
    Van Kannel Revolving Door Company, Respondent, v. W. & J. Sloane, Appellant, Impleaded with John Jacob Astor, Respondent, and Louisa Grissler and Others, Defendants
    (No. 1.)
    First Department,
    December 6, 1907.
    Mechanic’s lien — payment to contractor after dismissal of complaint as against owner — when sub-contractor not entitled to have money paid into court.
    When in an action by a sub-contractor, brought against the owner and the principal . contractor to foreclose a mechanic’s lien, the plaintiff has successfully appealed from a judgment dismissing the complaint as to the contractor only, and the time to appeal from the dismissal of the complaint as to the owner having expired, the owner pays the contractor a balance due, the court is without power to direct the contractor by summary order to pay the money into court, to be held in place of the property, where the plaintiff’s right to the money is an issue, to be determined on the trial of the action.
    The judgment dismissing the complaint as to the owner conclusively established that the plaintiff did not have a valid lien; hence he cannot succeed against the contractor without showing that the moneys paid were impressed with a trust for his benefit, which, issue should be left for the trial, not determined upon a preliminary motion to compel payment into court.
    Houghton, J., dissented.
    Appeal by the defendant, W. & J. Sloane, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of August, 1907, as resettled by an order entered on the'23d day of August, 1907, as relieves the plaintiff from a certain stipulation and directs said defendant to pay into court an amount sufficient to cover the plaintiff’s alleged lien.
    
      Selden Bacon, for the appellant.
    
      Hector M. Hitchings, for the plaintiff, respondent.
   McLaughlin, J.:

This action was brought to foreclose a mechanic’s lien upon certain real estate in the city of Hew' York, of which the defendant Astor is the owner. He had a contract with the appellant for the performance of certain work on a building erected upon the real estate- The plaintiff was a sub-contractor under the appellant. At the time of the- filing of the notice of lien and of the commencement of this action, Astor owed Sloane, under its contract, a sum in excess of the plaintiff’s alleged lien, and which, in the answer interposed by him, he alleged he was holding because of the alleged lien of the plaintiff, and that he could not safely pay this amount to any one until the respective rights of all the parties.to the action were adjudicated and settled.

The action was subsequently tried and the complaint as to all of the defendants dismissed upon the merits. The plaintiff appealed as to Sloane, but not from the judgment dismissing the complaint against Astor. After the time had expired within which an appeal could have been taken against Astor, he paid to Sloane the amount due it under the contract. The judgment, in so far as it related to Sloane, was reversed and a new trial ordered. Van Kannel Revolving Door Co. v. Astor, (119 App. Div. 214.) The facts which were developed at the trial are set forth at length in the opinion which was delivered by Mr. Justice Lambert, writing for a majority of the court, reversing the judgment. They were substantially the same as those set out in the papers used on the motion which resulted in the order here appealed from, and, therefore, it is not necessary to again state them. In the opinion he said: “ As we view the law applicable to the facts appearing in the appeal book herein, a reversal of the judgment would be unavailing to the appellant. The foundation of this action is the lien upon the real property improved or to be improved, and upon such improvement.’ (Lien Law, § 3.) This foundation has been taken away by the judgment dismissing the complaint upon the merits as against the owner of the real property, and now made conclusive by reason of the expiration of the time in which an appeal might have been taken as- of right. Before the argument of this appeal, however, a motion was made by the' respondent upon notice, to dismiss the appeal herein. From the record- there disclosed it appears that the owner, Mr. Astor, after the- time to take an appeal as to him had expired, and under some alleged stipulated right, paid the balance of the contract price of construction of the building in question to the general contractor (Sloanes), and it may be that upon a trial of the case it will be shown that the money payment was to be held as a substitute for the ‘ real property improved,’ to abide the event of the action, or that it was paid and received under such circumstances that it became impressed with a trust available to the appellant.”

After the judgment had been reversed by this court the plaintiff made a motion to be relieved from the stipulation referred to and to compel Sloane to pay into" court an amount sufficient to fully indemnify it for the principal of the lien, with interest and costs. The motion was granted, and Sloane was directed to pay into court the sum of $10,500, “ said sum to take the place of the land covered by plaintiff’s lien.” Sloane appeals from the order, except in so far as it relates to relieving the plaintiff from the stipulation.

I know of no possible theory upon which this, order can be sustained. It is, to say the least, somewhat startling that the -court can, simply by its own fiat, direct a party to pay a sum of money into court to take the place of an alleged lien, where the right to the money and the existence of the lien are disputed facts to be determined upon- the trial of an action brought for that purpose, and especially so in view of what this court determined on the appeal from the judgment. A majority of this court, in the opinion delivered, intimated that a reversal- would be unavailing unless it could be shown — not on a motion but at the ■ trial — that the money which was paid was to take the place and be a substitute for the real property against which the lien had been filed. There is not a suggestion in the moving papers that the money was paid by Astor, or received by Sloane, with this understanding, or that any facts exist showing, or tending to show, that the money paid was impressed with a trust for- the plaintiff. The plaintiff’s right to maintain the action is predicated upon the fact that he has a valid lien on the real estate. The judgment dismissing the complaint as to the owner of the real estate conclusively established that he did not have a valid lien. This being so, he cannot possibly succeed as against the defendant Sloane without showing facts from which the court can see that the money paid was impressed with a trust for its benefit, and whether it was impressed with such trust or not must-be determined at the trial, and the court has no power, in advance of that, to summarily direct Sloane to pay into court a sum sufficient, if a recovery be had, to pay the same, together with interest and. costs of this action.

The order, therefore, so far as appealed from, must be reversed, with ten dollars costs and disbursements, and the motion to that extent denied, with ten dollars costs.

Patterson, P. J., Ingraham and Scott, JJ., concurred; Houghton, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. ^ 
      
      Laws of 1897, chap. 418, § 3.—[Rep.
     