
    MURRY v. HUTCHESON.
    
      N. Y. Common Pleas; Special Term,
    
      July, 1880.
    Foreclosure of Mechanics’ Liens.
    A sub-contractor who filed a lien, after his contractor had made an assignment for the benefit of creditors, is- entitled, in an action to foreclose the lien, to the money deposited by the assignee to discharge the lien, and is not obliged to share in the fund in the hands of the assignee as an ordinary creditor.
    The costs in such action should be paid out of the contractor’s estate, and not by the assignee personally.
    Although the court may intend that the costs awarded shall be paid out of an estate before any other claims, it cannot direct the assignee to pay them.
    
      final by the court at special term.
    This action was brought by Robert McMarray against Robert Hutcheson, John Jennings and William E. Price, for the foreclosure of a mechanic’s lien.
    The defendant, Robert Hutcheson, being the owner of several houses in Third avenue, in the city of New York, made a contract with the defendant John Jennings to perform the carpenter work, and Jennings made a sub-contract with the plaintiff McMurray to perform the wire work under his contract, which the plaintiff completed on December 26, 1879, and for which he was entitled by his contract to receive $122.50. Jennings had not completed his contract when he failed, and made a general assignment for the benefit of his creditors to the defendant William E. Price, on January 13, 1880. On January 14, 1880, the plaintiff filed his lien with the clerk of the city and county of New York, upon the property of the defendant Hutcheson, for the amount of his work. On February 7, 1880, the defendant Price, as assignee, deposited with the county clerk the amount of the lien and interest, $123.16, and the lien was discharged.
    The assignee completed the contract of Jennings and received $1,500, the amount of the contract price. The plaintiff made a demand upon the assignee and the county clerk for the payment to him of the amount of the lien deposited, and they refused to pay him, whereupon the plaintiff brought this action. None of the defendants defended excópt the assignee.
    
      George F. Langbein, for the plaintiff.
    I. The plaintiff’s lien was on the property of the owner Hutcheson and not on the property of the contractor, and the deposit represented the property. The assignee of the contractor cannot, therefore, deprive him of his right to it.
    II. An assignment by the contractor for the benefit of his creditors does not change the relation between the sub-contractor and the owner. The sub-contractor could perfect a lien after the assignment (Henderson v. Sturgis, 1 Daly, 336; Manderville v. Reed, 13 Abb. Pr. 178).
    III. The assignee stands in the place of the contractor, and the sub-contractor can acquire a lien against him (Oates v. Haley, 1 Daly, 338).
    IV. There is no difference in this respect between the lien law of 1875 and 1879 and the former laws of 1830, 1851 and 1863.
    
      R. S. Johnson, for defendant.
    I. The lien being filed after the assignment the plaintiff could only be paid out of the general fund the same as other creditors, and is only entitled to- his pro rata share of the fund deposited.
    II. The lien law of 1875 and 1879 is different in this regard from the former acts (Brown v. Zeize, MSS. Com; Pleas, General Term, March, 1880).
   Vah Hoesen, J.

The contractor Jennings made, on January 13, 1880, an assignment for the benefit of his creditors. On the following day, the 14th; the plaintiff, who was sub-contractor under Jennings, having com-pleted his contract, filed his lien under the mechanics’ • act; the lien was afterwards discharged by the payment of the amount thereof to the county clerk ; this payment was made by Mr. Price, Jennings’ assignee. Price made the payment because he had made an arrangement with Hutcheson, the owner of the building, to go on and finish Jennings’ contract. He fully performed Jennings’ contract, and obtained the money which was payable thereunder to Jennings. McMurray has brought his action to foreclose his lien, and the question is, Who is entitled to the money which Price deposited with the county clerk, McMurry, the lienor,. or Price, the assignee ? The equities are all in favor of McMurray, and the decisions of this court seem to me to entitle him to recover. Price, not for himself, but for the benefit of the assigned estate, did the work which his assignor had left undone, and obtained from Hutcheson payment not only for what he did, but also payment for the work which had been done by McMurray. Is it fair that he should retain what was honestly coming to McMurray %

Again, he assumed the contract of Jennings with Hutcheson, and by doing so placed himself in Jennings’' shoes, so that whatever Jennings would be bound to do he is equally bound to do. The case is the same as if Jennings himself had performed the contract, and the rights of McMurray are the same as they would then be.

The cases in this court which I have referred to are Henderson v. Sturgis (1 Daly, 336), and Oates v. Haley (Id. 338).

The plaintiff is entitled to judgment with costs payable out of the Jennings estate, but not by the assignee personally. ' My intention is that the costs shall be paid before any claims owing by Jennings have been satisfied, but I cannot direct the assignee to pay them. See decision on the subject, made by me in June, 1880.  