#### Arthur N. Pierson, Plaintiff, *v.*John Jackman et al., Defendants.

(Supreme Court, New York Special Term,

May, 1899.)

New York city—Action on bond given by a city contractor to discharge a lien tiled — Extent of lien.

Where a contractor with the city of New York gives a' bond, under section 1836 of the Consolidation Act, as amendéd in 1895, in order to discharge a lien filed against moneys due or.to grow due to him, conditioned to pay any judgment in an action brought against him on the claim or demand, the claimant has only to show • the - performance of his obligations to the contractor and need, not show, in addition, that the contractor performed his obligations to the city, as that issue has become immaterial. Such a lien is, however, ■ restricted to the money due and to grow due under the contract with the city and a materialman cannot recover for materials furnished to the contractor; but which. were not required by the terms of the city contract. • ...

Action against a contractor and his sureties upon a bond given to discharge a lien for a public improvement.

Phillips *&*Avery (Frank M. Avery, of counsel), for plaintiff.

Stephen. S. Marshall, for defendants.

Bookstaver, J.

This is an action brought against the defendant Jackman, as contractor, and against the other two defendants, as sureties upon a bond given to discharge a lien for a public improvement. It is not disputed by the defendants that the case falls under section 1836 of the.Consolidation Act (chap. 410 of the Laws of 1882 as'amended by chap. 605 of the Laws of 1895), which section is retained under the new charter, and the bond was given in *426conformity to the requirements of that section — that is to say, it was conditioned for the payment “ of any judgment in an action upon the claim or demand ” specified in the notice of lien against the person or persons from whom the amount set forth in the notice of lien shall be claimed to be due or to grow due. ' There is a broad distinction, and á good reason for that distinction, between •the bond required to discharge a lien upon private property and a lien upon moneys due, or to become due, a cqptractor for doing public work. The former is given by the owner to free his property from the incumbrance, and, therefore, is conditioned for *“*the payment of any judgment which may be rendered against the property for the enforcement of the lien ”. The latter is given by the contractor in order to free himself from the embarrassment of the lien, and, therefore, is conditioned for the payment of any judgment in an -action against him upon the claim or demand. In the former case the contractor may be, and yet the property not be liable. In the latter case, if the contractor is liable, the claimant is entitled to payment out of the fund, if any, or out of the bond which is given to discharge the lien against that fund, or anticipated fund. After the bond has been given there remains only the question of the liability of the contractor to the claimant; but no question of the liability of the city to the contractor. The claimant has only to show the performance of his obligations to the contractor-; and is not called upon in addition, to prove the performance of the contractor’s obligations to the city. The lien itself is, very properly, restricted to the moneys due or to grow due under the contract. Section 1824. To require anything further would be obviously unjust to the city. But,, if the contractor, for reasons sufficient to himself, sees fit to free his relations- with the city of the incumbrance of this lien no hardship is apparent- in requiring him to furnish an undertaking that the claimant shall be paid any amount found due on the .claim, irrespective of whether any amount is due, or ever becomes due, the contractor from the city. The statute does not allow, and ought not to allow, a contractor who may default in his obligations to the city, or has failed to comply with the technical requirements- of his contract, to take advantage of that fact to the detriment of one who has fully performed his obligations to the contractor. But, in my judgment, the plaintiff in this action can only recover for such materials ¿s were furnished to the contractor,' and used in the execution and completion of the contract with the municipality *427of Tottenville. Section 1825, Consol. Act. The contract does not seem to call for the six-inch pipe furnished by the plaintiff, nor does it appear from the evidence that it was so used in the completion of that contract, and, therefore, it should be- excluded from the amount claimed in this action. I do not think that this in any way invalidates the lien, as there can be no question about the lien being filed in good faith for the full amount, and there certainly was no willful or intentionally false statement therein. But it is claimed that the plaintiff was obliged to have his drainpipe inspected by the engineer of the Tottenville sewer — that is, the engineer in the employ of the Tottenville Corporation. This claim might possibly be taken advantage of by the corporation, but cannot by the defendants in this action, for the reasons above given. Erom the nature of the materials furnished, it seems to me it was necessary to accept or reject it at the time of delivery, and it" seems to have been accepted. Certainly, the plaintiff was under no obligation, contractual or otherwise, to procure the attendance of the municipal engineer each time a scow load or a carload of drainpipe was delivered, and obtain his certificate in approval of it. I do not think that the testimony submitted to me establishes the fact that Dixon, at the time of ordering this pipe, was. in the employ of the plaintiff, but, on the contrary, that, at the time, he was acting for and on behalf of the defendant Jack-man. Judgment should, therefore, be for the plaintiff for the sum of $1,206.67, being the amount of the lien, less the $170 for the six-inch sewer pipe, with interest.

Judgment for plaintiff.