99 A.D. 465 | N.Y. App. Div. | 1904
The action was brought to foreclose a mechanic’s lien. The sole controversy is between the assignee for the benefit of creditors of the general contractor and a sub-contractor to whom the general contractor delivered orders upon the owner, claimed to be equitable assignments, which were presented for payment but not filed in the office of the county clerk prior to the making of the general assignment. Robinson was the general contractor, but he was doing business under the name of Robinson & Wallace. He contracted with the owner to make certain alterations in the Inverness apartment house, Fifty-seventh street and Seventh avenue, New York city, upon a commission basis, that is to say, the owner was to reimburse him for moneys expended for materials and labor and, as compensation for his services, pay fifteen per cent upon the entire cost. It was agreed that a separate estimate of each portion of the work
On the same day he signed and delivered another order to Miller, in payment for the extra work, dated and addressed in the same manner, to wit: “ Please pay to H. W. Miller or order for our account the amount as adjusted by Mr. William N. Elbert, Superintendent, for extra work done by him at the Inverness Apartment House, 57th Street & Seventh Avenue, and charge said payment to our account.”
These orders were presented at the office of the attorney in fact for the owner, and, in his absence, left with his clerk at three o’clock in the afternoon of the same day. At six o’clock that evening the general contractor made an assignment for the benefit of creditors to the appellant Talbot, which was filed in the office of the county clerk at nine-ten the next morning. The assignee entered upon the discharge of his duties, and thereafter and upon the ninth day of March the owner notified the payee of the orders that payment thereof would be refused.
The assignee for the benefit of creditors contends that these orders did not constitute equitable assignments of the funds, and that he is entitled to the balance owing on the contract. If the orders constituted equitable assignments of funds owing on the contract, they became effectual and enforcible against the owner of the property upon notice and without acceptance. (Hirshfield v. Ludwig, 69 Hun, 554; Lauer v. Dunn, 115 N. Y. 405; Williams v. Edison Electric Illuminating Co., 16 N. Y. Supp. 857.) The orders
Neither the orders nor copies thereof were filed in the office of the county clerk until the fourteenth day of March. It is manifest that, notwithstanding the general assignment, Miller might have subsequently filed a mechanic’s lien and have thus become entitled to the moneys. (John P. Kane Co. v. Kinney, 174 N. Y. 69.)
Prior to the amendment of section 5 of the Mechanics’ Lien Law of 1885 (Laws of 1885, chap. 342) by chapter 915 of the Laws of 1896, providing in substance that no assignment of the contract or of the money due or to grow due thereunder and no order drawn by the contractor upon the owner for the payment of any such money should be valid until the contract, or a statement of its substance, and such assignment, or a copy of each, or a copy of the
It follows, therefore, that the judgment should be affirmed,, with costs.
Van Brunt, P. J., Patterson and Hatch, JJ., concurred; O’Brien, J., dissented.
Judgment affirmed, with costs.