
    Tisdale Lumber Company, Appellant, v. Albert W. Piquet and Eli A. Piquet, Copartners, Doing Business under the Firm Name and Style of Piquet & Piquet, Respondents.
    Second Department,
    November 1, 1912.
    Bills and notes — bill of exchange —action to recover moneys due under an equitable assignment—evidence.
    One S., after delivering to plaintiff’s assignor the acceptance of an estimate to furnish lumber for the sum of $4,500,, executed and delivered to him an order on the defendants, which had been accepted by them, for the sum of $4,500, the same to be deducted from money due S. on a loan on'certain houses which he was building. Thereafter the lumber was furnished to S. and the buildings completed. After the bankruptcy and disappearance of S. plaintiff brought an action against the acceptors of the order to recover the balance unpaid for the lumber furnished.
    ■ It appeared that the defendants procured a loan upon the houses secured by first mortgages, but that the moneys were paid directly to S., less the defendants’ commission of one per cent.
    Held, that the instrument sued upon was not a negotiable bill of exchange, but only an equitable assignment of moneys due or to become due from the defendants to S.;
    That there was no evidence of any such indebtedness, and a dismissal of the complaint should be affirmed, if it were not for the error of the trial court in refusing to admit evidence as to whether S. placed any second mortgages on the buildings in question through the defendants.
    Appeal by the plaintiff, the Tisdale Lumber Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 13th day of April, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 4th day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Easton S. Bacon, for the appellant.
    
      R. W. Kellogg, for the respondents.
   Burr, J.:

Plaintiff, a corporation, was organized April 10, 1910. Prior to that, one Josiah B. Tisdale had been carrying on the lumber business at Astoria, and when the corporation was organized he assigned to it all of his assets connected with said business, including any claim which is the subject of this action. On March 15, 1910, one Louis Schwartz signed and delivered to said Tisdale a written acceptance of an estimate previously submitted by him, to furnish, for the sum of $4,500, lumber and trim to be used in the construction of five two and one-half-story frame houses, situated on the southwest corner of Liberty avenue and Baltic street in Jamaica, borough of Queens, title to which property was at that time in the name of said Schwartz. On the same day Schwartz executed and delivered to Tisdale a paper writing in these words:

“March 15, 1910.
“Piquet & Piquet
“ 354 Fulton Str
“Jamaica,L. I.:
“Pay to the order of J. B. Tisdale of 124 Remsen Str., Astoria, the sum of $4500.00. The same to be deducted from money due me on loan on the 5 houses on- South West corner of Liberty Ave and Baltic St., Jamaica, Owned by Louis Schwartz. The amounts are to be paid as follows:
“ $900.00 when buildings are rough enclosed
“1800.00 “ “ “ brown mortared
“1800.00 “ “ “ complete
“LOUIS SCHWARTZ.
“Accepted'
“ Piquet & Piquet
“ AP ”

There is no dispute that these latter words were in the handwriting of one of defendants. Thereafter, Tisdale, or plaintiff as his successor in the business, furnished to Schwartz the material called for in said estimate and acceptance,, and the buildings therein referred to were completed on or about July 18,1910. Prior to that date the sum of $1,800 was paid by Schwartz on account of the amount due for materials furnished. Nothing else has ever been paid on account thereof, and Schwartz subsequently went into bankruptcy and has disappeared. This action is brought upon the written instrument given by Schwartz to Tisdale, to recover the balance unpaid for the materials furnished. Application for loans secured by first mortgages upon each of said houses was made by defendants in behalf of Schwartz to one William C. Eoe. This application was accepted and the loans, aggregating $11,000 in amount, were made by various clients of said'Eoe, who received mortgages as security therefor. The entire amount of these loans was paid by Eoe directly to Schwartz, except that a certain sum was retained by him to cure a flaw in the title, and another amount for his expenses in negotiating the loan and examining the title. Out of the latter sum defendants received $110, being one per cent of the amount of the loan, for their commissions in connection therewith.

These facts appearing at the close of plaintiff’s case, the trial court granted a motion to dismiss the complaint. Prom the judgment thereupon entered, and an order denying a motion for a new trial, this appeal is taken.

The crucial question in this case is as to the character of the instrument sued upon. If it is a negotiable bill of exchange, then defendants are liable as acceptors thereof, provided any consideration exists for their promise to pay. If it was only an equitable assignment of moneys due or to become due from them to Schwartz, then they are not liable, for there is no evidence of any such indebtedness. We think that it is of the latter character. (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 210; Hunger v. Shannon, 61 N. Y. 251; Ehrichs v. De Mill, 75 id. 370; Brill v. Tuttle, 81 id. 454; Duffield v. Johnston, 96 id. 369.) “A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer.” (Neg. Inst. Law, supra.) This is not an unconditional order. It is payable only in certain contingencies. Liability upon it only arises either if the proceeds of the moneys to be advanced on the loans made on the houses referred to came into defendants’ hands, or if through some act on the part of defendants performance of the contract out of which such funds might have otherwise arisen was prevented. (Richardson v. Carpenter, 46 N. Y. 660; Risley v. Smith, 64 id. 576; Some Bank v. Drumgoole, 109 id. 63.) There is no evidence that any portion of the proceeds of the loans upon said houses to which Schwartz could in any event have been entitled came into the possession or under the control of defendants. There is no evidence of any agreement on the part of defendants that they would obtain control of the same. If there had been, this action is not brought upon the theory of a breach of such contract. ' There is no evidence of any representation upon defendants’ part, either by recital in the instrument itself or by statements extraneous to it, that they had or would secure control of the same so as to create an estoppel. In this respect the case differs from Richardson v. Carpenter (supra), relied upon by appellant.

It would follow, therefore, that this judgment, and the order denying the motion for a new trial, must be affirmed, if it were not for a ruling by the learned trial court upon a question of evidence, which seems to'us to present fatal error.

After evidence had been given as to the placing of first mortgages upon the buildings constructed by Schwartz, and the manner in which the proceeds thereof had been disposed of, one of the defendants was called as a witness for plaintiff, and was asked this question: Did Louis Schwartz place any second mortgages on the land involved in the present suit through you ? ” This was objected to as incompetent, irrelevant and immaterial, the objection was sustained, and plaintiff excepted. There is nothing in the instrument sued upon to indicate whether the loans therein referred to were to be secured by first mortgages upon the property or other mortgages subordinate thereto. If it .was the fact that junior mortgages were placed upon this property, the proceeds of which came into the hands of defendants and were paid over by them to Schwartz, a prima facie case of liability at least would be made out. The purpose of the evidence objected to may have been to show that, although defendants did not actually receive the proceeds of the loans secured by the first mortgages, loans were obtained by Schwartz on second mortgages on the property, the proceeds of which they did receive. For error in excluding this evidence, the judgment and order must be reversed and a new trial granted, costs to abide the event.

Hieschbeeg, Thomas, Oaeb and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  