
    Charles Beardsley, Resp’t, v. George H. Cook, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Assignment—Equitable .
    The owner of a building, who accepts an order drawn by the contractor in favor of a material man, payable out of the contractor’s last payment, and subsequently, by the terms of the contract, completes the building at the contractor’s expense, has no right to make payments out of the final payment in advance of its becoming due and before he took the work out of the contractor’s hands, to the prejudice of the assignee.
    
      Appeal from a judgment entered on a verdict, directed by the •court in favor of plaintiff.
    
      Clapp & Mason, for app’lt; Safford A. Crummey, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon the verdict of the jury directed by the court at a circuit held in Dutchess county, December, 1894. Mr. Justice Gayxor pre.siding. At the close of the testimony, counsel for the defendant moved that a verdict be directed for the plaintiff, and fixed the damages at $313.08. Counsel for the plaintiff joined in the motion for a direction of a verdict for the plaintiff, but asked that the damages be fixed at $1,213. The verdict was directed for the plaintiff, and the damages were assessed At $1,213. From the judgment entered on this verdict the defendant appeals. From the fact that both parties moved that the court ■direct a verdict, the only question relates to the amount for which it ought to have been rendered. It is true that defendant made a motion to dismiss the complaint when plaintiff rested, but he ■took no exception to a denial of this motion, nor did he move for a new trial on the merits. It seems defendant made a contract with Davis & Fay to build a couple of houses. Davis & Fay made a contract with the plaintiff to furnish them with certain materials, and gave plaintiff an order on defendant for $1,175, which he accepted, payable out of the last payment upon his contract with Davis & Fay. Davis & Fay, relying on the order, ordered and received the material from plaintiff, aggregating $1,000. They failed to complete the contract in time, and it was taken off their hands by defendant, who finished the houses himself. This •time the balance due the plaintiff for materials was $1,000. By the fourth provision of the original contract, the owner was authorized to take the contract off the hands of Davis & Fay, upon giving three days’ notice, and complete it, at their expense. By the third provision of the supplemental contract of February 2, 1891, it was provided that, in case of the failure of the contractors to finish the houses agreed, the defendant might finish them himself, at their expense. The defepdant paid Davis & Fay $5,390.75 in all. The payments made were in various amounts, none of them in corresponding with the amounts provided in the contract. On the 18th day of February, 1891, the defendant had completed the sixth payment, and had paid $50 more than the total amount of the six payments. Thereafter he made the following payments: February 28th, $100; March 3d, $138,75; March 4th, $200; March 6th, $150; March 7th, $200; March 13th, $150; March 14th, $100. This left in his hands $990.25 of the final payment, no portion of which had then become due. His expenditures in completing the contract amounted to $677.17, and left a balance in his hands amounting to the sum of $313.08. With the proofs establishing without dispute these facts, the plaintiff rested. Thereupon the counsel for the defendant moved for a dismissal of the complaint, on the ground that the plaintiff had shown that there was no part of the payment of the contract that ever became due to the con-tractors, and that it was incumbent on him to show that that last payment, or some part of it, became due before he can recover ; “but, by their testimony, they show that the only amount of money remaining in the hands of the defendant is three hundred and thirteen dollars and eight cents ($813.08).” This motion was denied. The defendant did not take any exception to this ruling, but moved the court to direct a verdict for the plaintiff for the amount remaining in the hands of the defendant, $313.08; and plaintiff moved that damages be fixed at $1,000 and interest, which was done.

The rule of damages adopted by the court was the correct one. It restricted the plaintiff’s recovery to the value of the material furnished by him and put in the buildings of the defendant. The defenddant took possession of the buildings, and elected to complete the contract himself, as he lawfully might. When they were completed, he was entitled to charge, as against the last payment, the amount it cost him to complete the contract from the time he took it. This would have left in his hands $1,503.38. The accepted order was an assignment pro tanto of the final payment, and the right of the plaintiff to recover under upon it cannot be defeated by any act of the defendant. This right of the plaintiff was paramount 'to the right of Davis & Ray in the final payment, and to any right which could be acquired by any material man or creditor of Davis & Fay. It will be observed that all disputed payments made to Davis & Fay, sought to be charged to the last payment, were made before any final payment became due. Defendant cannot be permitted to defeat the right of the plaintiff to recover for materials furnished on the faith of his order, payments made in anticipation of the last payment becoming due. If he made such payments, it was upon his own risk. The order was an assignments pro tanto, and the defendant had no right to make payments in advance of their falling due, and before he took the work out of the contractor’s hands, to the prejudice of the plaintiff. It seems to follow that the rule laid down by the court of appeals in this case, reported in 143 N. Y. 143; 62 St. Rep. 144, is not applicable. It also plainly appears that, after deducting the costs to defendant of furnishing the contract, there was more than the amount of the order remaining of the contract price, which should have been credited to the last payment.

While there is no collusion or fraud charged or proved, I think ■under the circumstances, the defendant had no right to make advances to Davis & Fay to the prejudice of the plaintiff, and charge the same to the last payment under the contract. I therefore feel constrained to affirm the judgment, with costs. It is also to be noted that the payments were made without any certificate of the architect.

All concur.  