SECOND DEPARTMENT, JULY TERM, 1898.

[Vol. 32. ment, and the plaintiff, by neglecting to give notice of the change of ownership, simply took the chances of the defendant so dealing with the funds as to affect his rights. This could be done only by making payment of the amount involved to some person other than the owner of the claim, and there is no pretext that anything of the kind has occurred. The defendant concedes that it owed Mortenson $1,461.11, including the costs in the foreclosure proceeding, and it was specially agreed in the second contract that nothing therein contained was in any manner to affect the claim under the mechanic's lien. That stood separate and distinct from the new contract, and should it be conceded that the defendant has suffered the damages claimed by reason of the breach of the second contract, we know of no rule of law by which the owners of the mechanic's lien could be held responsible for such a loss. The fact that the defendant did not know that Mortenson had disposed of his rights in the mechanic's lien does not give it the right to repudiate a just debt.

In the case of Crouch v. Muller (141 N. Y. 495), relied upon by the defendant to sustain its contention that notice was necessary, the contractor gave an order on the owner of the building, which was being constructed, for $1,000. This order was presented to the defendant, who was asked to sign it. This he refused to do, not knowing its nature. On the trial it was held that this was not a notice of the equitable assignment, and that the defendant, having paid all but $153.90 of the contract price, could not be held responsible for more. The court say: "The order drawn by the contractor upon the defendant, by its terms and under the circumstances, operated as an equitable assignment of the sum expected to become due upon the owner's contract with the builder. (Brill v. Tuttle, 81 N. Y. 457.) There would be no doubt of plaintiff's right to recover the whole of such sum if due notice of the assignment had been given to the drawee; but the trial court and the General Term have concurred in the conclusion that no such notice was given, and have so held as matter of law upon the evidence." This case simply decides that the drawee, having no notice of the assignment, cannot be held responsible to the plaintiff for a sum in excess of the amount due on the contract at the time of the commencement of the action, but it is in no wise an

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1898.

authority for the proposition that the defendant is absolved from the duty of paying that which is due to the holder of the assignment. On the contrary, it was found in this case that the defendant was liable for so much of the contract price called for by the order or assignment as was in his possession, and he was ordered to pay this to the plaintiff. "There can be no doubt as to the rule," say the court in the case of Brill v. Tuttle (supra), "that when, for a valuable consideration from the payee, an order is drawn upon a third party and made payable out of a particular fund, then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund, and the drawee is bound, after notice of such assignment, to apply the fund, as it accrues, to the payment of the order and to no other purpose, and the payee may, by action, compel such application."

Finch v. Parker (49 N. Y. 1), also quoted to sustain the contention of the defendant, was an action for the specific performance of a contract. The court in discussing the case say that, "the plaintiff not having given notice to the defendant of the assignment of the contract by Young to him, and the defendant having no knowledge thereof, plaintiff is bound by the subsequent acts and dealings between the defendant and Young in relation thereto," but it adds: "The judge finds, in effect, that no such contract as is alleged in the complaint was ever made between Young and the defendant," and the language of the court is to be understood, not as asserting a general proposition, but as declaring the law in respect to the particular facts of that case, and as bearing upon the plaintiff's right to the specific performance of a contract which had, in fact, no existence outside of the pleadings.

We are unable to find any authority which sustains the theory of the defense, that it is absolved from the payment of its just debts because it has not been notified of the ownership of the claim. It certainly has not paid this debt; it has established no equities as against the plaintiff in this action, and we are forced to conclude that the judgment of the trial court should be affirmed.

All concurred.

Judgment affirmed, with costs.

SECOND DEPARTMENT, JULY TERM, 1898.

[Vol. 32.

In the Matter of the Application of ISRAEL A. HAIGHT, as Supervisor of the Town of New Castle, for an Order Directing the Payment of a Tax, and for Judgment against J. WESLEY BARNES and RICHARD P. BARNES, as Administrators of the Estate of DAVID W. BARNES, Deceased.

J. WESLEY BARNES, as Surviving Administrator of the Estate of DAVID W. BARNES, Deceased, Appellant; ISRAEL A. HAIGHT, as Supervisor of the Town of New Castle, Respondent.

Tax-assessment against two administrators who have transferred the control of the estate to a third administrator. - a depositor in a savings bank is not exempt from taxation on his deposit.

An assessment for taxation against two administrators of a decedent, made to the extent of two-thirds of his personal property by the assessors of the town in which they resided and in which the decedent resided at the time of his death, is proper, notwithstanding the fact that such administrators have, "for the sake of convenience and expediency, and to relieve themselves from the cares of management," agreed with a third administrator living in another town that the latter "should have sole control and possession of the assets and estate" of said decedent, and that said third administrator actually took and assumed the sole control and possession of the property.

A depositor of money in a savings bank in the State of New York is not exempt from taxation thereon by subdivision 14 of section 4 of the Tax Law (Chap. 908, Laws of 1896).

APPEAL by J. Wesley Barnes, as surviving administrator of the estate of David W. Barnes, deceased, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of May, 1898, upon an application, made under section 16 of chapter 610 of the Laws of 1874, by the supervisor of the town of New Castle, to enforce the payment of a tax upon personal property of the estate of the decedent, assessed upon the assessment roll of the town for 1896.

Henry C. Griffin, for the appellant.

A. J. Adams, for the respondent.

WOODWARD, J. :

David W. Barnes, of the town of New Castle, died seized of a considerable estate, and left him surviving three brothers, next of

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1898.

kin, who each qualified as administrators of his estate. Two of these brothers, Richard Barnes, who is now deceased, and Wesley Barnes, resided in the town of New Castle, and Noah T. Barnes, since deceased, resided in the town of Ossining. In 1896, the assessors of the town of New Castle assessed two-thirds of the personal property of said estate to J. Wesley Barnes and Richard Barnes is administrators, as provided by section 8 of the Tax Law (Chap. 908, Laws of 1896). On the day set apart for the review of the assessment rolls of the town of New Castle, J. Wesley Barnes appeared before the assessors and made an affidavit, in which he stated that "the personal estate of said David W. Barnes consisted entirely of moneys on deposit in various savings banks in the State of New York, except household furniture, farming utensils and stock; that such personal estate of the said David W. Barnes was all appraised, and an inventory made and filed in the office of the surrogate of the county of Westchester, on the 23d day of March, 1896, and, as appears from such inventory, the amount of personal estate of the said David W. Barnes, other than moneys on deposit in savings banks, amounted to twelve hundred and fortyseven 80/100 dollars; that the administrators, on the 16th day of May, 1896, paid to the county treasurer of the county of Westchester the sum of eight hundred and twenty-five dollars and eighty cents, tax appraised and assessed against said estate of David W. Barnes by the surrogate of the county of Westchester, and an appraiser duly appointed under chapter 399 of the Laws of 1892, and, as this deponent is informed and believes, the personal estate of the said David W. Barnes, consisting of money on deposit in savings banks, is not subject to assessment of taxation by the assessors of the town of New Castle; that the debts of the said David W. Barnes and the expenses of settling the estate will exceed the sum of twelve hundred and forty-seven dollars and eighty cents, the amount of the personal estate of the said David W. Barnes, other than the moneys on deposit in savings banks.

"And deponent further says that a large part of the personal estate left by the said David W. Barnes was distributed among and paid over to the various parties entitled thereto on the eighth day of July, 1896, and that the remainder of the said personal estate is APP. DIV.-VOL. XXXII. 63

SECOND DEPARTMENT, JULY TERM, 1898.

[Vol. 32. on deposit in savings banks in the State of New York, and, as deponent is informed and advised by counsel, the administrators of David W. Barnes have no personal estate of the said David W. Barnes in their hands subject to be assessed or taxed by the assessors or authorities of the town of New Castle."

The assessors, notwithstanding this affidavit, continued the assessment as originally made, and, on the administrators refusing to pay the tax, the supervisor of the town of New Castle brings this proceeding to compel the payment of the tax. This court, at Special Term, after hearing argument, made an order directing the administrators to pay the tax which had been levied and assessed against them in their representative capacity, and from this order an appeal comes to this court.

It is now urged, in addition to the claim made before the board of assessors of the town of New Castle, that the moneys on deposit in savings banks were exempt from taxation; that, "for the sake of convenience and expediency, and to relieve themselves from the cares of management, deponent (J. Wesley Barnes) and Richard P. Barnes, agreed with Noah T. Barnes that said Noah T. Barnes should have sole control and possession of the assets and estate of said David W. Barnes, and should take the sole management of the estate property, deponent and Richard P. Barnes thereby ceasing to have any control or possession of the estate property or to partici pate in any way, except to give advice, in the settlement of said. estate; that, in pursuance of said agreement and prior to the first day of July, 1896, said Noah T. Barnes actually took and assumed the sole control and possession of the property of the said David W. Barnes, deceased, depositing the funds in banks in the name of Noah T. Barnes, drawing checks in the name of Noah T. Barnes, receiving moneys and paying indebtedness and transacting all the business of the estate in his own name, and by said agreement managing and controlling the entire estate to the exclusion of deponent and Richard Barnes, who participated in no part of the control, possession or management of said estate property.

"Deponent further says that on the said 1st day of July, 1896, he did not hold, nor has he since held or controlled, any personal property, as administrator aforesaid, of any kind or nature." affidavit in the same language is made by Richard P. Barnes.

An