(55 Misc. Rep. 58.)

#### DEARING v. BOSS et al.

(Supreme Court, Trial Term, New York County.

June, 1907.)

Mechanics’ Liens—Indemnity Against Liens—Actions on Bonds—Time of Commencement.

Code Civ. Proc. § 1236, provides that every judgment shall be signed by the clerk and filed in his office, and that such signing and filing shall constitute the entry of the judgment. Section 1237 provides that the clerk on entering final judgment must immediately file the judgment roll, and section 1238 provides that the judgment roll shall be prepared and furnished to the clerk by the party at whose instance entered, except *220as therein provided. Section 1239 provides that a proceeding to enforce or collect a final judgment cannot be taken until the judgment roll is filed. *Held,*that an action on a bond conditioned for the payment of any judgment that might be rendered for the enforcement of a mechanic’s lien brought after a decision and judgment had been signed by the justice, but before sections 1236, 1237, 1238, and 1239 had been complied with, was premature, and that this was so notwithstanding an order was obtained after commencement of the action on the bond, providing for entry of the judgment nunc pro tunc as of a date prior to the commencement of the action.

Action on a bond by Benjamin A. Dearing against William Boss and others. Complaint dismissed.

C. B. Augustine, for plaintiff.

E. J. Krug, for defendants.

GREENBAUM, J.

What constitutes the entry of a judgment is prescribed by sections 1236, 1237, 1238, and 1239 of the Code of Civil Procedure. A decision and judgment were signed by the justice before whom the mechanic’s lien action was tried, but none of the Code requisites of filing and entering the judgment has been complied with. Section-1239 provides that “a proceeding to enforce of collect a final judgment cannot .be taken until the judgment-roll is filed.” The condition of the defendants’ -bond given to release the real estate of one David Quigley from the mechanic’s lien filed by plaintiff was that:

> “If the said David Quigley or his legal representatives shall well and truly pay or cause to be paid any judgment that may be rendered against the said property in any proceedings to enforce the said lien, then this obligation shall be void, otherwise to remain in full force and virtue.”

There are decisions in other jurisdictions and some in this state under the old Code of Procedure, and in actions in Justices’ Courts, to the effect that the pronouncing of judgment after the trial and final submission of a case where there is nothing more to be done than to enter the judgment constitutes the “rendition of a judgment.” It may be that, inter partes, a judgment may be deemed “rendered,” even though there be an omission or neglect to formally enter the judgment, as where the right to an appeal of a party is involved. Fleet v. Youngs, 11 Wend. 522, 527, 528; Bank, of Geneva v. Hotchkiss, 5 How. Pr. 478. But, where the right of action against a third party, like the defendants, who were sureties, depends upon the prerequisite bf the rendition of a judgment, it seems to me it must rest upon a judgment duly entered and which is in a condition to be enforced as provided for by section 1239. The signature of the justice to the decision and the judgment merely constituted authority for the entry of the judgment (Knapp v. Roche, 82 N. Y. 369) and until an actual entry of the judgment an action upon the bond given by the defendants is premature. Since the trial of this action it appears that plaintiff has procured an order nunc pro tunc directing the filing of the judgment in the office of the clerk of the county of New York as of the 13th day of June, 1901, and that the judgment was duly filed on May 16, 1907, pursuant to said order. It seems to me, however, that the rights of tiie parties ipust be determined as of the date when the ac*221tion was commenced, and for the reasons above stated I am of opinion that the complaint must be dismissed.

Complaint dismissed, with costs.