Wexler v. Schiff ( 1933 )

Per Curiam.

As to the sums received by the owner under the modified building loan agreement of July 28, 1932, to complete the improvement the $2,500 payment by defendant in behalf of the owner for an assignment to the owner of the existing second mortgage of $49,700, was made prior to the “ initial advance ” under the modified loan agreement (Lien Law, § 2), and the failure to include that item as a cost of improvement or otherwise under the modified contract entitles the plaintiff, a lienor improving the property subsequent to the modified agreement, to recover from the defendant as trustee (Lien Law, § 36) the amount of his lien.

Judgment and order affirmed, with ten dollars costs.

Levy and Callahan, JJ., concur.