Lyon v. New York & New England Railroad, 127 Mass. 101

Lyon v. New York & New England Railroad

127 Mass. 101 | Mass. | 1879

Ames, J.

The St. of 1873, c. 353, is intended “to give a right of action against owners of railroads to persons who perform labor or furnish materials in and for the construction of said roads.” By § 3, it is made necessary that the claimant, within, thirty days after ceasing to perform such labor, should file, in the *103office of the clerk of any city or town in which any of such labor shall have been performed, a written statement, under his oath, of the amount of the debt so due him, and the name of the person or persons for whom or by whose employment the labor was performed. The plaintiff was employed by Dean until November 3,1876, at which time Dean abandoned the work, being then indebted to the plaintiff in the sum of $202.26. After an interval of several days, Gay undertook the completion of the work, and employed the plaintiff upon it until December 20,1876, for all of which labor performed for Gay the plaintiff has been paid in full. It is evident, therefore, that the plaintiff worked under two different contracts, for two different employers, and there was no privity or connection in these contracts between these two employers. In order to avail himself of the benefit of the statute, and to claim under its provisions a right of action against the railroad for labor performed under his contract with Dean, the statement should have been filed with the town clerk within thirty days after ceasing to perform that labor. He cannot cure this difficulty in his case by describing the labor as performed in the employment of Dean and Gay. He was not employed by them jointly.

Whether the labor can properly be said to have been performed in the construction of the railroad, and whether the action was commenced within the sixty days limited by § 5 of the act, are questions which it is unnecessary to decide. It is fatal to the plaintiff’s case that the sworn statement was not filed till after the expiration of the thirty days allowed by § 3.

Judgment affirmed.