Separate appeals have been taken by defendants Jerome A. Jackson, Patrick H. McHnlty, Baker, Smith & Co. and the Hoebling Construction Company. The appeals of Jerome A. Jackson, *607Baker, 8mitli & Co. and the Boebling Construction Company present the question as to whether their liens were timely filed, and if not whether they are entitled to the fund deposited for the release of the moneys due the contractor from the lien of their respective municipal liens. In the view I take of the case it is unnecessary to decide, in disposing of these appeals, whether the liens were or were not filed within the time prescribed by the statute. The undisputed evidence shows that liens in due form were filed and that the claims upon which they were filed were claims for which municipal liens against the fund due or to grow due the contractor were authorized. The alleged invalidity of the liens is predicated upon the claim that the work had been completed and accepted more than thirty days before they were filed, and on that point a serious question is presented upon the evidence as to whether the work was completed and accepted within the fair intent and meaning of the statute. I am of opinion, however, that all questions with respect to the validity of the liens and with respect to the liability of the municipality to the contractor were eliminated when the money was deposited to obtain a release of the funds from the municipal liens. There has at most times, if not at all times, been a marked and well-defined distinction made by the Legislature between liens for work, labor and materials performed or furnished on public works, and on private contracts ; in other words, between municipal and other mechanics’ liens, and this distinction has frequently been expressed by the courts. (Pierson v. Jackman, 27 Misc. Rep. 425; affd., 47 App. Div. 625; Hawkins v. Mapes-Reeve Construction Co., 82 id. 72; McDonald v. Mayor, etc., of N. Y., 113 id. 625.) For along time this distinction was shown by the express language of the statute with respect to the ¡Divisions of an undertaking to discharge a municipal lien, and the provisions of an undertaking to discharge other mechanics’ liens: In the former case it was formerly expressly provided that the undertaking should be conditioned for the payment of any judgment recovered on the claim for which the lien was filed, and in the latter for the payment of any judgment recovered against the property.. In .the case of mechanics’ liens other than municipal liens, where the undertaking was required by statute to be conditioned for the payment of any judgment recovered against the property, of course it was essential to the *608liability of the. surety on the bond that the validity of the lien should be established, for otherwise there could be no judgment against the propertybut in the case of municipal liens, the Legislature, being concerned only with the payment of claims against the contractor on account of the contract work, the question to be determined in the action, and upon which the liability of the surety as well as of the principal in the undertaking given would depend, was the liability of the contractor to the lienor.- It is to be borne in mind that municipal liens are not authorized in favor of the contractor, but only in favor of those asserting claims against him for work or labor performed or materials delivered on' account, of "the contract; whereas, in the case of other mechanics’ liens, the contractor as well as his sub-contractor may file them and they run, not against a fund to which the contractor is entitled, but against the property of the owner. The provisions of the Municipal Lien Law with respect to giving an undertaking to release the fund are now the- same in effect as they w7ere when considered by this Court in Hawkins v. Mapes-Reave Construction Co. (supra), and there is no material difference on the question now under consideration, between depositing money and giving an undertaking to release the fund, and for that matter there never has been any difference in this regard. (Merts v. Press, 99 App. Div. 443, 450; affd., 184 N. Y. 530.) Section 20 of the Lien Law-(Gen. Laws, chap. 49 [Laws of 1897, chap. 418], as amd. by Laws of 1898, chap. 169, and Laws of 1902, chap. 37; since amd. by Laws of .1908, chap. 254,. and re-enacted in Consol. Laws, chap. 33 [Laws of 1909, chap. 38], § 21) provides as follows:
“ A lien against the amount due or to become due á contractor from the State or a municipal corporation for the construction of a public improvement may be discharged as follows :
“ 1. By filing a certificate of the lienor or his successor in inter-. est, duly acknowledged and proved, stating that the lien is discharged. . ‘ .
“ 2. By lapse of time, when three months have elapsed since filing the notice of lien, and no action has been commenced to enforce the lien.
“3. By satisfaction of a judgment rendered in an action td' enforce the lien.
*609“ 4. By the contractor depositing with the comptroller of the State or the financial officer of ■ the municipal corporation, oi* the officer or person with whom the notice of lien is filed, such a sum of money as is directed by a justice of the Supreme Court, which shall not be less than the amount claimed by the lienor, with interest thereon' for the term of one year from the time of making such deposit, and such additional amount as the justice deems sufficient to cover all costs and expenses. The' amount so deposited shall remain with the comptroller or such financial officer or other officer or person until the lien is discharged as prescribed in subdivision one, two or three of this section.
“ 5. Either before or after the beginning of an action by a contractor executing an undertaking with two or more sufficient sureties, who shall be freeholders, to the State or the municipal corporation with which the notice of lien is filed, in such'sums as the court or a judge or justice thereof may direct, not less than the amount claimed in the notice of lien, conditioned for the payment of any judgment which may be recovered in an action to enforce the lien. The sureties must together justify in at least double the sum named in the undertaking. A copy of the undertaking, with notice that the sureties will justify before the court or a judge or justice thereof at the time and place therein mentioned, must be served upon the lienor not less than five days before such time. If the lienor cannot be found, such service may be made, as prescribed in subdivision four of section nineteen of this article. [The words in italics are contained in the Consolidated Laws and were in substance added by chapter 254 of the Laws of 1908.] Upon the approval of the undertaking by the court, judge or justice, an order shall be made discharging such lien. The execution of such undertaking by any fidelity or surety company' authorized by the laws of this State to transact business shall be equivalent to the execution of such an undertaking by two sureties, and such undertaking, if excepted to, shall justify through its officers or attorney in the manner required by. law of fidelity and surety companies. Any such undertaking may be executed in such undertaking as surety by the hand of its officers or attorney, duly authorized thereto by resolution of its board of’ directors, a certified copy of which resolution under the seal of *610such company shall be filed with each undertaking. Except as Otherwise provided herein the provisions of article five of title six of chapter eight of the Code, of Civil Procedure are applicable to an undertaking given for the discharge of a lien on account of public improvements.”
Although the Legislature' by these statutory provisions, lias not ■ expressly prescribed, as it formerly did, that the undertaking should . be conditioned for the payment of any judgment recovered on the claim, I think there was. rio intention by the change in phraseology to change the effect of the statute, for by section 3412 of the Code of Civil Procedure, then in force, it had been expressly provided that in an action to enforce a mechanic’s lieii a personal judgment might be recovered even though the lien should riot be: established.' This court in Hawkins v. Mapes-Reeve Construction Co. (supra) gave full effect to this provision of the Code of Civil Procedure, but oh appeal the Court of Appeals deeming the lien valid refrained from deciding the question as to whether a personal judgment could be-recovered if the lien should be declared invalid. (178 N. Y. 236.) Since, however, the Court Of Appeals has decided, as we then decided, that a personal judgment may be recovered against any party liable even though the lien be invalid. (Bradley & Currier Co. v. Pacheteau, 115 N. Y. 492; Abbott v. Easton, 195 id. 312.) ■ Therefore, the plain effect: of the provisions of subdivision 5 of section 20 of the Lien Law herein quoted is, I think, to render both principal and surety liable, if the claim upon which the' lien was filed be . established,- even though the lien be declared invalid. • If the Legislature, by this change in the phraseology of the statute •from the provision declaring that the undertaking should be conditioned for the payment of any judgment recovered on the claim to-the provision declaring that it should be conditioned for the payment of .".any judgment recovered in an action to enforce the lien, intended to require, as a condition to the right to recover, the establishment of the validity of the lien, I think it would have so provided, or would have employed language somewhat simi- ' lar to that .employed in the provision with respect to other liens, wherein it is provided that the undertaking shall be conditioned for the payment of any judgment recovered .against- the property. (Lien Law [Gen. Laws, chap. 49; Laws of 1891, chap. ■ 418], § 18,; *611subd. 4, as since amd. by Laws of 1908, chap. 254, and re-enacted in Lien Law [Consol. Laws, chap. 33; Laws of 1909, chap. 38], § 19, subd. 4.) It is no answer to this contention to say that the Legislature could not have made the undertaking conditioned upon the recovery of a judgment against the fund which had been released by the giving of the undertaking, or the deposit of the money, and presumably disbursed, for it has consistently always so provided in the case of liens against real property, notwithstanding the fact that the liens were discharged by the giving of the undertaking or the deposit of the money; and the courts, to give effect to the intention of the Legislature, have decided that in such case the judgment becomes one, in form only, against the property. Tire decisions to this effect were so 'numerous that it is presumed that they were known to the members of the Legislature, and had that body intended to make the provisions with respect to municipal liens analogous to those with respect to other liens, it is reasonable to assume that it would have substantially followed the phraseology of the statute in respect to other liens, using instead of the word “ property ” the word “ fund,” so that the undertaking would be conditioned for the payment of any judgment recovered against the fund in the one case, and against the property in the other, and under the decisions of the Courts in each instance the judgment would then become a judgment in form only against the fund or property^ as the case might be. The learned counsel for the respondent Murphy Company cited the case of Uvalde Asphalt Paving Co. v. City of New York (191 N. Y. 244), as in effect overruling the decision of this court in Hawkins v. Mapes-Reeve Construction Co. (supra), on this point. That case is clearly distinguishable upon the ground that the lien there in part was filed for moneys loaned, for which there was no authority to file ,a lien. Of course, all of the provisions of the Mechanics’ Lien Law, with respect to the giving of undertakings and the deposit of money to release a fund or property from the lien, were only intended for the benefit of those who had claims upon which they were authorized to file liens, and when, as in the case of Uvalde Asphalt Paving Co. v. City of New York (supra), a lien was filed on a claim, for part of which a lien was authorized and for part of which a lien was not authorized, the claimant could acquire no new rights by virtue *612of the deposit of money, or the giving of an undertaking,- with respect to that part of the claim for which he was not authorized to file a lien.
It is claimed that the case is to be decided upon the principles of equity, and that because the contractor had assigned his claim to the' fund, and the money for the discharge of the lien was deposited by the assignee of the contractor, a different situation is presented requiring a decision different from that which would be if the money. had been deposited by the contractor. I am of the opinion that there is no force in this contention. Although the courts have decided that an assignee of a contractor, who is entitled to the fund, may give the undertaking or deposit the money for the release of the fund, yet, it will be observed that in doing so he steps into the shoes of the contractor*, and does so in the right of the contractor, for the contractor aloné is authorized by the statute to take those steps.
The lien filed by McNulty ivas disregarded by the comptroller as having been filed more than thirty days after October 8, 1906', and no undertaking was given or' money deposited to discharge' it. With respect to that lien I agree with Mr. Justice Ingraham that it was filed too late; but for thé reasons already stated I am of opinion that the other appellants were entitled to receive the fund deposited to discharge'these liens to the extent necessary to satisfy , the claims for which the liens- were filed, and as - to them I, therefore, .vote for reversal. V I
Judgment affirmed, with costs.