In re Greines

Giegerich, J. Although the time within which an action can be brought by the lienor upon the claim contained in the notice of lien seems to have expired (Uris v. Brackett Realty Co., 114 App. Div. 29), counsel for the applicants has not cited, nor have I been able to find, any authority or provision of law which authorizes the cancellation [543] of the undertaking given to discharge a mechanic’s lien, pursuant to subdivision 4 of section 18 of the Lien Law (Laws of 1897, chap. 418), where, as here, the time within which an action might be brought to recover a judgment “ against the property ” on the claim contained in the notice of lien has expired. Hafker v. Henry, 5 App. Div. 258, quoted by the respondent, and Matter of Thirty-fifth St. & Fifth Ave. Realty Co., 121 id. 625, relied upon by the applicants, do not apply, because both those cases arose under provisions relative to the discharge of a lien by a deposit of the amount claimed (Laws of 1885, chap. 342, § 24, subd. 2, as superseded by Laws of 1897, chap. 418, § 19), which are unlike those relating to a discharge by the giving of an undertaking. Laws of 1897, chap. 418, § 18, subd. 4, which superseded Laws of 1885, chap. 342, § 24, subd. 6; see Matter of Thirty-fifth St. & Fifth Ave. Realty Co., supra. The motion to cancel the undertaking given to discharge the lien and to release the sureties thereon from any and all obligations thereunder is, therefore, denied, but without costs. Motion denied, without costs.