
    Emil Laski, Respondent, v. State of New York, Respondent, and Industries Development Corporation et al., Appellants, Impleaded with Others.
    
      fríen —foreclosure — action to foreclose lien for materials furnished and used in public improvement —• priority of claims against moneys due and payable by State under contract.
    
    
      Laski v. State of New York, 217 App. Div. 420, affirmed.
    (Argued October 13, 1927;
    decided October 28, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered August 31, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a lien for materials furnished and used in a public improvement and establish a first claim upon moneys due and payable by the State under the contract. The appellant Industries Development Corporation in its answer claimed the entire fund on the ground that the contractors had assigned to it all moneys due or to become due under the contract for the public improvement, by an assignment in writing filed prior to the filing of the lien of the plaintiff, respondent. The appellant Fidelity and Deposit Company of Maryland in its answer claimed the entire fund on the ground that as surety upon the performance bond given by the contractors to' the State of New York it completed the work at the request of the State after the abandonment of the work by the contractors, at a cost in excess of the balance of the fund held by the State. The trial court held that the plaintiff had a first claim and lien upon the fund, and was entitled to priority in payment therefrom; that the balance of the bond should be paid to appellant Fidelity and Deposit Company of Maryland, and that appellant Industries Development Corporation was not entitled to any payment from the fund.
    
      Jacob I. Goodstein for Industries Development Corporation, appellant.
    
      Thomas E. White and Wallace P. Harvey for Fidelity and Deposit Company, appellant.
    
      Jacob I. Goodstein and Charles Saleson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Not sitting: Kellogg, J.  