160 N.Y.S. 179 | N.Y. App. Div. | 1916
On November 13, 1914, the defendant The Keepsdry Construction Company entered into a contract with the State of New York to do certain work and furnish certain material in the assembly chamber at the Capitol for the sum of $13,800. The plaintiff, as a subcontractor, performed much of the work and furnished much of the material under this contract. The contract has been completed and there remains due from the State, and unpaid, $7,275. There is due and owing from the original contractor to the plaintiff a sum in excess of the amount due from the State and it has filed a lien to secure the amount due. The original contractor borrowed money from the defendant, the New York State National Bank, Albany, and on December 31,1914, assigned to the bank, as security for the loan, all its right to compensation under the contract with the State. Other liens besides the plaintiff’s have been filed, but they are not in issue here. The assignment by the origi
But the plaintiff contends that the assignment is not valid because it was not filed in the Department of Architecture. Therefore, we must determine whether the law required it to be filed there, and, if so, whether it was, in fact, filed there.
There seems to us not to be much doubt that the statute required the assignment to be filed in the Department of Architecture. Section 16 of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], as added by Laws of 1911, chap. 873)
There is no contention that the assignment was actually left in the Department of Architecture and remained there on file. The facts are as follows: Section 43 of the State Finance Law (Consol. Laws, chap. 56; Laws of 1909, chap. 58) prohibits a contractor from assigning or subletting a contract with the State without first obtaining the consent of the department awarding the same. Acting apparently in recognition of this provision of the statute Mr. Blass, the president of the Keeps-dry Construction Company, the original contractor, took the duplicate assignment of the contract to the assistant secretary of the Department of Architecture and the following took place: “Q. Mr. Hichman, you reside in Albany, New York? A. Yes, sir. Q. What office do you hold? A. Assistant Secretary of the Department of Architecture. Q. Assistant Secretary of the Department of Architecture, over which the State Architect presides ? A. Yes, sir. Q. Are you acquainted with Mr. Plass, who is president of the Keepsdry Construction Company ? A. Yes, sir. Q. Do you recollect on one occasion when he came to your office with duplicate assignments of contracts between his company and the Trustees of Public Buildings for execution ? A. I do. Q. [Presenting same.) Will you look at these two papers and say what your recollection is as to their being the assignments ? A. Yes, sir. Q. Are those signatures appended to those two contracts original signatures of the officers who signed ? A. Yes, sir. Q. Just read the names of the officers, will you, please ? A. Martin H. Glynn, Thaddeus C. Sweet, Attested by Frank A. Tierney and approved by James A. Parsons, Attorney General. Q. Both duplicates bear the original signatures of those officers ? A.
We have quoted the complete record on this subject, for it is this transaction, as the defendant bank contends, which constituted the filing of the assignment in the office of the Department of Architecture.
It seems to us that this cannot be held to have constituted a
The respondent in its brief attacks the validity of the plaintiff’s Hen. The trial court found the lien to be valid and the bank has not appealed from that part of the judgment or any part of the judgment; therefore, the question of the sufficiency and validity of the lien is not before us for consideration. (Wilson v. Mechanical Orguinette Co., 170 N. Y. 542.)
The judgment below, so far as appealed from, should be reversed, and the judgment should be so modified as to direct payment to the plaintiff of the balance of the moneys therein referred to remaining in the hands of the State Comptroller, after payment only of the amounts therein adjudged to be
All concurred.
Judgment, so far as appealed from, reversed on law and facts, and judgment modified as per opinion and as so modified affirmed. The court disapproves of the finding of fact made by the trial court to the effect that the assignment in question was filed with the Department of Architecture; and finds that it was not so filed.
Since amd. by Laws of 1916, chap. 507.—[Rep.