has been found guilty of felony thereby takes the status of a convict or felon whether punished by fine or imprisonment or not. Subdivision (h) of rule XII of the Selective Service Regulations was enacted for the purpose of protecting the army against contamination and not for the purpose of permitting felons to demand special privilege in exemption from draft. So we are interpreting not a provision of law which deprives a person "convicted" of certain privileges but a provision which classifies persons victed" as different from those who have not been convicted. are interpreting a section which is not like the statute under consideration in the Fabian case but which is like the statute under consideration in Lewis v. Carter.

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At various times in the past decade different judges in New ork, who have had before them for sentence young men found guilty of crime, have offered to suspend sentence upon those young men on condition that they would enlist in the army or the navy. In each case there has been immediate protest from the military authorities and the applicant has been refused enlistment, the War Department and the Navy Department continually taking the stand that the army and navy are not penal institutions and that the members of the army and navy should not be subjected to contact with criminals. They have regarded the convicts in each case as criminals, notwithstanding the fact that no sentence had been imposed.

Taking this attitude of the war and navy departments into consideration, together with the conclusions of the courts mentioned, I am of the opinion that a person who has been adjudicated guilty of any crime punishable in the State of New York by death or imprisonment in a State prison (whose adjudication of guilt has not been reversed) should be classified in subdivision (h) of class V under rule XII of the Selective Service Regulations, whether he was sentenced to State prison, to a penitentiary or a reformatory, or whether he was merely fined or even given a suspended sentence.

In the Matter of CONSTRUING THE LIEN LAW as to the Priority of Liens for Labor Performed or Material Furnished for a Public Improvement Over a Prior Lien for a Debt Not Connected with Such Improvement

(Opinion dated February 14, 1918)

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Priority of a lien for a public improvement over an antecedent lien against a contractor where the earlier lien is not connected with said improvement. J. D. Patton, Albany county sheriff, on December 24, 1917, filed with the State Comptroller notice of a judgment in favor of the United States Radiator Corporation against P. F. Kenny Company, and claimed to levy upon all moneys due and to become due under a contract between the State and the said Kenny Company for plumbing and drainage at the Yonkers armory. This judgment, however, was not secured account of any work or materials at the said armory. At a later date, January 7, 1918, the Kenny Company assigned to Thomas S. Moran all moneys due or to grow due upon the contract between the State and the Kenny Company. The question herein involved is as to which of these liens takes precedence. Under the Lien Law a lien for either labor performed or material furnished for a public improvement, pursuant to the provisions of sections 5 and 12 of the said Lien Law, has prece dence over the lien of a levy made under a judgment obtained against the contracting corporation upon a debt not connected with the improvement, prior to the filing of a lien for labor or material or an assignment of the moneys due or to grow due thereon. Held, that the notice of lien served upon the Comptroller by the sheriff of Albany county under an execution issued upon the judgment of the United States Radiator Corporation against the P. F. Kenny Company should not be recognized by the Comptroller in the adjustment of claims against the funds applicable to the payment of the work mentioned in the contract between the State and P. F. Kenny Company relating to the plumbing and drainage at the said armory.

Hon. Eugene M. Travis, State Comptroller, submitted an inquiry, together with a request for an opinion thereon, as follows: "To what extent should a levy or notice of a levy upon public funds, under a judgment recovered upon a claim or demand against the contractor, not connected in any way with the public improvement, be recognized in the paying out of the funds of the State appropriated for such public improvement where there are

subsequent liens filed against such funds, or the same have been assigned to a claimant for labor or material?"

LEWIS, Attorney-General.— On December 24, 1917, J. D. Patton, sheriff of the county of Albany, filed with the Comptroller a notice of a judgment in favor of the United States Radiator Corporation against P. F. Kenny Company, of $471.27, and claimed to levy upon all moneys due and to grow due upon a contract made between the State of New York by the State Armory Board, and the said P. F. Kenny Company, for plumbing and drainage at the Yonkers armory. Subsequent to that date, and on the 7th day of January, 1918, an assignment of all moneys due or to grow due upon such contract was made by P. F. Kenny Company to one Thomas S. Moran, which assignment was duly approved by the Armory Commission and the same was duly filed with the Comptroller pursuant to the provisions of section 15 of the Lien Law. The Comptroller has received a certificate amounting to $2,272.17 payable to Thomas S. Moran, as such assignee, and desires to be advised as to what extent the levy or notice of levy should be recognized in the payment of such moneys.

The Lien Law was enacted for the purpose of saving and protecting the two classes which contribute to the construction of property, to wit: The laborer and the materialman. Without the co-operation of both classes, real property or public work would remain unimproved and of no increased value. In order to protect and safeguard the rights and interests of both, the Legislature many years ago decided that the two classes should have liens upon the real property or public improvement to the extent to which they had respectively contributed to the augmented value of the premises. It was deemed equitable and fair that the laborer who had contributed to such augmented value by his brawn and muscle, and the materialman who had contributed with his property, should be preferred if he so desired by a lien upon such premises over the lien of other creditors who had extended credit to the owner or contractor without contributing anything toward its increased value, and generally without antici

pation of any increase in value except as against the liens of secured creditors whose claims were upon record.

Under section 3 of the Lien Law the laborer or materialman is given a lien upon the real property improved, or to be improved, and upon such improvement from the time of filing the notice of lien as provided by section 9. Under section 5 of the same law the same parties are given a lien upon the moneys and public funds applicable to the construction of the improvement to the extent of the amount due or to become due on the contract, by filing a notice of lien with the head of the department or bureau having charge of the work and with the Comptroller in the case of a State contract as provided by section 12 of the Lien Law.

There would be no difficulty in this matter if the liens were upon real property which has been improved under the provisions of section 3 of the Lien Law, for section 13 of the Lien Law specifically provides: "A lien for materials furnished or labor performed in the improvement of real property shall have priority over a conveyance, judgment or other claim against such property not recorded, docketed or filed at the time of the filing of the notice of such lien, * over the claim of a creditor who

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has not furnished materials or performed labor upon such property; over an attachment hereafter issued or a money judgment hereafter recovered upon a claim which in whole or part was not for material furnished, labor performed or moneys advanced for the improvement of such real property; and also over any claim or lien acquired in any proceedings upon such judgment."

While this section by its language seems to apply solely to liens upon real property filed pursuant to the provisions of section 3, I cannot avoid the conclusion that it was intended to apply to liens against public funds as well. The whole scheme of the Lien Law is based upon the idea of giving the laborer and materialman the first liens upon improvements made by their labor or property. The statutory provisions for the protection of parties who perform work upon, or furnish material for a public improvement, are just as sacred and entitled to just as much protection and con

sideration as those contributing to the construction of private property. While a close and narrow construction of section 13 might exclude lienors under section 5, for labor performed or material furnished toward the construction of a public improvement, I am inclined to follow the rule laid down in section 23 of the same act which reads in part as follows: "This article is to be construed liberally to secure the beneficial interests and purposes thereof."

I do therefore hold that a lien or assignment of a contract when made as provided in the Lien Law, will take preference and priority over the lien of a judgment recovered upon a debt against the contractor which was not for material furnished or labor performed.

There is still another phase of this subject that is entitled to consideration. The attempted levy under the judgment of the United States Radiator Corporation is not sufficient to hold the funds as against subsequent liens of laborers or materialmen, or assignees of the contract. An actual levy upon personal property is necessary to bind and hold the property.

To constitute a valid levy upon personal property, the goods or property must be present and subject to the control of the officer. It is not neceessary that he should always take manual possession of the property, but there must be an open assertion of right by virtue of the process in respect to goods within his power, or there must be an acknowledgment or claim by the judgment debtor of his title to the property levied upon and the act of levy must be fully asserted and understood. Baker v. Binninger, 14 N. Y. 270; Green v. Burke, 23 Wend. 490, and numerous other cases.

Assuming that there had been no lien perfected or assignment of the moneys due upon the contract made by P. F. Kenny Company on December 24, 1917, at the time of the alleged levy by the sheriff under the execution, it did not create a lien against the funds held for the public improvement. The money was not in the hands of the Comptroller upon whom the notice of levy was served. The balance of the money remaining unpaid upon the