Saltser & Weinsier, Inc. v. Monroe Plumbing & Heating Supply Corp.

822 No rights • accrued to plaintiff by virtue of the Lien Law (§ 36-a) (Cons. Laws, eh. 33) in the absence of the filing of a lien by plaintiff. (Amiesite Constr. Corp. v. Luciano Contr. Co., 284 N. Y. 223; New York Trap Rock Corp. v. National Bank of Far Rockaway, 260 App. Div. 1035; affd., 285 N. Y. 825.) In addition, the provision of the Lien Law invoked by plaintiff is merely an extension in scope of section 1302 of the Penal Law (Cons. Laws, eh. 40) as against a trustee who diverted funds. It could not be invoked as against the defendant assignee, who merely accepted payment of a debt. (Raymond Concrete Pile Co. v. Federation Bank, 288 N. Y. 452.) The interest of appellant Moritt, the only other party interested in the funds, by virtue of this determination is made common with that of his co-appellant, Monroe Plumbing & Heating Supply Corp., by reason of the fact that both appellants join in seeking the same relief. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur. '