General Fireproofing Co. v. Keepsdry Construction Co.

173 A.D. 528, 160 N.Y.S. 179, 1916 N.Y. App. Div. LEXIS 7625

Opinion

Howard, J. :

On November 13, 1914, the defendant The Keepsdry Construction Company entered into a contract with the State of New York to do certain work and furnish certain material in the assembly chamber at the Capitol for the sum of $13,800. The plaintiff, as a subcontractor, performed much of the work and furnished much of the material under this contract. The contract has been completed and there remains due from the State, and unpaid, $7,275. There is due and owing from the original contractor to the plaintiff a sum in excess of the amount due from the State and it has filed a lien to secure the amount due. The original contractor borrowed money from the defendant, the New York State National Bank, Albany, and on December 31,1914, assigned to the bank, as security for the loan, all its right to compensation under the contract with the State. Other liens besides the plaintiff’s have been filed, but they are not in issue here. The assignment by the origi nal contractor to the bank was made prior to the filing of any of the notices of lien, and was filed in the office of the State Comptroller before either of the notices of lien.

But the plaintiff contends that the assignment is not valid because it was not filed in the Department of Architecture. Therefore, we must determine whether the law required it to be filed there, and, if so, whether it was, in fact, filed there.

There seems to us not to be much doubt that the statute required the assignment to be filed in the Department of Architecture. Section 16 of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], as added by Laws of 1911, chap. 873)

Footnotes

•

* provides: “No assignment of a contract for the performance of labor or the furnishing of materials for a public improvement, or of the money, or any part thereof, due, or to become due, therefor, * * * shall be valid until such assignment or order, or a copy thereof, be filed with the head of the department or bureau having charge of such construction, and with the financial officer of the municipal corporation or other officer or person charged with the custody and disbursement of the corporate funds applicable to the contract for such public improvement, and such assignment or order shall have effect and be enforceable from the time of such filing.” Section 8 of the Public Buildings Law (Consol. Laws, chap. 44, Laws of 1909, chap. 48), as amended by chapter 111 of the Laws of 1914, provides that “ The State Architect shall prepare the drawings and specifications for and supervise the construction of all new buildings erected at the expense of the State, except as provided in this article; shall also prepare the drawings and specifications for all additions to existing buildings, and for the alteration or improvement thereof, except when such work is done by an institution or inmate labor or both upon special fund estimates, and shall see that the materials furnished and the work performed in constructing, altering or improving any such building are in accordance with such drawings and specifications, and that the interests of the State are fully protected.” Thus we find that section 16 of the Lien Law requires the assignment or a copy thereof to “ be filed with the head of the department or bureau having charge of such construction,” and that section 8 of the Public Buildings Law, as amended by chapter 111 of the Laws of 1914, vests the State Architect with complete supervision of the work. No other statute attempts to clothe any other official or department with any supervision or charge whatever over work of this character and hence we conclude that section 16 of the Lien Law required the assignment to be filed, not only in the office of the Comptroller, but also with the Department of Architecture. Therefore, unless it was so filed it was not valid.

There is no contention that the assignment was actually left in the Department of Architecture and remained there on file. The facts are as follows: Section 43 of the State Finance Law (Consol. Laws, chap. 56; Laws of 1909, chap. 58) prohibits a contractor from assigning or subletting a contract with the State without first obtaining the consent of the department awarding the same. Acting apparently in recognition of this provision of the statute Mr. Blass, the president of the Keeps-dry Construction Company, the original contractor, took the duplicate assignment of the contract to the assistant secretary of the Department of Architecture and the following took place: “Q. Mr. Hichman, you reside in Albany, New York? A. Yes, sir. Q. What office do you hold? A. Assistant Secretary of the Department of Architecture. Q. Assistant Secretary of the Department of Architecture, over which the State Architect presides ? A. Yes, sir. Q. Are you acquainted with Mr. Plass, who is president of the Keepsdry Construction Company ? A. Yes, sir. Q. Do you recollect on one occasion when he came to your office with duplicate assignments of contracts between his company and the Trustees of Public Buildings for execution ? A. I do. Q. [Presenting same.) Will you look at these two papers and say what your recollection is as to their being the assignments ? A. Yes, sir. Q. Are those signatures appended to those two contracts original signatures of the officers who signed ? A. Yes, sir. Q. Just read the names of the officers, will you, please ? A. Martin H. Glynn, Thaddeus C. Sweet, Attested by Frank A. Tierney and approved by James A. Parsons, Attorney General. Q. Both duplicates bear the original signatures of those officers ? A. With the exception of the Attorney-General, whose first deputy signed that. Q. Where was it that Mr. Plass saw you —in what office ? A. In my office, I think. Q. He waited to you? A. Yes. Q. These assignments of contracts were signed before Mr. Plass left your office ? A. No; Mr. Plass brought those to my office and I had some other papers, resolutions of the trustees, and I took them with me first to the Attorney-General to be approved as to form, and then I think the Speaker signed next. I saw him sign it, and then the Governor, and Mr. Tierney attested it. Q. Who in your office has the duty of dealing with these liens that are filed in your office; under whose charge does it come; does it come under your charge ? A. No. they are generally filed with the secretary, the liens. * * * Q. Who is the secretary ? A. Mr. Roberts. Q. What is his full-name ? A. Francis A. * * * Q. What did you do with these two papers; the last thing you did with them ? A. After having them signed? Q. Yes. A. I gave them back to Mr. Plass when he called at the office later in the day. Q. Mr. Plass is not a lawyer? A. I don’t know; I don’t think so. Q: He doesn’t act like one ? A. No; he don’t look like one. * * * Q. Mr.. Hichman, this paper was not at that time stamped ‘ filed ’ in your office, was it ? A. Those papers were not filed. Q. That was not stamped ‘ filed ’ in your office ? A. Oh, no. Q. But this transaction took place in your office ? A. Oh, yes. Q. Did you tell Mr. Plass what he must do with the paper when you handed it back to him ? A. I don’t recall Mr. Tracey; I think I told him to go to the Comptroller. Mr. Eobison: Objected to as incompetent, immaterial and irrelevant, what he told Mr. Plass. The Court: He says he don’t recall. Q. You started to say you thought you told Mr. Plass — Mr. Eobison [interrupting]: Objected to. [Overruled.] A. That it was to be filed in the Comptroller’s office, and he said he had been advised to that effect. Q. That is about all, is it ? A. That is all I know about that transaction, yes.”

We have quoted the complete record on this subject, for it is this transaction, as the defendant bank contends, which constituted the filing of the assignment in the office of the Department of Architecture.

It seems to us that this cannot be held to have constituted a filing of the assignment. The president of the Keepsdry Construction Company merely took the paper to the assistant secretary of the Department of Architecture to have that official assist him in procuring the signature of the Trustees of Public Buildings. Mr. Plass made no attempt to file the paper in the Department of Architecture, made no offer to do so, had no purpose to do so. Indeed, the paper was not, at that time, in shape to be filed. It had not been delivered to the bank and did not become an assignment until after delivery. It was not for the Keepsdry Construction Company to file the assignment. It had no interest in so doing. That was for the bank to do. But the bank never made any attempt to file the assignment with the Department of Architecture and makes no pretense that it has, although it was careful to file it with the State Comptroller. The truth is, very likely, that the bank was not advised that it was necessary to file the assignment with the Department of Architecture and, therefore, made no effort whatever to do so. At all events, we cannot hold that this paper was ever filed with the Department of Architecture. If we were to so hold, then it would follow that a similar transaction at the Comptroller’s office would constitute a filing of the paper in that office, with the result that neither office would show any record of filing or contain the assignment or any duplicate thereof. This would make a farce of a statute calculated to protect lienors against secret assignments of contracts. The assignment was not filed in the office of the Department of Architecture and is, therefore, as between the plaintiff and the bank, void and worthless.

The respondent in its brief attacks the validity of the plaintiff’s Hen. The trial court found the lien to be valid and the bank has not appealed from that part of the judgment or any part of the judgment; therefore, the question of the sufficiency and validity of the lien is not before us for consideration. (Wilson v. Mechanical Orguinette Co., 170 N. Y. 542.)

The judgment below, so far as appealed from, should be reversed, and the judgment should be so modified as to direct payment to the plaintiff of the balance of the moneys therein referred to remaining in the hands of the State Comptroller, after payment only of the amounts therein adjudged to be paid to the defendants Albany Builders’ Supply Company and Hobbs, with costs against the bank.

All concurred.

Judgment, so far as appealed from, reversed on law and facts, and judgment modified as per opinion and as so modified affirmed. The court disapproves of the finding of fact made by the trial court to the effect that the assignment in question was filed with the Department of Architecture; and finds that it was not so filed.

Since amd. by Laws of 1916, chap. 507.—[Rep.