
    David R. Paige et al., v. The Mayor, etc., of the City of New York. Heman Clark and John O’Brien, Appl’ts, v. Abraham S. Jackson, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    Assignment—Of moneys due undeb contbact—Pboof of.
    To prove a transfer "by a contractor of moneys to become due under a contract a written instrument or the delivery of the contract or some evidence of the claim must be shown; the mere testimony of the contractor that he made an assignment of the moneys is not sufficient.
    Appeal from judgment recovered at the special term.
    
      F. T. Lovatt, for app’lts; Flamen B. Candler, for resp’t.
   Daniels, J.

The controversy in this action affected the dispotion to be made of the contract price of the construction of shaft 15& on section 7 of the New Croton aqueduct. The work was let to John A. Lee, and the city had no other interest in the litigation than to pay the money to the parties entitled to receive it The plaintiffs took the necessary proceedings to obtain a lien on the fund for labor and materials performed and supplied by them under a contract with Mr. Lee. They were adjudged to have maintained their right to receive so much of the fund as was necessary to satisfy their demand. And the correctness of that determination has not been brought in question by this appeal.

But the balance of the fund afterwards remaining was held to be payable to the defendant Abraham S. Jackson, who was an attaching creditor of the contractor John A. Lee, and whose attachment had been served upon this demand. His proceedings in that action appear to have been regularly prosecuted for the seizure of the indebtedness by the attachment.. But the appellants Homan Clark and John O’Brien asserted a paramount title to the fund, by reason of an alleged assignment of it to them before the service of the attachment. The answer of neither of these contesting defendants was served upon the other in compliance with § 521 of the Code of Civil Pro.; nor was any objection made to the regularity of the action for want of that service. But the attaching creditors were permitted to prevail because of the deficient and unsatisfactory nature of the evidence given to prove the assignment. No written assignment was proved or produced, nor was any act shown from which a delivery of the contract or claim could be held to have been made. But all the evidence given to prove the assignment was obtained from Mr. Lee himself, who was a witness on the trial. And all that he stated on that subject was: ‘‘ I made an assignment of all moneys due and to become due to O’Brien & Clark in March, 1887; fore part of March, ' 1887.”

And that was wholly insufficient to prove that he had made a transfer of the money, or that lie had done anything which could be held to have vested these defendants with any title to the money. A written instrument, or the delivery of the contract, or some evidence of the claim, was essential to that end. But neither this witness, nor these defendants produced, or even testified that such an assignment had at any time been made, or that any act had taken place to which the law could attribute the fact of an assignment. Their demand, resting upon this loose and unsatisfactory testimony, was rightly rejected by the court. And the judgment should be affirmed.

"Van Brunt, P. J., and Brady, J., concur.  