25 N.Y.S. 333 | New York Court of Common Pleas | 1893
Lead Opinion
We are asked on this appeal to determine whether, upon the facts found, the referee was justified in his conclusion that the claim of the defendant the Twelfth Ward Bank, is entitled to priority in the order of payment over that of defendant Patten. The question is of gravity to the litigants, since it is-apparent that the fund out of which the payments must be paid, is inadequate to pay both claims in fxxll. On October 8,1886, the defendant John F. Dawson entered into a contract with the mayor, aldermen, and commonalty of- the city of Hew York, whereby, in and for the consideration of the payments to be made to him as-therein provided, he undertook to regxilate and grade a certain street known as “Edgecomb Avenue.” Dawson, among other things, covenanted that the city should be privileged to retain out of the-moneys agreed to be paid him sufficient to meet any liens which might be claimed for labor and materials pursuant to the provisions of chapter 315, Laws 1878, entitled “An act to secure the payment of laborers, mechanics, merchants, traders, and persons furnishing materials towards the performance of any public work in the cities of the state of Hew York,” as well as to reimburse itself for any damages which shoxild accrue' to it from the contractor’s negligence; that he would not assign any of the moneys payable to him, except with the previous written consent of the commissioner of public works, to be indorsed on the contract; and that no right under the contract, nor to any of the moneys payable by reason of its provisions, shoxild be asserted by any assignee of the contractor whose assignment was not authorized by the commissioner in the manner above stated. Subsequent to the several assignments hereinafter mentioned, the work required of Dawson was completely performed by him, and accepted by the city, and at the time of the trial of this action there was due the former from the latter $57,179.55. On April 11, 1887, Dawson, by an instrument in writing, assigned all his rights and interests under the contract to defendant Patten as collateral security for the payment of an indebtedness of $5,000, and interest. This assignment was, however, without the approval of the commissioner of public works. On March 1, 1889, Dawson, to pay the same indebtedness, executed and delivered a further assignment to Patten of $5,000, and interest thereon from the time specified, “out of the first moneys due or to grow due in and by virtue of the contract” with the city hereinbefore mentioned. The assignment last referred to was approved
It is the settled law of this state, as appellant’s counsel contends, and whatever the rule may be in other jurisdictions, that notice to the debtor or custodian of an assignment of a chose in action or fund is not essential to the validity of the assignment, and that, as between successive assignees of the same chose in action or fund, the order of priority in payment must be determined by the order of time in which the several assignments were made. Muir v. Schenck, 3 Hill, 228; Bush v. Lathrop, 22 N. Y. 535; Williams v. Ingersoll, 89 N. Y. 508; Fairbanks v. Sargent, 104 N. Y. 108, 9 N. E. Rep. 870; Id., 117 N. Y. 320, 22 N. E. Rep. 1039; Beach, Mod. Eq. Jur. §§ 343, 344. But we are, notwithstanding, of the opinion that respondent’s claim to priority in payment as against appellant is clear and incontrovertible. Being immediately concerned and interested in the performance of the contract on Dawson’s part, it was competent to the city to exact restrictions upon the assignability of the farmer’s rights under the contract pending performance, and before his right to demand payment of the moneys agreed to be paid had become' absolute. The restrictions contravened no rule of law or of public policy. Greenh. Pub. Pol. p. 500. Hence the law governing the contract is in accord with its provisions. “Modus et conventio vincunt legem.” Broom, Leg. Max. p. 689. The assignability of Dawson’s rights must be measured, therefore, by the
Concurrence Opinion
(concurring.) It was perfectly competent to Dawson and the city to restrict the assignability of any claim of the former against the latter arising under their contract, and then “modus et conventio vincunt legem.” Broom, Leg. Max. 689. By their contract it was expressly stipulated that Dawson could assign no claim thereunder without the express authorization of the commissioner of public works. Dawson’s right, therefore, under the contract, -was not absolute, but was qualified and limited by the restriction in his agreement, Without consent of the commissioner of public works, he had no assignable right; and that consent he did not obtain until March 1, 1889. But, meanwhile, namely, December 13, 1887, with the consent of the commissioner, Dawson duly and effectually assigned to the respondent all the money due or to grow due under or by virtue of said contract. An assignee succeeds only to the right of his assignor. I am of the opinion that the respondent’s claim to the fund in dispute is clear and incontrovertible.