New York Plumbers' Specialties Co. v. Fitzgerald

Majority

p. 949

New York Plumbers’ Specialties Co., Inc., Respondent, v. Warren Fitzgerald et al., Defendants; Samuel Greendlinger, Assignee of Interborough Utilities Company, Respondent, and United States of America, Intervener, Appellant.

The moneys that came into the hands of the assignee for the benefit of creditors were at no time the moneys of the owners of the realty on which improvements were made by Interborough Utilities Co. The moneys were indirectly obtained from the United States of America by means of forged notes. Under the circumstances, no trust fund could be created for plaintiff’s benefit under section 36-a of the Lien Law (Cons. Laws, ch. 33). The right of the United States of America to these funds is traceable to the assignee for the benefit of creditors. (National City Bank of New York v. Waggoner, 230 App. Div. 88 .) Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P„ J., Carswell, Johnston, Taylor and Close, JJ., concur. Settle order on two days’ notice on or before December 21, 1942.