#### Robert McMurray, Plaintiff, *against*Robert Hutcheson *et al.,*Defendants.

[Special Term.]

(Decided July, 1880.)

After an assignment for the benefit of creditors by a building contractor, one of his subcontractors filed a mechanic’s lien upon the buildings. ■ The assignee discharged the lien by depositing the amount of it -with the county clerk, completed the performance of the work under the contract of the assignor, and received the money payable thereupon. *Held,*in an action to foreclose the lien, that the lienor was entitled to the money deposited to discharge the lien, with costs of the action to be paid out of the assigned estate.

Teial by the court of an action for foreclosure of a mechanic’s lien.

The lien was filed by the plaintiff, Robert McMurray, for work done by him upon buildings owned by the defendant, Robert Hutcheson, under a subcontract with John Jennings, the principal contractor, who had previously made a general assignment for the benefit of his creditors to William E. Price, without completing the work under his contract. Other facts are stated in the opinion.

The action was brought by McMurray against Hutcheson, Jennings, and Price, the assignee, and was defended only by the assignee, who claimed that as the lien was filed after the assignment by Jennings, the plaintiff was only entitled to share in the assigned estate as an ordinary creditor.

*George F.*Langbein, for plaintiff-

*M. S.*Johnson, for defendant.

Van Hoesen, J.

The contractor Jennings made, on the 18th day of January, 1880, an assignment for the benefit of his creditors. On the following day, the 14th, the plaintiff, who was subcontractor under Jennings, having completed his *65contract, filed his lien under the mechanic’s lien act. The lien was afterwards discharged by the payment of the amount thereof to the county clerk. This payment was made by Hr. Price, Jennings’ assignee. Price made the payment because he had made an arrangement with Hutcheson, the owner of the buildings, to go on and finish Jennings’ contract. He fully performed Jennings’ contract and obtained the money which was payable thereunder to Jennings. McMurray has brought his action to foreclose his lien, and the question is, who is entitled to the money which Price deposited with the county clerk, McMurray, the lienor, or Price, the assignee? The equities are all in favor of McMurray, and the decisions of this court seem to me to entitle him to recover. Price, not for himself but for the benefit of the assigned estate, did the work which his assignor had left.undone and obtained from Hutcheson payment, not only for what he did but also payment for the work which had been done by McMurray. Is it fair that he should retain what was honestly coming to McMurray ?

Again, he assumed the contract of Jennings with Hutcheson, and by doing so placed himself in Jennings’ shoes, so that whatever Jennings would be bound to do he is equally bound to do. The case is the same as if Jennings himself had performed the contract, and the rights of McMurray are the same as they would then be.

The cases in this court which I have referred to are *Henderson*v. *Sturgis*(1 Daly, 336), and *Oates*v. *Haley*(Id. 338).

The plaintiff is entitled to judgment, with costs payable out of the Jennings estate, but not by the assignee personally. My intention is that the costs shall be paid before any claims owing by Jennings have been satisfied, but I cannot direct the assignee to pay them forthwith.

J udgment for plaintiff.