77 N.Y.S. 575 | N.Y. App. Div. | 1902
The law of this case, so far as it affects the parties to this appeal, has been practically settled. In Fortunato v. Mayor (42 App. Div. 14) it was decided by this court that the contract between the city of New York and Dawson had been fulfilled and the money due under the terms of the contract was being held by the city as stakeholder for the parties in interest. Under these circumstances an action was brought to foreclose a lien filed against the fund which the contractor was entitled to receive from the city under the terms of his contract. In such action the only issue under the pleadings related solely to the priority of liens upon the fund ; the court held that under such issue the defendant, a contractor, could not thereafter be permitted to file a supplemental answer by setting up the performance of extra work under the contract and thereby change the situation of the city from a stakeholder to a debtor and make it the real defendant in the action. As the contractor Daweon, the present appellant, made such application and the court denied the same, it must follow that such decision was conclusive upon her right so far as the same affected the authority to recover for extra work done under the contract. Upon the present trial the referee allowed the only amendment to the pleading which was permissible under the decision of this court. That amendment permitted a recovery for work upon a portion of the wall which had not been allowed by the city under the contract as appeared by the testimony of the city’s engineer, and that sum, together with the amount to which she was otherwise entitled, was the amount for which judgment was ordered in her favor. This is all for which the evidence authorized a recovery under the pleadings. Her appeal must, therefore, fail.
The remaining issue is between the representatives of Thomas GL Patten, deceased, and the Twelfth Ward Bank. The decision in Fortunato v. Patten (147 N. Y. 277) is conclusive upon the subject that the assignment to Patten under date of April 13, 1887, was valid and enforcible as such,, and this is the necessary result in order that that decision be supported. Both the first and second assign
If the bank desired to be relieved from such stipulation, it- was required to show equitable considerations authorizing the court to .grant the relief and make application therefor. No such equitable considerations are now made to appear, and the bank never made any application to be relieved therefrom. Had not the stipulation been made it must be assumed that Patten would have been called as a witness. The stipulation dispensed with this necessity, and the
Patterson, O’Brien, Ingraham and Laughlin, JJ., concurred.
Judgment affirmed, with costs.