79 A.D. 102 | N.Y. App. Div. | 1903
There is very little controversy over the material facts in this case, and were it not for certain defects in the matter of the appeal of the Western Fational Bank, there would be very little trouble in adjusting this controversy in harmony with well-established principles of law. On the 1st of November, 1897, one Martin D. Walsh entered into a written contract with the board of education of Union Free School District No. 1, of the town of Newtown, to erect a school building at Newtown, Queens county, for the sum of $47,803. This contract provided, among other things, that eighty-five per cent of the value of the work completed by the first of each month should be paid during the week following, “ provided that application shall be made in writing by the contractor, together with an accurate schedule of the materials furnished and work done since the last preceding payment,” provided that in case of each payment the architects grant a certificate “ specifying that the work has been done by the contractor in conformity with the terms of this contract, and according to the said plans and specifications, and is so far progressed as to entitle the contractor to the payment then to be made.” The town of Newtown became a part of Greater New York under the provisions of chapter 378 of the Laws of 1897, and up to that time the board of education of Union Free School District No. 1; of the town of Newtown had paid upon this contract $17,202.25. Thereafter certificates, which are in no wise impeached, were issued as follows: No. 508, March 10, 1898, $4,000, paid July 15, 1898;' No. 512, April 7, 1898, $3,000, paid July 15, 1898 ; No. 517, May 23, 1898, $1,500, unpaid; No. 523, June 8,1898, $4,200, unpaid ;. No. 534, July 6, 1898, $5,000, paid December 15,1898; No. 547, August 3, $4,000, paid December 15, 1898. It appears, therefore, that on August 3, 1898, Walsh and those claiming under him had been given certificates under the provisions of the contract, aggregating $38,902.25, which with the addition of $7,865.11, which was the fifteen per cent which was to be reserved until the completion of the building, brought the total value of the work and materials furnished in the execution of this contract up to $46,767.36, or within $1,035.64 of the full contract price of the building. The city of New York, it will thus be seen, was and still is in default in the payment of a portion of these monthly sums, and the contractor,
The evidence shows that the defendant the Western Hational Bank, on the 15th day of June, 1898, took certificates Hos. 517 and 523 for $1,500 and $4,200, respectively, as collateral security for loans of equal amount, and that these certificates have never been paid, although two certificates subsequently made, for $5,000 and $4,000, respectively, have been honored and paid. Subsequent to the loans, the Western Hational Bank took assignments of these certificates, and it is not questioned that at the time of taking assignments of such certificates there were no mechanics’ liens filed. Indeed, one of the conditions of the contract was that prior to the making of any of the payments, for which these certificates were issued, the contractor was to furnish a certificate of the county clerk to the effect that no liens had been filed against the premises, and these certificates were furnished by the contractor on receiving each of the certificates, and it was not until the twenty-first day of Hovember, some three months after the assignment of the certificates to the Western Hational Bank, that any liens were filed. The bank had, in the case of each of the certificates, demanded payment immediately after the same came into its possession, and renewed this demand after taking the formal assignment of the same; and there can be no reasonable doubt, under the terms and the spirit of the contract with Walsh, that the bank became entitled to the money which was represented by these certificates, and might have maintained an action to recover the same against the city. The fact that the city did not pay them could give no rights to subsequent lienors. The rule is well settled that moneys earned, or to become due under a contract, may be assigned, and that the assignee takes a good title, in the absence of fraud, or anything to the contrary in the contract, to the amount so assigned, and subsequent lienors can reach only the interest remaining in the contractor. (Bates v. Salt Springs National Bank, 157 N. Y. 322, 327, and authorities there cited.)
But here we are confronted with a difficulty. The learned referee has given a decision, which has resulted in a judgment, holding that the mechanics’ lienors, ranging in dates from Hovember 21, 1898, to March 20, 1899, are entitled to preference over the Western Hational Bank, and it is conceded that “no notice of appeal, on behalf of the defendant Western Hational Bank was within thirty days after the service of the said judgment and notice of entry served either upon or received by the clerk of the court, or served upon or received by the plaintiff or his attorney, or by the defendants, Charles J. Zufall, William W. Yaeger, Charles A. Bogardus, or by their respective attorneys ; and the defendant the Western Hational Bank has not taken or perfected any appeal from that part of the judgment entered in favor of the plaintiff, Robert S. Hall, and the defendants Zufall, Yaeger and Bogardus.” There has been a consolidation of two actions into the one now before us, and the judgment rendered is practically a series of separate judgments foreclosing a number of mechanic’s liens, and if we could determine the questions as between the remaining parties, who are properly before the court, without woi’king injustice to those who have interests involved, it would undoubtedly be the duty of this court- to modify the judgment in accordance with the law, but we are unable to discover any method by which this result can be accomplished. The plaintiff filed his lien on the 14th day of December, 1898, for $2,830. On the same day Dannat and another filed a claim for $1,917.21, and under the statute (Laws of 1897, chap. 418, § 24, added by Laws of 1898, chap. 169) these two liens would have precedence over anything subsequently filed. On the
The defendant the Western National Bank evidently realizes the difficulty with its position, for it puts forward a supplemental brief, in which it seeks to modify the force of the stipulated fact that the plaintiff was not served with notice of the appeal. It is urged that all of the parties are before the court on the appeal of the city of New York, and points out that the defendant the Western National Bank was only one day late in its effort to serve notice upon the plaintiff’s attorney. We are of the opinion, however, that the fact that the city of New York perfected an appeal does not give jurisdiction to reverse the judgment as between the defendant the .Western National Bank and the plaintiff and other defendants interested in the question of priority, and the rule is well settled that the time for taking an appeal cannot be enlarged when it is statutory. (Coll. Bank. [3d ed.] 250, citing Wood v. Bailey, 21 Wall. 640; 2 Ency. of Pl. & Pr. 240, and authorities cited in notes; Clapp v. Hawley, 97 N. Y. 610, 613.) Section 1303 of the Code of Civil Procedure provides that “ where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from, the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires,” but there is no authority for this unless the notice of appeal has been served upon one or the other of the necessary parties, the clerk of the court or the adverse party. It is admitted that, in so far as the plaintiff and the three minor defendants are concerned, the notice had neither been served upon them nor upon the clerk of the court,
The judgment appealed from should be affirmed.
Goodrich, P. J., Bartlett, Hirschberg and Jenks, J.J., concurred.
Judgment affirmed, with costs.