It is alleged and not denied that all others concerned in the alteration in question have been fully paid and their claims satisfied; Special Term stated that this was “ conceded ”.
Plaintiff is not entitled to the relief sought under section 72 of the Lien Law. Plaintiff’s proceedings and this motion appear to be maneuvers to avoid trying on the merits the issues raised in the action brought by defendant in Kings County before plaintiff instituted this action.
The order directing appellant to file a surety bond should be reversed, with $20 costs and disbursements to defendant-appellant, and plaintiff’s motion denied.
Peck, P. J., Glennon, Dore, Cohn and Yan Yoorhis, JJ., concur.
Order unanimously reversed, with $20 costs and disbursements to appellant, and the motion denied. [See post, p. 772.]