
    Charles Beardsley, Resp’t, v. George H. Cook, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    1. Assignment — Order given by contractor.
    An accepted order given by a cojtractor to a material man operates as an assignment of any fund due the drawer at that time, and also to assign any funds as fast as they become due, and takes precedence of any mechanic’s lien filed after that date.
    2. Same.
    The fact that the order directs the drawee to pay out of the last payment does not make the holder take the risk whether the last payment under the contract should ever become due, but the drawee should keep back enough to pay the claim.
    Appeal from judgment in favor of plaintiff, entered upon a trial by the court without a jury.
    Action upon an order accepted by defendant, as follows:
    
      “ Mr. George H. Cook,
    “ No. 50 Broadway, New York City:
    
    “ Retain and pay to Charles Beardsley, of Poughkeepsie, N. Y., from the last payment to be made by you to us on account of our contract for building houses in Dean street, Brooklyn, the sum of eleven hundred and seventy-five ($1,175) dollars, according to the terms of our contract with Mr. Beardsley.
    “Davis & Fay.
    “ Dated New York, December 11, 1890.”
    Plaintiff had furnished material to Davis & Fay, who did not complete the work, and no part of the last payment under their contract ever became due.
    
      John H. Clapp, for app’lt; Edward Crummey, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a trial before a judge of this court without a jury.

The defendant, in his brief, makes no point that the findings are not warranted by the evidence. The only question, therefore, to be considered is whether the conclusions of law are proper from the facts found.

We have, however, examined the exceptions filed to the findings of fact, and find that each of said findings are supported by the evidence in the case.

The order in question was given in consideration of the sum of between $400 and $700, then due, and more to receive for materials furnished upon a certain building contract made between the owner and certain contractors.

The plaintiff continued to furnish material up to about the sum of $100, which were received and were without objection.

The court found facts sufficient to constitute a waiver of the obligation on the part of plaintiff to furnish materials to the full extent of the order, so that no point can be made that the plaintiff did not carry out his contract.

The order when it was given operated as an assignment of any fund due the drawer at that time, and also to assign any funds as fast as they became due. Gurnee v. Hutton, 63 Hun, 197; 44 St. Rep., 926; Gibson v. Lenane, 94 N. Y., 183; Manchester v. Braedner, 107 N. Y., 346; 12 St. Rep., 263.

Such assignment would take precedence of any mechanic’s liens filed after that date, and such assignment would have been regarded as a payment pro tanto on the contract. Stevens v. Ogden, 130 N. Y., 182; 41 St. Rep., 331; Young Stone Dressing Co. v. The St. James Church, 61 Barb., 489, and Gibson v. Lenane, supra.

After the order or assignment and the delivery of the materials under it, no arrangement that the defendant might make with his contractors could affect the rights of the plaintiff. Home Bank v. Drumgoole, 109 N. Y., 63; 14 St. Rep., 40.

The form of the order, that the drawee should pay the plaintiff out of the last payment, did not mean that plaintiff must take the., risk whether the last payment under the contract should ever become due, but referred to the last payment to be made by the defendant to the contractor, or in other words, the defendant should always keep enough back to pay the plaintiff his claim.

The judgment is right and must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  