John P. Kane Co. v. Kinney

Laughlin, J.:

The action is brought to foreclose a mechanic’s lien. The sole question presented on this appeal is, does a general assignment for the benefit of creditors made by a contractor take precedence over ¡a mechanic’s lien subsequently filed, but within the statutory period, by his sub-contractor, for materials delivered or labor performed prior to the assignment ? In a' recent case, arising on the same assignment and similar facts and directly involving this question, the Appellate Division in the second department unanimously decided tthat the filing of the mechanic’s lien subsequent to the general ¡assignment gave the lienor no priority over the general creditors of the insolvent contractor. (Armstrong v. Borden's Condensed Milk Co., 65 App. Div. 503.)

'The majority of the justices sitting in this case are of opinion that the law in this State had been previously settled otherwise by well-considered authorities; but it being desirable that the decisions of the respective Appellate Divisions should be uniform, at least on questions of law, we defer to the judgment thus pronounced on ^precisely the same question by a court of co-ordinate jurisdiction.

The judgment from which this appeal is taken is, therefore, ■reversed on the authority of Armstrong v. Borden's Condensed Milk Co. (supra), and, the facts being undisputed, judgment is directed for the defendant dismissing.the. complaint upon the merits, .but without costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred.

Judgment reversed, and judgment directed for defendant dismissing complaint upon the merits, without costs.

(¡tejes V DETERMINED IN THE SECOND DEPARTMENT IN THE APPELLATE DIVISION, 1902.