Mechanics & Traders' National Bank v. Mayor of New York , 58 How. Pr. 207 ( 1879 )

Lawrence, J.

Many of the questions which were elaborately discussed on the summing up of this case I do not deem it necessary for me to consider for the reason that, whether the ordinance referred to by counsel is valid or invalid, it was quite competent for the contractor and the city, as between themselves, to insert in the contract the provision in reference to liens. Ho creditor of the contractor who claims under the contract can have any greater rights than Gavin himself had under the contract. It was the intention of Gavin, and of the corporation of the city, that those who had done work and furnished materials in and about the performance of the contract should be protected, and I am, therefore, of the opinion that those lienors who filed their claims in accordance with the terms of the contract were entitled to be paid in the order in which the claims were filed, and that the plaintiffs in this action are not entitled to any interest in the funds in the hands of the city until such liens are satisfied.

In this view the claim of Huber & Co. should be directed to be paid first, if it were not for the fact that the assignee of that firm is not a party to the action and has never taken any steps to enforce the lien. I cannot, however, cut him off from his rights until he has had an opportunity of being heard, and the proper disposition of his claim seems to be to reserve the fund until the assignee can be heard. ' The claims of the Hazard Powder Company, of the Bigelow Blue Stone Company and of Michael Sheridan are all for materials furnished or for work done in the performance of the contract and should be paid before the plaintiffs. The plaintiffs concede that the sum of $769.35, which has already been paid by the city, was properly paid, and, as against them, that amount should be allowed. The claims above referred to, with the interest thereon, more than exhaust the fund. I have looked at the various authorities referred to by counsel and find nothing in them which seems to me to conflict with the conclusions which I have arrived at in respect to this case.

The bank, as the assignee of Gavin, took the contract subject to all the equities existing between him and parties doing work or furnishing materials under the contract, or which, under the terms of the contract, lienors might enforce against him, Gavin (Greene agt. Warned, 6 N. Y., 220; Schaefer agt. Reilly, 50 N. Y., 61).

The claims of Babcock and Bussell were not for work performed and materials furnished in the execution of the contract, nor do they appear to have been filed with the comptroller or commissioner of public works as provided by the contract. They are not, therefore, within the protection of the contract, and they have no greater rights, as assignees, against the lienors above referred to than Gavin had or the plaintiffs have. As no evidence has been furnished that the persons who have filed liens have been paid there seems to be no objection, as all the parties are before the court except the assignee of Huber & Go., to the court’s decreeing that the moneys in the hands of the mayor, &c., of Hew York be paid, after deducting and reserving the amount due to Huber & Co., to the different lienors, in the order of their priority as above determined. The plaintiffs and the prevailing defendants are entitled to their costs, to be paid out of the fund.

Findings may be settled on five days’ notice before me at ,the January special term.