Bassler v. Putney — 1 N.Y. St. Rep. 709

Majority

p. 709

Francis Bassler, appellant, v. William B. Putney, as assignee, etc., respondent.

(New York Superior Court,

General Term,

Filed June 1, 1886.)

Headnote

1. New York (city of)—Municipal lien act—When lien given.

It was not the intention of the legislature to give every person who had had a contract with, or who furnished materials to a person who had a contract with the city, alien. Section 1824, 1825 and 1828, chapter 410, Laws 1883, only gives the lien where the work is to be performed and

p. 710

materials furnished for work done upon land the title to which was at the time in the city.

2. Same.

Under section 1838, chapter 451, Laws 1881, it is not only necessary that the materials be furnished or the work done as above, but that the appropriation has been, or shall thereafter, be made and raised by the city.

3. Same.

Coal furnished for the board of education of New York is not material furnished for work upon land, within the act.

This is an appeal from the judgment of the special term dismissing the plaintiff’s complaint, and granting judgment in favor of the above named defendant against his co-defendant, the mayor, etc., for the amount admitted to be due under a contract entered into by one French and the city.

The action was commenced by the plaintiff to foreclose a hen filed under the municipal lien act against the moneys due under said contract.

On May 16, 1884, one Samuel G. French entered into a contract with the board of education in this city to furnish a quantity of coal. Eight days after the date of the contract French assigned to the firm of Joseph K. Wells & Co., whose assignee the defendant Putney is, all moneys due or to grow due under the contract, in consideration of their furnishing French with the coal necessary to carry out the contract. This assignment was not filed in the comptroller’s office until nearly a year later. The firm of Joseph K. Wells & Co. continued to furnish coal under this agreement with French up to September, 1884, when the said firm failed and made a general assignment to the defendant, William B. Putney. Thereafter, during the month of March,' 1885, the plaintiff sold to the said French coal which was used in the performance of this contract with the board of education, amounting to $2,5H./T3, and thereafter, on the 13th day of April, 1885, French assigned to the plaintiff all the moneys due or to grow due on said contract, ft This assignment was filed in the comptroller’s office April 14th, 1885. The assignment to the firm of Joseph K. Wells & Co. was not filed in the comptroller’s office until some time afterwards.

The plaintiff was ignorant of the assignment to Wells & Co. at the time that he took the assignment of the contract to him. The contract of French with the board of education was fully performed by the delivery of the coal received from the plaintiff and, at the time of the commencement of the action, there was due under the contract the sum of $2,395.86, which money the defendant, the mayor, aider-men, etc., had in their possession. The plaintiff, claiming a hen on said moneys under the municipal hen act, filed

p. 711

within the proper time proper notices of lien with the comptroller and the board of education, and thereafter brought this action to foreclose this hen.

John O. Shaw, for appellant, Bassler.

James L. Bishop, for respondent, Putney.

It was not the intention of the legislature to ■give every person who had a contract with or who furnished materials to every person who had a contract with the city, .a hen. Sections 1824 and 1825 of chapter 410, Laws of 1882, provide that persons therein mentioned may have a hen on filing a notice with the head of the department or bureau having charge of the work to be performed by the contractor with the city at any time before the whole of said work is completed or accepted by the city, and within thirty days after the same is so completed or' accepted. These sections give a hen only when there is work to be performed; they give a hen for materials only when the materials are furnished towards the performance or completion of a contract for work. And section 1828 of the said act contemplates that this work shah be done upon, and the materials shall be furnished for work that has been done upon lands, the title of which was at the time of the making of the contract in the city. The act contemplates that the materials shah be furnished in the improvement of the city’s property.

The judgment should be affirmed because the act does not give a hen to the plaintiff. If this view is correct the plaintiff was not aggrieved by the disposition that was made by the trial judge of the money in the city’s possession.

Judgment affirmed with costs.

If the plaintiff, or the assignee for creditors, be assignee of the money due under the contract of French with the board of education, the city of New York is not generally hable, and the board of education has not been made a defendant.

The only claim made for the plaintiff in this action, is under section 1838, chapter 451, Laws of 1881. The claim is, that the city is in possession of the fund, which represents the money due upon the contract, and that the plaintiff has a hen upon this fund under the statute.

The section reads: “This act shah apply to and include all cases and contracts under which work and materials have heretofore been or shall hereafter be done and furnishedVipon any land, the title of which was, at the time of the making of the contract, and now is in any city, and

p. 712

for the performance of which appropriations have been made or shall hereafter be made and raised by any city.” •

_ The decision of this appeal will be limited to the construction of this section, although, no doubt, there are other important questions in the case.

The section presents difficulties. I am of the opinion that the learned judge below had the true view, which is that the act was to apply when two conditions concurred, the one that work and material were done and furnished upon land, the title of which was in the city, and the other that the city had appropriated money for the performance of the contract. In the general legislation in respect of contracts with the city, there was no more common or important limitation than that contracts should be paid out of appropriations made in respect of such contracts.

It would be a reversal of the previous policy on the subject not to provide for satisfaction out of appropriations, and almost useless to provide for a lien on account of money due upon a contract to improve land, unless there -should be some fund for the payment of the contract, which would most generally arise from an appropriation. The second condition referred to would be naturally attached to the first, upon the first being expressed, and in accordance with the policy that has been noticed. If it were not intended that there should be a double condition, the second would be sufficiently comprehensive without mention of the first, unless the legislature’s intent was to provide for a lien in all cases where contracts for the improvement of the land of the city had been made. Few such contracts are made unless co-temporaneously with the appropriation of money for their payment. It is a maxim of general construction to deem that general clauses are made for things that the more frequently occur. It cannot be successfully contended that, in this case, work or material was furnished upon land.

In that part of the appeal that concerns the judgment given in favor of the respondent against the city, it must be held that the appellant is not aggrieved by it; for if in fact the appellant had a hen, the present judgment would not prevent its being finally enforced.

Judgment is affirmed, with costs.