
    Seaboard Surety Company, Appellant, v. Massachusetts Bonding and Insurance Company et al., Respondents.
   Order, entered on September 26,1962, denying a motion for temporary injunction in an action for declaratory judgment with respect to plaintiff’s claim against payments to be made under a construction contract, unanimously affirmed, with $20 costs and disbursements to defendants-respondents. Under section 70 of the Lien Law a trust is created only when certain described moneys come into the hands of an owner or contractor. The owner city does not hold any moneys received in any of the ways specified in subdivision 5. The contractor, on the other hand, has not yet received the money in suit. When it does it will be, as to unpaid qualified claimants, a trustee pursuant to the provisions of section 70. At that time if plaintiff is a beneficiary it may assert remedies or invoke penalties provided in or derived from the Lien Law or provided in the Penal Law. At this time it would be premature to decide, and this action would not be an appropriate one in which to decide, whether plaintiff, as assignee of a subcontractor, is a beneficiary by reason of materials and services contributed to the improvement in excess of the contract requirements because of an alleged breach of contract by the general contractor. Motion for a stay denied. Concur—Botein, P. J., Breitel, Yalente, McNally and Eager, JJ.  