City of New York v. Crawford

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: FINCH
• Citation: Mayor v. Crawford , 111 N.Y. 638, 19 N.E. 501 (N.Y. 1889)
• Decision Date: 15 January 1889
• Parties: THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent, v. ERASTUS CRAWFORD et al., Appellants.

111 N.Y. 638

19 N.E. 501

MAYOR, ETC., OF NEW YORK

v.CRAWFORD et al.¹

Court of Appeals of New York.

January 15, 1889.

Appeal from supreme court, general term, First department.

Laws N. Y. 1878, c. 315, provide that any person who shall, as laborer, mechanic, merchant, or trader, in pursuance of or in conformity with the terms of any contract made between any person or persons and any incorporated city, perform any labor or furnish any material towards the performance or completion of any contract made with said city, shall have a lien, upon complying with certain conditions, for the value of such labor or materials, upon the moneys in the control of the said city due under said contract.

T. M. Tyng, for appellant.

D. J. Dean, for respondent.

FINCH, J.

This action was brought upon a bond of indemnity, and resulted in a recovery against the sureties, which they seek to reverse on this appeal. The city was building a school-house, for the construction of which they had contracted with one Peter J Vanderbilt, agreeing to pay him something over $30,000, in 12 specified installments. At the date of the bond there was a balance of over $14,000 due and to become due to the contractor; but its payment by the city had been made perilous by the filing of mechanics' liens under chapter 315 of the Laws of 1878, and notices of the pendency of actions to foreclose those liens. Their effect upon the city was manifest. Under the law, payment to the contractor was to be withheld, and the sums due him retained to meet the emergency of a recovery by the lienors, and a diversion to them of the sums due to the contractor; or payment was to be made to him at a risk on the part of the city of a liability to pay a second time to the lienors the sums already paid to the contractor. The extent of that risk is apparent from the terms of the statute. The debts due the lienors became a positive incumbrance upon the balance due and to become due to the contractor, and made the lienors creditors of the city in the room and instead of the contractor himself, and subrogated them to his right of payment and recovery. The lien was upon a specific fund only in the sense that it could not exceed the balance due, but that balance was in the city treasury, and separated from other moneys only by the appropriations. It was thus a lien upon the debt or liability of the city due to the contractor, and the necessary effect of the lien when foreclosed was to make the city debtor to the lienors to the extent of the balance earned and unpaid. In this situation of affairs the bond sued on was given, and the facts thus far stated are derived from its recital and the terms of the statute. The sureties covenanted to protect the city from ‘any judgment, costs, damages,...