p. 163John P. Kane Company, Respondent, v. Francis S. Kinney and Others, Respondents; Charles N. Talbot, as Assignee for the Benefit of Creditors of Andrew J. Robinson, Appellant.Headnote
Assignment for creditor's — it has, although not recorded, a pr'eference oner mechanid liens filed after its execution.precedence over a mechanic’s lien thereafter filed by a sub-contractor for work done and materials furnished prior to the assignment, even though such lien "be: filed before the general assignment is recorded.
Appeal by Charles N. Talbot, as assignee for the benefit of creditors of Andrew J. Robinson, from so much of a judgment of the Supreme Court in favor of the plaintiff and certain defendants,, entered in the office of the clerk of the county of New York on the 3d day of June, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, as adjudges that the plaintiff and the defendants Clarence L. Smith and William C. W. Child have good and valid liens upon the premises described in the complaint, and that they have judgment against the defendant Kinney for the amount of said liens, with costs, disbursements and allowances, and directs that these judgments be paid out of the amount due to the defendant Andrew J. Robinson.
The liens of the plaintiff and the defendant Smith were filed after the general assignment was made but before it was recorded, while the lien of the defendant Childs was not filed until after the general assignment was recorded.
Henry Be Forest Baldwin, for the appellant.
J. Woolsey Shepard, for the plaintiff, respondent.
George V. Brower, for the respondent Child.
H. B. Glosson, for the respondent Smith.
The action is brought to foreclose a mechanic’s lien. The sole question presented on this appeal is, does a general assignment for the benefit of creditors made by a contractor take precedence over
p. 164¡a mechanic’s lien subsequently filed, but within the statutory period, by his sub-contractor, for materials delivered or labor performed prior to the assignment ? In a' recent case, arising on the same assignment and similar facts and directly involving this question, the Appellate Division in the second department unanimously decided tthat the filing of the mechanic’s lien subsequent to the general ¡assignment gave the lienor no priority over the general creditors of the insolvent contractor.
(Armstrong v.
Borden's Condensed Milk Co., 65 App. Div. 503 .)
'The majority of the justices sitting in this case are of opinion that the law in this State had been previously settled otherwise by well-considered authorities; but it being desirable that the decisions of the respective Appellate Divisions should be uniform, at least on questions of law, we defer to the judgment thus pronounced on ^precisely the same question by a court of co-ordinate jurisdiction.
The judgment from which this appeal is taken is, therefore, ■reversed on the authority of Armstrong v. Borden's Condensed Milk Co. (supra), and, the facts being undisputed, judgment is directed for the defendant dismissing.the. complaint upon the merits, .but without costs.
Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.
Judgment reversed, and judgment directed for defendant dismissing complaint upon the merits, without costs.
p. 165(¡tejes V DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, 1902.