Chautauqua Planing Mill Co. v. Lyke — 228 N.Y. 540

Majority

p. 540

Chautauqua Planing Mill Company, Respondent, v. Frederick S. Lyke, as Trustee in Bankruptcy of Mitchell, Farrell, Adrian, Inc., et al., Defendants, North Side Bank of Brooklyn et al., Appellants, and Norwalk Lock Company et al., Respondents.

Headnote

Chautauqua Planing Mill Co. v. North Side Bank of Brooklyn, 181 App. Div. 933 , affirmed .

(Argued January 20, 1920;

decided February 24, 1920.)

Appeal from so much of a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 4, 1918, as affirms such part of a judgment at Special Term as adjudged that the defendant North Side Bank was entitled only to the sum of $29,000

p. 541

from a fund constituting final payments on a certain contract between Mitchell, Farrell, Adrian, Inc., and the city of New York, for the erection of public school No. 50 in the borough of Brooklyn, New York city. The action was brought to foreclose a mechanic’s lien filed by the plaintiff against .moneys due and to become due upon said contract between Mitchell, Farrell, Adrian, Inc., and the city of New York. The defendant and appellant North Side Bank of Brooklyn claimed by virtue of two assignments from Mitchell, Farrell, Adrian, Inc., of moneys due and to grow due on said building contract. The defendant and appellant United States Fidelity and Guaranty Company was the surety on undertakings given to discharge the mechanics’ liens filed by the plaintiff'and other lienors who are parties to the action.

Alfred G. Reeves and Joseph A. Cahill for appellants.

Frank M. Avery for plaintiff, respondent.

M. Carl Levine for Norwalk Lock Company, defendant, respondent.

Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, McLaughlin, Crane and Elkus, JJ.