#### The New York Lumber and Wood-Working Company, Appellant, *against*The Seventy-Third Street Building Company *et al.*William J. Merritt, Respondent.

(Decided February 4th, 1889).

Under the provision of the mechanic’s lien law of 1885, authorizing the discharge of a lien on the giving of a bond “ by the owner of the premises, person or persons, firm or firms, corporations or associations against whom or which the notice of lien is filed ” (L. 1885 e. 342 § 24 subd. 6), the contractor may alone become the principal in the bond; it is not necessary that the owner of the property unite with him.

The contractors for the work under which plaintiff claimed a lien were a firm composed of three persons, but, prior to the giving of a bond to discharge the lien, two of the partners retired from the firm. *Held,*that the bond given by the remaining member as principal, describing himself as “ successor to the late firm ” of, etc., was valid.

Appeal from orders of this court directing and approving a bond discharging a mechanic’s lien.

The facts are stated in the opinion.

*Alan D.*Kenyon, for appellant.

*A. G. N.*Vermilya, for respondent.

Bookstaver, J.

Two questions are raised by this appeal. The first is whether any party interested in discharging a mechanic’s lien may become the principal of a bond given for that purpose, or whether the owner of the property must in all cases unite in the bond as principal. This depends upon the construction to be given to the 6th subdivision of section 24 of the mechanic’s lien law of 1885, which is as follows“ By the owner of the premises, person or persons, firm or firms, corporations or associations against whom or which the notice of lien is filed, executing with two or *134more sufficient sureties .... a bond to the clerk,” etc. The appellant contends that after the word “ premises ” we should insert the conjunction “and” before “person.” This would render it necessary that the owner of the premises should in all cases be a principal in the bond. I think this was not the intention of the legislature. The grammatical construction of the sentence 'does not warrant our inserting this word. A comma is placed after the word “ premises,” and another after the word “ filed,” and under the well-known rules of construction, to ascertain the meaning, we may eliminate what is between those commas, and read it as though there were no intermediate 'words. Doing this, we find that the lien may be discharged “ by the owner of the premises .... executing with two or more sufficient sureties .... a bond to the clerk,” etc. So it is apparent that the other persons interested in discharging the lien by a bond need not unite with him. But if that is so, it follows as a matter of course that the other “ person or persons,” etc., interested in the removing of the lien, may do so by themselves becoming principals, without the owner uniting with them. This view is sustained by the 5th subdivision of the same section, which says that the lien may be discharged by “ the owner of the property .... affected by any notice of- lien filed under this act or the person or persons,”etc., “may, at any time-after the filing of the notice, serve a notice,” etc. Here the disjunctive “ or ” is actually inserted. It was doubtless the intention of the legislature to give the same opportunity to either the owner or contractor, in the 6th subdivision. This view is further sustained by the 3rd subdivision of the same section in regard to discharging the lien by making a deposit; and under that subdivision it has been held that where the deposit has been made by the contractor, the lien must be discharged as to the owner *(Sehaettler*v. Gardiner, 4 Daly 56). In no case, if the owner complies in all respects with the terms of his agreement with the contractor, is either he or his land liable to the payment of mechanics’ liens, and therefore it is only reasonable to suppose that the legislature *135clid not intend to require him to make himself liable beyond the clear intent of the act.

The second question arises under the following facts: The contractors for the work under which the plaintiff claims a lien were William J. Merritt & Co., composed of William J. Merritt, Robert A. Hollister, and George H. Tilton. Before the. filing of the bond, Hollister, and Tilton had withdrawn from the firm and Merritt became its successor. He alone executed the bond as principal, describing himself as “ successor to the late firm of William J. Merritt & Co.” The appellant contends that Hollister and Tilton should both have united in the execution of the bond. However this might have been had the firm been composed of the same persons at the time of giving the bond, I do not think it was necessary for the persons who had withdrawn from the firm to unite with Merritt in the bond at the time it was given. He then was the sole party in interest, as far as the contract was concerned, or the moneys due under it. As successor to the firm, he could bind the firm in all respects b}r his acts; his release of a firm debt would have been good; any act done by him to collect a firm debt would have been binding upon the other members of the firm. And besides, the discharge of the lien, by the giving of the bond, does not relieve either Hollister or Tilton from any money judgment that may eventually be recovered against the original contractors. The persons who did not unite in the bond will be as much bound by that judgment as Merritt is himself, and they are just as much security for the money judgment now as they would have been had they united in the giving of the bond.

I think, therefore, this point is not well taken, and that the orders should be affirmed, with costs.

Larremore, Ch. J., concurred.

Orders affirmed, with costs.