Conselyea v. Blanchard
| Decision Date | 05 October 1886 |
| Citation | 8 N.E. 490,103 N.Y. 223 |
| Parties | CONSELYEA and others, EX'rs, etc., v. BLANCHARD and others. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from general term of the supreme court, Second department.
On the eleventh day of December 1880, the counties of Kings and Queens entered into a contract with the defendants Swift and Van Aken to build a swing bridge over Newton creek, which separates those counties. The contract price was $7,800, one-half of which was to be paid by each county. The turn-table of the bridge was to be the Blanchard & O'Rourke patent turn-table. The contract also contained the following provision:
Swift & Van Aken entered upon the performance of the contract, and, after they had made some progress therewith, they were paid by the two counties $3,000. Afterwards, before the completion of the contract, they gave orders upon the county treasurer of Kings county sufficient in form to operate as equitable assignments, which orders were dated and filed at the times mentioned below: To William Conselyea, for $950, dated October 8, and filed October 10. 1881; to the same, for $600, dated October 10, 1881; to the same, for $600, dated 15, 1881; to Drew & Bucki, for $1,000, dated and filed October 20, 1881; to Blanchard & O'Rourke, for $1,250, dated December 28, and filed December 29, 1881.
Thereafter the bridge was completed, and accepted by the two counties, and the sum of $4,000 remained due from them for the construction thereof, one-half thereof from each county. The county treasurer of Kings county was willing and ready to pay the $2,000 to the persons entitled thereto.
This action was commenced in May, 1882, by William Conselyea, since deceased, and the plaintiff claimed priority of payment out of the sum of $2,000 due from Kings county, for the reason that his orders bore the earliest dates, and were first filed with the county treasurer; and he prayed judgment that the county treasurer be restrained from paying any part of the sum to either of the other defendants, and that he be ordered, first, to pay the sum of $1,550, the amount of his two orders, to him. The defendants, the firms of Blanchard & O'Rourke and Drew & Bucki, both answered, each claiming priority of payment out of the fund in the hands of the county treasurer. The action came to trial at a special term, and the court ordered judgment that Blanchard & O'Rourke be first paid the sum of $250 out of the fund; that the plaintiffs who had been substituted in the place of William Conselyea, deceased, be next paid the sum of $1,550; and that the balance of $2,000 be paid to Drew & Bucki. From the judgment thus ordered Blanchard & O'Rourke and Drew & Bucki appealed to the general term, and, from affirmance there, to this court.
James Troy, for appellants Blanchard & O'Rourke.
Tennis G. Bergen, for appellants, Drew & Bucki.
J. Stewart Ross, for respondents.
The only claim the plaintiffs have to share in the fund in controversy, and to have priority therein, is based upon the two orders taken by their testator, for the first of which he paid $850, and for the second of which he paid $595. There was no evidence that the money thus advanced bore any relationto, or had any connection with, the bridge, or its erection, and the plaintiffs claim priority of payment solely on the ground that these orders are prior in date to the other orders.
Blanchard & O'Rourke base their cliam to priority of payment upon facts found by the judge at special term, as follows:
They were the owners of a certain patent for the construction of bridge turn-tables, which were known and designated as ‘Blanchard & O'Rourke Patent Turn-tables,’ and, as such patentees, they had the exclusive right to construct and use such turn-tables; and Swift & Van Aken, by their contract with the two counties, were bound to furnish such a turn-table. For the purpose of performing their contract with the counties, Swift & Van Aken entered into contract with Blanchard & O'Rourke to furnish, supply, and erect one of these turn-tables for the price of $2,500, $2,000 of which was to be paid when the turn-table should be completed in running order, and accepted as such, and the balance of $500 when the bridge should be accepted by the counties. By the contract of Swift & Van Aken with the counties it was provided that the work on the bridge should be commenced within 10 days, and finished within 60 days, after the completion and delivery of the central pier; and, if there was delay beyond that time, they agreed to pay, as liquidated damages to the counties, the sum of $50 per day for every day of such delay, the amount to be retained from the contract price stipulated to be paid by the counties. By the contract between Swift & Van Aken and Blanchard & O'Rourke it was provided that the turn-table should be completed within the time specified for the completion of the bridge. After the making of the two contracts mentioned, and in or about the month of July, 1881, the central pier for the bridge having been completed and delivered, Swift & Van Aken entered upon the performance of their contract, and in that month, after doing some work thereon, they refused to proceed further under their contract until a payment was made to them which they were not entitled to, as the engineer in charge on behalf of the counties refused to certify therefor. Whereupon the joint committee of the two counties, duly authorized thereto, took entire charge of the supervision of the work, and the engineer ceased to act further; and the committee, on the twenty-first day of July, for the purpose of inducing Swift & Van Aken to proceed with the work, although nothing was actually due them under the contract, reported a resolution to the boards of supervisors of the two counties recommending a payment of $3,000 to them on their contract, which sum was paid on such recommendation by the counties.
On the reporting of such recommendation by the committee, Swift & Van Aken resumed work on the bridge, and, on the passage of the resolution to make the payment recommended, they again ceased work. When such sum was paid to them they again resumed work on the bridge, and immediately thereafter again ceased work, and left the bridge unfinished, and thereafter absolutely failed and refused to proceed any further with the work, or to complete their contract. Blanchard & O'Rourke duly proceeded with the erection of the turn-table, and performed their contract in respect thereto so far as the condition of the work to be performed by Swift & Van Aken permitted; but they were unable to fully complete and erect the turn-table, for the reason that Swift & Van Aken had not, wheh they ceased to work, progressed to an extent sufficient to enable them to complete the same, or further proceed therewith. Although they repeatedly demanded and required Swift & Van Aken to proceed with the erection of the bridge, so as to permit them to proceed with the erection of the turn-table, they continually refused so to do, and, in violation of their contract, hindered, delayed, and prevented them from finishing the turn-table and completing their contract. Swift & Van Aken were thus in default from July to October, 1881, and Blanchard &...
To continue reading
Request your trial