I concur in the decision for the reasons set forth in the opinion of our presiding justice and for this added reason: That the moneys retained under subdivision 6 of section 21 of the Lien Law differ from those deposited under subdivision 4 of the same section is borne out by this further fact. Should the lienors, because of whose hens these moneys were retained, not establish claims to the full amount of those retained moneys, the balance would be available for distribution among lienors whose liens had been filed later. Moneys deposited under subdivision 4 would not be thus available, and the later henors could not share in any surplus of these deposited moneys. This example clearly demonstrates the essential difference in character between the deposited moneys and the retained moneys. One class was not earned under the contract while the other class was. If later henors might share in the surplus of the retained moneys, then under the express terms of section 25 that there shah be no preference among henors of the same class, all henors should share equally in all moneys earned and unpaid under the contract, including the retained moneys.
It is only by this construction of the statute that full force and effect can be given to all of its provisions.
Hill, P. J., and Heffernan, J., concur.
Judgment modified as indicated in the opinion of Hill, P. J., and as modified affirmed, with costs of this appeal payable out of the fund to the attorneys filing briefs.
New findings of fact and modifications of findings of fact are made as to amounts due the several henors to reflect the change in the aggregate figures as stated in the opinion; and the findings of fact as to the amount owing by the State is changed and modified to reflect the statements contained in the opinion.
Order and findings are to be settled before Hill, P. J., on ten days’ notice.