The action is brought by a sub-contractor for the foreclosure of a mechanic’s lien against the contractor and owner and the sureties on a bond given to discharge the lien. The contractor made default, and the judgment appealed from is a money judgment only, rendered against the owner and the sureties. In Matter of Schultes (33 App. Div. 524) this court held that the provisions of section 1351 of the charter of the city of New York (Chap. 378, Laws of 1897) creating the Municipal Court, contemplated not a mere continuance of the District Courts of the former city of Mew York and the Justices’ Courts of the city of Brooklyn, but the erection of a distinctly new and inferior local court not of record. T..e presiding justice in his opinion in that case predicated this conclusion upon the fact that the Municipal Court has other and greater powers and jurisdiction, and its justices have greater authority, than was possessed by all of the former courts combined. (P. 532.) • It was held that the Legislature, by virtue of article 6, sections 17 and 18, of the State Constitution, had power to create such a new court, provided it was made a local inferior court not of record. Following *464this decision, the Appellate Term in the first department has held in McConologue v. McCaffrey (29 Misc. Rep. 139) that the Municipal Court cannot entertain an action to foreclose a mechanic’s lien, a remedy essentially equitable in its nature, because of the prohibition contained in section 18 of article 6 of the State Constitution that “ the legislature shall not hereafter confer upon any inferior or local court of its creation any equity jurisdiction,” etc. In the prevailing opinion in that case it is said “ that the provisions of the Greater Hew York charter, conferring upon the Municipal Court the right to entertain an action for the foreclosure of a mechanic’s lien, are unconstitutional and void.” Assuming that subdivision 14 of section 1364 of the charter, by its terms and read alone, confers upon the Municipal Court jurisdiction to entertain an action for the foreclosure of a mechanic’s lien, it seems to us that it should be taken in connection with the express provision of section 1351 of the charter creating the Municipal Court, and providing that said court “ shall be a local civil court within the city of Hew York as constituted by this act, and shall not be a court of record, or home any equity jurisdiction.” The Legislature, it will be seen, has been careful in creating this court to comply with the provisions of the Constitution now under consideration. The court lias been created, by the express terms of the statute, a local court upon which no equity jurisdiction is conferred, and any general statement in the statute of the jurisdiction, powers and duties of the court, which might otherwise by itself be held to include equity jurisdiction, must yield to the prohibition enjoined by the Constitution and enacted in section 1351. Besides, it is to be noted that the jurisdiction conferred by subdivision 14 of section 1364 is expressly limited by the final words “ except such as shall be expressly excluded by this act,” and which would seem to point quite effectively to the exclusion contained in section 1351. The conclusion is, therefore, inevitable that this action is one which could not be successfully maintained in the court below.
The respondent, however, insists that as the judgment appealed from is a money judgment only, it may be upheld as within the lawful jurisdiction of the Municipal Court. The complaint is not couched in terms which would support a judgment for labor and materials against the owner of the property, as was the case in *465A. Hall Terra Cotta Co. v. Doyle (133 N. Y. 603) and Morton v. Tucker (145 id. 244). In both cases the plaintiff dealt with the defendant directly, and there was an indebtedness independently of the lien and of the provisions- of the Mechanic’s Lien Law. The plaintiff here did, indeed, endeavor to show upon the trial that the alleged contractor was in fact the superintendent of the owner, and consequently employed the plaintiff as agent for and in behalf of the owner, but the complaint is not framed on that theory, contains no such averments, and the proof is' not sufficient to warrant an amendment to the complaint in support of the judgment were that course proper on appeal.
As to the sureties, the condition of the bond is “for the payment of any judgment which may be rendered against the property for the enforcement of the lien.” (The Lien Law, chap. 418, Laws of 1897, § 18, subd. 4.) Liability on such a bond depends upon the validity of the lien, and until that is established a separate action upon the bond will not lie. In Morton v. Tttcker (sztjtra) it was held, citing the head note, that “ the remedy * * to enforce the obligations of the sureties to such a bond is not by an action at law upon the bond, but by an action in equity, in which all persons interested, including the sureties on the bond, are made parties.”
It follows that the judgment should be reversed, with costs.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.