175 A.D. 571 | N.Y. App. Div. | 1916
Lead Opinion
This action was brought to recover damages consisting of prospective profits and for delays upon the alleged breach of a contract between the plaintiff and defendant for the construction of certain power houses, elevator towers and other work upon the Blackwell’s Island bridge over the East river between the boroughs of Manhattan and Queens. The answer put in issue the material allegations of the complaint and set up, among other affirmative defenses, that the contract was between the city and the Williams Engineering and Contracting Company, a partnership, and that the same had never been assigned by such firm to the plaintiff, a corporation, nor an assignment or copy filed in the office of the county clerk of the county where the real property improved or to he improved is situate; also counterclaims for moneys paid under the contract. The issues raised by the pleadings were sent to a referee to hear and determine, who after protracted hearings, reached the conclusion that the counterclaims should be dismissed and that plaintiff was entitled to recover the sum of $230,524.94, together with the costs, and an extra allowance of $2,000. Judgment was accordingly entered upon his report for the sum of $239,875.51, from which the city appeals.
To properly appreciate the question upon which a determination of the appeal turns a brief statement of the facts leading up to the making of the contract and the subsequent proceedings thereunder is necessary. On the 9th of December, 1903, the city, acting through one Lindenthal, commissioner of bridges, advertised for bids for the construction of certain power houses and elevator towers on the piers of the Blackwell’s Island bridge. Upon the opening of the bids, and there were several, it was found that the bid ($685,000) of the Williams Engineering and Contracting Company, was the lowest, and on the 31st of December, 1903, the contract was awarded
The original contract (Clause ITU) provided: c ‘ The contractor will give his personal attention constantly to the faithful prosecution of the work; he will not assign, transfer, convey, sublet or otherwise dispose of this contract, or his right, title or interest in or to the same or any part thereof, without the previous consent in writing of the Commissioner indorsed hereon or hereto attached; and he will not assign, by power of attorney or otherwise, any of the moneys to become due and payable under this contract, unless by and with the like consent signified in like manner. If the contractor shall, without such previous written consent, assign, transfer, convey, sublet or otherwise dispose of this contract, or of his right, title or interest therein, or any of the moneys to become due under this contract, to any other person, company or other corporation, this contract may, at the option of the Commissioner, be revoked and annulled and the City shall thereupon be relieved and discharged from any and all liability and obligations growing out of the same to the contractor and to his assignee or transferee; * *' * and no right under this contract, or to any money to become due hereunder, shall be asserted against the City in law or in equity, by reason of any so-called assignment of this contract, or any part thereof, or of any moneys to grow
At the trial the city seriously contested the right of the plaintiff to recover at all, upon the grounds, (a) that the contract was never assigned by the firm, Williams Engineering and Contracting Company, to the plaintiff corporation; and (b) if such assignment were made it was invalid because the plaintiff corporation had not complied with section 15 of chapter 418 of the Laws of 1897, being the former Lien Law (Gen. Laws, chap. 49). This section, which was in force at the time the alleged assignment was made, provided that “No assignment of a contract for the performance of labor or the furnishing of materials for the improvement of real property or of the money or any part thereof due or to become due therefor, nor an order drawn by a contractor or sub-contractor upon the owner of such real property for the payment of such money shall be valid, until the contract or a statement containing the substance thereof and such assignment or a copy of each or a copy of such order, be filed in the office of the county clerk of the county wherein the real property improved or to be improved is situated, and such contract, assignment or order shall have effect and be enforceable from the time of such filing. Such clerk shall enter the facts relating to such assignment or order in the ‘ lien docket ’ or in another book provided by him for such purpose.”
Both Williams and Holmes, two members of the firm of Williams Engineering and Contracting Company, denied that there had been any assignment and there was no written evidence of it. Plaintiff, however, produced several witnesses who testified that such an assignment was made and approved by the bridge commissioner, but the same had been mislaid or lost. The referee found, basing his finding upon the testimony of these witnesses, that an assignment was, in fact, so made. The evidence as to the assignment having been made is quite unsatisfactory. The original contract was signed in triplicate and it is very significant, in a contract as important as this, involving so large an amount, and especially in view of the provision UU heretofore quoted, that no written evidence of such assignment or approval could be found. There was no
In Riverside Contracting Co. v. City of New York (supra) Judge Hiscock, who delivered the unanimous opinion of the court, referring to an assignment to a bank of moneys to grow due it under a contract which had been filed in the county clerk’s office, said: “It [the bank] acquired, subject to statutory requirements for filing, an absolute title to the moneys due under the contract and not in any sense a lien thereon such as is mentioned in the statute. Its title was dependent upon the inherent terms and force of the assignment and not upon any efficacy given to the latter by the Lien Law. The only effect of the statute on the assignment was to limit its operation by certain provisions concerning its filing.”
Attention is called by respondent to Asphalt Paving & Contracting Co. v. City of New York (210 N. Y. 605) and the claim made that it is an authority to the effect that the filing of an assignment in the office of the county clerk is not necessary in order to give it validity. That question does not appear to have been considered or passed upon. The decision, as will appear from the opinions delivered in this court (See 149 App. Div. 622, 632), was put upon the ground that the giving of a notice to make the repairs was a condition precedent to the paving company’s liability; that the notice given to a third party was not notice to the paving company; and that the claim that a third party was acting as assignee of the paving company was not sustained by the proof, and further, this defense was not set up in the answer.
As to the counterclaims which were dismissed by the referee, I am satisfied that his conclusion on that branch of the case is correct. The city is not in a position to reclaim the moneys paid. It received the benefit of the work performed and materials furnished, and having paid for them as it stipulated to do under the contract, it would be unjust and inequitable to require such money to be refunded.
It is not claimed that any further proof can be offered relating to the filing of the assignment in the county clerk’s office. My conclusion, therefore, is that so much of the judgment and
Clarke, P. J., and Davis, J., concurred; Dowling and Laughlin, JJ., dissented.
Dissenting Opinion
I dissent from the reversal of the judgment herein both from the opinion expressed by this court that a new trial should be ordered as to the issue of whether there had been an assignment from the firm to the corporation, and from the conclusion reached by it that the complaint should be dismissed for the failure to file the assignment in the office of the county clerk of New York or Queens county. On the first point there was an issue of fact, and the plaintiff produced evidence sufficient in amount and quality to support, in my opinion, the conclusion of the referee that the assignment in question had' been made. Moreover, there was evidence that the commissioner of bridges knew of the assignment and approved it before the work was begun. On the second point I am of the opinion that the requirement that the assignment, or a copy thereof, should be filed in the office of the clerk of the county where the real estate sought to be improved was located, is intended only for the protection of the priority of such assignment as against mechanics’ liens subsequently filed. This has been explicitly held by the District Court of the United States for the Northern District of New York in Matter of Interstate Paving Co. (197 Fed. Rep. 371), in which Judge Ray discussed the effect of the decision in Brace v. City of Gloversville (167 N. Y. 452), and despite that opinion hekl it was not necessary to file such assignments in the county clerk’s office to make them effective. In Asphalt Paving & Contracting Co. v. City of New York, No. 2 (149 App. Div. 622, 632) the right of the assignee of the moneys due under the contract with the city for the regulating and paving with asphalt certain city streets was upheld, although that assignment never had been filed in any county clerk’s office, and the judgment of this court was affirmed by the Court of Appeals without opinion (210
I, therefore, favor the affirmance of the judgment appealed from.
Laughlin, J., concurred.
Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.