
    The Merchants National Bank of Worcester, Massachusetts, Appellant, v. George B. Long et al., Defendants, City of Buffalo et al., Respondents, and London Guarantee and Accident Company, Ltd., Appellant.
    
      Buffalo (city of) — validity and priority of claims to moneys due on contract for public improvement.
    
    
      Merchants Nat. Bank of Worcester, Mass., v. Long, 204 App. Div. 856, affirmed.
    (Argued May 3, 1923;
    decided May 29, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 27, 1922, unanimously affirming a judgment in favor .of defendants, respondents, entered upon a decision of the court on trial at Special Term. The action was brought to determine the validity and priority of various claims made by the different parties to moneys of the city of Buffalo applicable to the payment of the contract price for the construction of the public improvement known as the city hospital. Plaintiff claimed the moneys by assignment from the contractor, defendant Long. The defendant city of Buffalo answered that it had paid the moneys to the defendant United States Fidelity and Guaranty Company. The defendant United States Fidelity and Guaranty Company answered that it was surety on the contract bond of Long, that it held his assignment of the contract moneys, that upon his default it completed his contract and paid out in so doing and on claims of persons who had furnished him materials, and for which claims it was liable under its bond, moneys in excess of those received from the city. The defendant London Guarantee and Accident Company claimed part of the moneys by virtue of a warrant of attachment against Long. The trial court awarded the entire fund to the defendant United States Fidelity and Guaranty Company.
    
      Thomas C. Burke for plaintiff, appellant.
    
      George H. Kennedy for defendant, appellant.
    
      George P. Keating for United States Fidelity and Guaranty Company, respondent.
    
      William S. Rann, Corporation Counsel, for city of Buffalo, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Crane, JJ. Absent: Andrews, J.  