The only questions which this court deems it necessary to consider arise upon the appeal of the Western National Bank. As to all the other questions involved we concur in the conclusions of the court below. If the bank had properly appealed to that court, and served its notice of appeal upon all the parties, it is obvious that the error of the referee in subordinating its claim to those of the parties who had filed mechanics' liens would have been corrected. But by reason of its negligence in that respect the learned Appellate Division was required to hold that it could not, in justice to the other parties, either reverse the judgment entered upon the referee's report, or modify it by giving to the claim of the bank the full preference to which it was justly and legally entitled. This conclusion was based upon the fact *Page 296 that the judgment was final and binding upon the bank, which had not appealed as to the plaintiff. The court below were of the opinion that if it could modify the judgment by determining the questions between the remaining parties who were before the court without working injustice to those whose interests were involved, it would be its duty to modify it in accordance with the law. In that it was obviously right. It was, however, of the opinion that that could not be done either in whole or in part. We think otherwise, and that the judgment can be modified in part without injustice to any of the parties. The defendants Zufall, Yaeger and Bogardus, although not served with a notice of the bank's appeal, were preferred lienors and their claims were entitled to preference over the claims of all the other lienors and were, therefore, superior to those of any of the other parties including the bank who did not appeal as to them. Consequently, the allowance of the bank's claim would not have affected them, as the fund was entirely sufficient to pay the amount of their liens as well as the claim of the bank. Under the judgment, from which no appeal was taken, the plaintiff's claim was also superior to that of the bank. Moreover, the plaintiff's claim could not be made superior to those of the Yellow Pine Company, Shuldiner or Dannat Pell without working injustice to them, and, hence, the court was right in refusing to modify the judgment so far as it would affect their claims. But as the claims of Zieseniss, Reimer Company and Card were subsequent to that of the plaintiff, so that they would not be affected by the failure of the bank to appeal as against the plaintiff, and as the bank appealed as to them, we are of the opinion that the court below should have modified the judgment by placing the bank's claim in the order of payment immediately after the plaintiff's, and that the payment of the claim of the bank should have been given preference over their claims. Hence, we conclude that the judgment should have been modified by the court below so as to provide for the payment of the various claimants in the following order: Zufall, Yaeger, Bogardus, Yellow Pine *Page 297 Company, Shuldiner, Dannat Pell, Robert S. Hall, Western National Bank, Zieseniss, Reimer Company, Card.
It follows that the judgment should be modified in accordance with these views, and as thus modified affirmed, with costs to all the parties, to be paid by the city of New York.
PARKER, Ch. J., GRAY, HAIGHT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.
Judgment accordingly.