof here the contract was made with M. Brooks Son, Inc., and not with Samuel Brooks. M. Brooks was the president of the corporation and Samuel Brooks was the treasurer. Under the evidence here it is quite evident that the judgment heretofore obtained against Samuel Brooks was unauthorized. The plaintiff, having established the cause of action against the corporation, is clearly entitled to a personal judgment against the corporation, both for the repair to the glass and for the cost of putting in the window shades.
The determination of the Appellate Term should be modified accordingly, without costs to either party.
CLARKE, P.J., MERRELL, FINCH and MARTIN, JJ., concur.
Determination modified as directed in opinion, and as so modified affirmed, without costs. Settle order on notice.