Young Stone Dressing Co. v. Wardens & Vestry of St. James' Church

61 Barb. 489, 1872 N.Y. App. Div. LEXIS 34

• Court: New York Supreme Court
• Decided: January 1, 1872
• Status: Published

Opinion

By the Court, Ingraham, P. J.

The findings of the referee were consistent with the evidence, and show a right of action against the defendants, as soon as such amount became payable. When the order was presented to the treasurer, he did not accept or refuse, but postponed the matter to a future day,, when he would tell them as to the time of payment. On the order and certificate, the stone' was delivered, and the same was used by the defendants; and without such order no delivery would have been made, the same being done to protect the church. This course of dealing' was similar to what had existed previously between Lyon and the defendants, although the plaintiff had no knowledge of previous payments made on such certificates. Under this state of facts, we think the same may be considered as an equitable assignment of the amount, assented to by the agent of the defendants, to take effect when subsequent payments became due, and, as such, entitled to be paid in preference to the lien of Arnold & Co., subsequently filed.

[First Department, General Term, at New York, January 1, 1872.

There is nothing in the assignment which violated the provision in the lien law which forbids a transfer of the contractor’s interest in the contract. This is not such an assignment. It does, not transfer the contract, or an interest in it, but a payment coming due under it. Even if it did, that objection only applies to a contract between parties having liens, and not between a creditor and thé owner.

We see no reason to interfere with the findings of the referee.

Judgment affirmed.

Ingraham, P. J,, and Cardozo and Geo. G. Barnard, Justices.]