
    Herrmann & Grace, Plaintiff, v. The City of New York and Others, Defendants, Impleaded with American Radiator Company and Others, Appellants, and Johnson Service Company and Oliver C. Semple, as Receiver of John Williams, and Robert J. Gerstle, Respondents.
    First Department,
    February 11, 1909.
    Mechanic’s lien — attachment — respective rights of lienors and attachment creditor of contractor— attachment does not cover debts not due at timé of lévy — priority of materialmen over sub-contractors.
    A mechanic’s lien attaches not only to what may be due to the contractor when the lien is filed, but if nothing is then due or if the amount due is insufficient it attaches to any amount which may subsequently become due.
    An attachment, on the contrary, reaches only debts due at the time of the levy and not thbse which may accrue thereafter.
    Hence, where a building contract provides for the payment of a lump sum only when the work is completed, except that a percentage of the amount earned shall be advanced to the contractor from time to time in order to enable him “to prosecute the work advantageously,” the lien of an attachment levied against the contractor on a debt not related to the building contract extends only to sums due at the time of the levy, and not to sums which subsequently became due when the owner completed the contract after an abandonment by the contractor.
    Where the sums due the contractor at the time of the levy of attachment were already subject to prior mechanic’s liens, there is nothing subject, to the levy.
    A person who installs a system of temperature regulation in a building under a contract which requires both the performance of labor and the furnishing of material is a sub-contractor, while on the contrary a person who furnishes radiators only, but performs no work on the building is a materialman, and the latter is .entitled to priority by virtue of section 8414 of the Code of Civil Procedure which, as amended, gives priority to materialmen as well as to laborers.
    Appeals by the defendants, the American Badiator Company and others, from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 10th day of June, 1907, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      William L. Snyder, for the appellant American Radiator Company.
    'T. Ellett ModgsMn, for the appellant Heine Safety Boiler Company.
    
      L. Laflin Kellogg, for the appellant Jacob Fleischauer.
    
      J. Power Donellan, for the respondent Johnson Service Company.
    
      Oliver C. Semple, receiver, respondent.
   Scott,J.:

In this action to foreclose a mechanic’s lien there are several appellants. Their claims relate to the distribution of a fund in the hands of the comptroller of the city of Hew York. On February 5, 1903, the firm of Williams & Gerstle entered into a contract with the board of education of the city of Hew York and the city of Hew York for installing heating and ventilating ¡apparatus in a public school for the sum ,of $23,995. Williams & Gerstle proceeded with the execution of the contract until February or,March, 1905, when they abandoned it. The city thereupon proceeded to complete the work at the expense of the contractors. When the work was finally completed there remained unexpended a fund of $6,049.25, applicable to the payment of lienors and others who might be able to establish claims thereto.

Prior to the abandonment of the work by the contractors and on April 9, 1904, the plaintiff had filed a lien for $2,200. The regularity, validity and priority of this lien are not questioned. On June 4, 1904, the defendant Heine Safety Boiler Company, which had commenced an action against Williams & Gerstle for $6,650 damages for the breach of a contract, not connected in any way with the work in question, sued out a warrant of attachment and caused it to be served upon the comptroller, together with a notice that it was thereby intended to levy upon all moneys then due or to become due to said Williams & Gerstle. On June 27, 1904, the Johnson Service Company (then known as the Johnson Temperature Regulating Company) filed a lien for $3,090, and oñ July 9, 1904, the American Radiator Company filed a lien for $1,007.02. Other liens were filed which, for the purposes of this appeal, do not require consideration, since the claimants under them have not appealed.

The judgment appealed from awards the plaintiff, the Johnson Service Company, and the American Radiator Company,, the full amounts for which they filed liens, thus exhausting the fund applicable to the payment of liens. As to the claim of the attaching creditor, the Heine Safety Boiler Company, it is found that on June 1, 1904, the date of the levy of the attachment, there was no claim in existence in behalf of Williams & Gerstle against the citj upon which a valid levy could be made. The facts, so far as they bear upon the finding; are as follows: On January 26,1904, before any lien or attachment had been filed or served, work had been done by the contractor of the estimated value of $2,549.25, which was retained by the city under the clause in the contract which permitted it to retain until the full completion of the contract, fifteen per cent of the amounts earned by the contractor. On May 4, 1904, after the filing of plaintiff’s lien, but before the service of the Heine Safety Boiler Company’s attachment, there had been certified as having been earned by the contractor $2,350, of which eighty-five per cent, or $1,997.50, Was presently payable, the balance being retained to await the completion of the contract. A mechanic's lien attaches primarily to whatever may be due to the contractor when the lien is filed. If nothing is then due, or if the amount due is insufficient to meet the lien, it attaches to any amount which may subsequently Recome due under the contract. (Van Clief v. Van Vechten, 130 N. Y. 571.) An attachment, on the other hand, applies only to an amount which has become an indebtedness to the defendant, whose property was attached, at the time of the levy, and not to an indebtedness which may accrue after the levy of the attachment. As has been said, there had been earned and was presently payable under the terms of the contract, when the attachment was levied, -$1,997.50, and in addition thereto-work had been done to the estimated value of $2,549.25, which, however, was not payable until after the completion of the contract. The question is whether this latter sum constituted, at the time, a present, attachable indebtedness from the city to Williams & Gerstle. The contract,.as has been said, provided for the payment of a lump sum, the clause relating to such payment reading as follows: “That if the contractor shall well and faithfully perform and fulfill this contract and keep every covenant on his part herein contained, the party of the first .part will then, but not before, pay to the Contractor the sum of Twenty-three thousand, nine hundred -and ninety-five dollars ($23,995).

“ -In order to enable the Contractor to prosecute the work advantageously, the said sum or amount shall be paid in installments as the work progresses, as follows, viz.: In installments of -eighty-five per centum (85 per cent) of the value of the work performed upon application made in writing to the Superintendent by the Contractor, together with -an accurate schedule in detail of the materials furnished and work done since the last preceding payment. ■

“ The final payment of the balance due and unpaid under the contract, including the fifteen per cent-(15 per cent) of the total amount of the-contract price, shall be payable thirty days after the contract is fully performed, completed and the entire work accepted, and when the work is all complete, as herein provided, ánd the'keys delivered to the Superintendent of School Buildings.”

Beading this whole clause together, it will be seen that we have the case of a contract for a lump,sum, no part of which is to become due or payable until the completion of the contract, except that a percentage of the amount.earned from time to time is to be advanced “in.order to enable the Contractor to prosecute the work advantageously.” If nothing had been said about the advancements as the work progressed, it would be quite clear that nothing would be due to the contractor until the completion of the contract. The fact that eighty-five per cent of the apparent estimated value of the work done was to be advanced from time to time did not affect the percentage, as to which no such agreement for prepayment was included in the contract. Bo much of the contract price was to become earned and payable; in other words, to become a debt from the city to the contractor, only when the contract had been completely finished. It was not, therefore, a debt, or, in the language of the Code, a chose in action, when the attachment was levied, because it had not then become due and would not become due until the completion of the contract,. It is well settled that an indebtedness is not attachable unless it is absolutely payable at present or in the future, and not dependable upon any contingency. (Drake on Attachment [6th & 7th eds.], § 551.) It was said in Anthony v. Wood (96 N. Y. 180, 185), as to the levy of an attachment permitted to be made upon choses in action, that the attachment reached and became a lien upon only such debts as at the time belonged to the debtor by a legal title, and for the recovery of which he could maintain an action at law. We think it plain that in the case of an entire contract for a lump sum there cannot be said to be any debts belonging to the contractor while the contract remains uncompleted. As has already been pointed out the provision for advance payments operated only to accelerate the payment of so much of the contract price and was in the nature of a concession by the city of its strict legal right to withhold the whole contract price until the full completion of the work, but did^not-serve to advance the time when the balance of the contract price, as to which no special agreement was made, would become in any proper sense an amount due to the contractor. Whether it would ever become a debt depended upon the contingencies that the contractors would complete their work, and if they did not so complete whether the city would elect to forfeit the contract, or would proceed to complete it at the contractor’s expense. We are constrained to hold, therefore, that as to the retained fifteen peY cent of the estimated value of the work done there was no indebtedness at the time of the levy of the attachment from the city to Williams & Gerstle, except the sum of $1,997.50, being the eighty-five per cent payable under the contract, and this was more than covered by the lien filed before the levy of the attachment. -There was, therefore, nothing to which the levy could apply. We have not overlooked the case of Excelsior Co., v. Cosmopolitan Co. (80 Hun, 592), in which the Court of Appeals adopted- the dissenting opinion of Follett, J., at the General Term (154 N. Y. 772), or Edison Electric Co. v. Guastavino Co., No. 1 (16 App. Div. 350). In the former case the decision turned upon an agreement by the defendant, for a sufficient consideration, not to assert any offsets or counterclaims against a conceded indebtedness in favor of the attachment debtor. In the latter case, as appears from the prevailing opinion, the contract was, so drawn that the contractor earned a fixed sum for each square foot of tile arches erected as the work progressed. The person with whom it contracted, therefore, became indebted to it for the stipulated price as each square foot was completed. We think that the learned court below was right in holding that the appellant Heine Safety. Boiler. Company took nothing by its attachment.

A different question is raised by the appeal of the American Radiator Company whose lien was filed after that of the Johnson Service Company. The contract of the latter company was to install its system of temperature regulation in the school building, a 'contract which involved the performance of labor as well as the furnishing of .materials. The Americair Radiator Company sold steam radiators to the contractors, but performed no work on the building. ■ The claim of the American Radiator Company is that it is entitled as a materialman to a preference over all sub-contractors irrespective of any question as to priority in filing liens, Section 2 of the Lien Law (Laws of 1897, chap. 418) defines the several terms used in that act. .. Under it the term “ sub-contractór ” is defined to mean “a person who enters into a contract for the improvement of such real property with a contractor or with a person who has contracted with or through such contractor -for the performance of his contract or any part thereof.” A material man ” is defined as any person, other than a contractor, who furnishes material for such improvement.” Under these definitions it is clear that the Johnson Temperature Regulating Company was a sub-contractor and the American Radiator Company was a material-man. By chapter 419 of the Laws of 1897 certain sections relating to liens and the enforcement thereof were added to the Code of Civil Procedure, and it was provided that they were to be construed with reference to article 1 of the Lien. Law, which was comprised in chapter 418 of the Laws of 1897. By these two acts all of the sections of the General Lien Law of 1885 (Chap. 342) were repealed. By ■ section 20 of the last-mentioned act (as amd. by Laws of 1887, chap. 420, and Laws of 1895, chap. 673) all persons, firms, corporations or associations entitled to liens, except those who contracted with the owner, were classed together and denominated “ sub-contractors,” thus classing laborers, sub-contractors and materialmen together. After providing for the payment of liens according to priority in filing liens, the section provided that in all eases workmen or laborers working for daily or weekly wages shall have preference over employers of labor, sub-contractors, or contractors without reference to the date when such workmen or laborers shall have filed their liens.” This section was repealed by chapter 419 of the Laws of 1897, xvliich enacted the present section 3414 of the Code of Civil Procedure, which reads as follows: When a laborer or a material man shall perform labor or furnish materials for an improvement of real property for which he is entitled to a mechanic’s lien, the amount due to him shall be paid out of the proceeds of the sale of such property under any judgment rendered pursuant to this title, in the order of priority of his lien, before any part of such proceeds is paid to a contractor or subcontractor. If several notices of lien are filed for the same claim, as xvhere the contractor has filed a notice of lien for the services of his workmen, and the workmen have also filed notices of lien, the judgment shall provide for but one payment of the claim, which shall be paid to the parties entitled thereto in the order of priority. Payment voluntarily made upon any claim filed as a lien shall iiot impair or diminish the lien of any person except the person to whom the payment was made.”

The plain meáning of this section appears to be that material-men are now included in the favored class, which formerly comprised laborers alone, and are awarded a preference over .other lienors irrespective of the date of the filing of the liens. (See Hedden Const. Co. v. Proctor & Gamble Co., 62 Misc. Rep. 129.) It would be idle to speculate upon the reasons for or the justice of this distinction. It is sufficient that the Legislature has so decreed in plain terms. All of the lienors in this case dealt directly with the principal contractors, and in that regard stand upon an equality. If the materialman had based his claim upon materials delivered to a sub-contractor, its recovery would, of course, have been limited to the amount due to that sub-contractor, but no such-question is here presented. The judgment must, therefore, be so'modified as to award the American Radiator Company a preference over the Johnson Service Company, and as so modified will be affirmed, with costs to the appellant American Radiator Company, payable out of the fund in the hands of the comptroller before payment: therefrom to the Johnson Service Company.

Ingraham, Laughlin and Clarke, JJ., concurred; Patterson, P. J., not voting.

Judgment modified as directed in opinion, and as so modified affirmed, with costs as stated in opinion. Settle order on notice.  