72 N.Y.S. 1014 | N.Y. App. Div. | 1901
There is no dispute as to the facts in this case. In August, 1899, the defendant Borden’s Condensed Milk Company, being the owner of the land described in the complaint, contracted in writing with the defendant Robinson, under his business name of Robinson & Wallace, for the construction of a building thereon. The defendant (appellant) Otto E- Reimer Company was a subcontractor under this contract, and furnished to Robinson materials for the building of the value of §>2,799.54, no part of which has been paid. The plaintiff, Armstrong, was also a subcontractor under Robinson, and furnished materials and labor of the value of $3,-
We have reached the conclusion that the position of the appellant cannot be sustained, and that the court did not err in the disposition of this question. The statute (section 4, Lien Law; chapter 418, Laws 1897) provides that:
“If labor is performed for, or materials furnished to, a contractor or subcontractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing the notice of lien, and any sum subsequently earned thereon." In no case shall the owner be liable to pay by reason of all liens created pursuant to this article a sum greater than the value or agreed price of the labor and materials remaining unpaid, at the time of filing notice of such liens, except as hereinafter provided.”
The exception mentioned refers to advance payments, collusive . mortgages, etc., entered into for the purpose of defrauding lienors, and has no bearing upon the present case. Section 11 of the lien law provides that at any time after filing the notice- of lien the lienor may serve a copy of such notice upon the owner, but “until service of the notice has been made, as above provided, an owner, without knowledge of the lien, shall be protected in any payment made in good faith to any contractor or other person claiming a lien,” so that, if Borden’s Condensed Milk Company, on the morning of March 7, 1900, had paid Robinson the amount of his claim, and the latter had assigned the money, with his other property, to Talbot, for the benefit of his creditors, there could have been no question of his right to do so; for it is not pretended that any lien was
We think that section 15 of the lien law has no relation to the present controversy, and, as there is no question that the assignment to Talbot was made in accordance with the provisions of the general assignment law, we see no reason why all of the fund in the hands of the owner of the premises at the time of the assignment did not pass to the ownership of the assignee; nor can we discover any good reason why the appellant should not discontinue to occupy the relation of a general creditor to this fund. If section 15 of the lien law has no bearing upon the case, then the assignment of Robinson to Talbot for the benefit of creditors must stand upon the same footing as an assignment of a portion or all of the fund to an individual creditor before the enactment of section 15 of chapter 418 of the Laws of 1897, and in such a case the court of appeals has said that the "principle to be extracted from the cases is that a lienor obtains no greater right to the moneys payable by the owner than the contractor has, and, if the latter has assigned to a creditor pro tanto, the assignee gains a preference over subsequent liens.” Bates v. Bank, 157 N. Y. 322, 328, 51 N. E. 1033, 1034.
The judgment appealed from should be affirmed, with costs. All concur.