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before he should arrive at the age of 401 tator directed his trustees to pay $15,000 to years, and that the same was alienable by his son, the appellant, "when he shall arrive him, and approving, ratifying, and confirming at such age of thirty-five years," and when the said assignments so made by the appellant and his committee in his behalf.

he shall arrive at the age of 40 years to-
"pay over and transfer to my [testator's] said
son Walter S. West, the entire remaining por-
tion of said one-third of my property, to whom
I give, devise, and bequeath the same subject

Where there is a gift to another without

On the 11th day of July, 1911, the committee of the person and property of the plaintiff was duly discharged, and the plain- to this trust.' tiff relieved from such incompetency. This action is brought by the appellant to have it declared and adjudged that the legal title qualification, subject to a trust and subject to the property bequeathed to the appellant to be defeated in case of the death of the was, at the time of the execution of said beneficiary before the termination of the assignments, vested in the trustees under said trust, the title to such trust fund, subject will, in trust for the appellant according to only to the contingencies provided by the the terms and provisions of the said will, and terms of the gift, is vested in such beneficiary. to have the order of February 7, 1908, and the National Park Bank of N. Y. v. Billings, 144 assignments made pursuant thereto, and the App. Div. 536, 129 N. Y. Supp. 846, affirmed judgment of June 10, 1908, annulled, vacated, on prevailing opinion in Appellate Division, 203 N. Y. 556, 96 N. E. 1122; Stringer v. and set aside. Young, 191 N. Y. 157, 165, 83 N. E. 690; Clowe v. Seavey, 208 N. Y. 496, 102 N. E. 521, 47 L. R. A. (N. S.) 284.

There is no claim that the facts alleged in the action for divorce and shown on the trial were not true and sufficient on which to base the judgment dissolving the marriage. Both of the parties to that action in reliance upon the judgment therein have married again. In this action the court made a decision by which the facts stated in substance in this opinion, among others, were found, and included therein is a finding:

"That no threat or duress of any kind or character was practiced upon said Walter S. West in connection with any of the matters above set forth."

Also:

"That said Walter S. West and his committee William J. Delaney were, and each of them was, represented and advised by able attorneys at law upon all of the proceedings and action above described and during all the negotiations incident thereto."

The will in this case did not provide a trust to receive the income and apply it to the use of the appellant. The appellant is the beneficiary of the trust, subject only to the trust itself, and subject to his beneficial interest in the principal of such trust fund being defeated by his death before the times therein specified. Such a beneficial interest in the principal of a trust fund may be transferred. Personal Property Law, § 15; Real Property Law, § 103.

[3] At the time of the agreement made by the plaintiff and his committee with his wife, and at the time of the judgment in the action for divorce, there existed the possibility of the appellant's discharge from his disability and the further possibility of his selling and No evidence was produced in this case to transferring any and every transferable inshow collusion, threat, deception, or the sup-terest that he had in his father's estate. pression or misstatement of the facts in con- The sale and dissipation of every transnection with any act, agreement, proceeding, or action affecting the appellant or his committee. All claim of fraud by the respondents was expressly disclaimed by counsel for appellant at the trial.

ferable interest which he had in his father's estate made it possible that the provisions in the judgment of divorce for the support and maintenance of his wife and children would be wholly defeated, at least so far as they related to payments to be made after the appellant arrived at the age of 40 years.

The appellant asserts three conclusions of law, all of which, it is urged by him, were ignored by the court in dismissing his com- On the part of the appellant and his complaint: (1) That the appellant at the time mittee there existed the possibility of an apof making the assignments mentioned had no plication to the court under section 1772 of assignable interest in the estate of his father the Code of Civil Procedure for an order reor the trust created under and by his will; quiring the appellant to give security for the (2) that the appellant's former wife, having payments provided by the judgment of diremarried in 1910, the assignments, if other-vorce, and that appellant's interest in his wise valid, are only enforceable to the extent father's estate might, in some way, be held of one-half of the amount thereof; (3) that the court did not have jurisdiction of the subject-matter of the action in which judgment was entered June 10, 1908.

[1, 2] The intention of the testator as to the principal of the trust fund held for the appellant is shown by the will. After directing the payment of the net income on onethird of the rest, residue, and remainder of his property, as in the will provided, the tes

as security for such payments. It was under these circumstances that the agreement in regard to the assignments and the assignments were made. The assignment of $100,000 was not for the benefit of the plaintiff's wife alone, but for his children. It was assigned subject to the trust provided therein, and the principal of the trust was made payable, as hereinbefore stated, to his children and the survivor of them, and in case of the

death of both of said children, then to the appellant himself, or in case of his death, to his devisees and next of kin. The assignments were made pursuant to a contract between the parties executed under the immediate direction of the court. Such a contract is in no way affected by the provisions of section 1771 of the Code of Civil Procedure. The agreement was a completed one, and the parties thereto have acted in reliance thereon. It is not attacked for mistake, duress, or fraud. The assignments are not affected by the marriage of the plaintiff's

former wife to another.

We have thought it desirable to refer to the merits of this case, although we are of the opinion that the court had, upon the facts and under the circumstances disclosed, jurisdiction of the subject-matter of the action in which judgment was entered June 10, 1908. The trustees were, on the facts stated in the pleadings in that action, entitled to the direction of the court. All of the parties interested in the matters now before the court were parties to that action, and are bound by the judgment entered therein.

under a contract with the city for that purpose,
it was not when supplied and performed under
a contract for the removal of ashes and refuse.
[Ed. Note.-For other cases, see Municipal
Corporations, Cent. Dig. § 913; Dec. Dig.
373(1).]

Ac

3. MUNICIPAL CORPORATIONS 373(4)
TIONS TO PERFECT LIENS-EVIDENCE-ADMIS-
SIBILITY.

liens under contracts for public improvements
Under Lien Law, § 25, giving persons having
standing in equal degrees as colaborers or mate-
rialmen priority according to the date of filing
their respective liens, the exclusion of evidence,
offered by a laborer or materialman for the pur-
pose of showing that his notice of lien was filed
in the comptroller's office before an assignment
by the contractor, was error, since the stamp of
a municipal official is not conclusive proof, as
between the original parties, of the time of filing
a paper in his office.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. m 373(4).]

4. MUNICIPAL CORPORATIONS
RIGHT TO LIEN

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373(1)-CONCONSTRUCTION

TRACTORS OF CONTRACT. Under a contract with a municipality for the removal of ashes and refuse, where there was a right to file a lien for labor and materials furnished, a provision in the contract for the retention by the city of sufficient moneys with which

The Judgment should be affirmed, with to pay claims on which liens had been filed was

costs.

WILLARD BARTLETT, C. J., and COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, JJ., concur.

Judgment affirmed.

(218 N. Y. 596)

for the benefit of the contractor only, and not for the protection of laborers or materialmen.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. 373(1).]

5. MUNICIPAL CORPORATIONS 373(4)-CONTRACTOR-RIGHT TO LIEN-PRIORITY.

RIVERSIDE CONTRACTING CO. v. CITY ing in equal degrees as colaborers or material

OF NEW YORK.

(Court of Appeals of New York. July 11, 1916.) 1. MUNICIPAL CORPORATIONS 373(1)-"IMPROVEMENT"-RIGHT TO LIEN-"PUBLIC IMPROVEMENTS"-CONTRACtor.

Lien Law, § 25, giving persons having liens under contracts for public improvements standmen priority according to the date of filing their respective liens, even if construed in the light of section 13, providing that laborers for daily or weekly wages shall have preference over all other claimants, does not give such a lienor preference over a prior absolute assignee of moneys due under the contract.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. 373(4).]

Under the Lien Law (Consol. Laws, c. 33) § 2, defining a "public improvement" as an improvement upon any real property belonging to a municipal corporation, and an "improvement" as "the erection, alteration or repair of any 6. CORPORATIONS 688-FOREIGN CORPORAstructure connected with or beneath the surface, TION-INSOLVENCY-PRIORITY-WAGES. any real property and any work done upon such Labor Law (Consol. Laws, c. 31) § 9, proproperty, or materials furnished for its perma-viding that, upon the appointment of a receiver nent improvement," a contract by a construction of a partnership or of a corporation organized company with the city of New York for the removal of ashes and refuse, although the ashes were dumped and used to fill in and remake land, was not a contract for a public improvement, since the character of a contract, under the lien law, must be established by its substantial purpose, and not by some merely incidental result. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 913; Dec. Dig. 373(1).

For other definitions, see Words and Phrases, First and Second Series, Improvement; Public Improvement.]

under the laws of this state and doing business
therein, other than a moneyed corporation, the
other debt or claim, does not apply to an insol-
wages of employés shall be preferred to every
vent foreign corporation.

Cent. Dig. §§ 2661-2663; Dec. Dig. 688.]
[Ed. Note.-For other cases, see Corporations,

-

7. CORPORATIONS 566(6) — CLAIM FOR WAGES-PREFERENCE.

Labor Law, § 9, providing for the payment of wages by the receiver of a partnership or domestic corporation in preference to other debts assets of an insolvent corporation, and would not and claims, relates only to the distribution of the make such wages payable out of assets which had been assigned before insolvency. Cent. Dig. § 2285; Dec. Dig. 566(6).] [Ed. Note.-For other cases, see Corporations, 8. BANKRUPTCY GES DUE.

2. MUNICIPAL CORPORATIONS 373(1)-CONTRACTORS RIGHT TO LIEN "PUBLIC IMPROVEMENT." Under Lien Law, § 5, providing that a plaintiff's only claim to a fund must be that the principal contract towards the completion of which materials and labor were furnished was one for a public improvement, although material furnished and services performed in constructing The provisions of the Bankruptcy Act (Act docks would be a public improvement if supplied July 1, 1898, c. 541, § 64, subd. 4, 30 Stat. 563 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

348- PREFERENCES-WA

[U. S. Comp. St. 1913, § 9648]), giving priority | material toward the performance or completion to wages due workmen which have been earned of this contract shall file or cause to be filed within three months before the date of com- with the department of street cleaning and with mencement of proceedings, relates to the distri- the head of the finance department of the city of bution of assets coming into the hands of the New York, any such notice as is provided for in trustee, and does not apply to moneys transfer- any lien law of the state of New York, then red or assigned before the bankruptcy occurred. and in every such case the city shall retain [Ed. Note.-For other cases, see Bankruptcy,*** from the moneys under its control, due Cent. Dig. § 536; Dec. Dig. 348.]

Appeal from Supreme Court, Appellate Division, First Department.

Action by the Riverside Contracting Company against the City of New York and othFrom a judgment of the Appellate Division (165 App. Div. 972, 150 N. Y. Supp. 1109), affirming a judgment of the Special Term for defendant Christopher L. Williams, as receiver of the First National Bank of Bayonne, the plaintiff and various defendants appeal. Affirmed.

Allan Lee Smidt, of New York City, for appellant Riverside Contracting Co. Emanuel J. Myers, of New York City, for other appellants. Archibald R. Watson, of New York City, for respondent.

or to grow due from it under this contract, so much of such moneys as shall be sufficient to pay off, satisfy and discharge the amount in such notice alleged or claimed to be due to the person or persons filing such notice or causing the same *the moneys so retained shall be retained by the city until the lien thereon created by the said act and the filing of the said notice shall be discharged pursuant to the provisions of said act."

to be filed

The trial court found on evidence which fully supported its findings, where excepted to, in substance the following facts: June 20, 1911, the city of New York entered into a contract with the Harbor Dredging & Scow Construction Company "for the final disposition of ashes, etc., on board of deck, scow and other vessels at the water front dumps

*

and for the removal of such ashes,

etc., to Riker's Island and elsewhere," and on January 3, 1912, the contractor had earned and there was due and owing from the city on said contract the sum of $17,079.94. On and prior to said last-mentioned date the First National Bank of Bayonne had loaned and advanced to said defendant contractor upwards of $19,000, and on said date said contractor executed to the bank an assignment whereby it "assigned

abso

HISCOCK, J. This appeal calls upon us to consider conflicting claims to a balance due on a contract made by the city of New York with the Harbor Dredging & Scow Construction Company, of which company the appellant Canter is now receiver in bankruptcy. As the judgment stands this balance has been awarded to the receiver of the First National Bank of Bayonne under an assignment made to said bank by said construc-lutely and unconditionally, the claim and detion company covering said balance, and the mand for money due on the contract between appellants who claim various portions of said it and the city of New York, balance as supposed lienors, on account of amounting to $18,966.38," and, which aslabor and materials performed for or furnish-signment was consented to by, and filed in ed to said construction company, have been defeated. The action as finally tried was a defeated. The action as finally tried was a consolidation of several actions involving claims by different parties to said fund.

In view of some of the questions to be discussed, it is important to observe at the outset the character of the contract between the city and the construction company, which produced the balance now being contended for, as fixed by the pleadings. The allegations of the complaint on this subject which seem to have been admitted by all of the de

fendants are that:

the offices of, the various departments of
the city of New York as required by statute
"and also in the office of the county clerk of
the county of New York, on January 10,
under and pur-
1912, at 3:10 p. m.
suant to the provisions of the Lien Law of
the state of New York"; that the plaintiff
"prior to January 10, 1912, rendered serv-
ices consisting of the erection and construc-
tion of docks at Riker's Island" for the
construction company at the price and val-
ue of $4,216.95, and January 10, 1912, at
3:18 p. m., filed a notice of lien for such serv-

"The defendant Harbor Dredging & Scow Con-ices "pursuant to the provisions of the Lien struction Company * made a contract Law of the state of New York"; that bewith the commissioner of street cleaning, acting tween January 1, 1912, and January 15, 1912, for the city of New York, whereby the said de- various day-laborers performed services for fendant Harbor Dredging & Scow Construction Company agreed to provide for the final dispo- the construction company "in and about the sition of all ashes, street sweeping, light refuse performance of said contract to unload and and rubbish delivered on board scows or other dump said ashes in and upon Riker's Isvessels at the water front dumps of the depart- land," to whom there was due on said lastment of street cleaning under condi

*

tions provided in said contract."

Said complaint also set forth another provision in the contract which is claimed by appellants to be important and which, so far as material here, provided:

mentioned date wages aggregating $4,041.77; that January 22, 1912, defendant Canter was appointed receiver in bankruptcy of said construction company, and thereafter paid said wages to said laborers, taking assign"If at any time ments of their claims; that prior to Februsons claiming to have performed any labor or ary 8, 1912, various other persons "perform

*

any person or per

and in pursuance of the foregoing contract," the appellants were of a nature mentioned and became entitled to wages amounting to in and protected by the provisions of the $4,249.07, and liens were filed for said wages Lien Law. Of course, if this is not so and "pursuant to said Lien Law of the state of the appellants had no right, under said law, New York." to file liens for their respective claims, then there can be no basis for the argument that under its provisions and by virtue of the notice filed by them they are entitled to a preference of payment over that to be made to the receiver of the bank under its assignment. This seems to be fully realized by some of them at least, for they argue that their claims are of a nature described in and protected by section 5 of said law, which reads:

. It thus appears that the claim of the respondent receiver of the Bank of Bayonne is based upon an absolute assignment by the contractor of an amount already earned and due on its contract in payment of an existing indebtedness, and there is no question that this assignment was duly approved and filed in all the offices required by any statute on any theory.

Several reasons are urged by counsel for the various appellants, who claim to have performed labor or furnished materials in the performance of the contract in question, why the judgment appealed from should be reversed or at least modified to the extent of allowing payment of their respective claims before payment to the respondent. In behalf of the plaintiff appellant, it is contended that the clause in the contract which has been quoted, in effect providing for the retention by the city of a sufficient portion of any balance due to the contractor, with which to pay any liens, was inserted for the benefit of such creditors as it, and entitles it to payment from the present balance; also that it was prevented from introducing evidence which would have established that notice of its lien was filed before the assignment to the bank, thereby giving it a prior claim under the Lien Law upon the balance due.

In behalf of the appellants to whom are due wages for labor, in addition to other claims which do not require discussion, it is argued that said claims in whole or part take precedence over respondent's claim by virtue of section 25 of the Lien Law (Cons. Laws, c. 33), which reads as follows:

"Priority of Liens for Public Improvements. Persons having liens under contracts for public improvements standing in equal degrees as colaborers or materialmen shall have priority according to the date of filing their respective liens; but in all cases laborers for daily or weekly wages shall have preference over all other lienors having liens arising under the same contracts pursuant to this article, without reference to the time when such laborers shall have filed

their notice of lien."

"A person performing labor for or furnishing materials to a contractor, his subcontractor or public improvement pursuant to a contract by legal representative, for the construction of a such contractor with a municipal corporation, shall have a lien for the principal and interest of the value or agreed price of such such corporation applicable to the construction labor or materials upon the moneys of of such improvement, to the extent of the amount due or to become due on such contract, upon filing a notice of lien as prescribed in this article."

[1] We thus come to the fundamental question whether the contract entered into by the construction company with the city of New York was a contract for a "public improvement," so that liens could be filed thereunder, and the answer to this question will be determined by statutory definitions. find the words "public improvement" defined as follows:

to

We

"Public Improvement. The term 'public improvement,' when used in this chapter, means an improvement upon any real property belonging a municipal corporation." Section 2. Then we find the word "improvement" defined as meaning:

"The erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement."

I do not think that the contract made by the construction company with the city of New York was one for a "public improvement" within these definitions. As appears from the quotations made from the pleadings and findings, illuminated, if that were neces

Or, under section 9 of the Labor Lawsary, by the discussion on the trial, the con[Cons. Laws, c. 31], which provides:

tract was one for the removal of ashes and refuse, and I do not think that it can reasonably be claimed that such a contract is one for a "public improvement." The attempt is made to stretch it into such an one by refer

"Payment of Wages by Receivers. Upon the appointment of a receiver of a partnership or of a corporation organized under the laws of this state and doing business therein, other than a moneyed corporation, the wages of the employés of such partnership or corporation shall be pre-ence to the condition that the ashes and refferred to every other debt or claim."

Or, under the provisions of the Bankruptcy Act, which give priority to "wages due to workmen which have been earned within three months before the date of the commencement of proceedings."

It will be observed that several of these arguments are based on the theory that the materials furnished or labor performed by

use so taken by the contractor were to be transported to Riker's Island and other places, wherefrom it is argued that the purpose was to fill in and make land, and that this amounted to an improvement under the statute. There seem to be many difficulties in the way of a successful prosecution of this attempt to interpret the contract. It does not appear that the city desired to improve

Law," and that some of them commenced actions and filed notice of pendency thereof "pursuant to said Lien Law," or the statement in the conclusions of law that "the several claims and liens" of the appellants are subject and subordinate to the rights of respondent, but I do not regard these as amounting to a decision controlling upon the respondent that these parties had liens under said law. No such claim as that is made by the appellants. It seems to me that the statements amount to no more than the one that notices of liens were filed which in form conformed to the Lien Law, and that the claims covered thereby were subordinate to respondent's rights. If the views which we have expressed are at all correct, it would be so extraordinary to hold that a contract for the removal of refuse was one for a public improvement that it ought not to be assumed that the court meant to hold that view, or otherwise than that the steps taken by the various parties were in accordance with the provisions of the Lien Law if that had been applicable.

Riker's Island, or that in fact the island | statements to the effect that the parties filed was in any way improved by dumping ashes notices of liens, etc., "pursuant to the Lien and garbage upon it. So far as we know, this provision may have been inserted in the contract because the city had at such a place a garbage plant, or because this was deemed to be a suitable dumping place where refuse might be deposited without any resulting annoyance to citizens or danger to their health. Moreover, even if it were to be assumed that one of the reasons for providing that this material should be taken to Riker's Island was that thereby some filling would be accomplished, I do not think that this feature would bring the contract under which appellants must claim within the description of one for a "public improvement," or within the protection of the Lien Law. The contract was fundamentally for the removal of ashes and refuse. That was its primary purpose and characterizing feature, and such a contract, which certainly is not one for making a public improvement, cannot fairly be turned into one of the latter kind because as a mere incident to its performance provision is made for depositing the refuse in some place where it will make filling or land. The character of a contract under the Lien Law must be established by its substantial purpose, and not by some merely incidental result.

[3] If I were wrong in these views, I think it would be necessary to hold that it was error for the court to exclude evidence offered by the plaintiff appellant for the purpose of showing that its notice of lien was filed in the comptroller's office before the assignment to respondent. If these claims had been covered by the Lien Law, priority in filing would have been material, and I know of no rule which makes the stamp of a municipal official conclusive proof of the time of filing a paper in his office, at least between the original parties.

But aside from this last claim, if it should be assumed for the sake of the argument that the claims of the various appellants came within the provisions and protection of the Lien Law because furnished toward the performance of a contract for a public improvement, and we should thus come to the consid

[2] On first thought it might seem that the material furnished and services performed by the plaintiff appellant, in constructing docks at Riker's Island more nearly met the test of having been so furnished and performed in the construction of a public improvement than do the services of the other claimants who we may assume were simply employed in handling the material which was being carried away by the construction company. Undoubtedly if such material and labor had been supplied and performed under a contract with the city of New York for the construction of docks on land owned by it, they would come within the protection of the Lien Law, but such is not the case. They were furnished and performed as dis-eration of arguments based on that theory, I tinctly alleged "in conformity with the terms of and towards the performance or completion of the contract between" the construction company and the city of New York, and under the express terms of section 5 of the Lien Law, on which plaintiff must rely, its only claim to the fund in question must be that the principal contract towards the completion of which said materials and labor were furnished and performed was one for a public improvement, and such we have seen is not the character of said contract. The appellant must claim under and through that contract, and its rights be determined by its nature rather than by the character of the particular work which it performed toward its performance.

Sight is not lost of the circumstance that

think that there still would be answers to these which would defeat them, and some of these will be given.

As has been stated, it is urged that the clause in the contract providing, in substance, for the retention by the city of sufficient moneys with which to pay claims on which liens had been filed was for the benefit of claimants, and that the bank took nothing under its assignment except the surplus which remained after payment of said claims. This contention, which is not claimed to be applicable to any claims except those for which liens could be filed under the statute, is largely based on the cases of Mechs. & T. Nat. Bank v. Winant, 123 N. Y. 265, 25 N. E. 262, and Merchants' & T. Nat. Bank v. Mayor, etc., of N. Y., 97 N. Y. 355, which involved

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