177 A.D. 265 | N.Y. App. Div. | 1917
Lead Opinion
The action was brought to foreclose a mechanic’s lien upon State funds applicable to the payment of the contract price of a public improvement. The improvement was the construction of an improved highway known as the Chautauqua Lake, Part 5, County Highway, No. 1169. The defendants Claude H. Witt and Archie L. Blades, composing the copartnership of Witt & Blades, and the People of the State of New York, through the agency of the State Commissioner of Highways, entered into a contract whereby the former undertook to perform the work and furnish the materials for such improvement for the sum of $14,307.94.
The plaintiffs claimed the first lien on the funds. The People of the State of New York, the State Commissioner of Highways, the State Comptroller and the State Treasurer were made parties defendant and appeared by the Attorney-General, substantially submitted their rights to the court and are making no contest here. The State Bank of Mayville was made a party defendant and interposed an answer claiming the funds under an assignment to it of the moneys due upon the contract to reimburse it for moneys loaned by it to the contractors for use in meeting their payrolls and for other expenditures made by them in the performance of their contract. The appealing defendants appeared and interposed answers setting forth the filing of their notices of lien under the Lien Law and claiming that by virtue of their liens they were entitled to payment from the funds prior to payment to the bank upon various grounds.
It appeared upon the trial that the plaintiffs filed the first notice of lien on the funds, that copies of the assignment to the bank were filed next in order, one with the State Commissioner of Highways and the other with the State Comptroller,
The trial court has held that the plaintiffs were entitled to be paid first and that the bank was to be paid next from the funds, and it appears that such payments will exhaust the funds.
Upon the argument it was conceded that the bank was right in filing a copy of the assignment with the State Superintendent of Highways and that the sole question for our determination was whether or not the filing of the copy of the assignment with the State Comptroller complied with the provisions of the Lien Law. The claim of the appellants is that the copy should have been filed with the State Treasurer. In order to determine this controversy we are called upon to construe the pertinent provisions of the Lien Law.
We have reached the conclusion that, if the bank was required to file the assignment or copies thereof at all, such filing could only have been made pursuant to section 16 of the Lien Law for reasons which we are about to state. Section 16 of the then existing Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], as added by Laws of 1911, chap. 873)
“ Assignment of contracts and orders for public improvement to be filed. No assignment of a contract for the performance of labor or the furnishing of materials for a public improvement, or of the money, or any part thereof, due, or to become due, therefor, nor an order drawn by the contractor or subcontractor upon the municipal corporation, or the head of the department or bureau having charge of the construction of such public improvement, or the financial officer of the municipal corporation, or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement, shall be valid until such assignment or order, or a copy thereof, be filed with the head of the department or bureau having charge of such con*268 struction, and with the financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement, and such assignment or order shall have effect and be enforceable from the time of such filing. The financial officer of the municipal corporation, or other officer or person with whom the assignment or order, or copy thereof, is filed, shall enter the facts relating to the same in the lien book or other book provided for such purpose. ”
Note the language “ such assignment * * *, or a copy thereof, be filed with the head of the department or bureau having charge of such construction, and with the financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement,” etc. The State of New York is not a municipal corporation, nor were the funds, strictly speaking, “corporate funds,” so that there is some inaccuracy in the use of the language quoted if this section of the Lien Law furnished the bank with the method of making its assignment valid. But it is argued that the language “or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement ” points to the State Treasurer and determines him to be the officer with whom the assignment or a copy thereof should have been filed. The trouble with that argument is that if adopted there would still be the inaccuracy of the description of the funds as " corporate funds ” and the further inaccuracy involved in the necessary inference that the .language “other officer or person charged with the custody and disbursement of the corporate funds ” postulates an officer or person discharging duties of a municipal corporation, so that, it seems to us, we must look further and in a different direction for the proper solution of the difficulty. Section 12 of the Lien Law (as added by Laws of 1911, chap. 873)
Assuming, however, the most favorable view to the appellants, to wit, that the use of the term “ municipal corporation ” in section 16 of the Lien Law was regarded by the lawmakers as including the State, as seems to have been held in General Fireproofing Co. v. Keepsdry Const. Co. (173 App. Div. 528), we think that it was proper to file the copy of the assignment with the State Comptroller or the State Treasurer, although the latter filing would have been inconvenient. There is nothing in the Constitution which affects the question. Section 3 of the State Finance Law (Consol. Laws, chap. 56;
We do not think that we need to discuss the other points made by the appellants in their brief in view of the position taken by their counsel upon the argument and because we regard them without merit.
We think that that portion of the judgment appealed from was right, and that the same should be affirmed.
All concurred, except Merrell, J., who dissented in a memorandum.
Since amd. by Laws of 1916, chap. 507.— [Rep.
Since amd. by Laws of 1916, chap. 507. — [Rep.
Since amd by Laws of 1916, chap. 507.— [Rep.
Dissenting Opinion
In filing its assignment with the State Comptroller instead of the State Treasurer I think the defendant bank neglected to comply with the provisions of the Lien Law applicable thereto.
The requirement of the statute that the assignment shall not be valid until filed “with the financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement,” clearly refers to the State Treasurer and not to the State Comptroller. The essential requirement of the statute is the filing with the “officer or person charged with the custody and disbursement of the corporate funds applicable.” I think but one place of filing was contemplated by the Legislature when it provided for the filing of the assignments with the “financial officer” or “other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement,” and that was with the officer “ charged with the
Judgment affirmed, with costs.
Since amd. by Laws of 1916, chap. 507.— [Rep.