N. Y. Rep.] Opinion of the Court, per HAIGHT, J. one extension of time and he offered them another. The letter contained no refusal to perform on his part, and related only to the ice that was not taken during the month of August. As to that which was left he proposed a charge of twenty-five cents extra. It was but an offer, a proposal, as we understand it, to continue and amend the existing contract, and nothing more. It was evidently so understood by the defendants, as is apparent from their reply. The same is equally true with reference to the plaintiff's dispatch of September 7th. It was a mere offer or proposal in reference to renewing the contract. He refused nothing, he waived nothing. The defendants were then in default. The time within which they had agreed to take the ice had expired. They were then liable for the damages which the plaintiff had sustained. His offer to renew the contract, or to continue the delivery of the ice, was but a friendly attempt on his part to adjust the matter between them, and in no sense was intended as a waiver of any of his rights which had then accrued to him under the contract. As we have seen, the defendants refused to take the ice on the 8th of September. On the same day the plaintiff wired them that he would continue, to load the ice at August prices, providing they would take it all before September 20th. Here was an immediate tendering of performance on his part. He could do no more. The defendants were to furnish the boats at his storehouses to be loaded. This was to be done on or before the first of September. They had not performed the conditions of the contract in this regard. Negotiations had taken place for a renewal of the contract, which had been unsuccessful. Then plaintiff made his offer of September 8th, and that was rejected. It appears to us that he did all that he was required to do, and that the defendants cannot escape liability for the damages which he sustained. Treating the contract as executory, it became the duty of the plaintiff upon the refusal of the defendants to take the ice, to dispose of it to the best advantage possible. (Gray v. Central R. R. Co. of New Jersey, 82 Hun, 523.) This he attempted Opinion of the Court, per HAIGHT, J. [Vol. 147. to do. He not only wrote dealers, but he sent a person to New York city to offer it to any ice dealers that could be found. But, owing to the advance of the season and the distance the ice was from the market no sale could be effected, and the ice became a total loss. It is contended that the referee erred in not allowing the defendants demurrage upon the boats that were loaded by the plaintiff. It is not clear that this question is raised by any exception that can be now reviewed. The referee was requested to find certain facts upon this subject, which was refused. The General Term might have reviewed the facts bearing upon this subject, but, as we have seen, it has not done so; at least, we are obliged to so assume under the provisions of the Code heretofore referred to. No conclusion of law appears to have been found or demanded upon the subject. But, assuming the question was raised and is properly here for consideration, we think that it should not be held that an error was committed by the referee in not allowing the defendants' claim for demurrage. They understood the situation of the premises and that but one boat could be loaded at a time. The plaintiff had stated that he could load the boats if they were not sent in a nest. It was evidently contemplated that the boats would be sent along from time to time so that but one boat would be required to be loaded at a time, at least, the referee was justified in so finding. Boats were hired to go and get the ice; they were loaded, and it appears that no demurrage was demanded or claimed on the part of the captains. The judgment of the General Term should be reversed, and that entered upon the report of the referee affirmed, with costs to the plaintiff in all the courts. All concur, except ANDREWS, Ch. J., not voting. MAICHO FORTUNATO v. THOMAS PATTEN, Appellant, Impleaded A pro 1. MUNICIPAL CONTRACT-PROVISION AGAINST ASSIGNMENTS. vision, in a New York city street-grading contract, to the effect that the contractor shall not assign the contract, nor any of the moneys payable thereunder, without the consent of the city, signified in writing by the commissioner of public works indorsed on the agreement, and that in the absence of such consent no right under the contract, nor to any moneys to grow due by its terms, shall be asserted against the city, is not available to a junior assignee of moneys due and to grow due under the contract, to attack the right of priority of a senior assignee of such moneys, who has failed to procure the consent of the city to his assignment, when the city has paid into court for distribution the moneys payable under the contract, and no claim is made against the city. So held, where no absolute assignment had been made of the contract, but all the transfers made by the contractor were of moneys due under the contract as collateral to secure the payment of a debt. (Burck v. Taylor, 152 U. S. 634, distinguished.) COLLATERAL SECU 2. CONTRACT- ASSIGNMENT ABSOLUTE IN FORMRITY NOTICE. When an assignment, in form an absolute assignment of all the contractor's rights and interest under such a city contract, is in fact made as collateral security for a debt, the assignee, in the distribution of the fund payable under the contract and where no claim is made against the city, comes within the rule that, as between different assignees of a chose in action by express agreement from the same person, the one prior in point of time will be protected, although he has given no notice of such assignment to either the subsequent assignee or the debtor. 3. WAIVER. Rights acquired under an assignment, as collateral security for a loan, of moneys due under a contract, are not waived by taking a second assignment and releasing a portion of the moneys payable under the contract, when the second assignment is merely by way of additional collateral to secure the payment of a balance due on the original loan and the release refers only to the second assignment. Fortunato v. Patten (5 Misc. Rep. 234), reversed. (Argued October 11, 1895; decided October 22, 1895.) APPEAL from judgment of the General Term of the Court of Common Pleas for the city and county of New York, entered October 9, 1893, which affirmed a judgment entered 147 277 162 552 147 277 169 1323 upon the report of a referee determining the order of payment to various creditors out of a fund paid into court, by the city of New York. The facts, so far as material, are stated in the opinion. Robert E. Deyo for appellant. The failure to secure the consent of the commissioner of public works to Patten's first assignment did not render that assignment void. (Grigg v. Landis, 21 N. J. Eq. 494; Kneetle v. Newcomb, 22 N. Y. 249; In re N. Y., L. & W. R. R. Co., 98 N. Y. 447; Bush v. Lathrop, 22 N. Y. 535; C. A. Co. v. Alling, 46 Hun, 582.) Patten's first assignment being prior in point of time to that of the bank, is entitled to precedence, although he gave no notice thereof to the city. (Fairbanks v. Sargent, 104 N. Y. 108; 117 N. Y. 320; Bush v. Lathrop, 22 N. Y. 535; Muir v. Schenck, 3 Hill, 228; Williams v. Ingersoll, 89 N. Y. 508 ; Beach on Eq. Juris. §§ 343, 344; 2 Pom. Eq. Juris. § 695.) Patten's first assignment is not invalidated because he took a second assignment. (York v. Conde, 61 Hun, 26.) The record does not found, nor the pro Charles E. Patterson for respondent. sufficiently set forth the facts proven and ceedings in the case, to enable the court to say that the judg ment below is erroneous. (Gardinier v. Schwab, 110 N. Y. 650; Murray v. Marshall, 94 N. Y. 611 ; Kellogg v. Thompson, 66 N. Y. 88; R. L. Co. v. S. & P. P. Co., 135 N. Y. 209.) The so-called assignment from Dawson to Patten of April 11, 1887, was absolutely void. (Burck v. Taylor, 152 U. S. 634; Homer v. Wood, 23 N. Y. 350; Grigg v. Landis, 4 C. E. Green, 350; In re N. Y., L. & W. R. Co., 98 N. Y. 447; A. V. S. Co. v. B. M. Co., 127 U. S. 379; D. County v. D. S. & L. Co., 133 U. S. 473, 488.) The maxim of modus et conventio vincunt legem is invoked by respondent. (U. P. R. Co. v. D. C. Bank, 60 N. W. Rep. 886.) If the assignment to the appellant was valid, still he would not be entitled to priority over the bank's assignment, for he is estopped from asserting any claim under his so-called assignment N. Y. Rep.] Opinion of the Court, per BARTLETT, J. of April 11, 1887, as against an innocent third party. (McNeil v. T. N. Bank, 46 N. Y. 325; Moore v. M. N. Bank, 55 N. Y. 41; Weigh v. Boylan, 85 N. Y. 394, 401; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 199; Addison on Contracts, § 1272; Mangels v. Dixon, McN. & G. 437; Bayley v. Greenleaf, 7 Wheat. 46; Murray v. Lylburn, 2 Johns. Ch. 442; Judson v. Corcoran, 17 How. [U. S.] 612; In re Gillespie, 15 Fed. Rep. 734; Bishop v. Garcia, 14 Abb. [N. S.] 69; Greenleaf v. Stenton, 6 Wkly. Dig. 33; Trustees, etc., v. Wheeler, 61 N. Y. 111; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 80; Finch v. Barker, 49 N. Y. 1; Fairbanks v. Sargent, 117 N. Y. 320; Bush v. Lathrop, 22 N. Y. 248.) If, as the appellant claimed below, his assignment was intended to be but a partial assignment, then it could not be operative without the consent of the other contracting party. (Mandeville v. Welch, 5 Wheat. 277; Gibson v. Cooke, 20 Pick. 15.) Between different assignees of the same chose in action, the one prior in time is not always entitled to precedence. (Bush v. Lathrop, 22 N. Y. 535; Williams'v. Ingersoll, 89 N. Y. 508; Fairbanks v. Sargent, 104 N. Y. 108; 117 N. Y. 320; Add. on Cont. § 1272; Spain v. Hamilton, 1 Wall. 604-623; N. Bank v. Texas, 20 Wall. 72,-89; L. Bank v. Schuler, 120 U. S. 511; In re Gillespie, 15 Fed. Rep. 734; Jackson v. Henry, 10 Johns. 185; Jackson v. Van Valkenburgh, 8 Cow. 260; Barnett v. Briggs, 6 Paige, 323; Fort v. Birch, 5 Den. 187; 104 N. Y. 124; 117 N. Y. 327; Yorke v. Conde, 61 Hun, 26.) BARTLETT, J. This is an appeal from a judgment of the General Term of the Court of Common Pleas for the city and county of New York affirming a judgment entered upon the report of a referee determining the order of payment to various creditors out of a fund paid into court by the city of New York. John F. Dawson, in October, 1886, entered into a contract with the city to regulate and grade Edgecomb avenue and other streets. |