Roscoe Co. v. Lindner

Appellate Division of the Supreme Court of New York

Roscoe Co. v. Lindner

166 A.D. 889, 150 N.Y.S. 1023

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 15, 1914

StatusPublished

This text of 166 A.D. 889 (Roscoe Co. v. Lindner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Roscoe Co. v. Lindner, 166 A.D. 889, 150 N.Y.S. 1023 (N.Y. Ct. App. 1914).

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Opinion

Thomas, J.:

An order was given by a building contractor on the owner for material furnished by plaintiff therefor. It was accepted by the owner, payable when the house was finished and delivered at a date mentioned. The order was given for a precedent debt, and the presumption is that it was not given in payment of the contractor’s indebtedness to the material-man. (Noel v. Murray, 13 N. Y. 167.) There are no extrinsic facts tending to show that it was so received. The contract was not performed, as defendants would show because the specifications required construction violative of the Building Code, although Lindner indicates some pecuniary embarrassment on his part. The owner ascribes the contractor’s failure to pecuniary inability. In reality there could be no fund, but only a debt from the owner to the contractor on which the order could and would operate, if it existed, as if it were a fund. But its existence could always be a subject of controversy, and when, as here, there was no performance and the debt is merely one for breach of contract, it cannot be inferred that the parties to the order intended it, unless paid, to discharge the [890]*890original indebtedness. The judgment should be affirmed, with costs. Jenks, P. J., Burr and Rich, JJ., concurred; Carr, J., not voting. Judgment of the County Court of Queens county affirmed, with costs.

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Thomas, J.:

An order was given by a building contractor on the owner for material furnished by plaintiff therefor. It was accepted by the owner, payable when the house was finished and delivered at a date mentioned. The order was given for a precedent debt, and the presumption is that it was not given in payment of the contractor’s indebtedness to the material-man. (Noel v. Murray, 13 N. Y. 167.) There are no extrinsic facts tending to show that it was so received. The contract was not performed, as defendants would show because the specifications required construction violative of the Building Code, although Lindner indicates some pecuniary embarrassment on his part. The owner ascribes the contractor’s failure to pecuniary inability. In reality there could be no fund, but only a debt from the owner to the contractor on which the order could and would operate, if it existed, as if it were a fund. But its existence could always be a subject of controversy, and when, as here, there was no performance and the debt is merely one for breach of contract, it cannot be inferred that the parties to the order intended it, unless paid, to discharge the [890]*890original indebtedness. The judgment should be affirmed, with costs. Jenks, P. J., Burr and Rich, JJ., concurred; Carr, J., not voting. Judgment of the County Court of Queens county affirmed, with costs.

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Bluebook (online)

166 A.D. 889, 150 N.Y.S. 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roscoe-co-v-lindner-nyappdiv-1914.

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