Third Department, March, 1910.

[Vol. 187. APPEAL by the defendant, Kendrick and Brown Company, from certain parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Washington on the 3d day of March, 1909, upon the decision of the court rendered after a trial. at the Washington Trial Term before the court without a jury.

The action is an action to foreclose a mechanic's lien against moneys due to a contractor upon a contract for the building of a schoolhouse in the towns of Greenwich and Easton in Washington county. By the judgment the plaintiff is allowed his claim in full. The appellant, a subsequent lienor, receives only a part of its claim and appeals from so much of the judgment as determines the amount applicable to the payment of its claim.

On May 5, 1906, the defendant Richards made a contract with the board of education for the erection of a high school building. The contract price was $40,325. Later certain deductions were made. The board claims the deductions amounted to $442.50. Richards claims they amounted only to $293.75. Richards' contract was completed and the building accepted by the board of education on November 7, 1907. From time to time before any liens. were filed the board of education had paid to Richards various sums amounting in all to $35,000. On August 10, 1907, and prior to the filing of any liens, the First National Bank of Greenwich loaned Richards $400 on a demand note signed by him. This note had upon it the words "charge to bond account." The bond. account consisted of the moneys applicable to the payment of the contract. This note was indorsed upon its back, "This note authorized by Dr. Henry Gray, Pres't of Board of Education, and to be deducted from next estimate." The note was not in fact deducted from the next estimate, but the next estimate was in fact paid in full to the contractor Richards. The treasurer of the board of education was the cashier of this bank and upon the thirty-first day of August this note was paid by said treasurer out of this bond account. On the 19th day of August, 1907, a lien for $1,328.35 was filed by J. H. Fielding. On August thirtieth a lien for $2,500 was filed by Parker & Cleveland. On September second a lien for $250 was filed by the Consolidated Electric Company. On September third a lien for $853 was filed by the plaintiff. On November fourth the lien of the appellant, Kendrick & Brown, was filed.

App. Div.]

Third Department, March, 1910.

After the payment note there was left

The appellant furnished the material for the finishing of the school building and its lien amounted to $3,293.85. Soon after November seventh the liens of J. H. Fielding, of Parker & Cleveland and of the Consolidated Electric Company were paid. of these liens and the payment of the bank unpaid upon the contract the sum of $354.08. In addition to that, the court found that the contractor should be allowed for certain extras in the amount of $1,276.36, which, together with the sum of $354.08, made the sum $1,630.44, to which the aforesaid liens attached. Further facts appear in the opinion.

Chambers & Finn [Daniel J. Finn of counsel], for the appellant.

George W. Curry and Herbert Van Kirk, for the respondent. SMITH, P. J.:

The appellant first complains that the judgment is defective in not granting to it a deficiency judgment against Richards. With that question the board of education has no concern. It is admitted that such a judgment should have been granted and its omission is conceded to have been an oversight, caused, as it is claimed by the respondent, by the failure of the appellant to specifically call the attention of the court thereto. An order has been since granted at a Special Term amending the judgment so to provide. But the power of the Special Term is doubted. (See Union Bag & Paper Co. v. Allen Bros. Co., 94 App. Div. 598.) The judgment should, therefore, be modified on this appeal so as to provide for judgment for deficiency in favor of the appellant as against the defendant Richards.

Various questions are raised which are entitled to a passing notice. The claim that the Fielding lien was unverified would seem to be answered by reference to the statute, which at that time required no verification of such a lien as against moneys held for a municipal improvement. (See Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 12, as amd. by Laws of 1902, chap. 37.) Other informalities in the liens are not sufficient to invalidate them as liens, as the form of the lien substantially complies with the requirements of the law and no prejudice has been shown. Fielding was not a member of the board of education until after the contract was made with Richards, the contractor, and his subsequent accession to the board

Third Department, March, 1910.

[Vol. 137. could not deprive him of the full rights to enforce that contract. Nor does the fact that Gray was interested in the Consolidated Elec tric Company make invalid the lien of that company or make illegal the payment to the company of the amount of their compensation for work actually furnished and actually accepted by the contractor and by the board of education. The finding of the trial court as to the amount of the allowance made by the contractor for certain changes in the original plans cannot be said to be against the weight of the evidence, and the principal question upon this appeal arises as to the bank note of $400 made by the contractor Richards and afterwards paid by the board. This it is claimed by the appellant was paid without authority.

This note was made by Richards for the purpose of obtaining money for the payment of the wages of employees upon this building. The bank refused to accept the note of Richards without some protection. The president of the board of education was, therefore, called in and the indorsement was made upon the back of the note that the same was authorized by the president of the board of education and was to be deducted from the next estimate. The note itself contained the words that it be charged to the bond account. When, therefore, the next estimate was fully paid to Richards and he accepted the same without any deduction by reason of this note, the authority still remains with the bank to collect the note out of any moneys remaining in the bond account due or to become due to Richards. This authority the law will imply from the circumstances under which the note was given. It probably did not amount to an assignment of so much of the fund, because of chapter 692 of the Laws of 1907 (adding to Lien Law, § 15a), which went into effect a few days before this note was given. At the time that the note was paid, however, except as against the liens that were then filed, the board of education might have paid to Richards, the contractor, this $400, or it might have paid the same to the bank at the direction of Richards after the bank had loaned the same to Richards for the purpose of paying the wages of employees upon this building. Upon the record it appears that the note was charged to the bond account by the order of the president of the board. So that we find the consent both of Richards and the president of the board that the money be paid to the bank.

App. Div.]

Third Department, March, 1910.

It is true as against the liens then filed that payment was not good, but the liens then filed have all been paid by the board of education. The question is here raised by the lienor whose lien was not filed for more than two months after this payment. The payment could not have been collusively made as against the appellant lienor, and whether or not the note with the order thereupon constituted an equitable assignment of any part of the fund, the payment made in good faith was valid, and for it the board of education should have proper allowance. The appellant calls attention to section 25 of article 4 of title 8 of the Consolidated School Law (Laws of 1894, chap. 556), which provides for the manner in which moneys shall be drawn from the funds in the possession of the treasurer of the board. That statute, however, does not make invalid a payment actually made upon a valid debt, though not in form as therein prescribed. The claim that these prior liens were unlawfully paid cannot be upheld. They were paid within three months from the time they were filed, and the board had the clear right to pay them, taking the risk of a subsequent finding that they were not valid claims. After they were paid they naturally would not be renewed, and for their payment the board should have a proper allowance as for moneys paid upon the contract.

One further question remains, and that is as to the costs which were charged to the fund and not to the members of the board personally. We see no reason for any personal charge of costs against the members of the board. They have proceeded lawfully. The litigation was not by their invitation. Claims for extras were made for $2,750, and upon the trial the extras were allowed at only the sum of $1,276. We find no reason for disturbing the judgment except as to the modification above suggested.

The judgment should be modified by providing for a personal judgment for deficiency in behalf of the appellant lienor as against defendant Richards, and as modified affirmed, with costs to respondent board of education against appellant.

Judgment modified by providing for a personal judgment for deficiency in behalf of the appellant lienor as against defendant Richards, and as modified unanimously affirmed, with costs to respondent board of education against appellant.

Third Department, March, 1910.

[Vol. 137.

GEORGE R. HAMM, an Infant, by GEORGE H. HAMM, His Guardian ad Litem, Appellant, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent.

Third Department, March 9, 1910.

Insurance — infant-power to rescind policy - section 55, Insurance Law.

An infant cannot rescind a policy of insurance taken on his life and recover back the premiums.

Section 55 of the Insurance Law, as amended, providing that a minor shall not be deemed incompetent to contract for insurance, is not declaratory of the common law, but in contravention thereto.

It is immaterial that the policy sought to be rescinded was an endowment policy, as the failure of the Legislature to specify what insurance might be taken by an infant indicates that he may make a valid contract in any of the common forms.

APPEAL by the plaintiff, George R. Hamm, from a judgment of the County Court of Columbia county in favor of the defendant, entered in the office of the clerk of said county on the 21st day of September, 1909, reversing a judgment of the City Court of the city of Hudson in favor of the plaintiff.

D. V. McNamee, for the appellant.

Amasa J. Parker, Jr., for the respondent.

SHITH, P. J.:

The action is brought to recover back certain premiums paid by the plaintiff upon a life insurance policy issued by the defendant. At the time the policy was taken the plaintiff was about seventeen years of age. After having paid certain sums thereupon, while still an infant, he assumed to rescind the contract by reason of his minority and asks to recover back the moneys paid as premiums. The defense is that this was a binding contract under section 55 of the Insurance Law (Laws of 1892, chap. 690), as amended by chapter 437 of the Laws of 1902. The provision referred to is as follows: "In respect of insurance heretofore or hereafter, by any person not of the full age of twenty-one years but of the age of fifteen years or upwards, effected upon the life of such minor, for the benefit of such minor, the assured

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