Block v. Galitzka

Gaynor, J. (dissenting):

The justice gave the right judgment, it seems to me, viz., for defendant. Assip contracted, with the defendant, the owner, to do work and furnish material in erecting a building. Hoff was a subcontractor in writing to Assip, and claimed of the defendant $271.05, the unpaid balance of his contract price with Assip. It not being paid, he assigned his claim to the plaintiff, who brought this action upon it.

The facts are these: Hoff (plaintiff’s assignor) entered upon his contract with Assip, and Assip paid him $400 for work and material on the contract — all that was then due. Hoff then says he wanted to feel safe that he would be paid thereafter, and saw the. defendant. He tells what the defendant said to him — that he would see that he got his money — that he would not pay it to Assip, but hold it back— that he would take care of it. He did no more than owners do every day, viz., promise to take care of sub-contractors by holding their money from the contractor until he pays it. It will not *801do to pick'out one sentence— all must be taken. And the defendant kept Ms word. He held back the money from Assip, and with the latter’s consent ¡laid Hoff $500, leaving the balance sued for. That is not paid because a lien has been filed against Assip for more than that sum and more than is due Assip. When the plaintiff, after his contract was finished, talked to the defendant of tiling a lien, the defendant did no more than renew his former promise to hold back the money.

It seems to me the justice would have wronged the defendant by giving judgment against him.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.