Opinion
Submitted November 15, 1882
Decided November 21, 1882
William C. Whitney for appellant.
Frankenheimer Rosenblatt for respondent.
The defendant had notice of the instrument of February 21, 1874, executed by Knapp to the plaintiff as early as December, 1874, when it was filed in the office of the comptroller. The claims of Knapp were not legally enforceable, for the reason that the board of supervisors had no authority to make the contract for fitting up the armory, as was decided in Ford v. The Mayor, etc. ( 63 N.Y. 640). But the claim was for labor and materials actually furnished, and the legislature by chapter 473, Laws of 1877, constituted a tribunal to ascertain the amount of claims of this character, and the city was made liable to pay the sums which should be awarded by the commission appointed by the act. The legislature recognized the moral obligation of the city to pay the amounts justly due to claimants, and imposed a legal obligation corresponding therewith. The instrument of February 21, 1874, operated as an equitable assignment to the plaintiff to the extent of $400, of whatever sum might eventually be allowed by the city upon the claim of Knapp. The fact that there was no fund then in existence, or any claim which could then be enforced by action, did not prevent the instrument taking effect as an equitable assignment, in case the city should subsequently voluntarily recognize its liability, or become bound to pay the claim. ( Field v. The Mayor, etc., 6 N.Y. 179; Mitchell v. Winslow, 2 Sto. 630.) The award under the act of 1873, was made to the executrix of Knapp, he having died before it was made, but the city retained out of the award a sum sufficient to pay the plaintiff, and the evidence justifies the inference that it was so retained for this express purpose, with the consent of the executrix. This appropriation could not thereafter be revoked to the prejudice of the plaintiff. The equities in this case are very clearly with the plaintiff, and for the reasons here stated, as well as those set forth in the opinion of SEDGWICK, Ch. J., we think the judgment should be affirmed.
All concur.
Judgment affirmed.