Lasky

Defendant, the surety on a bond given under the terms of section 1183 of the Code of Civil Procedure, appeals, under the alternative method, from a judgment ordering payment of the full penal sum to the clerk of the court, for distribution between the owners of the building and various lien claimants whose respective suits had been consolidated for trial on defendant’s motion. But a brief statement of fact is necessary for an adequate consideration of defendant’s contentions. Contemporaneously, the owners, hereinafter referred to as the plaintiffs, and a building contractor entered into two written contracts, the first, for the exchange of properties, and the second, for the construction of an apartment house. In the exchange contract plaintiffs agreed to convey to the contractor their equity in certain flats, at an agreed valuation of $10,000 and the contractor agreed to convey to plaintiffs a vacant lot and construct thereon, in accordance with the terms of the building contract, an apartment house at a total cost, for land and building of $22,300, payable by a credit thereon, of said sum of $10,000 and balance as specified in the building contract. It is undisputed that the…