#### Annie F. Hafner, Respondent, *v.*Michael F. Kirby, Appellant.

(City Court of New York, General Term,

August, 1898.)

Order on a fund — Assignment pro tanto — Priority.

An order, given by a roofing contractor upon an owner, in. the form: “ Please' pay to Mr. Kirby, my tinman, $350 out of. my payment,” when accepted in writing by the owner ■ and delivered for value by the roofing contractor, amounts to an assignment *pro tantooí*the fund, which cannot, be impaired, by the roofing contractor’s subsequent assignment, to a third person, of all his right, title and interest in the roofing contract.

Appeal by defendant from a judgment entered upon the decision of a justice.

*391Ennever & Trautmann, for appellant.

John G. Ritter, for respondent.

Schuchman, J.

The action was originally brought against one William S. Anderson and, on his motion, the- defendant was inter-pleaded. From the complaint it appears that one Frederick Hafner (plaintiff’s assignor) had a contract with one William S. Anderson to roof for said Anderson six houses on One Hundred and Sixth street for the sum of $1,800, all of which had been paid except the balance of $350; that before the commencement of the action said F. Hafner assigned *all Ms right, title and interest in said contract*to the plaintiff.

The facts, according to the findings, are as follows: Frederick Hafner had a contract with William S. Anderson to do the roofing of six houses on One Hundred and Sixth street, New York city; that towards that work the Phillips Tin Plate Company furnished material.' The contract was $1,800, upon which there was due at the time of the commencement of the action $350. Fred. Hafner owed the Phillips Tin Plate Company more than $500 on August 18, 1896; the defendant was the agent in the employ of the Phillips Tin Plate Company, which Fred. Hafner knew; said Fred. Hafner being thus indebted to the Phillips Tin Plate Company, the defendant, as agent for the said company, called upon said Fred. Hafner on August 1, 1896, and as such agent demanded payment from said Fred. Hafner of the amount due said Phillips Tin Plate Company, and that thereupon the said Hafner made, executed and delivered to defendant for and on behalf of said Phillips Tin Plate Company the following order:

“New York, *August*1, 1896.

“ Mr. William S. Anderson,

“ Dear Sir:— Please pay to Mr. Kirby, my tin man, $350 out of my payment.

“Yours, etc.,

“F. Hafner.

“ Accepted.

“ W. S. Anderson.”

■ The defendant received said order from Fred. Hafner and took it to Anderson, upon whom it was drawn, and said Anderson ac*392cepted said order, writing thereon in the presence of the defendant, the words “ Accepted. W. S. Anderson,” and left the order with said Anderson. The order was given to and accepted, by the defendant on behalf of the Phillips • Tin Plate Company, and in part "payment of their bill. The assignment of Fred. Hafner to his wife,, the plaintiff, was made on December 14, 1896, four months and fourteen' days subsequent to the said order.

The said order amounted in law to an assignment *pro tanto*of the fund due by Anderson to Fred. Hafner under the contract. Lauer v. Dunn, 115 N. Y. 405; Stevens v. Ogden, 130 id. 182.

The assignment to the plaintiff being subsequent to said order, and assigning all the right, title and interest of Fred. Hafner cannot defeat the rights of the defendant acquired as aforesaid by said order. Fairbanks v. Sargent, 104 N. Y. 108; Fortunato v. Patten, 147 id. 277-283.

. Judgment reversed and new trial granted, with costs to the appellant to abide the event.

Olcott, J., concurs.

Judgment reversed 'and new trial granted, with costs to appellant to abide event.