
    Tobia Prata, Respondent, v. Samuel Green, Appellant.
    
      Agreement to pay to a materialman a specified sum out of an installment to fall due to the contractor at a certain stage of the work — the payment before it becomes due, of the balance of such installment to the contractor, who then abandons the work, entitles the materialman to his money.
    
    Under an arrangement between the owner of certain premises and a mortgagee thereof, .the owner was to erect a number of buildings thereon and the mortl gagee was 'to advance to him certain sums at various stages in the'erection of the buildings: During the progress of the work the mortgagee, in order to induce a firm which had furnished a portion of the stone used in' the construction of the buildings, and for which it had not been paid, to furnish the rest of the stone, made an agreement with the firm by which he undertook to withhold, from the payment to which the owner would be entitled when the buildings were inclosed, §800 and pay the same to the firm. After the firm had furnished the stone, but before the building had been entirely inclosed and before it was due under the terms of the contract, the mortgagee paid to the- owner §4,950, which represented the amount of the inclosure payment less the §800 which he had contracted to withhold. After receiving such payment, the owner abandoned his contract and never entirely inclosed the buildings.
    In an action brought by an assignee of the firm against the mortgagee to recover the §800 which the latter agreed to withhold from the inclosure payment,
    
      Reid, that the plaintiff was entitled to recover;
    That when the mortgagee chose to recognize the owner’s right to receive the inclosure payment before it became due, the right of the plaintiff's assignors to the §800 immediately attached.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, Samuel Green, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of clerk of the county of Rew York on the 25th day of June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Alexander Rosenthal, for the appellant.
    
      Milton Mayer, for the respondent.
   Hatch, J. :

The defendant, being the owner of certain premises, conveyed the same to one Cohen and entered into an agreement with the latter for the erection of six houses thereon, defendant agreeing to procure a building loan to be advanced in certain sums as progress was made with the buildings. Green took back a mortgage from Cohen upon the premises, subject to the mortgage securing the building loan. By the terms of the contract under which the houses were erected, Green was to advance to Cohen the sum of $5,750 when the buildings should be inclosed ; this was called the inclosure payment. Cohen made and entered into a contract with the plaintiff’s assignors to furnish stone to be used in the construction of the buildings. The evidence on the part of the plaintiff tended to show that Cohen made default in payment for the stone delivered pursuant to such contract, and that by reason of such default plaintiff’s assignors refused to deliver further stone thereunder until payment was made for that already delivered. This being the situation and the defendant being anxious that Cohen should fulfill the contract and complete the houses, he applied to the plaintiff’s assignors to furnish the-stone, and in order to induce them so to do he entered into the-following contract:

“ New York, November 2, 1899.
“ Received from Samuel Green his check for ($400) Four hundred dollars, for which we promise to deliver the stones needed for the 6 houses which David Cohen is building on 113th Street, between 1st and 2nd Avenues.- It being understood that David Cohen has given to Samuel Green ah order for the total sum of the enclosure payment he is to receive upon five of said houses, and that Samuel Green promises to hold an additional sum of Eight hundred dollars for us, until the six buildings are enclosed.
“New York, November 2,1899.
- “ I agree to withhold $800 from the amount of the enclosure payment & pay the same to S. Pizzutiello & Sons.
“(Signed) SAMUEL GREEN.”

Pursuant to this engagement, Pizzutiello & Sons furnished the stone and in all substantial respects made compliance with the contract. After its execution, but before the buildings were entirely inclosed, Green obtained from the building loan fund, pursuant to the order which had been delivered to him by Cohen, $4,950,. leaving a balance due upon the inclosure payment, if the contract had been fulfilled, of the sum of $800. The defendant paid to Cohen the amount that he received of the inclosure payment prior to the time when it was due according to the terms of Cohen’s contract. After such payment Cohen abandoned his contract, leaving the same uncompleted and never in fact entirely inclosed the buildings. Green assigned his mortgage to a party who foreclosed the same and upon the sale he bought in the premises and subsequently resold the same. Plaintiff’s assignors applied to the defendant after-(they) had delivered the stone and asked for payment. Defendant requested them to wait, as- he would be obliged to foreclose his. mortgage, and when the matter was straightened out he would, pay the money. It never having been paid, Pizzutiello & Sons assigned their contract to the plaintiff, who brings this action.

The rights of the parties are to be determined from a construction of defendant’s contract under which he assumed the payment of the $800. It is undisputed that Green had a substantial interest in procuring the contract made by Cohen to be fulfilled. His mortgage security very largely depended for its value upon such fulfillment. It was clearly for his benefit that the stone was furnished, and by virtue of his undertaking he procured its delivery and had the benefit of plaintiff’s material in the construction of the buildings, and he had it within his power at all times to protect Pizzutiello & Sons from any loss in connection with the transaction. The equitable features, therefore, which the case presents are clearly with the plaintiff. By the terms of the defendant’s agreement, no particular sum was reserved from the inclosure payment to which it could be made applicable. Such payment was all due. at one time, and when due, $800 thereof belonged primarily to plaintiff’s assignors, and defendant was bound at his peril to see that they received it.

While the defendant had the right to stand upon the terms of his contract with Cohen and make no payment until the houses were inclosed, it was nevertheless competent for him to waive strict performance of the contract and make' such payment, but he could not so pay if thereby the plaintiff’s assignors were prejudiced. Eight hundred dollars of the inclosure payment belonged equitably to the plaintiff’s assignors, and if the defendant chose to recognize Cohen’s right to receive the in closure payment, the right of plaintiff’s assignors to be paid immediately attached thereto. This money became due to them the moment that the defendant recognized Cohen’s right to receive the same, and he did so recognize it when he mp.de the payment. The act of payment upon the part of the defendant was distinctly prejudicial to the right of plaintiff’s assignors, and as defendant was obligated to pay this debt from the inclosure payment, he had no right under the terms of the contract to deplete the fund, without protecting the interest of plaintiff’s assignors therein. (Beardsley v. Cook, 143 N. Y. 143.)

It being conceded that Green paid upon the inclosure payment $4,950, in utter disregard of his contract to pay for the stone which had been furnished for the building, we think he may not shelter himself from liability by now setting up the claim that he had retained a sum sufficient from the .inclosure payment to meet this claim, and would havé paid it had Cohen fulfilled his contract. We think that such is not the fair construction of his engagement. On the contrary, we are of opinion that when he recognized the right of Cohen to receive payment for his part of the work, he was immediately charged with an obligation created by his contract to pay the plaintiff’s assignors. We, therefore, conclude that the construction placed upon the contract by the court below was correct, and that the defendant, having received and paid to Cohen more .than was sufficient to discharge this claim, he became liable therefor.

Under this view of the case there are no other questions which require consideration. It follows that the judgment and order should be affirmed, with costs.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment and order affirmed, with costs.  