Opinion
December, 1914.
An order was given by a building contractor on the owner for material furnished by plaintiff therefor. It was accepted by the owner, payable when the house was finished and delivered at a date mentioned. The order was given for a precedent debt, and the presumption is that it was not given in payment of the contractor's indebtedness to the materialman. ( Noel v. Murray, 13 N.Y. 167.) There are no extrinsic facts tending to show that it was so received. The contract was not performed, as defendants would show because the specifications required construction violative of the Building Code, although Lindner indicates some pecuniary embarrassment on his part. The owner ascribes the contractor's failure to pecuniary inability. In reality there could be no fund, but only a debt from the owner to the contractor on which the order could and would operate, if it existed, as if it were a fund. But its existence could always be a subject of controversy, and when, as here, there was no performance and the debt is merely one for breach of contract, it cannot be inferred that the parties to the order intended it, unless paid, to discharge the original indebtedness. The judgment should be affirmed, with costs. Jenks, P.J., Burr and Rich, JJ., concurred; Carr, J., not voting. Judgment of the County Court of Queens county affirmed, with costs.