Stevens v. Ogden

• Decision Date: 01 December 1891
• Citation: 130 N.Y. 182,29 N.E. 229
• Parties: STEVENS v. OGDEN et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 182

29 N.E. 229

STEVENS

v.OGDEN et al.

Court of Appeals of New York, Second Division.

Dec. 1, 1891.

Appeal from supreme court, general term, first department.

Action by Chancey Stevens against E. H. Ogden and A. P. Bigelow, impleaded with Bridget M. Reynolds and others, to enforce a mechanic's lien. From a judgment modifying a judgment for plaintiff, defendants Odgen and Bigelow appeal. Reversed.

The other facts fully appear in the following statement by FOLLETT, C. J.:

Between September 21, 1886, and December 22, 1886, Alexander Anderson furnished building materials and made repairs on No. 115 1/2 Waverly place, New York, for which he was entitled to receive, January 26, 1887, $1,545.48, pursuant to a contract with Bridget M. Reynolds, the owner in fee of the property. While the work was in progress the plaintiff sold and delivered to Anderson lumber used in the reparation of the building of the value and at the agreed price of $1,097.93; no part of which having been paid, he, on the 15th of February, 1887, duly filed a mechanic's lien, pursuant to chapter 342 of the Laws of 1885, (the general mechanic's lien law of this state.) Between October 7 and November 5, 1886, E. H. Ogden & Co. sold and delivered to Anderson lumber of the value and of the agreed price of $909.94; a part of which, of the value of $400, was used in repairing the building. No part of said $909.94 has been paid. On the 15th of November, 1886, Anderson executed and delivered to E. H. Ogden & Co. an order on Bridget M. Reynolds, of which the following is a copy: ‘Please pay to the order of E. H. Ogden & Co. nine hundred and nine 94-100 dollars, and charge to account of my contract with you for the carpenter work at 115 1/2 Waverly place, it being for lumber materials used in construction of same; the amount to be paid of the last payment of $1,900.’ This order was given and accepted as payment for said lumber, and on the day of its date it was duly presented to Mrs. Reynolds, but she did not accept it in writing, nor promise to pay the amount represented by it. November 24, 1886, Anderson, by a written order, directed Mrs. Reynolds to pay Eben Peek $113.76 out of the sum to become due January 26, 1887, for the work performed, which was presented to her November 27th, and she then agreed to pay the amount represented by it. August 1, 1887, this action was begun to foreclose the lien filed by the plaintiff. The special term held that the orders drawn in favor of E. H. Ogden & Co. and Peek were valid assignments of portions of the fund ($1,545.48) due January 26, 1887, and that they were entitled to be first paid out of it, and that the plaintiff was only entitled to the remainder. A judgment was entered in accordance with this decision, and the plaintiff appealed to the general term from that part of the judgment which adjudged the claim of E. H. Ogden & Co. to be prior to his, but did not appeal from the part adjudging the claim of Peek to be prior to his. The general term modified the judgment of the special term by deducting $504.94 from the claim of E. H. Ogden & Co., and adjudged that they were entitled to $400, the value of the lumber sold by them which was used on the building, with interest thereon from November 15, 1886, and gave the claim of the firm priority over the claim of the plaintiff to that extent, and awarded to him the remainder, without costs to either party. From this judgment E. H. Ogden & Co. appeal to this court.

Charles A. Decker, for appellants.

Charles H. Machin, for respondent.

FOLLETT, C. J., ( after stating the facts.)

The order drawn by the contractor on the owner in favor of E. H. Ogden & Co. for $909.94, being, by its terms, payable out of a particular fund specified in the order, operated as an assignment, pro tanto, of that fund. Brill v. Tuttle, 81 N. Y. 454;Conselyeau v. Blanchard, 103 N. Y. 222, 8 N. E. Rep. 490; Lauer v. Dunn, 115 N. Y. 405, 22 N. E. Rep. 270. In McCorkle v. Herrman, (Sup.) 5 N. Y. Supp. 881, reversed 117 N. Y. 297, 22 N. E. Rep. 948, several persons had performed labor and furnished materials for a building erected by a contractor for the owner. After the work had been done and the material supplied, but before any lien was filed, a judgment creditor of the contractor began supplementary proceedings to collect his...