Thus it has been said that the bond "does not change the relation or rights of the parties otherwise than in substituting its obligations for the [property] subject to the lien, and it was not within the legislative purpose in permitting the substitution to deteriorate the lienor's rights." ( Harley v. Plant (1914) 210 N.Y. 405, 410 [ 104 N.E. 946, 947]; see also, United States v. CertifiedIndustries, Inc. (2d Cir. 1966) 361 F.2d 857, 861; Ohio PlateGlass Company v. Paskin (1965) 4 Ohio Misc. 136 [33 Ohio Ops.2d 179; 209 N.E.2d 640, 642] [amendment of complaint alleging recording of bond and seeking relief against surety "does not change the cause of action in any way"].

The action remains in equity and, although the surety may be joined as a defendant for convenience sake, the plaintiff may continue his action after substitution of the bond without making the surety a party though any judgment therein will be conclusive upon the surety. Harley v. Plant, 210 N.Y. 405, 409-410, 104 N.E. 946 (1914).

In the first place, it is a substitute, so far as the rights of the lienor are concerned, for the fund or property subject to the lien. In Harley v. Plant ( 210 N.Y. 405, at p. 410) this court said: "The undertaking does not change the relation or rights of the parties otherwise than in substituting its obligations for the fund subject to the lien, and it was not within the legislative purpose in permitting the substitution to deteriorate the lienor's rights." Similarly in Berger Mfg. Co. v. City of New York ( 206 N.Y. 24, 30) this court said: "The undertaking does not change the relation and rights of the parties other than to substitute its provisions for the fund remaining due or to become due from the municipality to the contractor.

Kirschbaum v. Eschmann, 205 N.Y. 127, 98 N.E. 328; Hopkins v. Meyer, 76 App. Div. 365, 78 N.Y.S. 459; Bennett v. Leeds Manufacturing Co., 110 N.Y. 150, 151, 17 N.E. 669; Rockowitz v. Siegel, 151 App. Div. 636, 136 N.Y.S. 192. Plaintiff cites in support of its contention that paragraphs Second and Fifth of the defendants' answer are sham, because the denials were made on information and belief, the following cases; Dahlstrom v. Gemunder, 198 N.Y. 449, 92 N.E. 106, 19 Ann.Cas. 771; Harley v. Plant, 210 N.Y. 405, 104 N.E. 946; Tauber v. National Surety Co., 219 App. Div. 253, 219 N.Y.S. 387 and Hyland v. Montgomery, 88 Misc. 295, 150 N.Y.S. 613, which are clearly distinguishable. The first three of those cases support the contention raised therein, that a denial of knowledge or information, sufficient to form a belief as to matters of public record or other matters presumptively within knowledge, is improper.

However, it is asserted that the denial of the existence of this judgment should be stricken out as sham and frivolous on the ground that it is well settled that denials of knowledge or information sufficient to form a belief which relate to matters of public record, open by law to everybody, are presumptively frivolous. Harley v. Plant, 210 N.Y. 405, 104 N.E. 946; Lloyd Sabaudo Societa Anonime Per Azioni v. Elting (D.C.) 46 F.2d 315. A sufficient answer to that is that the denial goes not to the existence of the judgment, but to the averment that it was "duly entered." While it is true that the general rule is that a judgment cannot be attacked collaterally, as was said in Ackerman v. Tobin (C.C.A.) 22 F.2d 541, nevertheless a different situation arises if the attack is for fraud in its procurement.

These denials, as above summarized, are fairly typical of the other portions of the answer relating to the remaining six causes of action, and they well illustrate the general character of the entire pleading. It is settled by abundant authority that denials of knowledge or information sufficient to form a belief, which relate to matters of public record, open by law to everybody, are presumptively frivolous, Harley v. Plant, 210 N.Y. 405, 411, 104 N.E. 946; Kirschbaum v. Eschmann, 205 N.Y. 127, 98 N.E. 328; Buller v. Sidell (C.C.) 43 F. 116; Dahlstrom v. Gemunder, 198 N.Y. 449, 92 N.E. 106, 19 Ann. Cas. 771; 49 Corpus Juris, 195. In Dahlstrom v. Gemunder, supra, the action was for an alleged breach of warranty.

As to the matter of record which is kept pursuant to the law of New York, he seems to have been of the opinion that the defendant was chargeable with notice of it. It is a well-known rule of pleading that one cannot deny on information and belief matters of public record to which he has access. 49 C.J. 266; 1 Ency. Pl. Pr. 813; Peacock v. U.S. (C.C.A.) 125 F. 583; Harley v. Plant, 210 N.Y. 405, 104 N.E. 946. 2.

" Eighth. That the defendants herein are now occupying said premises lawfully as a one-family dwelling and that nothing maintained by the said defendants or either of them in said dwelling in any way violates the covenants and restrictions affecting the said premises." On plaintiffs' motion for judgment on the pleadings under rules 103, 104 and 112 of the Rules of Civil Practice the court struck out, quite properly, all of defendants' answer except the paragraphs sixth, seventh and eighth above set forth, on the ground that the denials as to matters of record were of knowledge or information sufficient to form a belief and that the denials of matters within the personal knowledge of defendants were on information and belief and were insufficient. ( Kirschbaum v. Eschmann, 205 N.Y. 127; Harley v. Plant, 210 N.Y. 405.) It also granted judgment "that the defendants Fred Glenz and Katie Glenz, his wife, their agents, attorneys, servants, tenants and all other persons claiming by, through or under them or either of them be forever restrained and prohibited from erecting or suffering or permitting on any part of the premises situated at the southwest corner of Rutland Road and Rogers Avenue having a frontage on Rutland Road of twenty-three (23) feet with a uniform depth of one hundred (100) feet and known as #220 Rutland Road, any building or structure other than a private dwelling for one family only and from using and occupying the same for any purpose other than as a private dwelling for one family only and the said defendants are further ordered and directed to remove the signs on the side of said house." The answer contained no denial of the allegation of the complaint: "on information and belief that the said defendant Fred Glenz is conducting a real estate and insurance business in said premis

Thus it has been said that the bond "does not change the relation or rights of the parties otherwise than in substituting its obligations for the [property] subject to the lien, and it was not within the legislative purpose in permitting the substitution to deteriorate the lienor's rights." 47 Cal.3d at 463, 763 P.2d 1326, 253 Cal.Rptr. 236 (quoting Harley v. Plant, 210 N.Y. 405, 410, 104 N.E. 946 (1914) ). The court reasoned that the landscaper's amendment to foreclose on the bond rather than the real property did not commence a new cause of action.

Although the lien attached to the undertaking, the lien nevertheless was extinguished because, within six months from the filing of the lien, Italia did not commence an action to foreclose its lien, file a notice of pendency, or obtain an order extending the lien (Lien Law §§ 18 Lien, 21 Lien[2]; CLG, Inc. v. Bat-Jac Contr., 230 A.D.2d 701; Tri-City Elec. Co. v. People, supra; Matter of Syracuse Castings Sales Corp., 159 Misc.2d 61). Payment of any judgment which may be rendered in Italia's action alleging a non-Lien Law cause of action to recover damages for work, labor, and services, was not bonded by the undertaking, which conditioned payment upon the recovery of a judgment in an action to enforce Italia's public improvement mechanic's lien ( see, Harley v. Plant, 210 N.Y. 405; Berger Mfg. Co. v. City of New York, 206 N.Y. 24; Audley Clarke Co. v. W.F. Plass Bro., 187 App. Div. 904). As a result, Bat-Jac's motion to discharge the undertaking and the surety should have been granted.