Armstrong v. State Bank of Mayville , 165 N.Y.S. 5 ( 1917 )

Merrell, J. (dissenting):

In filing its assignment with the State Comptroller instead of the State Treasurer I think the defendant bank neglected to comply with the provisions of the Lien Law applicable thereto. Section 16 of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], as added by Laws of 1911, chap. 873)^* contains the only statutory provision relating to the filing of such an instrument, and provides that no such assignment shall be valid until the same or a copy thereof shall be filed “with the financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable,” etc. While strictly the State may not he a “municipal corporation,” nor the funds applicable to the payment of the public improvement be strictly “corporate funds,” still I think the Legislature in using such terms in a case where the State is the party obligated to pay and the State funds are sought to be reached through the lien, must be held to have intended to embrace within the terms quoted funds of the State applicable to the contract under which the claim is made. Such seems to have been the construction placed upon the statute in General Fireproofing Co. v. Keepsdry Const. Co. (173 App. Div. 528). Unless the statute be construed to embrace contracts with the State and to apply to State funds, I am unable to discover any provision of statute requiring the filing of the assignment at all. I cannot believe that the Legislature intended to relieve an assignee from the manifestly reasonable duty of filing the instrument under which he claims to share in the funds applicable.

The requirement of the statute that the assignment shall not be valid until filed “with the financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement,” clearly refers to the State Treasurer and not to the State Comptroller. The essential requirement of the statute is the filing with the “officer or person charged with the custody and disbursement of the corporate funds applicable.” I think but one place of filing was contemplated by the Legislature when it provided for the filing of the assignments with the “financial officer” or “other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement,” and that was with the officer “ charged with the custody and disbursement of the corporate funds applicable,” etc. The State Comptroller is not such officer. He does not by law have the custody of the State funds, and while the State Finance Law (§ 4) charges him with the duty of the superintendence of the fiscal concerns of the State and with the examination, auditing and liquidation of claims against the State if payment thereof out of the treasury is provided for by law, and while payments are- made upon his warrant upon the State Treasurer, the actual disbursing officer is the State Treasurer and not the Comptroller. Section 3 of the State Finance Law (Consol. Laws, chap. 56; Laws of 1909, chap. 58) provides: “The Treasurer shall receive all moneys paid into the Treasury of the State, pay all warrants drawn by the Comptroller on the Treasury * * *.” Under those well-defined duties of the State Treasurer, can it he doubted that that officer alone is the officer or person referred to by section 16 of the Lien Law as “charged with the custody and disbursement of the corporate funds applicable?” I think not. The defendant bank failed to file its assignment with the State Treasurer and its claim should be held to he subordinate to the lien of the appellants.

Judgment affirmed, with costs.

* Since amd. by Laws of 1916, chap. 507.— [Rep.