Victor A. Rizzi, Respondent, v. Philip B. Craighead and Alice Craighead, Appellants, and Others, Defendants

Victor A. Rizzi, Respondent, v. Philip B. Craighead and Alice Craighead, Appellants, and Others, Defendants. [MAJORITY] Judgment reversed upon the law and the facts and new trial granted, costs to appellants to abide the event. The guaranty of May fifth to Dinkel & Jewell Company was not an equitable assignment of moneys to grow due to Hoyt, the contractor. It was a guaranty of payment, and if Hoyt did not pay Dinkel & Jewell Company, then defendant Philip B. Craighead became immediately liable. The proof clearly shows that Dinkel & Jewell Company furnished lumber, in payment for which Hoyt defaulted, prior to the filing of a lien by plaintiff. When Hoyt defaulted, defendant Philip B. Craighead became unqualifiedly obligated to pay the amount of the bill of Dinkel & Jewell Company. This obligation is in effect a payment which takes precedence over a lien filed subsequently to the accrual thereof. A new trial is, however, necessary because there is proof in the case that defendant Philip B. Craighead represented to plaintiff that he had on hand upwards of $3,000 with which to pay the contractors, and that, upon such representation the plaintiff proceeded, to. complete the job. Such facts, if proved, might entitle plaintiff to a personal judgment against defendant Philip B. Craighead. Young, Rich, Kapper and Lazansky, JJ., concur; Hagarty, J., dissents and votes to affirm.