
    Patrick J. Quinn et al., App’lts, v. Spencer Aldrich, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    1. Contbact—Acceptance op obdeb—Dbawee’s liability.
    A person who has contracted to pay for the erection of a building in specified payments, and accepts an order drawn by the contractor, agreeing to pay it when a certain payment is due such contractor, is not liable in an action on the order in the absence of any proof that the contractor was entitled to the payment.
    2. Same.
    The mere fact that the acceptor had paid money to- the drawer on account of the specified payment, leaving enough due thereon to meet the order, does not justify the inference of fraud and is immaterial, he having a right to give the drawer any money he pleased and on what account he pleased.
    Appeal from judgment dismissing the complaint.
    
      A. C. Thomas, for app’lts ; W. B. Dall, for resp’t.
   Van Brunt, P. J.

The defendant had a building loan contract with one Vandewater, which provided for payments, fifteen in number, each in the sum of $10,000. Among the other payments provided for by said contract was the ninth payment, called the “ brown mortar, rough plumbing, boilers in, payment,” and the tenth payment, called the white mortar and iron stairs payment,” in the pleadings. The contract also provided that if the builder should proceed to and erect the buildings as in said contract agreed, and should produce to the defendant the certificate of W. J. Rider that the work thereon had progressed to the points in said contract mentioned, and that the same had been in all respects constructed as therein required, the defendant would advance to said Vandewater said loan, no instalment or part thereof being payable until forty-eight hours after the certificate of said Rider should have been furnished to defendant

It is also provided that if, at any time that said house should have progressed so far that an instalment of said loan was payable, there should be any lien thereon other than the lien of certain mortgages therein mentioned, the said instalment should not be advanced until said lien was removed, and also that the defendant might, at his option, advance money at other and different times than was specified, and when so advanced, the same should be considered as an advance upon the instalment or instalments next thereafter tó become due. It appears that Vandewater, on the 23d of March, 1890, gave to the plaintiffs an order upon the defendant to pay them $500 out of the ninth, or brown mortar, etc., payment, when said payment became due and payable. This order was presented to the defendant, who acknowledged its receipt, and returned the same, having had a copy made for himself ; the defendant stating that when Vandewater was entitled to the ninth payment he would reserve the said $500 out of said ninth payment, with which to pay the said order. The defendant paid to Vandewater, after notice of said order, on account of said ninth payment, sums amounting to $6,500, and also paid $500 on the tenth payment, and this action was brought to recover the $500 represented by said order.

It is urged upon the part of the appellants that the order in question was an assignment of the moneys thereafter to become due to Vandewater on the ninth, or brown mortar, payment, and constituted a first lien thereon. But it is insisted upon the part of the respondent that the plaintiffs, as equitable assignees of Yandewater, had no greater or other rights than their assignor. In considering the rights of the parties it may not be amiss to examine the terms of the acceptance of the order by the defendant, and also the claims which such order gave the plaintiffs upon the defehdant The agreement of the defendant was to pay when Yandewater was entitled to the ninth payment under the contract. It seems to be clear that there was no promise upon the part of the defendant to pay until the builder was entitled to the ninth payment according to the terms of the contract. There was no evidence that Yandewater was ever entitled to the ninth payment, he never having completed the preliminary steps to entitle him to such payment. The mere fact that the defendant chose to advance to Yandewater certain moneys on account of that ninth payment, leaving sufficient due thereon to meet the order given to the plaintiffs, does not justify the plaintiffs in claiming that they had been defrauded of any of their rights. They are only entitled to claim against the defendant when the builder is entitled to the ninth payment, and that has never been shown ; and it is entirely immaterial what arrangements the defendant and Yandewater made between themselves in reference to this payment. The defendant had a right to give Yandewater any money that he pleased, or as much as he pleased, or on what account he pleased. But when Yandewater or his assignee comes to claim, as a matter of right, money from the defendant, he must show that he has fulfilled his contract, and has done those things which the contract requires to be done, before he can insist upon such payment. This the plaintiffs have not done. They have not shown that the work was completed which entitled Yandewater to the ninth payment. Neither have they produced the required certificate.

As to the claim made by the plaintiffs that they are entitled to the first money paid upon the ninth payment, there seems to be no foundation therefor. They were to be paid when the ninth payment was due, and it is entirely immaterial whether it was the first or the last that they got. Until that whole payment was due they were not entitled to anything.

We think, therefore, that the learned court below was right in dismissing the complaint, as no causé of action was made out, and the judgment should be affirmed, with costs.

Eollett, J., concurs.  