Paine v. City of New York

Headnote

Liens — contract for public work — assignment of money due — when lien for material furnished takes precedence of such assignment.

Paine v. City of New York, 190 App. Div. 681 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,

entered March 10, 1920, modifying and affirming as modified a' judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The dispute relates to the priorities of the parties in the distribution of a fund of upwards of $56,000 in the hands of the city of New York and applicable to a certain contract for the building of a public iriiprovement in the city of New York. On January 22, 1918, the plaintiff commenced an action to foreclose a mechanic’s lien on the said improvement. On the same day the appellant Radt commenced an action under a prior assignment to him, duly filed, of the moneys due on the contract.. By an order of-the court both actions were consolidated and Radt’s complaint stands as his answer to the complaint of the plaintiff herein. The other defendants answered in the usual form, setting up their hens. The trial court decided that the plaintiff had a first lien upon the fund held by the city; that the assignment to the appellant was merely as assignment for the benefit of creditors and consequently the appellant took the assignment subject to the rights of all subcontractors who subsequently filed Hens. The trial court accordingly rendered judgment making the lien of the appellant subordinate to the Hens of the plaintiff and all other defendant lienors. Upon appeal, the Appellate Division modified the judgment and directed that the appellant’s assignment have priority over all lienors, except the plaintiff.