
    Maicho Fortunato, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York and Others, Respondents. Helen A. Dawson, as Administratrix, etc., of John F. Dawson, Deceased, and The Twelfth Ward Bank of the City of New York, Appellants.
    
      Stipulation that a party would, if sworn, testify to certain facts — it is available t&such party’s executors on a new trial.
    
    Where, on the trial of an action involving an issue between two of the defendants, one of such defendants admits that the other defendant would, if sworn, testify-to certain facts, and waives the personal production of such defendant, the.admission operates as a stipulation, binding 'upon the party making it clUiingthe continuance of the litigation, and, in the event of the death of the defendant, to whose testimony the admission related, pending a new trial of the action, his executors are entitled, under the provisions of section 830 of the Code of Civil Procedure, to read the testimony upon the new trial.
    If the defendant making the stipulation desires to be relieved therefrom upon) the new trial, it is its duty to apply to the court for that relief and show equitable considerations authorizing the court to grant it.
    Appeal by the defendant, the Twelfth Ward Bank of the city-of New York, from the following portions of a judgment of the-. Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of May, 1901, upon the report of a referee,, viz., from that portion thereof which grants to the defendants. Thomas Gr. Patten and another, as executors, etc., of Thomas Patten, deceased, judgment against the defendant, the Twelfth Ward Bank of the city of New York, and from that portion of said judgment which awards the defendant Helen A. Dawson, as administratrix, etc., of John F. Dawson, deceased, judgment against The-Mayor, Aldermen and Commonalty of the city of New York, for-the sum of $620.50 instead of $5,840 ; also an appeal by Helen A. Dawson, as administratrix, etc., of John F. Dawson, deceased, from that portion of said judgment which awards her $620.50 instead of $5,840.
    
      C. J. G. Hall, for the appellant Dawson, as administratrix.
    
      Charles W. Dayton, for the appellant Twelfth Ward Bank.
    
      
      Robert E. Deyo, for the respondents Patten and another.
    
      Theodore Connoly, for the respondent City of New York.
   Hatch, J.:

The law of this case, so far as it affects the parties to this appeal, has been practically settled. In Fortunato v. Mayor (42 App. Div. 14) it was decided by this court that the contract between the city of New York and Dawson had been fulfilled and the money due under the terms of the contract was being held by the city as stakeholder for the parties in interest. Under these circumstances an action was brought to foreclose a lien filed against the fund which the contractor was entitled to receive from the city under the terms of his contract. In such action the only issue under the pleadings related solely to the priority of liens upon the fund ; the court held that under such issue the defendant, a contractor, could not thereafter be permitted to file a supplemental answer by setting up the performance of extra work under the contract and thereby change the situation of the city from a stakeholder to a debtor and make it the real defendant in the action. As the contractor Daweon, the present appellant, made such application and the court denied the same, it must follow that such decision was conclusive upon her right so far as the same affected the authority to recover for extra work done under the contract. Upon the present trial the referee allowed the only amendment to the pleading which was permissible under the decision of this court. That amendment permitted a recovery for work upon a portion of the wall which had not been allowed by the city under the contract as appeared by the testimony of the city’s engineer, and that sum, together with the amount to which she was otherwise entitled, was the amount for which judgment was ordered in her favor. This is all for which the evidence authorized a recovery under the pleadings. Her appeal must, therefore, fail.

The remaining issue is between the representatives of Thomas GL Patten, deceased, and the Twelfth Ward Bank. The decision in Fortunato v. Patten (147 N. Y. 277) is conclusive upon the subject that the assignment to Patten under date of April 13, 1887, was valid and enforcible as such,, and this is the necessary result in order that that decision be supported. Both the first and second assignments to Patten were the subject of discussion and construction in the determination of the rights, not only between the city and Patten, but between the latter and the Twelfth Ward Bank, and such assignments were held to be valid and enforcible. These assign-? ments furnished security for the same sums of money claimed by -the Twelfth Ward Bank, less amount of payments thereon to Patten, and the latter assignment was expressly held by the Court of Appeals to be a continuing collateral security for the loan, and that it did not in the slightest degree affect the validity of the first assignment. Consequently this determination is res adjudícala of -the priority of Patten’s assignment. If, however, it were otherwise it must be held that the evidence in the case is sufficient and justified the referee in finding that the assignments to Patten covered the amount of the claim as against the bank. The admission made by the bank upon the former trial was that the defendant Patten, if called as a witness, would testify that his assignment, under date of June 23, 1890, was given as collateral security for the two notes held by Patten, and, also, that there was due to him, under such assignment on the date of the admission, $1,5.00, with interest, which was to be calculated, and that -there was due, to the defendant Patten on the second assignment $3,500, with interest, and that the notes were given for money loaned. The personal production of Patten so to testify was waived. The force and effect of this admission operated as a stipulation between the parties thereto, and Patten is to be regarded as having so testified. He having since •died, his executors were entitled to read the testimony under the provisions of section 830 of the Code of Civil Procedure. The stipulation, having been regularly made, continues to be binding upon the Twelfth Ward Bank during the continuance of the litigation. (Clason v. Baldwin, 152 N. Y. 204; Converse v. Sickles, 16 App. Div. 49 ; affd., 161 N. Y. 666.)

If the bank desired to be relieved from such stipulation, it- was required to show equitable considerations authorizing the court to .grant the relief and make application therefor. No such equitable considerations are now made to appear, and the bank never made any application to be relieved therefrom. Had not the stipulation been made it must be assumed that Patten would have been called as a witness. The stipulation dispensed with this necessity, and the testimony, therefore, must he regarded upon this appeal as haying-been given by him. The referee was, therefore, right-in receiving it and acting upon it. These views lead to the conclusion that the= judgment-should be affirmed, with costs to the respondents.

Patterson, O’Brien, Ingraham and Laughlin, JJ., concurred.

Judgment affirmed, with costs.  