This case, in its essential features, is the same as; when it was before this court upon a former appeal.
It was then held, opinion by Dwight, P. J., that it was incumbent upon the plaintiff to show, in order to recover anything beyond the sum remaining in the defendant’s hands, to wit, $153.90,, notice to the defendant of the drawing of the order by Schenck, its amount, and that it was payable out of the moneys due or to-grow due from the defendant to the contractor Schenck.
The plaintiff, on the second trial, pfoved a notice to the defendant of the drawing of an order and the amount thereof, but failed; to show that it was drawn upon any fund.
The testimony of both Babcock and Miller tends to show that, the defendant was not informed that the order was on any particular fund, but, on the contrary, they testify that the defendant, was told that it was an order drawn by Schenck upon the defendant generally.
. The defendant could neither read English nor understand it, when spoken. He understood that the paper presented to him . was a promissory note, which they wished him to sign.
Defendant testified, as a witness called by. the plaintiff, that Babcock read it (the paper) and Miller translated it into German, but as he did not understand what Babcock said yhen reading *356the paper, and does not testify what Miller said when translating the paper, and as he testifies that he understood it to be a note for a thousand dollars which they wanted him to sign, the case was left without any evidence of notice to the defendant that the paper was an order upon the fund mentioned. If it was simply a general order, to bind the defendant, it was necessary to bind him that he should accept it in writing. Brill v. Tuttle, 81 N. Y., 457; Crouch v. Muller, 37 St. Rep., 325.
The direction of the verdict for the sum of $173.95 only, being the amount unpaid upon the contract, was right, and the judgment appealed from should be affirmed.
Dwight, P. J., and Macomber, J., concur.