HAND, J.

It must be conceded that the question is a very close one whether the order of Howard upon the defendant, was a draft payable at all events, or a mere appropriation of so much of the contract price for paving, to become due Howard, and only payable out of that fund.

There is some confusion in the cases, but they agree that a mere direction as to the means of reimbursement, as for instance, to charge the amount of the draft to a certain account, does not ordinarily vitiate it as a bill of exchange; and upon such an instrument, if properly accepted, the drawee is liable at all events. In this case however, the order should I think be construed as a direction to pay the $400 only "as per contract" between Howard and the defendant, and hence only out of moneys to become due thereunder. It would not therefore be a direction to pay that sum at all events, but only out of those moneys.

The direction is not distinguishable in principle from that in Munger v. Shannon ( 61 N.Y., 251). If an instruction that the amount, ordered to be paid, should be deducted from a certain fund, whether existing or contingent, makes the order payable only out of that fund, it would seem clear that an order for payment "as per contract," confined the direction for payment to the fund becoming due by the contract. Following therefore the case of Munger v. Shannon ( supra), and without expressing any opinion as to whether the defendant might, or might not be liable upon other grounds, we concur with the General Term that this was an appropriation of the fund in the hands of the defendant and that he was liable to keep and pay over to the plaintiff that amount from the sums, if any, which should become due Howard on the contract for paving.

Affirming the reversal of the judgment for defendant by the General Term, we are, nevertheless of, the opinion that they should not have given judgment absolute for the plaintiff upon the findings. The plaintiff's allegations were all put at issue by the answer and the defendant's counsel now declares that he can disprove some of the most material of these, and of course, it is not impossible but that, on another trial, the plaintiff would fail to establish the facts necessary to his recovery even upon the view of the law taken by the General Term.

It is said, that the findings of facts, not having been excepted to, are to be taken as absolutely true, and assented to by both parties. But it is to be remembered that the defendant obtained judgment at the Special Term upon these findings as they stood, and was not called upon to except to them, or to insert the evidence in the case to show that they were controverted.

Under the well settled rule that where there is an issue upon material facts, which may possibly be decided in more than one way on another trial, there should be a new trial ordered upon the reversal of a judgment by the General Term ( Foot v. Ætna L. Ins. Co., 61 N.Y., 571; Wolstenholme v. Wolstenholme File Mfg. Co., 64 id., 272) I think the judgment ordered by the court below in favor of the plaintiff upon the findings should be reversed.

The judgment of the court below reversing the judgment at Special Term for the defendant must be affirmed, but the judgment for the plaintiff must be reversed, and a new trial ordered, with costs to abide the event.

All concur, except CHURCH, Ch. J., absent.

Ordered accordingly.