183 A.D. 443 | N.Y. App. Div. | 1918
The defendant entered- into a contract with one Stevens for certain alterations in premises owned by the defendant. Under the terms of the contract Stevens was to receive $6,350 in five installments, the first four being for $1,500
Plaintiff brought this action to recover the sum of $750, claiming that the amount paid by defendant was from moneys that had been assigned to him. On the trial, however, he withdrew his claim to be paid the $300 which was the balance due on the first payment and recovered judgment for $400 which by a divided court was affirmed by the Appellate Term. By the express terms of the order the plaintiff was only entitled to be paid out of the second and subsequent payments. If the second payment had been earned and the defendant in disregard of plaintiff’s rights under the order had paid the entire amount thereof to the contractor, the plaintiff would have been entitled to recover $400 from the defendant. (Weniger v. Fourteenth Street Store, 191 N. Y. 423; Praia v. Green, 70 App. Div. 224; affd., 174 N. Y. 535.) The payment was made out of moneys earned, only to the extent of $300. The $450 was an advance made simultaneously with the receipt of the order with the acquiescence of the plaintiff to enable the contractor to complete his contract and earn the future payments. In order to recover herein it would be necessary for the plaintiff to prove that the con
The judgment was, therefore, wrong and should have been reversed.
The determination of the Appellate Term and the judgment of the Municipal Court should be reversed, with costs of the appeal in that court and this, and judgment ordered dismissing the complaint in the Municipal Court, with appropriate costs upon the merits.
Clarke, P. J., Lattghlin, Dowling and Shearn, JJ., concurred.
Determination and judgment reversed, with costs, and judgment ordered dismissing complaint on the merits, with costs.