Hassie v. God is with Us Congregation

By the Court, Sanderson, J.: This is an action by an attaching creditor against a garnishee, founded upon the one hundred and twenty-seventh section of the Practice Act.

On the 26th of August, 1864, the defendant entered into a written contract with one Davis, by which the latter agreed to build for the former a synagogue for the sum of seventy-three thousand and six hundred dollars, to be paid to him or his assigns, in installments, as the work progressed, upon the certificates of the defendant’s architect.

On the third of September following, Davis entered into a wufitten contract with one Kincaid, by which the latter agreed to do all the brickwork for the sum of thirty-three thousand two hundred and seventy-five dollars, to be paid in installments as the work progressed, upon certificates of the architect. By the terms of this contract Davis set apart and assigned to Kincaid thirty-three thousand two hundred [385]and seventy-live dollars of the seventy-three thousand and six hundred dollars called for by his own contract with the defendant.

On the 28th of January, 1865, there had become due from the defendant, for work done upon the synagogue, the sum of live thousand dollars. The work had been done by Kincaid, under his contract with Davis, and on that day defendant’s architect delivered to Kincaid a certificate, addressed to the Building Committee of the defendant, stating that the sum of five thousand dollars was due to Davis for work done upon the synagogue, as per contract, and that the same was payable to Kincaid upon Davis’ indorsement of the certificate. Without any indorsement by Davis, the defendant, on the same day, advanced to Kincaid the sum of one thousand dollars.

On the twenty-ninth of January the plaintiffs sued out an attachment against Kincaid, and garnished the defendant.

On the thirtieth of January the defendant, notwithstanding the garnishment, paid the remaining four thousand dollars to Davis, who receipted the certificate in full, and, thereafter, paid over the money to Kincaid. This was done by the defendant with full notice of Kincaid’s contract with Davis, and that the work for which payment was being made had been performed by Kincaid, under that contract.

Upon the foregoing facts the Court below held that the contract between Davis and Kincaid operated as an assignment of the money to become due to Davis from the defendant to the amount of thirty-three thousand two hundred and seventy-five dollars, and that the amount thus assigned became due and payable to Kincaid in installments upon the delivery to him of the architect’s certificates; and that at the time the defendant was garnished there was due from it to Kincaid the sum of four thousand dollars, for which judgment was entered against defendant.