p. 36(Supreme Court, General Term, Second Department.Headnote
Orders—Interpretation.An accepted order, that defendant should pay plaintiff “from the last payment to be made” on a contract for building certain houses, does not mean that plaintiff must take the risk whether the last payment under the contract should ever become due, but that defendant should always keep enough back to pay plaintiff’s claim.
Appeal from circuit court, Dutchess county.
Action by Charles Beardsley against George H. Cook on an accepted order. From a judgment entered on a trial before a judge without a jury, defendant appeals.
Defendant was the owner of certain buildings in process of construction by Davis & Fay, contractors. The contractors, being indebted to plaintiff for labor and building materials furnished for defendant’s buildings, drew an order in favor of plaintiff, which recited that defendant should “retain and pay to” plaintiff $1,175 “from the last payment to be made” on account of the contract for the buildings, which order was accepted by defendant.
Argued before DYICMÁN and PRATT, JJ.Clapp & Mason, (John H. Clapp, of counsel,) for appellant.
Edward Crummey, for respondent.
This is an appeal from a judgment entered upon a trial before a judge of this court without a jury. The defendant, in his brief, makes no point that the findings are not warranted by the evidence. The only question, therefore, to be considered, is whether the conclusions of law are proper from the facts found. We have, however, examined the exceptions filed to the findings of fact, and find that each of said findings is supported by the evidence in the casa. The order in question w'as given in consideration of the sum of between $400 and $700 then due, and more to receive, for materials furnished upon a certain building contract made between the owner and certain contractors. The plaintiff continued to furnish materials up to about the sum of $100,
p. 37which were received, and were without objection. The court found facts sufficient to constitute a waiver of the obligation on the part of plaintiff to furnish materials to the full extent of the order, so that no point can be made that the plaintiff did not carry out his contract. The order, when it was given, operated as an assignment of any fund due the drawer at that time, and also to assign any funds as fast as they became due. Gurnee v. Hutton, 63 Hun, 197 , 17 N. Y. Supp. 667 ;
Gibson v. Lenane, 94 N. Y. 183 ;
Manchester v. Braedner, 107 N. Y. 346 , 14 N. E. Rep. 405 . Such assignment would take precedence of any mechanics’ liens filed after that date, and such assignment would have been regarded as a payment pro tanto on the contract.
Stevens v. Ogden, 130 N. Y. 182 , 29 N. E. Rep. 229 ; Young Stone-Dressing Co. v. St. James’ Church,
61 Barb. 489 , and Gibson v. Lenane, supra. After the order or assignment, and the delivery of the materials under it, no arrangement that the defendant might make with his contractors could affect the rights of the plaintiff.
Bank v. Drumgoole, 109 N. Y. 63 , 15 N. E. Rep. 747 . The form of the order, that the drawee should pay the plaintiff out of the last payment, did not mean that plaintiff must take the risk whether the last payment under the contract should ever become due, but referred to the last payment to be made by the defendant to the contractor; or, in other words, the defendant should always keep enough back to pay the plaintiff his claim.
The judgment is right, and must be affirmed, with costs.