The assignment to respondent Fiore gave rights to the fund in question which were superior to any acquired by the appellant unless such result was prevented by the Lien Law. (Laws of 1909, chap. 38.) The plaintiff not having filed a lien, the rights that might have accrued thereunder have been lost and it occupies the position of an ordinary creditor. (Edison El. Illuminating Co. v. Frick Co., 221 N. Y. 1; Lee v. Bailey Corporation, 240 App. Div. 65; modfd., 267 N. Y. 161.)
Lazansky, P. J., Johnston and Adel, JJ., concur; Taylor, J., dissents and, in so far as appealed from, votes to reverse the judgment on the law, with costs, and to direct judgment in favor of plaintiff, except as to the temporary injunction prayed for, with costs, with opinion. Close, J„ concurs with Taylor, J,