Miller v. Schmitt

Blanchard, J. This. is an action brought to foreclose a mechanic’s lien. The property consists of two lots, one formerly belonging to defendant Schmitt and the other to defendant Ahr. Each agreed to sell his respective lot to the defendant McKisch by written agreement. The defendant McKisch proceeded to build houses upon the two lots, the front portion of the houses being on the lot of Ahr and the rear portion on the lot of Schmitt. As McKisch did not pay to the plaintiff the money due to him for the goods sold to him by plaintiff, the lien in question was filed. The defendant Ahr makes this motion for an order directing in what sum an undertaking must be given to discharge the lien, and proposes that Ahr alone shall give the bond. The plaintiff contends that this cannot be done by Ahr alone, but must be done' by all the owners, to-wit: Ahr, Schmitt and McKisch. The question, therefore, to be decided is whether any owner of property on which there is a mechanic’s lien may become the principal 'of a bond for that purpose or whether all the owners or parties interested must unite in the bond as principals. Sub-, division 4 of section 18 of chapter 418 of the Laws of 1891 provides that a lien may be discharged by the owner executing an undertaking with two or more sufficient sureties to the clerk of the county in such sum as the court may direct, and section 2 of the same act defines the meaning of the term “ owner.” It provides that the term “ owner ” includes the owner in fee of real [233] property or of a less estate therein, a lessee for a term of years, a vendee in possession under a contract for the purchase of such real property, and all persons having any right, title or interest in such real property which may be sold under an execution in pursuance of statutes relating to the enforcement of liens of judgments, and all persons having rights to certain specified franchises. It will thus be seen that the term “ owner,” as defined by the law under consideration, is a comprehensive term, and it was doubtless the intention of the Legislature to give the same opportunity to the owner of any of these interests or parties interested to furnish the bond and to discharge the lien, and not to impose on any one of them the burden of getting all the other parties in interest to unite with him. It follows, therefore, that the motion must be granted. Ho costs. The amount of the bond will be fixed on the settlement of the order. Motion granted, no costs.