Fortunato v. Patten
| Decision Date | 22 October 1895 |
| Citation | 41 N.E. 572,147 N.Y. 277 |
| Parties | FORTUNATO v. PATTEN. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from common pleas of New York city and county, general term.
Action by Maicho Fortunato against Thomas Patten, impleaded with the Twelfth Ward Bank of the City of New York and others, to have certain liens and claims against moneys payable to the defendant John F. Dawson, under a contract with the city, and the order of their priority, determined. Form a judgment of the general term (25 N. Y. Supp. 333), affirming a judgment awarding priority to the claim of the Twelfth Ward Bank over that of defendant Patten, the latter appeals. Reversed.
Robert E. Deyo, for appellant.
Charles E. Patterson, for respondent.
This is an appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment entered upon the report of a referee determining the order of payment to various creditors out of a fund paid into court by the city of New York. John F. Dawson, in October, 1886, entered into a contract with the city to regulate and grade Edgecomb avenue and other streets. Prior to April 11, 1887, the appellant, Patten, loaned to Dawson $6,000, and the latter on that day assigned to Patten all his rights and interest under the contract. The referee found that this absolute assignment in form was made as security for a debt, being the balance due of $5,000 on the loan made by Patten to Dawson. Under the familiar rule that the form of words used in making an agreement is not alone to receive attention, but all the circumstances of the transaction are to be considered (Williams v. Ingersoll, 89 N. Y. 521), Patten stands as an assignee of a portion of the moneys due under the contract. It is also found that Dawson entered upon the performance of the contract, and thereafter entirely completed the same, and the work was accepted by the city on the 28th of January, 1891. In December, 1887, Dawson assigned to the Twelfth Ward Bank all moneys due and to grow due under the contract as collateral security for the payment of moneys advanced and to be advanced by the bank to Dawson. On the 1st day of March, 1889, Dawson made a second assignment of $5,000 of the first money to grow due on the contract as collateral security for the payment of that amount, which was the balance then due on the original loan made to Dawson by Patten. It is provided by the contract, in substance, that the contractor shall not assign the contract, or any of the moneys payable thereunder, without the consent of the city, signified in writing by the commissioner of public works indorsed on the agreement; that in the absence of such consent no right under the contract, nor to any moneys to grow due by its terms, should be asserted against the city of New York. The city was not asked to consent to the first assignment to Patten, but it did consent to the assignment to the Twelfth Ward Bank, and the second assignment to Patten. Upon the completion of the contract the city owed Dawson a balance of a little over $57,000. In February, 1890, the plaintiff began this action to foreclose a mechanic's lien filed against the money so due, and all persons interested in the fund were made parties. The issues were tried before a referee, who rendered judgment, as between Patten and the bank, that the assignment of the latter was entitled to priority for the reason that Patten's assignment was not consented to by the city, and also because the bank had no notice of Patten's assignment. As this judgment has been affirmed by the general term, and it appears that if the bank is paid in full Patten will receive nothing, it becomes of importance to inquire whether the judgment can be sustained.
The provision of the contract adverted to has been treated by the court below as rendering void all assignments of moneys to grow due unless the consent of the city was obtained, and as available by any assignee to defeat the rights of a senior assignee who had failed to secure the necessary consent. We do not think that this provision is capable of any such construction. It was inserted in the contract solely for the benefit of the city, and prevents any claim being asserted against it in the absence of consent. It is a shield to protect the city, and not a weapon with which a junior assignee is to fight his way to a more favorable position in the line of payment. The general term held that this case is governed by the maxim, ‘Modus et conventio vincunt legem.’ The late Judge Allen of this court liberally...
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Salem Trust Co v. Manufacturers Finance Co, 74
...23 Or. 599, 603, 32 Pac. 755; Columbia Finance & Trust Co. v. First National Bank, 116 Ky. 364, 375, 76 S. W. 156; Fortunato v. Patten, 147 N. Y. 277, 283, 41 N. E. 572; Hawk v. Ament, 28 Ill. App. 390, 394; Harris Co. v. Campbell, 68 Tex. 22, 29, 3 S. W. 243, 2 Am. St. Rep. 467; White v. W......
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Rose v. Amsouth Bank of Florida
...priority of right, under New York law, without regard to the date of the notification to the debtor.") (citing Fortunato v. Patten, 147 N.Y. 277, 283, 41 N.E. 572 (1895) ("[A]s between different assignees of a chose in action by express assignment from the same person, the one prior in poin......
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University Mews Associates v. Jeanmarie
...N.E.2d 891 (1952)). New York Courts generally recognize and enforce a contract provision prohibiting its assignment (Fortunato v. Patten, 147 N.Y. 277, 41 N.E. 572 (1895); Allhusen v. Caristo Constr. Corp., supra; Annot.: validity of anti-assignment clause in contract, 37 ALR2d 1251-1270 (1......
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Arrow Iron Works, Inc. v. Greene
...it is well established that such a provision inures only to the benefit of the state and is not available to lienors. Fortunato v. Patten, 147 N. Y. 277, 41 N. E. 572; Hackett v. Campbell, supra; Riverside Contracting Co. v. City of New York, supra. To establish their second point, that the......