68 N.Y.S. 577 | N.Y. Sup. Ct. | 1900
There are three demurrers in this case, one interposed by the defendant Kinney to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and another by the plaintiff to the defense set up in the tenth paragraph of the amended answer of the defendant Robinson, wherein he alleges that on the 7th day of March, 1900, he executed and delivered to the defendant Charles N. Talbot an instrument in writing whereby he sold, assigned and transferred, etc., unto said Talbot all his goods, chattels, etc., of every description belonging to him, wheresoever the same might be, except such property as is exempted by law from levy and sale under execution, but including all moneys due and payable by the defendant Kinney to this defendant and all claims and demands arising out of or connected with the contract or agreement between him and Kinney set forth in the complaint in trust for the benefit of creditors of said defendant Robinson, which trust was accepted by said Talbot, and is still in full force and effect. There is a third demurrer by the plaintiff to the further and separate defense set forth in article 4 of the answer of the defendants Barr, Thaw and Fraser. This defense sets up in substance that on the termination of the employment of the defendant Robinson by the defendant Kinney, Kinney proceeded to complete the construction of the building under the terms of the contract; that at the time of the commencement of this action the said defendant Kinney was and still is engaged in the work upon the said building, and has not yet completed said work and finished said building, and that for that reason the architects have not yet audited and certified, and cannot yet audit and certify, the expense incurred by the said defendant Kinney for furnishing materials or for finishing the work, and that it is not yet known that there will be any sum, or if any sum, what sum, to which the lien of the plaintiff or the liens of any of the defendants filed against said premises and against said defendant Kinney as owner and the said defendant Robinson as contractor may attach, for which sum said lien could be and can be legally enforced against said premises and said Kinney as owner thereof. On the contrary, these defendants allege, on information and belief, the fact to be that at the time of the termination by said defendant Kinney of the employment of the defendant Robinson, as in the complaint alleged, no architect’s certificate, as required by said agreement, had been issued or applied for by the defendant Robinson for any sum whatever, and if such certificate
Judgment accordingly.