Williamson & Adams, Inc. v. State

178 Misc. 130, 33 N.Y.S.2d 346, 1942 N.Y. Misc. LEXIS 1362

• Court: New York Court of Claims
• Decided: February 24, 1942
• Docket: Claim No. 25813
• Status: Published

Opinions

Dye, J.

Jurisdiction to hear, audit and determine the within claim has been conferred by chapter 874 of the Laws of 1940, which authorized the claimant “ to file such notice of intention and claim within the time prescribed by section 15 of the Court of Claims Act.” The claimant predicates its claim on an assignment made and delivered under authority of section 27 of the Lien Law. (Repealed by Laws of 1936, chap. 539, § 6, effective May 12, 1936.)

Dave L. Benstock, Inc., entered into a contract with the State of New York dated December 22, 1931, and thereafter, under date of May 18, 1933, made an assignment. “ to Anthony Morrell and Peter Bratte, a subcontractor’s committee acting as trustees, their successors and assigns in trust, of all moneys due and to become due. the undersigned on monthly and final estimates, and of the release of any retained percentages for labor and materials performed or furnished in connection with said contract.” Thereafter, Williamson & Adams, Inc., the claimant herein, at the request of the trustees, undertook to complete the furring and lathing as subcontractor. The trustees assigned and transferred to it any claim or cause of action which they had against the State of New York. The work was completed by Williamson & Adams, and they now allege that in the course of it they were compelled, contrary to the terms of the contract, to perform extra and additional work, amounting in effect to a breach of contract, for which the State should respond in damages.

It is axiomatic that an assignee can acquire no greater right than that possessed by the assignor. The original assignment from Dave L. Benstock, Inc., to Morrell and Bratte, as trustees, was simply an assignment of the “ moneys due and to become due,” and had been made pursuant to section 27 of the Lien Law. Strong equities exist urging the payment by the State for materials and labor furnished in excess of the contract requirements. Nevertheless, one cannot expect or receive payment from the State except by warrant of law.

For the claimant to recover, we must treat the original instrument as an assignment of the contract. The language, however, is specific and appropriate to express the purpose which appears quite clearly to have been an assignment of “ moneys due and to become due,” and cannot be enlarged to constitute an assignment of the contract. As we said before, the claimant is in no better standing than its assignor. The trusteees who employed them to finish the contract had no authority to bind the State under the assignment, nor did the State later consent to be bound. In fact, their every action supports the contrary conclusion. The agreement between Benstock and the State, dated December 22, 1931, provides: “ The contractor further agrees that he will not assign, transfer, convey, sublet or otherwise dispose of this contract or of his right, title or interest therein or his power to execute the same without the consent in writing of the State or any moneys which are to become due or payable to him because thereof to any person, company or corporation without the previous consent in writing of the State, and until such consent in writing shall have been given, no claim or demand shall exist in favor of any person, company or corporation to any of the moneys to be paid by the State on account of the provisions of this contract in favor of any person, association or corporation except the said contractor.” From the documentary evidence contained in the case, there is no proof that the State ever assented to an assignment of the contract, nor can its assent, if any, to the assignment of the “ moneys due and to become due ” be inferred from the provisions of section 27 of the Lien Law and claimant's Exhibit No. 7.

It is also interesting to note that the Department of Public Works did not officially recognize any substitution of the contractor, Benstock. In their letter dated May 2, 1932, State’s Exhibit A, an extension of time of completion was given to Dave L. Benstock, Inc. It will be recalled that the assignment of the “ moneys due and to become due ” had been made under date of May 18, 1933.

The periodic estimates for payment dated December 4, 1933, were submitted by Dave L. Benstock, Inc., and signed by Morrell and Bratte as trustees, and approved for payment December 11, 1933, by the Comptroller. In the estimate for March 7, 1934, the caption had been changed to read “ Anthony Morrell and Peter Bratte, Trustees of the Dave L. Benstock, Inc.” This same caption was followed in the certificate of May 22, 1934. This, to my mind, however, does not change the effect, as they appeared as trustees for the contractor. They were not assignees of the contract, simply accredited representatives of the contractor. No new party had been introduced in substitution of the original contractor, simply that the original contractor was now operating through a trustee. It is elementary that there must be some privity created between Williamson & Adams, Inc., and the State, before the State can be bound This has not been done, and we cannot stretch the assignment of “ moneys due and to become due ” under section 27 of the Lien Law to inclúde any such desired end.

The claim must stand or fall on the original assignment and the actions of the State and the parties in reference to it as indicated by the record. The record does not support the conclusion, that Williamson & Adams, Inc., is an assignee of the contract, and for this reason the claim should be dismissed.

This same claim has been previously heard by the Court of Claims (171 Misc. 763). Judge Murphy, writing the decision of dismissal on the merits, laid no stress on failure to file within the time limited, but disposed of the matter on the merits under section 27 of the Lien Law. The affirmance by the Appellate Division, Third Department, (259 App. Div. 758), does not appear to be res judicata, particularly as it based its order of affirmance “ on the ground that the trial court had no jurisdiction to hear and determine the claim.” This statement was in addition to those reasons stated by Judge Murphy and not by way of limitation.

The repeal of section 27 of the Lien Law renders this discussion academic, but the court in arriving at its conclusion, must- be bound by the language of the statute as it existed at the time the claim arose, and the language of the assignment read in the light of the statute cannot be interpreted to constitute an assignment of the contract when by its terms it was limited to an assignment of “ moneys due and to become due.”

The claim herein is dismissed upon the merits.

Barrett, P. J., concurs; Ryan, J., dissents, with opinion.