[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 353 The rights of the appellant Russell are concluded by the findings of the Special Term. The plaintiff, as assignee of Terence Smith, the original contractor, sued the city of New York for a balance of $700, alleged to be due and unpaid upon a contract for paving and flagging a portion of Ninth avenue. Russell was made a party defendant because, under a claim that he had furnished material for work done under that contract, he had filed with the commissioner of public works a notice of the non-payment of his demand, whereby he claimed to have obtained a lien upon the balance in the hands of the city. The answer of the city denied any liability to Russell, but at the same time stated a willingness, as all parties interested were before the court, to pay the balance to "such person or persons as the court should direct."
It is at least debatable whether the material-man, filing the prescribed notice, obtained any lien upon the fund in the hands of the city, or acquired any right to recover it either as against the city or against the contractor. But conceding so much, for present purposes only, he certainly cannot, by furnishing materials upon one contract, obtain a lien upon the balance due under another. Smith's contract was for work on Ninth avenue and contained the following clause, viz.: "The said party of the second part hereby further agrees that he will furnish said commissioner with satisfactory evidence that all persons who have done work or furnished materials under this agreement, and who may have given written notice to the said commissioner before or within ten days after the completion of the work aforesaid, that any balance for such work or materials is still due and unpaid, have been fully paid or secured such balance." In like manner the city ordinance which authorizes such provision in the contract relates explicitly to "persons who have done work or furnished materials under any such contract." It was not enough, therefore, for Russell to show that materials once owned by him had actually been used in the completion of the Ninth avenue contract. He was bound to show that they were furnished under that agreement; for its performance; in reliance upon its terms; and, so to speak, upon its credit. This *Page 354 he entirely failed to do. Smith, the original contractor for the work on Ninth avenue, assigned all sums payable therefor to one Michael Gavin, who in turn assigned to the present plaintiff. Gavin was also a contractor with the city for certain work to be done on Eleventh avenue. He swears that all the material furnished by Russell was furnished to him, Gavin, under the Eleventh avenue contract; that it was all carted to that avenue; that the bulk of it was used on that work; that he himself furnished a small part of it for use on Ninth avenue while he was completing that work for Smith, who was bound to the city for its performance. Russell swore differently and raised a question of fact, which the Special Term solved by its finding that "the said Jeremiah Russell performed no work and furnished no material under the said Ninth avenue contract, either for or to the said Terence Smith, or the said Michael Gavin." That ends the case. There was evidence to sustain the finding and it is conclusive in this court.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.