
    FRANCIS A. BASSLER, Appellant, v. WILLIAM B. PUTNEY, as Assignee, &c. Impleaded, &c., Respondent.
    
      Municipal Lien Law, chapter 315, Laws 1878, Consolidation Act of 1882, § 1824 et seq., chapter 429, Laws of 1881, Consolidation Act, § 1838, requisites to lien under.—Judgment against one defendant in favor of his co-defendant, when plaintiff not aggrieved by.
    
    Under section 1838 of the Consolidation Act, it is essential that the work or materials for which a lien is claimed, shall be work done, or materials furnished for work, on lands, the title of which was in the city at the time of the making of the contract, under which the work was done or the materials furnished.
    It is essential that the city should have made an appropriation in respect of the very contract, for work or materials furnished under which the lien is claimed, for the performance thereof (Per Sedgwick, Oh. J.).
    When a plaintiff brings an action to foreclose a statutory lien on funds in the hands of one, against whom he has no claim outside of such a lien, against that party and one who also claimed a lien on the same fund, and the complaint in his action is dismissed on the ground that he has no lien, he is not aggrieved by a judgment against the one holding the fund in favor of his co-defendant for the amount of the fund; for if in fact he had a lien such judgment would not prevent its being finally enforced.
    Before Sedgwick, ' Oh. J., and Truax, J.
    
      Decided July 2, 1886.
    
      Appeal from a judgment of the special term dismissing the complaint and granting judgment in favor of the above named defendant against his co-defendants, the Mayor, &c., for the amount admitted to be due under a contract entered into by one French and the city.
    The action was commenced by the plaintiff to foreclose a hen filed under the municipal hen act, against the moneys due under said contract.
    On May 16, 1884, one Samuel G. French entered into a contract with the board of education in this city to furnish a quantity of coal. Eight days after the date of the contract, French assigned to the firm of Joseph K. Wells & Co., whose assignee the defendant Putney is, all moneys due or to grow due under the contract, in consideration of their furnishing French with the coal necessary to carry out the contract. This assignment was not filed in the comptroller’s office until nearly a year later. The firm of Joseph K. Wells & -,Co. continued to furnish coal under this agreement with French up to September, 1884, when the said firm failed and made a general assignment to the defendant, William B. Putney. Thereafter, during the month of March, 1885, the plaintiff sold to the said French coal which was used in the performance of this contract with the board of education, amounting to $2,577.73, and thereafter on April 13, 1885, French assigned to the plaintiff all the moneys due or to grow due on said contract. This assignment was filed in the comptroller’s office, April 14, 1885. The assignment to the firm of Joseph K. Wells & Co. was not filed in the comptroller’s office until sometime afterwards. The plaintiff was ignorant of the assignment to Wells & Go. at the time that he took the assignment of the contract to him. The contract of French with the board of education was fully performed by the delivery of the coal received from the plaintiff, and, at the time of the commencement of the action, there was due under the contract the sum of $2,395.46, which money the defendants, the Mayor, &c., had in their possession. The plaintiff, claiming a lien on said moneys under the municipal lien act, filed within the proper time, proper notices of lien with the comptroller and the board of education, and thereafter brought this action to foreclose this lien.
    
      John C. Shaw, attorney and of counsel for appellant,
    on the questions considered_in the opinion, argued:— I. The defendant claimed that the amendment to chapter 315 of laws of 1818 (and his claim was sustained by the court) does not' include a contract of the character set forth in this case. The defendant’s contention rests upon the idea that the amendment of 1881 (§ 1838, Consolidation Act) relates solely to contracts for work or materials done and furnished “uponany land, the title of which was at the time of the making of the contract and now is in any city.” This is a mistake. It fails to give proper effect to the remaining clause of the sentence which reads as follows : “And for the performance of which appropriations have been, or shall hereafter be made and raised by any city.” It ignores the history of the act, the difficulties which had arisen under the original act, the mischiefs which existed, and the remedy which was needed. It is perfectly elear that the substitution of the disjunctive “ or,” for the copulative “ and,” between the two clauses of the sentence, would put the meaning of the act beyond all question. The same criticism which the defendant’s counsel indulges in would equally preclude one who had only done work, or one who had only furnished materials, from the benefits of the amendment. The amendment reads, that it shall .apply to contracts under which “work and materials,” not “work or materials ” have or shall be done and furnished, not “done or furnished.” The authorities are abundant that the courts will read “or” for “and,” or “and” for “or” in the interpretation of statute—:that they are convertible terms (Sedgwick Construction Statutory Laws [2 ed.] 371, note). A fair reading of the statute as it stands, leads to the same result. It is quite correct to say that the draftsman of the act intended to provide for two classes of contracts : First.—The contracts for work done and materials furnished upon any land, the title to which is in any city : Second.—Contracts for the performance of which appropriations have been or shall be made by any city. If this was the double idea which the draftsman intended to conr vey, then it was most natural to use the conjunction “ and ” in the connection in which it was used. Numerous decisions having been made under the original act to the effect that contracts made with a department of the city government, or with an independent body though a part of the system of the municipal government, were not within its language, the mischief thus discovered was attempted to be remedied by the amendment in question ; it was unjust to protect those who furnished work or materials to contractors with some- departments and not the others ; and the legislature, in obedience to this principle of natural right and justice, passed the Act of 1881.. Yet it is claimed that the legislature having before it the defects of the original act, sought to remedy it only where the work and materials were done and furnished upon the land of the city, and left all the other contracts, by far the larger number, still unprovided for. This strange and unnatural argument is made in spite of the fact that the original act related to all classes of contracts with any incorporated city, and was not limited to contracts to erect buildings on city land. The municipal hen act differs in this respect from the old mechanics’ lien law, which relates solely to property and liens on property. The municipal lien law relates solely to contracts, and gives a lien on the money due or to grow due on such contracts. The argument thus made, changes the entire scheme of the act by limiting the force of the amendment to a special class of contracts, instead of all classes of contracts, as was provided in the original act. The natural reading of the amendment should be as broad and liberal in its provisions as the original act. The only object and purpose of the amendment was to include contracts covered by the spirit of the original act, though not by its letter, whenever, in fact, the same weie made for the benefit of the city, or the city was to pay the expenses incurred under the contract made, by any agency whatever. This is the universal rule of construction of remedial statutes which have been passed to meet specific mischief, and this principle has even been extended by the courts to penal statutes (People v. Commissioners, etc., 95 N. Y. 554; Tonnele v. Hall, 4 Ib. 140 ; Dibble v. Hathaway, 11 Hun, 571 ; Matter O’Neil, 91 N. Y. 516 ;. Engel v. Fischer, 15 Abb. N. C. 72 ; Matter of Parade Ground, MSS. Opin. Daniels, J.; Lake Shore R. R. v. Roach, 80 N. Y. 339). Another reason which should be conclusive on the construction contended for by the plaintiff, is that the construction put upon it by the court below would not include contracts for work and materials' done on land of the city where appropriations were not made for the performance of the contract. Those, for instance with the dock department and the aqueduct commission. On the other hand, they come within its provisions if the plaintiff’s theory of the act as amended, be adopted. The work being done, or the materials being furnished, upon the city’s land, entitles the workman or the material-man to his lien, and in all other cases where the city makes appropriations for the performance of the contract, he is likewise entitled to his lien. The one construction produces chaos, and the other harmony. Further cases in favor of plaintiff’s contention, are, Williams v. Pritchard (5 T. R. 3); Bell v. Vanderbilt (67 How. 332); Engel v. Fischer (15 Abb. N. C. 73); Dibble v. Hathaway (11 Hun, 574) ; People ex rel. Com’r of Taxes (95 N. Y. 558); Matter of O’Neil, (91 N. Y. 520).
    II. The refusal of the judge to find that the city had made sufficient appropriation of money for the purpose of paying for the coal delivered under the contract in question, was error. The fourth proposed finding of the plaintiff to this effect was based upon the defendant’s own admission in the answer. The complaint in the second paragraph contained an allegation in these words, and the defendant' in his answer, in the second paragraph, expressly admitted all the allegations contained in the second paragraph of the complaint. This refusal to find a conceded fact is a ruling on a question of law (Code Civ. Pro. § 993 ; Fleischman v. Stern, 90 N. Y. 110). The learned judge, in his opinion, placed one ground of his decision upon the ground that there was no evidence that the city made or raised any appropriation for the performance of this contract. In view of the express admission in the answer, this statement is clearly inaccurate.
    III. The defendant Putney was not entitled to an affirmative judgment against the Mayor, &c. The judgment deprived the plaintiff of the opportunity of bringing an action to recover the fund on the ground of his supe-rior equities.
    
      James L. Bishop, attorney and of counsel for respondent,
    on the questions contained in the opinion, argued :— Plaintiff has acquired no lien under section 1838. Two: things must concur to give a lien : 1st. There must be a contract under which work and material have been done, and furnished upon land the title to which is in the city ; and, 2d. For the performance of such contract there must have been an appropriation made and raised by the city.\ There is no reason for saying that this statute was intended to give a lien in each of these cases separately.' The statute usés the word “and.” There is no reason for saying that this “and” means “or.” On the contrary, the reason of the statute requires that both these things should concur. When the improvement is made on city land the city ultimately pays for it, there is sense and reason for giving a lien on the contract moneys, no matter who makes the contract, and that would be a natural provision to insert in a statute which, as the statute o£ 1878, was intended “to secure laborers.” The plain purpose of the statute was to extend the operation of the Act of 1878, which was intended to secure laborers and others for public work in the cities of the state, so that when the work was really done for the benefit of the city, upon city land and with city funds, although the contract was made with a public officer or body which was not the representative or agent of the city, a lien should exist. The whole point of the statute is that the improvement should be on city land to be paid for practically by the city. It is the two things combined which create the equity of the statute. Neither of the two things required by the statute have been shown to exist in this case. The plaintiff claims that, with reference to the appropriation, the pleadings admit all that the statute requires. We say that is not the fact. The complaint alleges that “ the said defendants, the Mayor, &c., have duly made sufficient appropriation of money for the purpose of paying for the coal so delivered under and in pursuance and performance of said contract.” The answer admits simply that averment and nothing more. But the appropriation pleaded is not the appropriation referred to in the statute. The statute clearly refers to the case of an appropriation for a specific contract. The complaiiit avers a.general appropriation. Now, the statutory method of making appropriations of city money for the board of education is to make a general appropriation for school purposes indiscriminately. The board of education makes the specific appropriations (§§ 189, 1027, et seq., Cons. Act). Again, the averment of the complaint and admission of the answer are not sufficient to base a claim of lien, because there is no averment that the appropriations have been raised by the city. The city has the money but there is no averment or presumption that it was raised by the city. On the contrary, the board of education is a part and parcel of the state government. The state has. a common school fund, the revenues of which by art. 9 of the Constitution must be applied to the support of the common schools, and these revenues are by 1 R. S. p. 196, directed to be distributed among others, to the city of New York, to be paid to the city chamberlain. So that by public law the school moneys in the hands of the city are not wholly raised by the city, and the fact that the city appropriates such moneys cannot create any presumption that the moneys were raised by the city, because that would be a presumption against the general law of the State. The Consolidation Act provides (§ 1028, subd. 5), among the duties of the board of education, that they shall report the moneys drawn from the city chamberlain for the purpose of public education—“ distinguishing the amount received from the general fund of the state,- and from all other and what sources.”
    II. The plaintiff has no standing to complain of this portion of the judgment directing a recovery against the city, or of the order upon which the judgment was given. The plaintiff is not a party aggrieved by this provision of the judgment, or by the order, and, therefore, cannot appeal (Code, § 1294; Cuyler v. Moreland, 6 Paige, 213 ; Genet v. Davenport, 60 N. Y. 194). It having been determined that plaintiff has no interest in the fund, it can make no difference to him to whom it is paid: Neither the defendant, the Mayor, nor the defendant, French, have appealed from this judgment.
   Truax, J.

It was not the intention of the legislature to give every person who had a contract with, or who furnished materials to every person who had a contract with the city, a lien. Sections 1824 and 1825 of chapter 410, Laws of 1882, provide that persons therein mentioned may have a lien, on filing a notice with the head of the department or bureau having charge of the work to be performed by the contractor with the city, at any time before the whole of said work is completed or accepted by the city, and within thirty days after the same is so completed or accepted. . These sections give a lien only when there is work to be performed; they give a lien for materials only when the materials are furnished towards the performance or completion of a contract for work. And section 1838 of the said act contemplates that this work shall be done upon, and the materials shall be furnished for work that has been done upon lands the title of which was at the time of the making of the contract, in the city. The act contemplates that the materials shall be furnished in the improvement of the city’s property.

The judgment should be affirmed, because the act does not give a hen to the plaintiff. If this view is correct the plaintiff was not aggrieved by the disposition that was made by the trial judge of the money in the city’s possession.

Judgment affirmed with costs.

Sedgwick, Oh. J.

(Concurring).—If the plaintiff or the assignee for creditors, be assignee of the money due under the contract of French with the board of education, the city of New York is not generally liable, and the board of education has not been made a defendant.

The only claim made for the plaintiff in this action is under section 1838, chapter 410 of the Laws of 1882. The claim is that the city is in possession of the fund which represents the money due upon the contract, and that the plaintiff has a lien upon this fund, under the statute.

The section reads, “ This act shall apply to and include all cases and contracts under which work and materials have heretofore been, or shall hereafter be done and furnished, upon any land, the title of which was, at the time of the making of the contract, and now is, in any city, and for the performance of which appropriations have been made or shall hereafter be made and raised by any city.”

The decision of this appeal will be limited to the construction of this section, although, no doubt, there are other important questions in the case.

The section presents difficulties. I am of the opinion that the learned judge below had the true view, which is that the act was to apply when two conditions concurred, the one, that work and material were done and furnished upon land, the title of which was in the city; and the other, that the city had appropriated money for the performance of the contract. In the general legislation in respect of contracts with the city, there was no more common or important limitation than that contracts should be paid out of appropriations made in respect of such contracts. It would be a reversal of the previous policy on the subject not to provide for satisfaction out of appropriation, and almost useless to provide for a lien on account of money due upon a contract to improve land, unless there should be some fund for the payment of the contract, which would most generally arise from an appropriation. The second condition referred to would be naturally attached to the first, upon the first being expressed, and in accordance with the policy that has been noticed. If it were not intended that there should be a double condition, the second would be sufficiently comprehensive without mention of the first, unless the legislative intent was to provide for a lien in all cases where contracts for improvement of the land of the city had been made. Few such contracts are made unless contemporaneously with the appropriation of money for their payment. It is a maxim of construction to deem ihat general clauses are made for things that the more frequently occur. It cannot be successfully contended that in this case work or material were furnished upon land. In that part of the appeal that concerns the judgment given in favor of the respondent against the city, it must be held that the appellant is not aggrieved by it. For, if in fact, the appellant had a lien, the present judgment would not prevent its being finally enforced.

Judgment is affirmed, with costs.  