
    Robert Hackett and Others, Plaintiffs, William F. Lawrence and James V. Lawrence, Appellants, v. John C. Campbell, Jr., The Board of Education in the City of Yonkers and Others, Defendants; Henry C. Fischer, ¡Respondent.
    
      Contract —prohibition against an assignment of any part of the amount due—what-constitutes a waiter thereof and a consent.
    
    A provision contained in a contract between the board of education of the city of Yonkers and a contractor, to the effect that no assignment of any portion of' the amount due upon the contract should be made without the consent, first had in writing, of the committee on construction of the board of education, is one intended solely for the benefit of the board of education, and its sole function is to prevent any claim from being asserted against the city in the absence of its consent.
    Where it appears that, under such a contract, the contractor has made numerous assignments of moneys to become due him under the contract, which have been presented to and filed with the board of education and entered as received in a book kept by its clerk, and that a number of them have been paid by it, the board must be deemed, when the orders were entered in the book, to have assented to them, and they will operate as an assignment pro tanto of the fund due to the contractor, and are entitled to be paid before a lien subsequently filed against the premises in question by sub-contractors who have furnished merchandise and material to the contractor.
    Appeal by the plaintiffs, William F. Lawrence and another, from so much of a judgment of the Supreme Court in favor of the defendant Henry C. Fischer, entered in the office of the clerk of the county of Westchester on the 19th day of May, 1896, upon the decision of the court, rendered after a trial at the Westchester Special Term, as adjudges that the defendants, The Board of Education in the City of Yonkers, pay to Henry C. Fischer, or his attorney, the sum of $1,516.
    
      This action, was brought to obtain an adjudication:
    “ 1st. That tiie plaintiffs have a valid claim and lien upon the money due, and to become due, to said John C. Campbell, Jr., under said contract between him and the defendant, the Board of Education, for $496.55, and interest thereon from August 2, 1895, prior to all other liens, claims, interests and demands thereon ; and that the said Board of Education, defendant, pay over to the plaintiffs the said sum and interest, with the costs of this action.
    
      “2nd. That the plaintiffs recover from the defendant John C. Campbell, Jr.,.and have personal judgment against him for said sum of $496.55, and interest from August 2, 1895, with the costs of this action.”
    
      William C. Prime and Ralph P. Prime, for the appellants.
    
      John M. Ward, for the respondent.
   Brown, P. J.:

The board of education of the city of Yonkers entered into a contract with John C. Campbell and others for the erection of a school house, whereby Campbell agreed to furnish the materials for and do all the mason work thereon, for which he was to receive a total payment of $18,775. He also had three other smaller contracts with said board for certain other work. The court found that, after deducting all payments, there was due to Campbell in full for all his contracts the sum of $7,719. Three separate actions were brought by certain sub-contractors to foreclose mechanics’ liens filed against said property, which actions were, by an order of this court, consolidated, and upon the trial the judgment was rendered from which this appeal has been taken.

The appellants, William F. Lawrence and James V. Lawrence, between December 1, 1894, and August 15,1895, sold and delivered to Campbell materials and merchandise, which were used by him in the performance of his contract, amounting to the sum of $3,094.62, for which, on August 16, 1895, they duly filed a mechanic’s lien. The respondent in this appeal, Henry C. Fischer, during the erection of the said school house, sold and delivered to Campbell certain iron work therefor, and on July thirtieth said Campbell, in payment therefor, delivered to Fischer an order, of which the following is a copy:

July 30, 1895.
To the Trustees of Public School No. 10, Yonkers City, New York:
Gentlemen—You will please pay to Henry C. Fischer such sums as may become due under the iron contract for Public School Ho. 10 (at Prospect and Clinton streets). Subject to the order of Architect Mr. B. Silliman, and charge the same to my account with said school.
“ Yery truly yours,
“ J. C. CAMPBELL, Jr.”

This order was, on August second, delivered to the board of education, and on the following day Fischer notified the said board, by letter, that his contract with Campbell was for $2,350, on which there had been paid to him $400 ; and on the trial the actual amount due to him was duly established. On August sixth said Campbell gave to the appellants an order on said board for $2,500, payable out of any money due or to become due to him under his said contracts. The contract between Campbell and the board of education contained the following provision: “ Hor shall any assignment of any portion of the amount due on this contract be made without the consent first had in writing of said committee,” meaning thereby the committee on construction of the said board of education. In addition to the order given to the appellants, on August sixth said Campbell gave to them, in payment for materials, seven other orders on said board, all of which were prior to the date of Fischer’s order, and also gave to Mr. Frank T. Holder a similar order for $2,500. These orders as received were entered in a book kept for that purpose by the clerk of the board, and of those given to the appellants six were paid. The trial court held that these orders operated as equitable assignments of so much of the fund payable to Campbell under his contract and gave priority to Fischer’s order over the lien filed by the appellants, Lawrence, and directed payment to him by the said board of the amount due him for iron work, to wit, $1,515. From so much of the judgment as directs such payment to Fischer the said William F. and James Y. Lawrence have appealed to this court.

The appeal is based upon the "provision of the contract quoted, the appellants’ contention being that it forbids any assignment of moneys earned under the contract and effectually prevents the respondent’s order from operating as an equitable assignment. To sustain their contention the appellants cite Burck v. Taylor (152 U. S. 634). We think the rule there applied has no application to the case before us. In Fortunato v. Patten (147 N. Y. 277) the Court of Appeals of this State decided that a similar provision in a contract with the city of Hew York was inserted solely for the benefit of the city, and that its sole function was to prevent any claim being asserted against the city in the absence of its consent. The court there distinguished between a provision forbidding the assignment of money due under a contract and one forbidding the assignment of the contract itself. The case of Burck v. Taylor (supra) was of the latter character. The case before us was of the first. The provision in the contract with Campbell was that no portion of the amount due on the contract should be assigned without the consent of the committee of the board of education, and the case cannot be distinguished in this respect from that of Fortunato v. Patten {supra). But we are of the opinion that the testimony in the record before us permits the conclusion that the hoard of education consented to the order to Fischer. There ivas, as I have stated, a number of orders .given by Campbell upon the board, payable out of the moneys that should be due to him under the contract. All of these orders as they were received were entered in a book kept for that purpose by the board, which showed the date and the amount of each order and to whom payable. Six of the orders given to the appellants were paid, and this course of dealing with these orders permitted the conclusion that when entered in the book they were •accepted by the board. Such was the course taken with respect to the order given to Fischer. It was deposited with the clerk of the board by Fischer and never returned to him, and we think a conclusion was permitted, from the testimony, that assent to the order was given by the board. Such being the fact, Fischer’s order operated as an assignm ent pro tanto of the fund due to Campbell and was entitled to priority of payment over the appellants’ lien.

The judgment must, therefore, be affirmed, with costs, to be paid by the appellants.

All concurred.

Judgment affirmed, with costs, to be paid by the appellants.  