Garland v. Van Rensselaer

1. Mechanics’ Liens—Lots Sold on Contract. Laws 1885, c. 342, § 1, provides that any person performing labor or furnishing material in the erection of a building, with the consent of the owner, may have a lien on the building and lot Section 5 provides that, where the owner has agreed to sell and convey the premises, he shall remain the “owner,” within the meaning of the lien law, till the deed has been delivered and recorded. Held, that one who, by agreement with the purchaser in an executory contract to sell land,.and with the consent of the vendor, erects a house on the land,- has a lien on the house and lot as against the vendor. 2. Same—Release—Bond op Owner—Action on—Parties. In an action on a bond given by the owner under section 24 of the lien law to release the premises from liens, conditioned for the payment of any judgment that might be rendered against the premises in any proceeding to enforce the lien, while the bondsmen are not necessary parties, the purchaser of the lot is a necessary party, for the purpose of establishing the lien.

Appeal from special term, Westchester county. Action by Horace W. Garland and another against Cortlandt S.- Van Bensselaer and the Commonwealth Security & Improvement Company. From a judgment for plaintiffs against defendant Van Bensselaer, entered on an order overruling his demurrer to the complaint, on the ground that it showed no cause of action as against him, he appeals. The complaint alleged that defendant Van Rensselaer, at all the times mentioned therein, was seised in fee simple and possessed of certain land in the county of Westchester; that prior to October 1, 1891, he entered into a contract with the defendant the Commonwealth Security & Improvement Company, whereby he agreed to sell the land to said company, and, pursuant thereto, the company entered into possession of the premises; that thereafter, prior to November 28, 1891, while the company was in the lawful possession of the premises -under said contract, and before the performance and completion of the same, plaintiffs, at the request of the company, and with the knowledge and consent of Van Rensselaer, erected on the premises a building, and furnished the labor and material therefor; that the company agreed to pay plaintiffs $150 for the construction of the building, and the building was reasonably worth that sum; that within 90 days after completion of the building, on January 12, 1892, while the company was in possession of the-premises under the contract of sale, plaintiffs filed in the office of the clerk of the county of Westchester the notice required by law to effect a lien, and' that this notice was referred to and. made part of the complaint as if set forth; that plaintiffs, while the company was in possession of the premises,, under the contract of sale, served the notice of lien on both defendants on. January 14 and 15, 1892; that thereafter tire company relinquished to Van. Rensselaer all its rights and interest in the premises, together with the-building erected thereon by plaintiffs; that thereupon Van Rensselaer re: sumed possession of the premises, subject to plaintiffs’ lien; that Van Rensselaer, on February 26, 1892. executed, and caused to be filed in the office-of the clerk of the county of Westchester, his bond, bearing date February 26, 1892, in the sum of $500, with two sureties, conditioned for the payment of any judgment that might be rendered against the premises in any proceedings to enforce the lien, and that thereupon, after service of the same on-plaintiffs, and on the approval and filing of the bond, an order of court was-made and entered in the office of the clerk of Westchester county, March 8, 1892, wherein and whereby it was ordered that the lien be discharged, and directing the clerk of the county to cancel the same of record, and the bond and order were referred to and made part of the complaint, as if fully set forth; that no part of said sum had been paid, though demanded; and that there was due and owing from defendants to plaintiffs $150, wherefore plaintiffs demanded judgment against defendants for $150, with interest and costs..