torily completed, and that the claimant was entitled to payment of $3,422.15. Subsequently it was certified that he was also entitled to the 5 per cent. withheld under the contract to cover possible repairs, to wit, $584.09, which made a balance of $4,006.24. On March 2, 1898, Paladino assigned $3,975.16 of his claim to one Bouve, with the consent of the commissioner of public works, and Bouve thereafter assigned it to the plaintiff. In March, 1895, before anything had been earned under the contract, Lordi assigned to Peters, Calhoun & Co. $754.47, purporting to be a first lien upon the final payment under the contract, to which assignment, however, the consent of the commissioner of public works was not obtained. Subsequently Lordi revoked this agreement. This assignment was made to cover a prior indebtedness in no way connected with the work under the contract, and Peters, Calhoun & Co. did nothing on the contract, and furnished no supplies or materials. On February 10, 1896, Lordi assigned the contract to Barilati, to which assignment the commissioner of public works gave no assent. Barilati failed to carry out the contract, and in fact never did any work under the contract. In April, 1896, Lordi and Barilati made an assignment to one Pearsall to the extent of $1,784.79, purporting to be a first lien on the final payment under the contract, with the consent of the commissioner of public works. On June 29, 1897, Pearsall assigned whatever interest he had to the defendant Bernard Mahon. Subsequently Mahon assigned to the defendant Kellogg without the consent of the commissioner of public works. On September 6, 1898, the defendant Kellogg, as the attorney for one Bernard Mahon under the assignment from said Mahon, received from the city of New York $2,040.30, being $1,784.79 and interest, out of the final payment under the Lordi contract; the said Mahon first giving a bond to indemnify the city of New York against any loss for such payment in the penal sum of $4,000, and executed by two surety companies, both of which have been made parties defendant herein. The defendant Kellogg did no work and furnished no material and rendered no services under the contract, but simply took the assignment as attorney for said Bernard Mahon, and afterward paid over the money to his client. The plaintiff asks for judgment against the city for the balance due under the assignments to plaintiff, etc. The other defendants were brought in by order of the court, made upon the application of the city, in order that the sureties might be bound by any judgment the plaintiff could recover against the city for the money collected by the defendant Kellogg, and in order that all claims and moneys due under the contract might be here determined. The defendant Mahon is dead, and the action has not been revived against his legal representatives. The plaintiff at the trial, however, stated that he made no claim against the estate of said Mahon. The defendants Peters, Calhoun & Co. and the defendant Kellogg claim a first lien upon the balance due under the contract. The defendant surety companies contend that, as the bond was given to the city of New York for the payment of money to Bernard Mahon only, and as the city had paid it to Kellogg, they were not liable. The mere fact that the assignments held by Peters, Calhoun & Co. and Kellogg were made prior to that of the plaintiff does not necessarily give them a prior right. The fact that Lordi aban

and 121 New York State Reporter

doned his contract, and before its abandonment received all that became due to him, will defeat these claims of priority. When Lordi abandoned the contract he had been paid all that he was entitled to be paid for the work he had performed up to that time. Any assignment made prior to the abandonment of the work of money thereafter to become due under the terms of the contract was simply an assignment of so much money which might thereafter, from time to time, become due to him (Lordi) for the carrying on of the contract. The final payment never became due to Lordi, because the contract, having been abandoned by Lordi, was carried out and completed by the plaintiff's assignor, Paladino. I am therefore of opinion that the plaintiff's claim has priority, and that he is entitled to the payment thereof from the city. Conselyea v. Blanchard, 103 N. Y. 222, 231-233, 8 N. E. 490; Rodbourn v. S. L. Grape & Wine Co., 67 N. Y. 215, 217; Spicer v. Snyder (Sup.) 12 N. Y. Supp. 744. Judgment should therefore be entered for the plaintiff against the city for the amount demanded, with interest from June 16, 1899, with costs and extra allowance of $50 against the city. The defendant Paladino should also recover judgment for $31.08 against the city, the balance of his claim after deducting the claim assigned to plaintiff. As the defendant Mahon is dead, and his legal representatives have not been brought into this action, I do not see how I can determine here the question of liability as between Kellogg, Mahon, the surety companies, and the city of New York. That liability, under the circumstances, must be settled in a separate action.

Judgment accordingly.

(42 Misc. Rep. 425.)

NEW YORK CONTRACTING & TRUCKING CO. v. CITY OF NEW YORK.

(Supreme Court, Special Term, New York County. January, 1904.)

1. MUNICIPAL CORPORATIONS-LEASE OF WHARF PRIVILEGE-CONSTRUCTIONINJUNCTION.

In May, 1901, the board of docks of the city of New York adopted a plan making a radical change in the pier line and the bulkhead line at the foot of West Seventy-Ninth street, which would cut off access to the pier from the river. In July, 1901, the city of New York leased the wharfage of the pier at the foot of West Seventy-Ninth street to plaintiff for 10 years, with a provision authorizing the city to terminate it on notice if the board of docks should proceed with the improvement of the river front, according to the plans "now adopted and approved" under any existing law. In November, 1902, the plaintiff received notice from the commissioner of docks of an intention to improve the river front, and that the lease would be terminated December, 1902. To an action brought by plaintiff to enjoin the city from ousting it or interfering with the pier, the city pleaded that without any authority plaintiff had used it as a dump, and also alleged that Laws 1894, pp. 296, 306, c. 152, §§ 1, 9, appropriating the water front on the Hudson river from Seventy-Second street to Seventy-Ninth street to Riverside Park, except two public wharves, one at the foot of West Seventy-Ninth street, gave the board of docks control of the river front at the foot of West Seventy-Ninth street for commercial purposes, and that such act and the charter of New York authorized the board to change the pier at the foot of SeventyNinth street. Held, that the existing law referred to in the lease on the subject of changing the pier at the foot of West Seventy-Ninth street was

the law of 1873, p. 507, c. 335, § 88, providing that the dock board should not have the power to change the exterior lines of the bulkheads as established by law, and that neither the law of 1894 in relation to Riverside Park, nor the city charter, gave authority to adopt the plan of May 17, 1901, so far as concerned the pier at the foot of West Seventy-Ninth street.

2. SAME-USE AS DUMP.

In the suit against the city, the separate defense that a pier had been used as a dump was insufficient, there being no covenant in the lease forbidding such use.

Action by the New York Contracting & Trucking Company against the city of New York. Demurrer to answer sustained.

James A. Deering, for plaintiff.

George L. Rives, Corp. Counsel, for defendant.

DAVIS, J. The action is brought to restrain defendants from obstructing plaintiff's free use of the pier at the foot of West SeventyNinth street, New York City, by the construction of new piers according to a certain plan adopted by the board of docks May 17, 1901, and from interfering with plaintiff in its collection of wharfage and cranage at this pier during the term of a lease made to the plaintiff by the city of New York July 22, 1901, and from ousting the plaintiff from the pier, or from ending its term and interest in the lease, for the purpose of building new piers according to the plan referred to. It appears from the complaint, and is admitted by the answer, that on or about May 17, 1901, the board of docks adopted certain plans for the improvement of the water front on the North river, and these plans were afterward approved by the commissioners of the sinking fund; that the scheme of improvement materially changed the bulkhead lines. and pier lines as then existing, and included a radical change in the pier line and bulkhead line at the foot of West Seventy-Ninth street. Subsequently to the adoption of this new plan, and on or about July 22, 1901, the city made a written lease of the wharfage and cranage arising from the use of the pier in question to the plaintiff for the term of 10 years from August 1, 1901, with the privilege of two renewals. It is admitted that plaintiff has been and now is collecting wharfage and cranage to which it became entitled by virtue of the terms of the lease, and has paid to the defendant the rent reserved in the lease, up to and including January 31, 1903. The lease contained a provision that:

"If at any time during the said term the said board of docks shall determine to proceed with the work of building or rebuilding wharves, piers, bulkheads, basins, docks, or slips within a section or district of the water front which shall include the wharf property hereinbefore described, according to any plan or plans now adopted and approved and pursuant to any existing or future law, and if the said board shall determine that for the purpose of such building or rebuilding it will be necessary to terminate the interest of the plaintiff in the wharfage to arise, accrue, etc., or if at any time during the said term the said board of docks shall determine that the said wharf property shall be used for some other purpose than for the purpose of the collection of wharfage, and that it will be necessary to terminate the interest of the plaintiff in such wharfage, then upon the receipt by the plaintiff of written notice of a resolution of the said board of docks to that effect, describing the wharf property and the interest of the plaintiff in the said wharfage and in the said wharf property, it shall be thereby terminated."

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Under this provision the defendant claimed the right to terminate plaintiff's lease in order to enable it to carry out the plan of improvement adopted by the board of docks on May 17, 1901, and approved by the commissioners of the sinking fund on June 20, 1901. Accordingly, about the 3d day of November, 1902, the commissioner of docks gave notice in writing to the plaintiff "that he had determined to proceed with the work of building or rebuilding the wharves, piers, bulkheads, basins, docks, or slips within the section or the district of the water front of the city of New York between West Seventy-Eighth and West Eightieth streets, on the North river, which district includes the wharf property leased to the plaintiff, according to the plan adopted by the department of docks on May 17, 1901, and approved by the commissioners of the sinking fund on June 20, 1901, and that for the purpose of such building or rebuilding he had determined that it would be necessary to terminate the interest of the plaintiff in the lease of the wharfage arising from the said wharfing property, or from any part thereof, and that he thereby terminated the interest of the plaintiff in and to the said lease in December 31, 1902." It is admitted that under the lease the plaintiff was entitled to the right of access over the adjoining waters of the North river, at all times, by all boats and vessels, to the pier, and to have the adjacent lands under water belonging to the city of New York remain free from any unlawful structures which would in any way prevent access to the pier on all sides thereof, or its full use and enjoyment by the plaintiff, and all persons desiring or inclined to use the pier for the loading or unloading of vessels thereat; that the defendant, claiming to act under the statutes relating to the docks, wharves, and ferries of the city of New York, threatens and intends to take possession of the pier and the land under water adjoining the said pier, and, for the purpose of carrying out the plan of May 17, 1901, to drive piles in the adjoining waters, and to construct cribwork in and about the pier; that, because of this, boats and vessels will be unable to approach the pier on any of the sides thercof so as to load or unload thereat, and the plaintiff will be deprived of all wharfage and cranage from the pier; that the defendant threatened in December 31, 1902, to exclude the plaintiff from the pier, and to prevent it from attempting to use it for the loading or unloading of vessels, and the receipt and collection of wharfage and cranage thereat. It is also admitted that by chapter 697, p. 1748, of the Laws of 1867, the commissioners of the Central Park were authorized to fix and establish pier lines and bulkhead lines along the North river, from Fifty-Fifth street to Spuyten Duyvil creek, and that their action was to be shown by maps to be filed, but the lines laid down on their said maps were not to be final until confirmed by the Legislature; that on November 19, 1867, the commissioners made a map showing pier lines and bulkhead lines. on said river, between Fifty-Fifth street and Spuyten Duyvil creek, and that by chapter 288, p. 590, of the Laws of 1868, the lines laid down upon the said map were finally established and approved by the Legislature; that upon said plan the bulkhead or a line of solid filling was fixed as a continuous line, which at Seventy-Eighth street was 234 feet 5 inches westerly of the westerly line of Twelfth avenue, at Seventy-Ninth street 238 feet westerly of the westerly line of

Twelfth avenue, and at Eightieth street was 241 feet 1 inch westerly of the westerly line of Twelfth avenue; and that upon said map the pier line was fixed at Seventy-Ninth street, at a distance of 600 feet west of Twelfth avenue. It is admitted that the plan approved by the department of docks on May 17, 1901, established new and different bulkhead lines and pier lines at Seventy-Ninth street. Briefly, the new bulkhead line on the map of May 27, 1901, is 74 feet 5 inches east of the present line, as fixed by the act of 1868; the new pier line on the map of May 27, 1901, is 25 feet 3 inches west of the present line; and the new pier line on the map of May 27, 1901, is 98 feet 11 inches longer and 10 feet wider than that established by the act of 1868. It is also admitted that no plan for the construction of wharves, piers, or bulkheads at Seventy-Ninth street, North river, other than that of May 17, 1901, has been approved by the department of docks, or the board of commissioners of the department of docks, or the commissioner of docks and ferries, or approved by the commissioners of the sinking fund.

The plaintiff claims that the defendant, by the notice of December 3, 1902, unlawfully attempted to cancel its lease; that the grounds assigned for its cancellation, to wit, the adoption of the plan of May 17, 1901, and the determination of the board of docks to improve the water front at West Seventy-Ninth street according to this plan, were not legally sufficient under the lease, the proposed plan of improvement having been determined upon and adopted in violation of law, which prohibited substantial changes in the bulkhead lines and pierhead lines. at West Seventy-Ninth street. The plaintiff, therefore, begins this action to enjoin the defendant from taking possession of the pier at the foot of West Seventy-Ninth street, and ousting it under a claim that it had lawfully canceled the lease. The defendant pleaded certain general denials, and then sets up certain separate defenses, to two of which the plaintiff has demurred on the ground of insufficiency in law. One of the defenses demurred to is contained in paragraphs 15 and 16 of the answer, and will be considered later. The other defense demurred to is that the plaintiff, in violation of the covenants and conditions of its lease, erected and maintained upon the wharf improper and unlawful structures, and, without any authority or consent, the plaintiff used the wharf generally for a dump and ramp for waste material, refuse, and rubbish. It will be observed that these allegations are pleaded as a complete defense. If, therefore, they do not amount to that, or constitute a counterclaim, the demurrer to this defense must be sustained. Thompson v. Halbert, 109 N. Y. 329, 16 N. E. 675; Canaday v. Stiger, 55 N. Y. 452. There is only one allegation of fact in this defense, to wit, that the plaintiff, without any authority or consent, used the demised property generally for a dump and ramp for waste material, refuse, and rubbish. The lease attached to the pleadings is the source of the rights of the parties to this action, and one fails to find there anything prohibiting the use of the wharf in question as a dump and ramp. Yet this single allegation of fact is relied upon as a complete defense, when, even if true, it would not be a violation of any covenant of the lease. But assume that such a use of the wharf is prohibited under the terms of the lease; even then the defense as pleaded would