
    John Harrigan, Appellant, v. William A. Prendergast, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    Liens — discharge of — evidence — pleading — motion for discontinuance —■ Lien Law, § 21(4).
    In an action for the return of a certain sum of money deposited by plaintiff with the predecessor of defendant as comptroller of the city of New York to discharge certain liens against funds in the possession of the city due to a certain contractor, which sum it was alleged was to be returned to plaintiff in the event that the lienors failed to succeed in their lien, or that the lien would expire or lapse, the testimony of plaintiff’s attorney as to the circumstances under which plaintiff originally received the money though not alone ’ sufficient is competent to prove his ownership of it.
    Upon the exclusion of the testimony, no counterclaim having been interposed, it was error to-deny plaintiff’s motion for a discontinuance upon payment of costs and to direct a verdict in favor of defendant.
    The mere fact that section 21(4) of the Lien Law provides that a lien may be discharged “by the contractor depositing money ” raises nothing but a rebuttable presumption that said money belongs to the contractor.
    Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered upon a directed verdict.
    Williams, Folsom & Strouse (Arthur D. Fisher, of counsel), for appellant.
    Lamar Hardy, corporation counsel (Terence Farley and Arthur Sweeny, of counsel), for respondent.
   Bijur, J.

Plaintiff brings this action for the return of $1,150 deposited by him with the predecessor of the defendant, as comptroller of the city of New York, to discharge certain liens against funds in the possession of the city due to a certain contractor, the Philip T. Brown Company, which moneys were, plaintiff alleges, “ to be returned to plaintiff in the event that the, lienors failed to succeed in their lien or that the lien would expire or lapse. ’ ’

Upon the trial, plaintiff’s counsel undertook to prove the ownership of the money deposited in the plaintiff by the testimony of one of plaintiff’s attorneys, who tried to testify-to the circumstances under which plaintiff originally received the money. Practically all this evidence was excluded. While perhaps, if admitted, it would not have been sufficient alone to establish plaintiff’s ownership of the money, it was certainly competent (De Wolf v. Williams, 69 N. Y. 621; Muller v. Abramson, 25 Misc. Rep. 520; Karrigan v. Ninth Ave. R. R. Co., 44 App. Div. 116) and if supplemented it might have sufficed. Upon the exclusion of this evidence plaintiff applied to discontinue, with costs, saying: “I think we can discontinue with costs at any time.” The learned judge below thereupon said: “ Not in this court.” In this the learned judge erred. No counterclaim had been interposed, and there appeared in the case no circumstances to warrant a denial of plaintiff’s application to discontinue, with costs. Matter of Butler, 101 N. Y. 307; Kruger v. Persons, 52 App. Div. 50; Connolly v. Empire W. R. Co., 88 Misc. Rep. 118.

Respondent seeks to justify the verdict directed on the ground that by mere force of section 21 of the Lien Law, subdivision 4, which provides that a lien may be discharged by the contractor depositing ” with the comptroller such sum of money, etc., it is virtually enacted as matter of law that any money deposited to discharge liens must necessarily and conclusively be deemed to be the property of the contractor. The chief case cited to sustain this view is People ex rel. Gilbert v. Laidlaw, 102 N. Y. 588. That case, however, related to money deposited in lieu of bail in a criminal proceeding, and, assuming that it can be construed as holding that the money should be deemed conclusively the property of the defendant, the decision is based on the particular language and peculiar provisions of the sections of the Code of Criminal Procedure therein involved, together with considerations of public policy and convenience. None of these factors appear in the case at bar.

Later cases, such as Matter of Rothschild v. Gould, 84 App. Div. 196; Sutherland v. St. Lawrence County, 101 id. 299, either expressly decide or strongly intimate that the presumption that the money belongs to defendant is merely prima facie and may, of course, be rebutted by appropriate and adequate evidence to the contrary. To the same effect is Finelite v. Sonberg, 75 App. Div. 455, which, however, involved only an arrest in a civil action.

I do not think, therefore, that the mere fact that the statute provides that the lien may be discharged “ by the contractor depositing money ” raised anything but a rebuttable presumption that the money so deposited belongs to the contractor. Of course, we cannot anticipate what further proofs bearing upon that presumption may be adduced at the trial.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event, unless plaintiff elects within ten days after entry of this order and notice thereof in this city to discontinue, in which event such leave is granted upon payment of appropriate costs in the court below, less costs of this appeal.

Lehman and Finch, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  