In 1890 William J. Fitzpatrick entered into a contract with the defendants Moses and Fanton to furnish the plumbing work on a number of houses in the city of Brooklyn, including the one on which the lien in suit was filed. The -contract provided for payments to Fitzpatrick as the work progressed. Disputes arose between the contracting parties as to the performance of the work -and the right of Fitzpatrick to payments. On August 21, 1891, the defendants Moses and Fanton conveyed the property to Louis H Myers. On August twenty-sixth Fitzpatrick filed a notice of lien for the amount claimed to be due him against Louis H. Myers, as owner, and the defendants Moses and Fanton, as contractors. Fanton then applied to the Supreme Court to fix. the amount of a bond to be given under the Mechanics’ Lien Law of 1885 (Chap. *60342, § 24, subd. 6) for the discharge of the property from ¡the lien. In pursuance of an order made on that application a bond was given by Fanton and the defendants Bowling and one Rofrano in the sum of $500, which recited that Fitzpatrick had filed a notice wherein he claimed a lien against Myers, Moses and Fanton, named as owner and contractors, and was conditioned for .the payment of any judgment that might be rendered against the property in any proceeding to enforce the lien. Thereafter Fitzpatrick brought this action against Moses and,Fanton and the sureties on the bond for the foreclosure and enforcement of his lien. Subsequently the .plaintiff was substituted in the place of Fitzpatrick. The referee reported in favor of the plaintiff against all of the defendants, and from the judgment entered on his report this appeal is taken.
On the trial of the action there was a sharp controversy as to-whether the plaintiff’s assignor had abandoned his work, or whether the defendants Moses and Fanton had made default in the payments to be made by them. All that it is necessary to say on the -subject is that the case- presents an irreconcilable conflict of testimony on these questions, without any such marked preponderance on either side as to require this court to interfere with the finding of the referee. The judgment, therefore, against Moses and Fanton must' be affirmed.
But the case against the bondsmen presents another question. The notice of lien filed was against Myers as owner, and Moses .and, Fanton as contractors. If the conveyance from the latter to the former was made with intent to defraud the claimant of his lien it was undoubtedly void, .and the plaintiff could enforce his lien against the property despite the conveyance. But there is no proof in the case that the conveyance to Myers was fraudulent, and the referee has made no finding to that effect. The counsel for the respondent in his brief asserts that the consideration recited was one dollar and other valuable considerations, but this fact does not appear in the record before us. The liability of the bondsmen was conditioned on the plaintiff successfully establishing a lien j on the 'property. This is so both by the language of the bond ánd the terms of the section of the statute under which it was given. The respondents- argue that by giving the bond the sureties are estopped from denying the validity of the lien. Surely this claim is not sen*61ously urged as broadly as it is stated. The very object of the provision of the statute permitting the bonding of the property when a notice of lien has been tiled is to enable the owner or contractor to free the property from the incumbrance without acknowledging its validity and to permit him to contest, in a subsequent action, the ■existence and amount of the lien. Nor is there anything in the recitals of the bond to estop the sureties. The recital is that the claimant had filed a notice of lien against Myers, Moses and Fanton us owner and contractors. This recital is in accordance with the fact. As the plaintiff failed to prove a valid lien on the property he did not establish the existence of the condition necessary to make the liability of the sureties accrue. The judgment against the bondsmen must, therefore, be reversed.
As the question has been discussed on this appeal, and will arise ■on a new trial, it is proper that we should say that in our opinion the plaintiff may attack the conveyance to Myers, although Myers is not a party to this action. It is Unnecessary to consider whether an ■objection taken in the first instance by answer or demurrer, to the ■absence of Myers, would have been good. No such objection was taken. Myers was not a party to the bond, and no attempt is made to enforce the lien against his property. He is not interested in the litigation and his presence is, therefore, not necessary to enable the court to make the complete disposition of the controversy before it.
The judgment as to the appellants Moses and Fanton should be affirmed, with costs. The judgment against the appellants Dowling ' and Rofrano’s administrators should be reversed, and a new trial granted before a new referee to be appointed at Special Term, costs to abide the event.
All concurred.
Judgment as to, appellants Moses and Fanton affirmed, with costs; as to appellants Dowling and Rofrano’s administrators reversed, and new trial granted before a new referee to be appointed at Special Term, costs to abide the final award of costs.