Opinion
May 3, 1943.
Present — Hagarty, Carswell, Johnston, Adel and Taylor, JJ. [ 180 Misc. 820.]
This action was brought originally by a subcontractor to foreclose a mechanic's lien on funds in the treasury of the appellant municipality, appropriated for the construction of the Longfellow Junior High School in the city of Yonkers, and for other relief. By virtue of a severance order entered during the trial thereof, the action, in effect, became one in equity between the appellant municipality and the other appellant, its Board of Education, as plaintiffs, and the impleaded respondent bank, as defendant, to obtain a judicial declaration that certain moneys, aggregating $54,527.05, paid by the municipality to the general contractor from retained percentages under the general contract for the construction of the school and paid by the contractor, a debtor on promissory notes, to the respondent bank, to which those moneys had been assigned by the contractor previously, were trust funds in the hands of the bank and recoverable from the latter by the municipality and said board, such cross claimants. From a judgment in favor of the respondent bank, dismissing the amended and supplemental pleading and cross claim of the municipality and its said board against the respondent bank, the cross claimants appeal. Judgment unanimously affirmed, with costs. No opinion.