Meli v. Cryer

Judgment affirmed, -with costs. Memorandum: Up to final settlement time each of the three assignees had funds payable to it by the Sola Company, general contractor, which were secured by assignment. If the Nazareth Company had retained possession of the $839.46, pursuant to the terms of Exhibits 32, 121, 122 and 133, until the time of final settlement between the Nazareth Company and the Sola Company, payment of the sum mentioned by the Nazareth Company to the Dolomite Company would not have been required. The premature payment of the money by the Nazareth Company resulting in its application by the Dolomite Company on obligations to it of the Sola Company which were not secured by assignment, was purely voluntary and the trial court correctly declined to add the amount to the Nazareth Company’s amount finally receivable. If the Dolomite Company has received undue enrichment through such receipt and application of money owing to it by the Sola Company, correction cannot be made by us under the pleadings and record before us. The Nazareth Company makes no demand in its answer against the Dolomite Company, it has filed no exceptions to the trial court’s conclusion of law and it is the only party appealing. All concur. (The judgment disallows the claim of the appellant in an action to foreclose a lien on public funds.)