
    New York County National Bank, Respondent, v. Charles H. Peckworth et al., Defendants, and Theodore C. Wood, Appellant, Impleaded with Others.
    
      N. 7. County Nat. Bank v. Wood, 169 App. Div. 817, affirmed.
    (Argued January 11, 1918;
    decided January 29, 1918.)
    ' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 25, 1915, modifying and affirming as modified a judgment in favor of defendant, appellant, entered upon a decision of the court on trial at Special Term. The action was brought in equity to recover an unpaid balance due from Bernheimer & Schwartz Pilsener Brewing Company, under a contract made by it as owner with the defendant Charles H. Peckworth for the construction of a building. The claim of the plaintiff, respondent, is based on an assignment made to it by the contractor, the defendant Charles H. Peckworth. The appellant, Wood, was made a party defendant because he had filed a notice of mechanic’s lien against the premises. The appellant pleaded the said lien and asked its foreclosure in preference and priority to the claim of the plaintiff, respondent. The trial justice found that the lien of the defendant, appellant, was entitled to priority over the claim of the plaintiff, respondent, and judgment was entered directing payment of the appellant’s lien, with interest out of the amount concededly due from the owner to the contractor. On appeal from said judgment the Appellate Division modified the judgment of the trial court and directed judgment that the plaintiff, respondent, by reason of its said assignment, was entitled to priority of payment to the defendant, appellant, by reason of his said mechanic’s lien.
    
      William R. Hill and William F. Kimber for appellant L. Laflin Kellogg and William K. Hartpence for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Collin, Cuddeback, Hogan and Andrews, JJ. Dissenting: Cardozo and Pound, JJ.  