The appellants predicate their claim for a reversal upon an _ assignment in writing of the moneys due and to grow due under 4 the contract between Seaver and the city to the appellant Radt, which assignment was in writing and bears date July 16, 1915, and was executed and filed before the lien sought to be foreclosed herein by the plaintiff was filed. The assignment is absolute in form and recites a good and valuable consideration; but the evidence shows that it was intended as security for moneys to be advanced for the completion of the contract work. Such an assignment takes precedence as to moneys actually advanced, and a mechanic’s lien subsequently filed is subordinate to a claim for advances made thereunder before the filing of the lien, but not with respect to subsequent advances. (Standard Sand & Gravel Co. v. City of New York, 172 App. Div. 80; affd., 224 N. Y. 687; Giant Portland Cement Co. v. Barber Asphalt Paving Co., 187 App. Div. 581; Wood v. Galway & Co., 186 id. 134.) But this claim is not only met by proof of advances prior to the filing of the lien, but also by proof of the plaintiff that, prior to such assignment to Radt and on or before the 20th of March, 1915, an agreement theretofore existing between the Hallowell Granite Works, of which the plaintiff is the receiver and assignee, and Seaver, for furnishing the material in the *688performance of Seaver’s contract with the city, was canceled and a new agreement made between said Hallowell Granite Works, as party of the second part, and the appellant Radt and Seaver, as parties of the first part, by which the Hallowell Granite Works agreed to furnish to them the undelivered material covered by the former contract, at a reduced price, and they jointly and severally agreed to pay the Hallowell Granite Works therefor. It was then understood and agreed that Radt would receive the assignment which was subsequently made to him. By that agreement Radt became a contractor and he stood, so far as the Hallowell Granite Works was concerned, and by virtue of the obligation being joint and several, as a contractor against whose interest the Hallowell Granite Works had a right to file a lien for the materials furnished and delivered to him and Seaver under its contract with them. The notice of hen names Seaver, only, as the contractor, but still I think it was valid as against the interest of Radt, in view of the provisions of section 12 of the Lien Law (added by Laws of 1911, chap. 873, as amd. by Laws of 1916, chap. 507), which provides that the failure to state correctly the name of a contractor or subcontractor shall not affect the validity of the lien. It names one of the contractors, and the formal agreement shows that Radt also was a contractor. If, therefore, the contention of the appellants that the court erred in holding the assignment from Seaver to Radt was without consideration, and that Radt obtained no beneficial interest thereunder, were sustained, still that would not, I think, require a reversal, for the lien could be sustained as against both Seaver and Radt as contractors. The appellant bank claims under an assignment from Radt after the lien of the Hallowell Granite Works was filed, and its claim is, therefore, subordinate to the mechanic’s hen.
The trial court found that the Henry Contracting Company duly filed a valid lien on the 22d day of September, 1915, but that the lien was discharged by the giving of an undertaking by the defendant Radt with -the Casualty Company of Maryland as a surety, and notwithstanding the fact that the principal and surety were parties to the action, the court awarded no judgment against them on the bond. Since, however, the Henry Contracting Company did not appeal, it *689must be left to its remedy by bringing an action on the bond. The liens of the other lienors were filed after the filing of the hen for the foreclosure of which this action was brought, and the evidence satisfactorily shows that Radt had theretofore advanced the sum of $26,000, at least, towards the performance of the contract work. His claim for those advances exceeds the balance of the fund after the deduction of the claim of the plaintiff, and since they were made in good faith under the assignment to him, and under the creditors' agreement to carry into effect the purpose thereof, and before the hens were filed, he is entitled to a preference therefor as against such lienors. (Standard Sand & Gravel Co. v. City of New York, supra; Giant Portland Cement Co. v. Barber Asphalt Paving Co., supra; Wood v. Galway & Co., supra.)
On these grounds I concur with Mr. Justice Smith.
Smith and Page, JJ., concur.
Judgment modified as directed in opinion. Settle order on notice.